Floor Statements

Mr. President, I commend this body for including provisions in the American Recovery and Reinvestment Act of 2009 to energize the fledgling green economy. While I am concerned by the enormous cost of this bill and lack of offsets, I recognize the need for urgent action as we strive to keep and create jobs for those who are suffering because of our failing economy.

Earlier this year, I introduced the Community Revitalization Energy Conservation Act, S. 222, as part of my E4 Initiative aimed at fueling job creation and spurring economic development. I am very pleased that so much of what I proposed in this bill has been included in the economic recovery package. The economic recovery legislation passed by the Senate includes an increase for the bond limit for the Qualified Energy Conservation Bond program from $800 million to $3.2 billion, more than a 300 percent increase. While I proposed increasing the program to $3.6 billion, I thank the chairman of the Finance Committee for including such a significant increase.

The second component of my Community Revitalization Energy Conservation Act would boost job growth and help businesses and homeowners go green by expanding the types of projects that are eligible for the Qualified Energy Conservation Bond program, which was established by Congress last fall. I am pleased the Senate adopted my amendment making this change as part of the economic recovery package.

Business and labor leaders and others in Wisconsin have told me about the tremendous potential for energy efficiency retrofits to generate more green-collar jobs. And already, Wisconsin communities are beginning to pursue these improvements. My amendment will allow Wisconsin to launch programs--modeled after Milwaukee's proposed Me2 program--throughout the State by utilizing the tax credit bonds allocated to Wisconsin under the Qualified Energy Conservation Bond program.

My amendment specifically ensures that States and local governments can increase the number of building retrofits by eliminating significant financial barriers facing homeowners and businesses interested in making energy efficiency and conservation improvements. It does this by allowing energy efficiency projects to be performed as part of a ``green community program'' using grants, loans, or other repayment mechanisms, such as periodic fees included on a utility bill or municipal bill. By using utilities as intermediaries, States and localities can ensure homeowners and businesses do not incur upfront costs and can gradually pay back the costs of the energy efficiency retrofits through their electricity or water bills at a rate that reflects energy savings. For example, if a monthly energy bill before energy efficiency improvements is $150 and with improvements the energy costs are down to $110, then at most a homeowner or business would pay $40 monthly towards paying off the costs of the energy efficiency building retrofits.

Presently, buildings account for 40 percent of total U.S. energy consumption and 70 percent of U.S. electricity consumption so there are significant gains to be made with energy efficiency. Projects that could qualify for the funding include heat-saving measures like insulation, electricity-saving measures like lighting and appliances, water-saving measures like low-flow shower heads and toilets, renewable energy generating devices like photovoltaic solar installations, storm water management like rain barrels, or other measures that also result in reduced energy use.

My amendment will allow Qualified Energy Conservation Bonds to support these partnerships among cities, utilities, homeowners, and businesses to make energy efficiency improvements within more people's reach and put Americans to work.

I thank Senator Debbie Stabenow for cosponsoring this amendment, and I appreciate the endorsements from the Air Conditioning Contractors of America, American Council for an Energy Efficient Economy, Apollo Alliance, National Electrical Contractors Association, National SAVE Energy Coalition, and the Plumbing-Heating-Cooling Contractors-National Association.

I am pleased my provision was included, offering another opportunity to help jumpstart the green economy and bring relief to our citizens as we reinvest in America. I intend to work with conferees to ensure the provision is retained and look forward to its enactment as part of economic recovery legislation.

I am also pleased that funding was included for several other energy programs that I sought funding for including the Energy Efficiency and Conservation Block Grant Program and the Weatherization Assistance Program, both of which can quickly generate jobs and generate lasting energy savings.

Mr. President, I am proud to join Senators Leahy, Specter, and Kennedy in introducing the State Secrets Protection Act of 2009. This bill establishes uniform procedures for courts to use when evaluating governmental assertions of the state secrets privilege in civil litigation. It takes an important step toward restoring the rule of law by ensuring that the privilege will be used only to protect true state secrets, and not as a means for the Government to avoid accountability for its actions.

In a democracy, the public should have the right to know what its government is doing. That should be the rule, and secrecy should be the rare exception, reserved for the very few cases in which the national security is truly at stake. Unfortunately, the Bush administration stood that presumption on its head, cloaking its actions in secrecy whenever possible and grudgingly submitting to public scrutiny only when it couldn't be avoided. The ``state secrets'' privilege was a favorite weapon in that administration's arsenal of secrecy.

None of us disputes that information may properly be withheld as a ``state secret'' when disclosing the information would cause grave damage to national security. The problem arises when the privilege is abused and invoked to shield Government wrongdoing. Indeed, that is exactly what happened the first time the Supreme Court recognized the privilege in 1953, in the case of United States v. Reynolds. The Government had been sued after a military aircraft crash killed nine people, and it invoked the ``state secrets'' privilege to shield an internal investigative report. Decades later, when the report was declassified, it revealed nothing that could fairly be characterized as a ``state secret'' but it did reveal faulty maintenance of the aircraft.

Abuses like these can be prevented, but only if the courts fulfill their responsibility to carefully review claims

of privilege. In the Reynolds case, no court actually looked at the supposedly privileged report. That simple step would have prevented the miscarriage of justice that ensued. Yet, despite the fact that courts have the acknowledged authority to order in camera review of the evidence, fewer than one third of courts have actually exercised that option when the Government has asserted the ``state secrets'' privilege. And a host of other tools available to the courts to evaluate and respond to claims of privilege have been employed inconsistently at best, resulting in a confused body of case law that preserves accountability in some cases while granting the government a ``get out of jail free'' card in others.

In the last Congress, Senators Kennedy, Specter, and Leahy introduced the State Secrets Protection Act to standardize the procedures courts use in cases where the Government asserts the ``state secrets'' privilege and to ensure adequate scrutiny of such claims. The bill was reported by the Judiciary Committee last April after extensive debate. Much of the credit for this legislation goes to Senator Kennedy, whose unfailing commitment to the rule of law inspired both the concept and the particulars of this bill. I had the honor of working with him to develop this legislation, and it is a pleasure now to cosponsor its reintroduction, with Senator Leahy as the lead sponsor.

The bill makes use of existing tools that are available to the courts when handling national security information. Perhaps the most fundamental of these is in camera review of the allegedly privileged evidence, which the bill requires. The idea here is simple: Determining what information the evidence contains is the threshold step in determining whether that evidence is privileged. This step is far too important to be left to a party with a built-in conflict of interest. Just as a court would never accept a private litigant's description of his or her evidence in lieu of the evidence itself, the court should not rely solely on the Government's description of the evidence when the Government has a clear interest in the outcome of the case.

That courts may examine sensitive national security information in camera is beyond any serious dispute. Since 1974, the Freedom of Information Act has allowed courts to engage in in camera review of any records that the Government claims are exempt from disclosure under the Act. Courts have also reviewed the most sensitive national security information in criminal cases, pursuant to the Classified Information Procedures Act. In fact, courts handle highly classified information on a regular basis. There is no legitimate justification for skipping this crucial step.

The bill also requires courts to hold in camera hearings on the question of whether the evidence is privileged. Based on the court's previous review of the evidence, the court may conduct the hearing ex parte i.e., without any participation by the plaintiff or the plaintiff's lawyers but only if the court finds that national security cannot adequately be protected through other means. For example, the court may limit attendance at the hearing to attorneys with the requisite clearances, or the court may appoint a guardian ad litem to represent the plaintiff's interests at the hearing. The bill thus preserves the adversarial process to the maximum extent consistent with protecting national security.

That's important, for at least two reasons. First, our justice system is premised on the notion of fairness, and that principle of fairness is undermined any time a party to litigation is excluded from the proceedings. But fairness isn't the only principle at stake. For all its complications and occasional inefficiencies, the adversarial process remains the best system for getting to the truth. If only one party is present at the hearing, the court is more likely to reach the wrong result it's as simple as that.

Taken together, the requirements of in camera review of the evidence and an in camera hearing ensure that the Government's claim of privilege is evaluated fairly and thoroughly. A fair, thorough review is necessary, because the bill makes absolutely clear that once evidence is found to be privileged, it cannot be disclosed, however great the plaintiff's need for the evidence may be. The interest of national security, once the court determines that interest is truly at stake, is given absolute protection.

That may mean the end of the lawsuit but it may not. As Congress recognized when it passed the Classified Information Procedures Act, courts have many tools at their disposal to move litigation forward even when some of the evidence cannot be disclosed. For example, courts can require the Government to submit non-privileged substitutes for the privileged evidence, such as summaries of the evidence, redacted versions, or admissions of certain facts. Under the bill, where the court finds that it would be feasible for the Government to craft a non-privileged substitute for privileged evidence, it may order the Government to do so. Again, however, the court can never compel the production of privileged evidence. If the Government refuses to craft a non-privileged substitute, the remedy is the same one that exists in the CIPA: the court may resolve the relevant issue of fact or law against the Government.

The bill does not allow courts to dismiss lawsuits at the pleadings stage based on a claim of ``subject matter privilege.'' As the Fourth Circuit has explained, ``subject matter privilege'' applies if the case is so pervaded with state secrets, it would be impossible to conduct the lawsuit without revealing them. Such cases undoubtedly exist. But until all of the relevant evidence is identified and the privilege determinations are made, any conclusion that a case will be pervaded with state secrets is simply a prediction. Only by proceeding through discovery and pre-trial hearings can that prediction be replaced with certainty. And this can be done without revealing a single state secret, since the bill allows privilege determinations to be made in camera and ex parte.

The bill does not change the ordinary rules of summary judgment. If a court determines, after discovery and pre-trial hearings are completed, that the key evidence is privileged and the plaintiff cannot prove his or her case using non-privileged evidence, then the Government may move for summary judgment and prevail. The bill thus retains the concept of ``subject matter privilege'' it simply requires a more thorough testing of the claim.

Nor does the bill ever put the Government to the ``Hobson's choice'' of either revealing privileged evidence or conceding the lawsuit. Under the bill, even if the plaintiff has made out a prima facie case, the court can and must dismiss the lawsuit if the Government would need to disclose privileged evidence in order to present a valid defense. The Government's interests, as well as the national security, are thus scrupulously protected.

Finally, the bill facilitates congressional oversight by requiring the executive branch to share with the Judiciary and Intelligence Committees the documents it makes available to the courts: the Government affidavit explaining why the evidence is privileged, the index of privileged evidence, and, where requested, the evidence itself. This information will help Congress monitor the Government's use of the privilege and assess the need for any further legislation.

Perhaps even more important, it will provide a means of accountability in those cases where the privilege prevents a court from ruling on allegations of Government wrongdoing. The idea of simply letting such allegations go unaddressed should be profoundly troubling to anyone who respects the rule of law yet for eight years, the response of the Bush administration was little more than a shrug. This bill rejects such a cavalier attitude toward the rule of law. The citizens of this country should never again be told that there is simply no remedy for wrongs their Government has committed. In cases where the courts cannot provide that remedy, then Congress should step in and providing the necessary information to the relevant committees of Congress will enable that to happen.

I am pleased that both the new Attorney General, Eric Holder, and the nominee for Associate Attorney General, Thomas Perrelli, have indicated a willingness to review this bill and work with us on it. I hope that it will be possible to fashion legislation that the Administration can support. The public

deserves to have confidence that the state secrets privilege is not going to be used to cover up Government misconduct. This bill provides the courts a system for resolving claims of privilege that will inspire that confidence.

A country where the Government need not answer to allegations of wrongdoing is a country that has strayed dangerously far from the rule of law. We must ensure that the ``state secrets'' privilege does not become a license for the Government to evade the laws that we pass. This bill accomplishes that goal, while simultaneously providing the strongest of protections to those items of evidence that truly qualify as state secrets. I urge all of my colleagues to support the rule of law by supporting this legislation.

Mr. President, I am proud to join Senators Leahy, Specter, and Kennedy in introducing the State Secrets Protection Act of 2009. This bill establishes uniform procedures for courts to use when evaluating governmental assertions of the state secrets privilege in civil litigation. It takes an important step toward restoring the rule of law by ensuring that the privilege will be used only to protect true state secrets, and not as a means for the Government to avoid accountability for its actions.

In a democracy, the public should have the right to know what its government is doing. That should be the rule, and secrecy should be the rare exception, reserved for the very few cases in which the national security is truly at stake. Unfortunately, the Bush administration stood that presumption on its head, cloaking its actions in secrecy whenever possible and grudgingly submitting to public scrutiny only when it couldn't be avoided. The ``state secrets'' privilege was a favorite weapon in that administration's arsenal of secrecy.

None of us disputes that information may properly be withheld as a ``state secret'' when disclosing the information would cause grave damage to national security. The problem arises when the privilege is abused and invoked to shield Government wrongdoing. Indeed, that is exactly what happened the first time the Supreme Court recognized the privilege in 1953, in the case of United States v. Reynolds. The Government had been sued after a military aircraft crash killed nine people, and it invoked the ``state secrets'' privilege to shield an internal investigative report. Decades later, when the report was declassified, it revealed nothing that could fairly be characterized as a ``state secret'' but it did reveal faulty maintenance of the aircraft.

Abuses like these can be prevented, but only if the courts fulfill their responsibility to carefully review claims

of privilege. In the Reynolds case, no court actually looked at the supposedly privileged report. That simple step would have prevented the miscarriage of justice that ensued. Yet, despite the fact that courts have the acknowledged authority to order in camera review of the evidence, fewer than one third of courts have actually exercised that option when the Government has asserted the ``state secrets'' privilege. And a host of other tools available to the courts to evaluate and respond to claims of privilege have been employed inconsistently at best, resulting in a confused body of case law that preserves accountability in some cases while granting the government a ``get out of jail free'' card in others.

In the last Congress, Senators Kennedy, Specter, and Leahy introduced the State Secrets Protection Act to standardize the procedures courts use in cases where the Government asserts the ``state secrets'' privilege and to ensure adequate scrutiny of such claims. The bill was reported by the Judiciary Committee last April after extensive debate. Much of the credit for this legislation goes to Senator Kennedy, whose unfailing commitment to the rule of law inspired both the concept and the particulars of this bill. I had the honor of working with him to develop this legislation, and it is a pleasure now to cosponsor its reintroduction, with Senator Leahy as the lead sponsor.

The bill makes use of existing tools that are available to the courts when handling national security information. Perhaps the most fundamental of these is in camera review of the allegedly privileged evidence, which the bill requires. The idea here is simple: Determining what information the evidence contains is the threshold step in determining whether that evidence is privileged. This step is far too important to be left to a party with a built-in conflict of interest. Just as a court would never accept a private litigant's description of his or her evidence in lieu of the evidence itself, the court should not rely solely on the Government's description of the evidence when the Government has a clear interest in the outcome of the case.

That courts may examine sensitive national security information in camera is beyond any serious dispute. Since 1974, the Freedom of Information Act has allowed courts to engage in in camera review of any records that the Government claims are exempt from disclosure under the Act. Courts have also reviewed the most sensitive national security information in criminal cases, pursuant to the Classified Information Procedures Act. In fact, courts handle highly classified information on a regular basis. There is no legitimate justification for skipping this crucial step.

The bill also requires courts to hold in camera hearings on the question of whether the evidence is privileged. Based on the court's previous review of the evidence, the court may conduct the hearing ex parte i.e., without any participation by the plaintiff or the plaintiff's lawyers but only if the court finds that national security cannot adequately be protected through other means. For example, the court may limit attendance at the hearing to attorneys with the requisite clearances, or the court may appoint a guardian ad litem to represent the plaintiff's interests at the hearing. The bill thus preserves the adversarial process to the maximum extent consistent with protecting national security.

That's important, for at least two reasons. First, our justice system is premised on the notion of fairness, and that principle of fairness is undermined any time a party to litigation is excluded from the proceedings. But fairness isn't the only principle at stake. For all its complications and occasional inefficiencies, the adversarial process remains the best system for getting to the truth. If only one party is present at the hearing, the court is more likely to reach the wrong result it's as simple as that.

Taken together, the requirements of in camera review of the evidence and an in camera hearing ensure that the Government's claim of privilege is evaluated fairly and thoroughly. A fair, thorough review is necessary, because the bill makes absolutely clear that once evidence is found to be privileged, it cannot be disclosed, however great the plaintiff's need for the evidence may be. The interest of national security, once the court determines that interest is truly at stake, is given absolute protection.

That may mean the end of the lawsuit but it may not. As Congress recognized when it passed the Classified Information Procedures Act, courts have many tools at their disposal to move litigation forward even when some of the evidence cannot be disclosed. For example, courts can require the Government to submit non-privileged substitutes for the privileged evidence, such as summaries of the evidence, redacted versions, or admissions of certain facts. Under the bill, where the court finds that it would be feasible for the Government to craft a non-privileged substitute for privileged evidence, it may order the Government to do so. Again, however, the court can never compel the production of privileged evidence. If the Government refuses to craft a non-privileged substitute, the remedy is the same one that exists in the CIPA: the court may resolve the relevant issue of fact or law against the Government.

The bill does not allow courts to dismiss lawsuits at the pleadings stage based on a claim of ``subject matter privilege.'' As the Fourth Circuit has explained, ``subject matter privilege'' applies if the case is so pervaded with state secrets, it would be impossible to conduct the lawsuit without revealing them. Such cases undoubtedly exist. But until all of the relevant evidence is identified and the privilege determinations are made, any conclusion that a case will be pervaded with state secrets is simply a prediction. Only by proceeding through discovery and pre-trial hearings can that prediction be replaced with certainty. And this can be done without revealing a single state secret, since the bill allows privilege determinations to be made in camera and ex parte.

The bill does not change the ordinary rules of summary judgment. If a court determines, after discovery and pre-trial hearings are completed, that the key evidence is privileged and the plaintiff cannot prove his or her case using non-privileged evidence, then the Government may move for summary judgment and prevail. The bill thus retains the concept of ``subject matter privilege'' it simply requires a more thorough testing of the claim.

Nor does the bill ever put the Government to the ``Hobson's choice'' of either revealing privileged evidence or conceding the lawsuit. Under the bill, even if the plaintiff has made out a prima facie case, the court can and must dismiss the lawsuit if the Government would need to disclose privileged evidence in order to present a valid defense. The Government's interests, as well as the national security, are thus scrupulously protected.

Finally, the bill facilitates congressional oversight by requiring the executive branch to share with the Judiciary and Intelligence Committees the documents it makes available to the courts: the Government affidavit explaining why the evidence is privileged, the index of privileged evidence, and, where requested, the evidence itself. This information will help Congress monitor the Government's use of the privilege and assess the need for any further legislation.

Perhaps even more important, it will provide a means of accountability in those cases where the privilege prevents a court from ruling on allegations of Government wrongdoing. The idea of simply letting such allegations go unaddressed should be profoundly troubling to anyone who respects the rule of law yet for eight years, the response of the Bush administration was little more than a shrug. This bill rejects such a cavalier attitude toward the rule of law. The citizens of this country should never again be told that there is simply no remedy for wrongs their Government has committed. In cases where the courts cannot provide that remedy, then Congress should step in and providing the necessary information to the relevant committees of Congress will enable that to happen.

I am pleased that both the new Attorney General, Eric Holder, and the nominee for Associate Attorney General, Thomas Perrelli, have indicated a willingness to review this bill and work with us on it. I hope that it will be possible to fashion legislation that the Administration can support. The public

deserves to have confidence that the state secrets privilege is not going to be used to cover up Government misconduct. This bill provides the courts a system for resolving claims of privilege that will inspire that confidence.

A country where the Government need not answer to allegations of wrongdoing is a country that has strayed dangerously far from the rule of law. We must ensure that the ``state secrets'' privilege does not become a license for the Government to evade the laws that we pass. This bill accomplishes that goal, while simultaneously providing the strongest of protections to those items of evidence that truly qualify as state secrets. I urge all of my colleagues to support the rule of law by supporting this legislation.

Madam President, I am deeply troubled by the enormous debt this legislation is creating for future generations. Under almost any other circumstance I would vote against this bill for that very reason. But our economy is in desperate shape, and we are facing the worst economic crisis since World War II.

Since the recession began a little over a year ago, 3.6 million jobs have been lost, with nearly half of those coming just in the last 3 months. The unemployment rate is 7.6 percent and rising, and the number of unemployed is approaching 5 million.

The deeply flawed financial regulatory policies of the last two decades paved the way for this economic collapse, and the budget policies of the last 8 years have left us ill-equipped to address it without running up hundreds of billions in debt.

There are no good options, but doing nothing is simply unacceptable.

The bill on which we will vote today is far from perfect. On that there is nearly unanimous agreement. The question before us, then, is whether to vote against this bill and hope we can produce legislation that will be more effective, or to support this bill and begin to do something, however imperfect, to stop the economy from plunging further.

Given the current makeup of the Senate, it is extremely unlikely that the Senate will produce a better bill. We could work on it for another couple of weeks, but the changes would be small. It is far more important that we act to prime the economic pump, and that we do so soon. And for that reason, I will support this far from perfect measure, and hope that it will be improved in conference.

But this bill should not set a new precedent for budget policies. Once we stop the economic plunge, we absolutely must return to a sustainable budget policy, one that will reduce the mountain of debt we have left to our children and grandchildren.

Mr. President, this year's Black History Month comes at a remarkable time that will be marked in the history books for generations to come. The inauguration of our Nation's first African- American President, Barack Obama, and confirmation of the first African-American Attorney General, Eric Holder, demonstrate our Nation's boundless capacity to change. All Americans have great cause to celebrate during this year's Black History Month our groundbreaking progress.

As Civil rights icon Representative John Lewis observed, ``When he [President Obama] was born, people of color couldn't register to vote in many quarters of the deep South.'' Now, an African-American holds the most distinguished elected position in our country--President of the United States of America. This month is a time to reflect on the distance we have traveled, and the civil rights we have successfully fought for, in just one generation.

But it is also not a time to become complacent. Americans still encounter injustices solely because of their background or the color of their skin. There still exist large and unacceptable disparities in the opportunities afforded many Americans for good education, health care, employment, and more. Black History Month provides an opportunity for Congress to remember that addressing these injustices and disparities must be an important goal for Congress in the years ahead.

So this month let us reflect on our past triumphs, take note of this significant historical moment for our Nation, and look forward to an even brighter future as we continue working to ensure equality for all Americans.

Mr. President, while the current economic downturn did not begin in rural America, the full brunt of the impact is certainly being felt by many of our farmers and small rural communities now. The dairy sector has been especially hard hit in Wisconsin and across the Nation as evidenced by a call last week for the USDA to take additional actions to help remove a surplus of dairy products from our markets in a letter led by the senior Senator from Wisconsin and myself and signed by 33 other Members including the distinguished chairman of the Agriculture Committee. A provision in the current legislation also takes another important step to help soften the landing for farmers facing drops in the prices they receive of approximately 50 percent as we are seeing in dairy over the recent months. I am very appreciative of the fact that the Appropriations Committee includes critically needed farm loan funding for direct and guaranteed ownership and operation loans for our Nation's family farmers who are struggling along with everyone else through this economic recession. It is critical they get access to the financing they need to stay in business and keep their operations intact. It is my assumption that the interest of both the Appropriations and the authorizing committee in having this farm loan funding in the bill is to ensure that current farming operations and facilities can continue to operate and that small family farms and beginning and minority farmers have access to capital to secure new farming opportunities. I also think it is important to

ensure that USDA loan programs such of these do not inadvertently encourage expanded production in sectors of agriculture, including dairy, where prices are depressed and farmers are trying to cope with revenues below the cost of production prices. I hope to continue to work with the chairman of both the Agriculture Committee and Agriculture Appropriations Subcommittee to oversee the utilization of these funds to minimize any inadvertent negative effects if they exist.

Mr. President, I ask unanimous consent the pending amendment be set aside so that I may call up amendment No. 485.

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

Mr. President, I ask unanimous consent to add Senator Stabenow as a cosponsor of the amendment.

Mr. President, this amendment is based on my Community Revitalization Energy Conservation

Act, S. 222, and I am very pleased to be joined by the Senator from Michigan in offering it.

This amendment will address our energy and economic challenges while putting Americans to work. Supporting energy efficiency improvements to America's homes and businesses is one of the smartest ways we can face these challenges to create jobs and reduce our energy consumption.

The goal of this amendment is to decrease energy consumption, create green jobs, and increase the number of energy efficient projects by reducing the significant cost barriers, such as the prohibitive upfront costs to homeowners and businesses who want to make improvements to their homes and buildings.

Aggressively pursuing energy efficiency will help put us on a path toward energy security. Presently, buildings account for 40 percent of total U.S. energy consumption and 70 percent of U.S. electricity consumption. In order for us to decrease our reliance on fossil-based fuels, this has to change. We can achieve 20 to 30 percent energy reduction through better insulation, lighting, and HVAC equipment and controls. Potentially, we have the opportunity to save over $200 billion through building efficiency alone.

The economic recovery package increases the bond limit for the Qualified Energy Conservation Bond Program, which supports conservation upgrades to buildings. It does that by taking that number from $800 million to $3.2 billion. I support this provision, and the Feingold- Stabenow amendment builds on it by modifying the Qualified Energy Conservation Bond Program to include conservation in private buildings using a financing mechanism that would eliminate the prohibitive upfront costs of energy efficiency improvements between homeowners and businesses.

Meanwhile, the amendment would allow State and local governments to promote energy efficiency products by use of electric and water utilities as intermediaries. By using utilities as intermediaries, homeowners and businesses incur no upfront costs and they can then gradually pay back the cost of the energy efficiency retrofits through their electricity or water bills at a rate that does not exceed what they have historically paid.

For example, if a monthly water bill before improvements is $150, and with the improvement the energy costs are down to $110, at most a homeowner or business would pay $40 more monthly toward paying off the cost of the energy efficiency building retrofits which were made possible by this program.

This has worked. Already several States and cities, including Hawaii, Michigan, Berkeley, CA, and Babylon, NY, are beginning to tackle the issue of energy efficiency in residential buildings. In my home State of Wisconsin, efforts are already underway in Milwaukee to use this novel financing mechanism to promote energy efficiency. In partnership with the Center on Wisconsin Strategy, the city is pursuing Me2, or the Milwaukee Energy Efficiency Program. Initial estimates from the Center on Wisconsin Strategy suggest that if you could retrofit nearly all of the existing housing stock in Milwaukee, an initial investment of just under $250 million, it could result in annual energy savings of over $80 million.

All of these efforts to conserve energy require investments in time and money. By combining efforts on two of our greatest challenges, energy and employment, we can create a great opportunity. Energy efficiency and conservation are, of course, in our national interest for our long-term economic well-being, for the health and safety of our citizens and the world as we mitigate the effects of climate change, and for our independence and security as well.

This amendment is endorsed by many key groups, including the Apollo Alliance, the American Council for an Energy Efficient Economy, Air Conditioning Contractors of America, National Electrical Contractors Association, and the Plumbing-Heating-Cooling Contractors National Association.

I thank the Senator from Montana, Senator Baucus, for working with me on this amendment and for his support on the amendment. I urge my all of my colleagues to support it. It will support green jobs and help get our economy on the right track.

Mr. President, I yield the floor.

Madam President, this amendment establishes a new 60- vote point of order against unauthorized earmarks on appropriations bills and requires recipients of Federal funds to disclose their lobbying expenses. Opponents argue this point of order does nothing about so-called Presidential earmarks or earmarks on authorizing bills. I am happy to consider a proposal targeting those things, but taxpayers aren't going to buy the excuse that I voted against it because it wasn't tough enough.

Last year, President Obama said:

We can no longer accept the process that doles out earmarks

based on a Member of Congress's seniority rather than the

merit of the project. We can no longer accept an earmarks

process that has become so complicated to navigate the

municipality or nonprofit group has to hire high-priced D.C.

lobbyists.

My colleagues, if we want to do something about earmarks, vote for this amendment.

Mr. President, I ask unanimous consent that the pending amendment be set aside.

I ask unanimous consent that the pending business be set aside and that we take up amendment No. 140.

Madam President, I am pleased to be working with a tripartisan group on this issue: Senators McCaskill, Graham, Lieberman, Burr, and Coburn and, of course, most significantly, how great it is to be working again with my friend John McCain. This is an issue, in addition to ones we have worked on over the years, that he and I care deeply about, trying to deal with the abuse of earmarks. It is a real cancer in our budget system.

Our amendment is straightforward. It establishes a 60-vote point of order against unauthorized earmarks in appropriations bills. It also requires that recipients of Federal funding disclose what they spend on lobbying.

Before arguing the need for the amendment, I want to briefly acknowledge that we have actually come a long way in recent years in disclosing earmarks. In the last Congress, we passed the Honest Leadership and Open Government Act of 2007, more commonly referred to as the ethics and lobbying reform bill. That measure was the most significant earmark reform Congress has ever enacted, and it reflected what I think is a growing recognition by Members that the business-as- usual days of using earmarks to avoid the scrutiny of the authorizing process or of competitive grants are coming to an end. It was no accident that the two Presidential nominees of the two major parties were major players on that reform package. It would be a mistake not to acknowledge how far we have come. The Honest Leadership and Open Government Act was an enormous step forward. I commend the majority leader, Senator Reid, as well as our former colleague from Illinois, President Obama, for their work in ensuring that landmark bill passed. But it would be a mistake not to admit that we still have a long way to go.

Our amendment will build on the significant achievements of the 110th Congress by moving from what has largely

been a system designed to dissuade the use of earmarks through disclosure to one that actually makes it much more difficult to enact them. The principal provision of this amendment is the establishment of a point of order against unauthorized earmarks on appropriations bills. Obviously, to overcome the point of order, supporters of the unauthorized earmark will need to obtain a supermajority of the Senate. As a further deterrent, the bill provides that any earmarked funding which is successfully stricken from the appropriations bill will be unavailable for other spending in the bill. It isn't the sort of a thing where you can borrow from one piece and fix it with another. You have to reduce the bill by that amount.

As I mentioned earlier, the amendment also requires all recipients of Federal funds to disclose any money spent on registered lobbyists. It is only fair that the American people know which entities receiving Federal funding are spending money to lobby Congress. There may be no connection between the lobbying and the Federal funding, but a little transparency would help everyone decide that for themselves.

I truly am delighted that President Obama is committed to keeping this stimulus package free of earmarks. We can ensure that his commitment is made good on future appropriations bills by adopting this amendment.

I yield the floor.

Mr. President, I would like to respond to some comments that were made about the----

Mr. BAUCUS addressed the Chair.

Mr. President, if there was an arrangement that I am unaware of, I would defer.

Mr. President, I was unaware of that, and I defer to my friend from Arizona.

Mr. President, I would like to respond to some comments that were made about the amendment I am offering with Senator McCain and others. Just to remind my colleagues, our amendment creates a point of order against unauthorized earmarks in appropriations bills. Again, it applies to unauthorized earmarks. If a provision is not both an earmark, as defined by the Senate Rule 44, and unauthorized, this point of order does not apply.

For the purposes of this amendment, we consider a program to have been authorized even if that authorization has only passed the Senate during the same Congress as the proposed spending item.

Moreover, as a safeguard we have taken care to also exempt programs that may have had their authorization lapse, but which are clearly needed and are included in the President's budget request.

The Senator from Hawaii noted, for example, that we haven't considered an Intelligence authorization bill for some time, or a Foreign Operations and State Department authorization bill. He argued that the programs covered by those lapsed authorizations, or programs that have never been authorized, would be subject to this point of order.

They would not be subject to the point of order established by this amendment.

First, to my knowledge, few if any of the programs under those measures would be considered ``congressionally directed spending,'' and thus they could be funded without this point of order applying. Second, programs covered by those authorizing measures are typically included in the President's budget request whether or not the authorization has lapsed and, as such, are fully exempt from this point of order.

Let me reiterate, in order to be subject to our point of order, the program must be an earmark; that is, ``congressionally directed spending'' as defined in Senate rules, and it must not be authorized or included in the President's budget request.

The Senator from Hawaii used the specter of an authorization bill being filibustered to stop the ability of Congress to use its power of the purse as an argument against this amendment. Once again, if a program is not considered to be ``congressionally directed spending'' it will never be subject to this point of order, and Congress is free to fund it or not as it sees fit.

The Senator from Hawaii also raised the concern that this amendment creates a point of order against unauthorized earmarks added to conference reports. Darn right it does. We shouldn't be adding earmarks to conference reports. Under the amendment, if a point of order is sustained against a provision in a conference report, that provision would be stricken, but the legislative process would continue with no more potential roadblocks than exist currently. The conference report would revert to a nonamendable Senate amendment, which would be the conference agreement without the objectionable material, and the measure could then be sent back to the House. It won't tie the two Houses up in knots, as the Senator from Hawaii suggested. The House will accept the Senate amendment or it won't. If the House makes a further change, the Senate can consider it. That is the regular order of business around here. The best way to avoid this issue is not to slip earmarks into conference reports.

The argument was also made that if our amendment was adopted, then authorizers would have the power to earmark, but no one else. This amendment doesn't give the power to earmark to anyone. All it does is return the Senate to what should be the proper way to consider special interest spending. If you want some special project for your State or district, the authorizing committee of jurisdiction should review it, and legislation authorizing it should pass both Houses and be signed into law. That is the regular scrutiny we should require of special interest spending. Then the Appropriations Committee can decide whether and at what level to fund the authorized program. That is the way the system is supposed to work. Unfortunately, we now have an alternative, short-cut process, whereby Members stick spending provisions into appropriations bills without any scrutiny whatsoever. That is a recipe for waste, fraud and abuse.

I have great respect for the Senator from Hawaii, and I appreciate his willingness to debate my proposal on the merits. I wish more of my colleagues were willing to have this kind of public discussion about earmarks. But I disagree with his arguments. This is a sensible amendment. It will put some teeth into the earmark rules we adopted in the last Congress. As we consider

a bill that proposes to increase our debt to the tune of $800 billion, we should be doing all we can to assure our constituents that their money is not being wasted on pork-barrel spending. One way we can do that is to pass the Feingold-McCain-McCaskill amendment, and I urge my colleagues to support it.

I yield the floor.

Mr. President, I ask unanimous consent that the pending amendment be set aside.

I have an amendment, No. 140, and I ask for its immediate consideration.

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

I am pleased to be joined by the Senator from Arizona, Mr. McCain; the Senator from Missouri, Mrs. McCaskill; the Senator from South Carolina, Mr. Graham; the Senator from Connecticut, Mr. Lieberman; and the Senator from North Carolina, Mr. Burr, as cosponsors of this amendment.

I now ask unanimous consent that the Senator from Oklahoma, Mr. Coburn, be added as a cosponsor.

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

Madam President, this is a momentous day for the Senate. We are about to confirm a nominee for Attorney General of the United States who with two short declarative sentences uttered at his confirmation hearing--without caveats, without parsing words, without equivocation--signaled a new direction for the Department of Justice and a turning of the page in the constitutional history of this country.

``Waterboarding is torture.''

``No one is above the law.''

With these simple words, Eric Holder reassured the Nation that the Department of Justice will be run by someone who believes in the rule of law and in impartial justice. It is sad, of course, that this is something remarkable. But that is where the last 8 years have left us.

The election of 2008 had many consequences. But none is more important than a chance to restore the rule of law and repair the damage to the Department of Justice that has been done by the past administration. Eric Holder is well equipped to take on this important and difficult task for three reasons.

First, he has spent over 25 years pursuing justice in public service, as a trial attorney in the Public Integrity Section of the Department, as a DC Superior Court judge, as U.S. attorney for the District of Columbia, and as Deputy Attorney General. He knows the Department of Justice as well as any person alive, he respects its history, and he has the respect and support of career lawyers in the Department and former Attorneys General and Deputy Attorneys General from both parties.

Second, he appears to have the independence and strength of character needed to fulfill the special role that the Attorney General has in the President's Cabinet. He prosecuted powerful members of his own party when working in the Public Integrity Section and

as U.S. attorney. He recommended expanding the scope of Ken Starr's investigation of President Clinton. This record indicates that Mr. Holder understands the difference between being the people's lawyer and being the President's lawyer.

Third, he understands the need to revitalize the traditional missions of the Department--fighting crime, protecting civil rights, preserving the environment, and ensuring the fairness of the marketplace--while at the same time devoting himself to protecting the American people from a terrorist attack. I am optimistic that he will fight for the resources and the policies needed to do justice. Similarly, he understands that security and liberty shouldn't be balanced or traded off against each other. They must be twin goals, both achievable, together, with hard work and dedication to our national values. I was struck by words from a speech Mr. Holder made in 2005, after he had left the Government:

Those who tell us that we must engage in warrantless

domestic surveillance, ``enhanced interrogation'' or

``extraordinary rendition'' or we cripple ourselves in

combating terrorism offer a false choice. There is simply no

tension between an effective fight against those who have

sworn to harm us and a respect for our most honored civil

liberties traditions.

I could not agree more. I am very pleased that a person who so strongly and unapologetically believes in the promise of our Constitution, now more than ever, will soon be the Attorney General of the United States.

Let me say just a word about the Marc Rich pardon controversy, which is one of the areas on which opponents of Mr. Holder's nomination have focused. I thought that pardon was a misuse of the President's power, and I said so at the time. Mr. Holder did not exercise his role in the pardon process with the care or diligence he should have, and I appreciate the concerns that have been expressed about his involvement in this matter. But it is significant that, starting shortly after the pardon and continuing to this day, Eric Holder actually stood up and admitted that he made mistakes.

We have seen far too little of that in the past 8 years from the leadership at the Department of Justice and from the Bush administration as a whole for that matter. Months and months of work on the Judiciary Committee was needed, essentially, because Attorney General Gonzales insisted that nothing he did in connection with the U.S. attorney firings was a mistake. Our country cannot afford leadership like that at the Department any more. The problems we face are too grave and too complicated for our leaders to insist on defending indefensible conduct or continuing with policies that aren't working simply because they don't want to admit they were wrong.

Madam President, just a little under 8 years ago, I voted for the nomination of John Ashcroft to be President Bush's first Attorney General. I did so because despite significant policy differences, and not insignificant criticism of some of his actions as a Senator, I believed that he was qualified for the job, and, most important, because I believed that a President is due great deference in filling his Cabinet. I still believe that today. I am pleased that many of my colleagues on the Republican side have decided to show that same deference to President Obama. Eric Holder is highly qualified for this position, his overall record and testimony suggest he will exercise his responsibilities with care and judgment, and he is the President's choice. He should be confirmed.

Mr. President, I am pleased that the Senate has successfully passed the reauthorization of a popular program that has reduced the number of uninsured children in our country by over 7 million. The Children's Health Insurance Program has helped lower the rate of uninsured low-income children by one-third since its enactment in 1997. That is a huge accomplishment, and has helped address a problem in our country that is unacceptable--the millions of families lacking insurance. Moreover, while the bill has a price tag of roughly $31 billion over 4\1/2\ years, it is fully offset and would cover over 4 million more uninsured, low-income children. This program, according to CBO and numerous economists, is the most efficient method of getting health care insurance to low-income kids and parents, and that means CHIP provides the best coverage available for low-income families.

In my home State of Wisconsin, CHIP is known as BadgerCare and it provides health insurance for over 370,000 children and 17,000 pregnant women. My State has done a very good job of covering uninsured families, and the positive effects of this program are felt at schools, in the workforce, and at home. This bill helps support Wisconsin's efforts and provides low-income children in my State with better access to preventive care, primary care, and affordable care. The end result is healthier families. BadgerCare is vital to the well-being of many families in Wisconsin and I am very pleased that this bill supports the program in my State.

I am very pleased that Congress has taken a first step to relieve States from unnecessary and burdensome barriers to enrolling low-income children. The onerous citizenship documentation requirements established in the 2005 Deficit Reduction Act, DRA, are keeping hundreds of thousands of eligible beneficiaries from the health care they need. This provision has created a serious new roadblock to coverage. As a result of the provision, which requires U.S. citizens to document their citizenship and identity when they apply for Medicaid or renew their coverage, a growing number of States are reporting a drop in Medicaid enrollment, particularly among children, but also among pregnant women and low-income parents. Health care coverage is being delayed or denied for tens of thousands of children who are clearly citizens and eligible for Medicaid but who cannot produce the limited forms of documentation prescribed by the regulations. These children are having to go without necessary medical care, essential medicines and therapies. In addition, community health centers are reporting a decline in the number of Medicaid patients due to the documentation requirements and are faced with treating more uninsured patients as a result.

Over the first year and a half that the documentation requirements were in effect, the Wisconsin Department of Health Services reported that almost 33,000 children and parents lost Medicaid or were denied coverage solely because they could not satisfy the Federal documentation requirements. About two-thirds of these people are known by the State to be U.S. citizens; most of the remainder are likely to be citizens as well, but have yet to prove it.

A study of 300 community health centers, conducted by George Washington University, found that the citizenship documentation requirements have caused a nationwide disruption in Medicaid coverage. Researchers estimate a loss of coverage for as many as 319,500 health center patients, which will result in an immediate financial loss of up to $85 million in Medicaid revenues. The loss of revenue hampers the ability of safety net providers to adequately respond to the medical needs of the communities they serve.

In addition to consequences suffered by eligible U.S. citizens, States have reported incurring substantial new administrative costs associated with implementing the requirement. They have had to hire additional staff, retool computer systems, and pay to obtain birth records. States are also reporting that the extra workload imposed by the new requirement is diverting time and attention that could be devoted to helping more eligible children secure and retain health coverage.

States are in the best position to decide if a documentation requirement is needed and, if so, to determine the most effective and reasonable ways to implement it. States that do not find it necessary to require such documentation could return to the procedures they used prior to the DRA and avoid the considerable administrative and financial burdens associated with implementing the DRA requirement. Most importantly, these States could avoid creating obstacles to Medicaid coverage for eligible U.S. citizens.

Despite significant support for allowing States to determine the best way to document citizenship, that complete fix is not included in the underlying bill. The restrictions are eased, and this is an important first step, but I hope we can continue to move forward on this issue and return this requirement to a State option.

I am also very pleased that this bill will allow States to waive the Federal 5-year waiting period for legal immigrant children and legal immigrant pregnant women to become eligible to enroll in the Children's Health Insurance Program. The idea that a sick child or pregnant woman legally in this country must wait 5 years to receive the care they need is absurd. Timely coverage means that families will have the opportunity to both prevent and treat conditions that can dramatically affect a child's daily life, and long-term health. And in those tragic incidences where a child suffers from life-threatening illnesses like cancer, denying that child necessary health care is unacceptable. Giving States the option to waive the 5-year waiting period is a positive step towards removing barriers to enrollment that are preventing our children from receiving the care they need.

In the midst of this recession, it is even more important that we renew our commitment to this valued program. We know that for every 1 percent increase in unemployment, approximately 1 million Americans become newly eligible for their State's Medicaid or CHIP programs. Reauthorization of the Children's Health Insurance Program will help millions of children and their families stay afloat and continue to receive the health care they need. Over the past few days, my colleagues have shared tragic stories of children who have suffered as a result of being uninsured, and we have listened to the heartwarming stories of families who have--quite literally--been saved by the Children's Health Insurance Program. The Children's Health Insurance Program Reauthorization marks an important leap forward in getting coverage to those who need it. I was pleased to support this bill's final passage, and I look forward to the day that everyone in our country has access to the basic right of health care.

Mr. President, I support the nomination of ADM Dennis Blair to be Director of National Intelligence. I do so as a strong supporter of intelligence reform and in the belief that Admiral Blair brings not only a keen understanding of the current challenges to interagency cooperation but an enthusiasm for reform. I am also encouraged by his consistent and repeated commitments to keep the congressional intelligence committees fully and currently informed, and his desire to end the stonewalling conducted by the Bush administration. The confirmation process has raised a number of issues of concern that I believe have been adequately addressed, although it is my hope and expectation that Admiral Blair, if confirmed, will work with me and other members of the committee on these, as well as other important matters.

Admiral Blair has committed to ending the Bush administration practice of hiding programs such as the CIA detention program and the President's warrantless wiretapping program from the full committee and has said that these programs ``were less effective and did not have sufficient legal and constitutional foundations because the intelligence committees were prevented from carrying out their oversight responsibilities.'' He has also committed to breaking down the stovepiping of oversight whereby Intelligence Committee members are denied access to important Department of Defense activities. These commitments are a critical first step in ensuring effective oversight and in reestablishing a collaborative relationship between our two branches of Government.

While I was disappointed with Admiral Blair's refusal, at his hearing, to characterize waterboarding as torture, I am confident that he will carry out President Obama's Executive order prohibiting ``enhanced interrogation techniques.'' I am also assured by his statement that ``the United States must not render or otherwise transfer anyone to a country unless we have credible assurances that they will not be subject to torture or other unacceptable treatment.''

His statements on privacy, civil liberties and checks and balances have also been reassuring. He has expressed concern about the U.S. Government's accumulation of detailed private information on U.S. citizens. He has reaffirmed that FISA is the ``only legal authority for conducting surveillance within the United States for intelligence purposes.'' He told me at his hearing that he would submit intelligence programs to the Justice Department's Office of Legal Counsel at the outset, so that they are conducted under clear legal authorities. And, more generally, he has stated that he sees it has his responsibility to ``make clear that protecting the privacy and civil liberties of Americans is as important as gathering intelligence.'' I do have concerns about his statement that he supports immunity for companies that allegedly cooperated with

President Bush's illegal warrantless wiretapping program and will urge him to reconsider his position once he is more familiar with the program.

I have found Admiral Blair to be very forthcoming with regard to reform. He clearly understands the importance not only of integrating the intelligence community but of developing coherent strategies that bring the intelligence community together with other departments of the U.S. Government, as well as budgets that reflect those strategies. These efforts have been central to my work in the Intelligence Committee, as I sought--through legislation and classified letters--to obtain interagency counterterrorism and other national security strategies from the Bush administration. I am confident that Admiral Blair will work to change this longstanding gap in our strategic capabilities. I am also reassured by his statement, at his confirmation hearing, that he agrees with the need to bring together the ways the U.S. Government obtains information, through the IC as well as through diplomatic reporting and other nonclandestine means. This critical priority was the subject of legislation introduced last year by Senator Hagel and myself and passed by the Intelligence Committee, and I will continue working to enact that bill.

A related issue is the need to ensure that Department of Defense intelligence activities are conducted under the policies of the DNI and under chief of mission authorities. In this regard, Admiral Blair has not indicated any new policy positions. On the other hand, he has stated that he understands the importance of ``a coherent and coordinated approach to foreign governments and intelligence services'' and has promised to ``act quickly to put in place procedures to accomplish the directed alignment of foreign intelligence and counterintelligence agreements and to institutionalize it for the future.'' This is a critical issue, and I look forward to working closely with Admiral Blair, should he be confirmed, as well as other members of the administration.

Another issue on which I expect to work with Admiral Blair, should he be confirmed, is human rights. I have, and no doubt will continue to have, disagreements with him about U.S. engagement with the Indonesian military, notwithstanding the lack of accountability for human rights abuses. While Admiral Blair has helped clarify his role when he was at Pacific Command, those substantive differences remain. Going forward, I am encouraged by his statement that the intelligence community ``needs to emphasize in its relationships around the world that the United States respects and seeks to advance respect for human rights and that IC agencies do not condone behavior that violates this core American value.'' I expect to work with Admiral Blair to ensure that that message is conveyed convincingly.

Finally, I have raised concerns about Admiral Blair's past conflicts of interest. He has acknowledged mistakes, including his failure to seek counsel before deciding not to recuse himself. I have asked him whether he would seek counsel in the future, including of ethics officers, and he has assured me that he would.

Mr. President, our founding fathers did a remarkable job in drafting the United States Constitution and the Bill of Rights. Their work was so superb that in the 217 years since the ratification of the Bill of Rights, the Constitution has only been amended 17 times. But every so often, a situation arises that so clearly exposes a flaw in our constitutional structure that it requires a constitutional remedy.

Over the past several months, our country has witnessed multiple controversies surrounding appointments to vacant Senate seats by governors. The vacancies in Illinois and New York have made for riveting political theater, but lost in the seemingly endless string of press conferences and surprise revelations is the basic fact that the citizens of these states have had no say in who should represent them in the Senate. The same is true of the recent selections in Delaware and Colorado. That is why I will introduce today a constitutional amendment to end gubernatorial appointments to the U.S. Senate and require special elections to fill these vacancies, as is currently required for House vacancies. I am pleased that the recently elected Senator from Alaska, Senator Begich, and the distinguished senior Senator from Arizona, Senator McCain, have agreed to be original cosponsors of the amendment.

I do not make this proposal lightly. In fact, I have opposed dozens of constitutional amendments during my time in the Senate, particularly those that would have interfered with the Bill of Rights. The Constitution should not be treated like a rough draft. Constitutional amendments should be considered only when a statutory remedy to a problem is not available, and when the impact of the issue at hand on the structure of our government, the safety, welfare, or freedoms of our citizens, or the survival of our democratic republic is so significant that an amendment is warranted. I believe this is such a case.

In 1913, the citizens of this country, acting through their elected state legislatures, ratified the 17th Amendment to the Constitution. Our esteemed colleague Senator Byrd, in Chapter 21 of his remarkable history of the United

States Senate, lays out in fascinating detail the lengthy struggle to obtain for the citizens of this country the right to elect their Senators. The original Constitution, as we all know, gave state legislatures the right to choose the Senators for their states. While the first proposal to amend the Constitution to require the direct election of Senators was introduced in the House in 1826, the effort only really picked up steam after the Civil War.

As Senator Byrd recounts: ``In the post-Civil War period, state legislatures became increasingly subject to intimidation and bribery in the selection of Senators.'' Nine cases of bribery came before the Senate between 1866 and 1906. And between 1891 and 1905, the state legislatures from 20 different states deadlocked 45 times when trying to pick a Senator. At one point, a Senate seat from Delaware remained vacant for 4 years because of deadlocks.

The political theater occasioned by these Senate appointment fights dwarfs even the extraordinary events we have witnessed in recent months. Senator Byrd quotes from an account by the historian George Haynes about efforts to select a Senator in Missouri in 1905:

Lest the hour of adjournment should come before an election

was secured, an attempt was made to stop the clock upon the

wall of the assembly chamber. Democrats tried to prevent its

being tempered with; and when certain Republicans brought

forward a ladder, it was seized and thrown out of the window.

A fist-fight followed, in which many were involved. Desks

were torn from the floor and a fusillade of books began. The

glass of the clock-front was broken, but the pendulum still

persisted in swinging until, in the midst of a yelling mob,

one member began throwing ink bottles at the clock, and

finally succeeded in breaking the pendulum. On a motion to

adjourn, arose the wildest disorder. The presiding officers

of both houses mounted the speaker's desk, and, by shouting

and waving their arms, tried to quiet the mob. Finally, they

succeeded in securing some semblance of order.

Popular sentiment for direct election of Senators slowly grew in response to events like these. Some states held popular referenda on who should be Senator and attempted to require their legislatures to select the winners of those votes. More and more Senators were chosen in such processes, leading to more support in the Senate for a constitutional amendment. Congress finally acted in 1911 and 1912. There was high drama in the Senate as Vice President James Schoolcraft Sherman broke a tie on a crucial substitute amendment offered by Senator Joseph Bristow of Kansas during Senate consideration of the joint resolution. A few days of parliamentary wrangling ensued over whether the Vice President's tie breaking role in the Senate extends to such situations, and that precedent still stands today. In May 1912, an impasse of almost a year was broken and the House receded to the Senate version of the amendment, allowing it to be sent to the States for ratification. Less than a year later, on April 8, 1913, Connecticut became the 36th State to ratify the amendment, and it became the 17th Amendment to the Constitution.

I recount this summary of the history of the 17th Amendment, and again, I commend to my colleagues Senator Byrd's chapter on the subject, first to make the point that even though it seems obvious to us that the Senate should be elected by the people, the struggle for that right was not easy or fast. But the cause was just and in the end the call for direct elections was too strong to be ignored. I believe the same result will occur here. It may take time, but in the end, I am confident that the principle that people must elect their representatives will prevail.

Second, this history shows that the public's disgust with the corruption, bribery, and political chicanery that resulted from having Senators chosen by state legislatures was a big motivation for passing the amendment. Gubernatorial appointments pose the same dangers, and demand the same solution--direct elections.

Finally, the history indicates that the proviso in the 17th amendment permitting gubernatorial appointments to fill temporary vacancies was not the subject of extensive debate in the Congress. The proviso originated in the substitute amendment offered by Senator Bristow. The Bristow substitute was designed, its sponsor explained, to ``make[] the least possible change in the Constitution to accomplish the purposes desired; that is the election of Senators by popular vote.'' Most significantly, it deleted a provision in the resolution as originally introduced that year that would have amended Article I, section 4 of the Constitution to remove Congress's supervisory authority to make or alter regulations concerning the time and manner of Senate elections.

The proviso, explained Senator Bristow, ``is practically the same provision which now exists in the case of such a vacancy. The governor of the State may appoint a Senator until the legislature elects.'' Although significant debate over other provisions in the Bristow amendment is found in the Record before the climactic tie vote, which was broken by the Vice President, there seems to have been no further discussion of the proviso.

Thus, it appears that the proviso was simply derived from the original constitutional provision in Article I, Section 3, which gave the power to choose Senators to the state legislatures, but allowed governors to appoint temporary replacements when the legislatures were not in session. It was unremarkable at the time of the 17th Amendment to allow governors to have the same temporary replacement power once direct elections were required. That would explain the apparent lack of debate on the question. The long and contentious debate over the amendment was dominated by much more basic issues, such as whether the people should elect their Senators at all, and whether Congress should also amend the ``time, place, or manner clause'' of Article I, section 4.

Nearly 100 years later, that proviso has allowed a total of 184 Senators to be appointed by governors, and we have a situation in today's Senate where the people of four states, comprising over 12 percent of the entire population of the country, will be represented for the next two years by someone they did not elect. It is very hard to imagine that the Congress that passed the 17th Amendment and the states that ratified it would have been comfortable with such an outcome. Indeed, some argue that the intent of the 17th Amendment was that temporary appointments to fill early vacancies should last only until a special election can be scheduled, rather than for an entire two-year Congress until the next general election. A number of states have adopted that approach, but many have not.

That is not to say that the people appointed to Senate seats are not capable of serving, or will not do so honorably. I have no reason to question the fitness for office of any of the most recent appointees, and I look forward to working with them. But those who want to be a U.S. Senator should have to make their case to the people whom they want to represent, not just the occupant of the governor's mansion. And the voters should choose them in the time-honored way that they choose the rest of the Congress of the United States.

I want to make it clear that this proposal is not simply a response to these latest cases that have been in the news over the past few months. These cases have simply confirmed my longstanding view that Senate appointments by state governors are an unfortunate relic of the pre-17th Amendment era, when state legislatures elected U.S. Senators. Direct election of Senators was championed by the great progressive Bob La Follette, who served as Wisconsin's Governor and a U.S. Senator. Indeed, my State of Wisconsin is now one of only 4 States, Oregon, Massachusetts, and Alaska are the others, that clearly require a special election to fill a Senate vacancy in all circumstances.

The vast majority of states still rely on the appointment system, while retaining the right to require direct elections, as the Massachusetts legislature and the voters of Alaska have done in recent years. But changing this system state by state would be a long and difficult process, even more difficult than the ratification of a constitutional amendment, particularly since Governors have the power to veto state statutes that would take this power away from them. Furthermore, the burden should not be on Americans to pass legislation in their states protecting their fundamental voting rights--the right to elect one's representatives is a bedrock principle and

should be reaffirmed in the nation's ruling charter.

We need to finish the job started by La Follette and other reformers nearly a century ago. Nobody can represent the people in the House of Representatives without the approval of the voters. The same should be true for the Senate.

In the several days since I announced my intention to introduce this amendment, I have heard a number of arguments raised against it. I would like to briefly address them. First of all, some suggest this amendment is an overreaction to the headlines of the day. But there are several precedents for amending the provisions of the Constitution that relate to the structure of government based on specific events. The 22nd Amendment, limiting the presidency to two terms, passed in 1951 in response to President Franklin D. Roosevelt's four-term presidency. The 25th Amendment, revising presidential succession, was passed in 1967 in response to confusion that occurred after the assassination of President Kennedy. If events demonstrate that there is a problem with our government structure, sooner or later we must take steps to address those problems. There is no better time to do that than when the effects of the structural flaw are most evident and most prominently part of the public debate.

Another objection I have heard to this proposal is the potential financial burden on the states that must pay for special elections. As someone with a reputation for fiscal discipline, I always consider a proposal's impact on the taxpayer. But the cost to our democracy of continuing the anachronism of gubernatorial Senate appointments is far greater than the cost of infrequent special elections. And weighing the costs associated with the most basic tenet of our democracy--the election of the government by the governed--sets us on a dangerous path. Besides, the Constitution already requires special elections when a House seat becomes vacant, a far more frequent occurrence since there are so many more Representatives than Senators. I find the cost argument wholly unconvincing.

Another argument I have heard is that special elections garner very low turnouts, or favor wealthy or well known candidates. They are not particularly democratic, the argument goes. And that may very well be true. But they are a whole lot more democratic than the election held inside the mind of one decisionmaker--the governor. Special elections may not be ideal, but they are elections, and every voter has the opportunity to participate. As Winston Churchill said, ``It has been said that democracy is the worst form of government except all the others that have been tried.''

I have also heard the argument that the candidates for the special election will be selected by party bosses because there won't be time for a primary. That is simply not true. Under this amendment, each state can decide how to set up its special elections. My home State of Wisconsin provides for a special election within about 10 weeks of the vacancy, with a primary one month earlier. It's a compressed schedule to be sure, because the state doesn't want to be without representation for too long. But it can be done. I would hope that most states would want to hold primaries, but the point of this amendment is to make clear that only Senators who have been elected by the people can serve, not to micromanage how the states want to implement that requirement.

I believe the core issue here is whether we are going to have a government that is as representative of and responsive to the people as possible. The time to require special elections to fill Senate vacancies has come. Congress should act quickly on this proposal, and send it to the states for ratification.

Mr. President, our founding fathers did a remarkable job in drafting the United States Constitution and the Bill of Rights. Their work was so superb that in the 217 years since the ratification of the Bill of Rights, the Constitution has only been amended 17 times. But every so often, a situation arises that so clearly exposes a flaw in our constitutional structure that it requires a constitutional remedy.

Over the past several months, our country has witnessed multiple controversies surrounding appointments to vacant Senate seats by governors. The vacancies in Illinois and New York have made for riveting political theater, but lost in the seemingly endless string of press conferences and surprise revelations is the basic fact that the citizens of these states have had no say in who should represent them in the Senate. The same is true of the recent selections in Delaware and Colorado. That is why I will introduce today a constitutional amendment to end gubernatorial appointments to the U.S. Senate and require special elections to fill these vacancies, as is currently required for House vacancies. I am pleased that the recently elected Senator from Alaska, Senator Begich, and the distinguished senior Senator from Arizona, Senator McCain, have agreed to be original cosponsors of the amendment.

I do not make this proposal lightly. In fact, I have opposed dozens of constitutional amendments during my time in the Senate, particularly those that would have interfered with the Bill of Rights. The Constitution should not be treated like a rough draft. Constitutional amendments should be considered only when a statutory remedy to a problem is not available, and when the impact of the issue at hand on the structure of our government, the safety, welfare, or freedoms of our citizens, or the survival of our democratic republic is so significant that an amendment is warranted. I believe this is such a case.

In 1913, the citizens of this country, acting through their elected state legislatures, ratified the 17th Amendment to the Constitution. Our esteemed colleague Senator Byrd, in Chapter 21 of his remarkable history of the United

States Senate, lays out in fascinating detail the lengthy struggle to obtain for the citizens of this country the right to elect their Senators. The original Constitution, as we all know, gave state legislatures the right to choose the Senators for their states. While the first proposal to amend the Constitution to require the direct election of Senators was introduced in the House in 1826, the effort only really picked up steam after the Civil War.

As Senator Byrd recounts: ``In the post-Civil War period, state legislatures became increasingly subject to intimidation and bribery in the selection of Senators.'' Nine cases of bribery came before the Senate between 1866 and 1906. And between 1891 and 1905, the state legislatures from 20 different states deadlocked 45 times when trying to pick a Senator. At one point, a Senate seat from Delaware remained vacant for 4 years because of deadlocks.

The political theater occasioned by these Senate appointment fights dwarfs even the extraordinary events we have witnessed in recent months. Senator Byrd quotes from an account by the historian George Haynes about efforts to select a Senator in Missouri in 1905:

Lest the hour of adjournment should come before an election

was secured, an attempt was made to stop the clock upon the

wall of the assembly chamber. Democrats tried to prevent its

being tempered with; and when certain Republicans brought

forward a ladder, it was seized and thrown out of the window.

A fist-fight followed, in which many were involved. Desks

were torn from the floor and a fusillade of books began. The

glass of the clock-front was broken, but the pendulum still

persisted in swinging until, in the midst of a yelling mob,

one member began throwing ink bottles at the clock, and

finally succeeded in breaking the pendulum. On a motion to

adjourn, arose the wildest disorder. The presiding officers

of both houses mounted the speaker's desk, and, by shouting

and waving their arms, tried to quiet the mob. Finally, they

succeeded in securing some semblance of order.

Popular sentiment for direct election of Senators slowly grew in response to events like these. Some states held popular referenda on who should be Senator and attempted to require their legislatures to select the winners of those votes. More and more Senators were chosen in such processes, leading to more support in the Senate for a constitutional amendment. Congress finally acted in 1911 and 1912. There was high drama in the Senate as Vice President James Schoolcraft Sherman broke a tie on a crucial substitute amendment offered by Senator Joseph Bristow of Kansas during Senate consideration of the joint resolution. A few days of parliamentary wrangling ensued over whether the Vice President's tie breaking role in the Senate extends to such situations, and that precedent still stands today. In May 1912, an impasse of almost a year was broken and the House receded to the Senate version of the amendment, allowing it to be sent to the States for ratification. Less than a year later, on April 8, 1913, Connecticut became the 36th State to ratify the amendment, and it became the 17th Amendment to the Constitution.

I recount this summary of the history of the 17th Amendment, and again, I commend to my colleagues Senator Byrd's chapter on the subject, first to make the point that even though it seems obvious to us that the Senate should be elected by the people, the struggle for that right was not easy or fast. But the cause was just and in the end the call for direct elections was too strong to be ignored. I believe the same result will occur here. It may take time, but in the end, I am confident that the principle that people must elect their representatives will prevail.

Second, this history shows that the public's disgust with the corruption, bribery, and political chicanery that resulted from having Senators chosen by state legislatures was a big motivation for passing the amendment. Gubernatorial appointments pose the same dangers, and demand the same solution--direct elections.

Finally, the history indicates that the proviso in the 17th amendment permitting gubernatorial appointments to fill temporary vacancies was not the subject of extensive debate in the Congress. The proviso originated in the substitute amendment offered by Senator Bristow. The Bristow substitute was designed, its sponsor explained, to ``make[] the least possible change in the Constitution to accomplish the purposes desired; that is the election of Senators by popular vote.'' Most significantly, it deleted a provision in the resolution as originally introduced that year that would have amended Article I, section 4 of the Constitution to remove Congress's supervisory authority to make or alter regulations concerning the time and manner of Senate elections.

The proviso, explained Senator Bristow, ``is practically the same provision which now exists in the case of such a vacancy. The governor of the State may appoint a Senator until the legislature elects.'' Although significant debate over other provisions in the Bristow amendment is found in the Record before the climactic tie vote, which was broken by the Vice President, there seems to have been no further discussion of the proviso.

Thus, it appears that the proviso was simply derived from the original constitutional provision in Article I, Section 3, which gave the power to choose Senators to the state legislatures, but allowed governors to appoint temporary replacements when the legislatures were not in session. It was unremarkable at the time of the 17th Amendment to allow governors to have the same temporary replacement power once direct elections were required. That would explain the apparent lack of debate on the question. The long and contentious debate over the amendment was dominated by much more basic issues, such as whether the people should elect their Senators at all, and whether Congress should also amend the ``time, place, or manner clause'' of Article I, section 4.

Nearly 100 years later, that proviso has allowed a total of 184 Senators to be appointed by governors, and we have a situation in today's Senate where the people of four states, comprising over 12 percent of the entire population of the country, will be represented for the next two years by someone they did not elect. It is very hard to imagine that the Congress that passed the 17th Amendment and the states that ratified it would have been comfortable with such an outcome. Indeed, some argue that the intent of the 17th Amendment was that temporary appointments to fill early vacancies should last only until a special election can be scheduled, rather than for an entire two-year Congress until the next general election. A number of states have adopted that approach, but many have not.

That is not to say that the people appointed to Senate seats are not capable of serving, or will not do so honorably. I have no reason to question the fitness for office of any of the most recent appointees, and I look forward to working with them. But those who want to be a U.S. Senator should have to make their case to the people whom they want to represent, not just the occupant of the governor's mansion. And the voters should choose them in the time-honored way that they choose the rest of the Congress of the United States.

I want to make it clear that this proposal is not simply a response to these latest cases that have been in the news over the past few months. These cases have simply confirmed my longstanding view that Senate appointments by state governors are an unfortunate relic of the pre-17th Amendment era, when state legislatures elected U.S. Senators. Direct election of Senators was championed by the great progressive Bob La Follette, who served as Wisconsin's Governor and a U.S. Senator. Indeed, my State of Wisconsin is now one of only 4 States, Oregon, Massachusetts, and Alaska are the others, that clearly require a special election to fill a Senate vacancy in all circumstances.

The vast majority of states still rely on the appointment system, while retaining the right to require direct elections, as the Massachusetts legislature and the voters of Alaska have done in recent years. But changing this system state by state would be a long and difficult process, even more difficult than the ratification of a constitutional amendment, particularly since Governors have the power to veto state statutes that would take this power away from them. Furthermore, the burden should not be on Americans to pass legislation in their states protecting their fundamental voting rights--the right to elect one's representatives is a bedrock principle and

should be reaffirmed in the nation's ruling charter.

We need to finish the job started by La Follette and other reformers nearly a century ago. Nobody can represent the people in the House of Representatives without the approval of the voters. The same should be true for the Senate.

In the several days since I announced my intention to introduce this amendment, I have heard a number of arguments raised against it. I would like to briefly address them. First of all, some suggest this amendment is an overreaction to the headlines of the day. But there are several precedents for amending the provisions of the Constitution that relate to the structure of government based on specific events. The 22nd Amendment, limiting the presidency to two terms, passed in 1951 in response to President Franklin D. Roosevelt's four-term presidency. The 25th Amendment, revising presidential succession, was passed in 1967 in response to confusion that occurred after the assassination of President Kennedy. If events demonstrate that there is a problem with our government structure, sooner or later we must take steps to address those problems. There is no better time to do that than when the effects of the structural flaw are most evident and most prominently part of the public debate.

Another objection I have heard to this proposal is the potential financial burden on the states that must pay for special elections. As someone with a reputation for fiscal discipline, I always consider a proposal's impact on the taxpayer. But the cost to our democracy of continuing the anachronism of gubernatorial Senate appointments is far greater than the cost of infrequent special elections. And weighing the costs associated with the most basic tenet of our democracy--the election of the government by the governed--sets us on a dangerous path. Besides, the Constitution already requires special elections when a House seat becomes vacant, a far more frequent occurrence since there are so many more Representatives than Senators. I find the cost argument wholly unconvincing.

Another argument I have heard is that special elections garner very low turnouts, or favor wealthy or well known candidates. They are not particularly democratic, the argument goes. And that may very well be true. But they are a whole lot more democratic than the election held inside the mind of one decisionmaker--the governor. Special elections may not be ideal, but they are elections, and every voter has the opportunity to participate. As Winston Churchill said, ``It has been said that democracy is the worst form of government except all the others that have been tried.''

I have also heard the argument that the candidates for the special election will be selected by party bosses because there won't be time for a primary. That is simply not true. Under this amendment, each state can decide how to set up its special elections. My home State of Wisconsin provides for a special election within about 10 weeks of the vacancy, with a primary one month earlier. It's a compressed schedule to be sure, because the state doesn't want to be without representation for too long. But it can be done. I would hope that most states would want to hold primaries, but the point of this amendment is to make clear that only Senators who have been elected by the people can serve, not to micromanage how the states want to implement that requirement.

I believe the core issue here is whether we are going to have a government that is as representative of and responsive to the people as possible. The time to require special elections to fill Senate vacancies has come. Congress should act quickly on this proposal, and send it to the states for ratification.

Mr. President, in recent years more and more observers have noted Africa's failing states, ungoverned spaces and pirate- infested waters, and the threat they pose to our own national security. I have long raised these concerns on this Senate floor and I am pleased that they are receiving increasing attention. However, it is not enough to simply acknowledge Africa's security challenges; nor is it sufficient to shift resources toward them, although that is a good start. We must institute long-term strategies to further our national security goals while developing sustainable partnerships with Africans that advance our mutual interests and support nascent democratic institutions.

As a 16-year member and the current chairman of the Subcommittee on African Affairs, I have closely followed U.S. policy toward the continent for many years. Too often, I have found that our approach has been driven by short-sighted tactics designed to buy influence or react to crises. In the absence of comprehensive interagency strategies, these tactics often undermine long-term efforts to build civilian institutions and strengthen the rule of law. This must change if we are to successfully pursue our strategic objectives on the African continent. It remains critical--and long overdue--that the United States develop a carefully planned and long-term approach to both promoting stability and combating terrorism in Africa. I would like to offer some thoughts today on key components of such an approach.

During our December recess, I traveled to the headquarters of the new Africa Command in Stuttgart, Germany and discussed a range of issues with senior officials there. Although I have been focused on AFRICOM since its inception--and on the idea of such a command prior to that--I was reminded during my trip of the very important and strategic roles that AFRICOM, if advanced properly, can play. These roles include helping to develop effective, well-disciplined militaries that adhere to civilian rule, strengthening regional peacekeeping missions, and supporting postconflict demobilization and disarmament processes. If carried out properly, AFRICOM's work can complement that of the State Department, USAID, and other U.S. Government agencies working on the continent and help contribute to lasting peace and stability across Africa.

It is because of the significant need for this important work that we must support AFRICOM, while also working to ensure that it adheres to its defined military mandate and defers to the State Department as the lead on policy matters. The challenge for AFRICOM is to strike the right balance with our civilian agencies and not become our primary representation throughout Africa. Serious work remains to be done in ensuring that the Command is operating within comprehensive interagency national security strategies and squarely under the authority of our Chiefs of Mission. I also remain concerned that AFRICOM has been unable to adequately convey its role within a larger policy framework to Congress, to the American people or to African governments and regional organizations--perhaps its most important partners.

It is true that the Command's initial rollout was fraught with mistakes and the Command understandably received a cool reception on the continent, among civilian agencies and here in Congress. But I am confident from my recent meetings that the staff in Stuttgart has recognized and is learning from these setbacks. Rather than merely criticizing, we in Congress should work across the spectrum of agencies here in Washington as well as with AFRICOM's leadership to help craft a combatant command that is doing the right job, for the right reasons and can thus be adequately resourced. In the months ahead, I intend to use my role as chairman of the Subcommittee on African Affairs to do just that.

I hope, however, that no one thinks for a minute that military tools alone are sufficient to transform the underlying causes of violence and instability in Africa. To promote long-term stability, it is crucial that we strike a better balance between our military relationships and our support for civilian institutions and the rule of law.

Achieving that balance is no small task and it will only be possible if we invest seriously in new institutional capacities for our civilian agencies on the continent. This begins with ensuring our embassies have the Foreign Service officers and resources they need to do the job properly. We cannot continue to shortchange our embassies across Africa while we focus on one or two other locations around the world. We need to make sure our embassies have sufficient resources to meet the challenges of today, and to identify the challenges of tomorrow. And we need to make sure our presence includes the right kind of people-- trained political and economic officers who can get out and about to do their job.

By expanding our diplomatic presence in Africa, including outside the capitals, we increase our ability to learn about the continent--its governments, its people and its cultures. Right now, we do not have the necessary human resources or expertise on the African continent to gather this information and anticipate emerging crises or fully understand existing ones. Diplomatic reporting and open source collection in Africa are a critical complement to the clandestine work of the

intelligence community, and I have long called for more resources for both. I have also called for an integrated, interagency collection and analysis strategy, which is why Senator Hagel and I last year introduced legislation to establish an independent commission to address this long-term, systematic problem. This legislation was passed by the Intelligence Committee last year and, although Senator Hagel has retired, I intend to reintroduce this legislation this year.

Developing these capacities and a balanced approach is in our national security interest and is necessary if we are to better address areas of concern in Africa. At present, there are several devastating crises that we cannot ignore, including in Congo, Nigeria, the Sahel, Sudan and Zimbabwe. But I believe one region stands out for its particular significance to our national security, and that is the Horn of Africa and specifically the deepening crisis in Somalia. I would like to spend the rest of my remarks discussing the situation in this region, where the need for a carefully planned and long-term approach is particularly urgent.

During my December trip, I also visited Djibouti. There, I met with many leading figures in Somalia, including the Prime Minister of the Somali Transitional Federal Government, the leadership of the opposition Alliance for the Re-Liberation of Somalia, the UN Special Representative for Somalia, the President of Somaliland and members of Somalia's civil society. I also met with Djiboutian government officials and members of civil society, as well as with our diplomats working on Somalia out of both Djibouti and Nairobi, who are extraordinary and deeply committed individuals.

Tragically, the situation in Somalia continues to get worse. Six months ago I stood on the Senate floor to discuss Somalia's humanitarian crisis--the worst in the world. According to a local human rights group, an estimated 16,000 people have been killed since the start of 2007, with over 28,000 people wounded and more than one million displaced. USAID now estimates that 3.2 million people--soon to be half of the population--are in need of emergency assistance, including hundreds of thousands of refugees in neighboring countries. The stories and images of human suffering coming out of Somalia are horrifying.

In addition to the humanitarian impact, I am deeply concerned by the potential impact of this crisis on our national security. With the Ethiopian army withdrawing, the transitional government remains deadlocked, new militias are forming, and existing ones continue to gain new territory. And while the Somalis are a moderate people, the terrorist group al Shabab has grown in ranks and expanded its reach. Moreover, just last month, several senior officials, including CIA Director Hayden and Joint Chiefs Chairman Mullen, said that al-Qaida is extending its reach in Somalia to revitalize its operations.

The Bush administration's approach to Somalia--endorsing the Ethiopian invasion, backing an unpopular transitional government and launching periodic military strikes in the absence of a broader coherent strategy--was an abject failure. Without a carefully crafted strategy for Somalia, we have long relied on short-sighted tactics and a ``manhunt'' approach, rather than investing fully in efforts to promote a sustainable peace and help build legitimate and inclusive institutions. The result has been increased anti-Americanism, which helps enable extremist groups to effectively recruit and operate.

With the Obama administration now in office, there is a critical opportunity, as well as an urgent need, to identify the lessons of this failed policy and signal a break from the past. One of my top priorities is to work with the Obama administration to develop a new comprehensive interagency strategy to bring stability to Somalia and the wider Horn of Africa. Support for the Djibouti process should continue, but we need to be far sighted about what it will take to translate diplomatic initiatives into security for the people of Somalia. That effort must include efforts from the ground up to build legitimate and inclusive governance institutions that respond to the needs of ordinary Somalis. For only when those institutions take hold will we finally be able to limit the appeal of violent extremism and achieve sustainable peace and security--and bolster our own national security.