Thomas Coburn

Mr. COBURN

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

Mr. COBURN. This amendment attacks one of the features of this bill that I think steals from the authorizing committees the authority they need to have on authorizing projects. Let me quote the language in the bill: Provided further that any project that is under study by the Corps of Engineers for reducing flooding and storm damage risks in the future and that the Corps studies demonstrate will cost effectively reduce those risks is hereby authorized. With one sentence, we have just taken away the total capability of the authorizing committee to hold the Corps accountable. All I am saying is that we at least ought to have authorizers say whether this is a priority. It does not mean they need to stop it, but they ought to at least be informed, and the authorization of that ought to go through a committee. In this bill, 64 percent of the money is not going to even be started to be spent until 2 years from now, so there is plenty of time for us to create the authorization process rather than to deem the Corps of Engineers their own order and desire in terms of projects they wish to do. It is about good government. It is about good input. It is about good oversight. Allowing the Corps just to deem something authorized without the input of the appropriate committee of this Senate I think is inherently wrong and potentially very wasteful. Amendment No. 3368 to Amendment No. 3395

Mr. COBURN. I would object to that at this point in time. I would have liked to have had 5 minutes. I have to be somewhere at 7:30. I came down here, but I wanted to make some points before I leave. I was trying to sum up.

Mr. COBURN

Mr. COBURN. Mr. President, I would like to talk about per capita damage indicators and initiating a rule process update. The State of Oklahoma, in the last 7 years, has had more declarations of disaster named than any other State in the country. The standard used to be if we had a disaster that overwhelmed the ability of the State to handle it. We have gotten away from that, and this hasn't been updated since 1986. Under the Stafford Act of 1988, the whole purpose of our emergency response was for us to step in and provide assistance when State and local capabilities were overwhelmed. It is clear in New York and New Jersey and in communities that were affected by this latest storm that State and local capabilities were overwhelmed. It is clearly an appropriate time for the Federal Government, through the Federal Emergency Management Agency, to step in and provide assistance. Unfortunately, FEMA has been declaring an increasing number of disasters over the past two decades, including for many storms and many events where State and local capacities weren't overwhelmed. Let me make that statement again. Many of the disasters that have been declared were declared when State and local capabilities were not overwhelmed at all. So here we are, sitting with this tremendous debt, sitting with tremendous deficits, and we are now applying a lower standard than what we should, in my mind. It is not just my opinion; the GAO has actually so decided. We have a GAO report that says this ought to be modified. If we go back in history and look at the Reagan administration, on average they declared 28 events each year in the 1980s. Under the current administration, we are averaging 140 disaster declarations a year. My State, as I said, has had the most FEMA disaster declarations--25 in total. So what I am offering isn't necessarily going to be beneficial for my State, but it makes great common sense for our country because if, in fact, they update the per capita effect, some of those declared disasters in Oklahoma probably would not now be declared disasters. Let me give an example. In 2011, we felt a little tremble in Washington from an earthquake. A disaster declaration was declared for Virginia after the earthquake that was felt in the Capitol. But this wasn't a disaster that overwhelmed local capabilities. It didn't overwhelm the capabilities of the regional capital area, and it didn't overwhelm the capabilities of Virginia. Yet we transferred what were truly responsibilities of the State and local communities to the Federal Government. So this per capita damage indicator ends up becoming very problematic for two reasons: First, it was established in 1986 and FEMA has failed to update it; and, second, simply using a per capita damage indicator is an unfair way to assess whether a disaster has occurred. Let me explain why. Suppose you have a small populated State versus a large populated State where you have a large concentration of people in an area. You would not ever attain it if you have a large population, whereas if you have a small population, you will, with the exact same event. So my question is, Should Oklahoma benefit on a per capita basis from the same event happening in Oklahoma as happens in Los Angeles, where we get declared an emergency and Los Angeles doesn't? That is what has happened, since we have not updated this per capita damage indicator. It is unfair for the larger, more populous States that we do it this way. So all we are saying is we should take the GAO report and follow some of the recommendations. And what are those recommendations? FEMA should review the per capita damage indicator and initiate a rulemaking to modernize it. It would require the FEMA Administrator to update the per capita damage indicator for all the years since 1996 by no later than January 1, 2016. So we are going to give them over 3 years to update it. Second, the amendment requires the FEMA Administrator to report to Congress on better and fairer ways to assess States' preparedness and capabilities to respond to a disaster. Finally, I would say this is a reasonable approach based on what GAO's analysis and recommendations were, which is to encourage FEMA to update its process for how it declares disasters so that we can preserve and focus more aid for disasters such as Sandy, which is in front of us right now. It is my belief that although this may divide some in this Chamber, this is a smart thing for us to do for the country. It is a fair thing for us to do for every State--to treat them all the same instead of advantaging the smaller States, such as my State, and giving a disadvantage to the larger States. I would be happy to work with the chairman to modify this in a way that would meet with his approval, but it is something that is sorely lacking. It is something that is causing us to intercede at times we shouldn't be and causing us to not intercede at times we should. I yield the floor.

Mr. COBURN. Mr. President, I ask unanimous consent to return to Coburn amendment No. 3371.

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

Mr. COBURN. I ask unanimous consent that the amendment be modified with the changes I will now send to the desk.

Mr. COBURN

Mr. COBURN. I ask unanimous consent that the Senate set aside the pending amendment and call up amendment No. 3368.

Mr. COBURN. I thank the Senator.

Mr. COBURN. Through the Chair, I would ask the majority leader, he does not want amendments to be made pending for us to debate?

Mr. COBURN. That is fine. I have no choice but to accede to the Senator's wishes, so I will.

Mr. COBURN. Absolutely.

Mr. COBURN. This is updating per capita damage indicators and the process for determining declarations. Oklahoma has had more declarations declared, but we haven't updated the per capita indicator for a long time, so we have had no increase in that. So what is happening is that it is too easy to get a declaration declared. I am trying to have them update that to where it is more reflective of the true cost.

Mr. COBURN. We have a bill before us that is $64 billion, and I have spent the last week trying to get the OMB and Department of Commerce the background on all of these requests, and what I can tell you is there is an immediate need for about $24 billion that we ought to be passing through this Chamber to take care of immediate needs over the next 2 years in relationship to this tragedy in terms of Sandy. Almost every amendment I am going to offer or hope to offer is about transparency, is about limiting who can have access, such as people who are in arrears on their taxes for years and years. What we learned on the Homeland Security Committee, which has the authorization of most of these programs, which I will become ranking member of, is that out of the $100 billion-plus we spent on Katrina, $11 billion of it got wasted. One of the reasons it got wasted is because we didn't have transparency, we didn't have good-government amendments on it. And we are getting ready to make that mistake again. So I was asked to come down, by our side of the aisle, to have amendments pending, and now that I can't have amendments pending, I think I will just talk in general about this bill for a moment, if I might. There is no one in the Senate who does not want to meet the needs of the people who have suffered from this horrific storm. How we do that is important. Meeting immediate needs in terms of the insurance fund for flooding--that is something on which everybody would agree. Nobody is going to object to that. We are going to be short on that. But also what is important in that is that we should have a provision that if you were in a floodplain and didn't buy the insurance, we certainly should not be ponying up our grandkids' money to pay for you when you chose not to insure it. The reason that is important--there are two moral principles on why that is important. No. 1 is that we are going to endorse irresponsibility. No. 2 is that if we don't put that provision in this bill, the NFIP is never going to work because in the future everybody is going to say: Don't worry, you don't have to buy the flood insurance. Congress is going to take care of it. So it is those kinds of good-government things that I am trying to put into this bill, and now I am unable to bring amendments to the floor. There is no reason not to bring amendments to the floor right now. We are going to pick and choose what amendments we are going to bring to the floor when we have good-government amendments? I am at a loss to know why we would object to good-government amendments. I understand the majority leader's reasoning. We now have five amendments pending on this bill of $60 billion. You take five or six of the agencies, this bill is going to be more than what all five of those agencies spend in a year, and 64 percent of this bill would not even get obligated until 2015 at the earliest. I also would remind my colleagues that on this $64 billion bill, we don't have to offset any spending anywhere under the rules. So here we have this $64 billion, when we know we are wasting hundreds of billions every year in agencies throughout this government, and we are going to borrow $64 billion and not do the good-government cleanup, transparency. One of our amendments is about creating a Web site so everybody can see. One of our amendments is about not having no-bid contracts or sole-source contracts. We have all this experience from Katrina where we know the money was wasted. Yet now we are precluded from putting amendments on the Senate floor that would keep us from wasting that very money in this emergency supplemental bill. It shows the dysfunction of the Senate. In 2005 and 2006, we would not have had this happen. Amendments would be offered, they would get voted down or embarrassed into not asking for a vote, or withdrawn. Now we are going to pick and choose good- government amendments. In other words, we are saying we don't want good government. We don't want to do the hard work of making things efficient and effective when we go to spend $64 billion. I don't get it. I don't understand it. Generations will not understand it that follow us. I yield the floor.

Mr. COBURN. Well, I have five I was going to place pending, and I will be happy to work with the managers.

Mr. COBURN. I ask unanimous consent that the pending amendment be set aside and that amendment No. 3371 be called up.

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

Mr. COBURN. This would actually hurt Oklahoma.

Mr. COBURN. I am.

Mr. COBURN

Mr. COBURN. Mr. President, I intend to object to any unanimous consent agreement to proceed to or dispose of Calendar Number 536, Senate Bill 2215, a bill to create jobs in the United States by increasing United States exports to Africa by at least 200 percent in real dollar value within 10 years, and for other purposes.

Mr. COBURN

Mr. COBURN. Mr. President, I rise to speak of the confirmation of John Dowdell of Tulsa, OK, to a seat on the District Court for the Northern District of Oklahoma. Mr. Dowdell is a native of Tulsa and a graduate of Bishop Kelly High School. Mr. Dowdell received his B.A. from Wake Forest University in 1978 and his J.D. from the University of Tulsa College of Law in 1981. Following law school, he served for two years as a law clerk to the Honorable William J. Holloway of the Tenth Circuit Court of Appeals. He then joined the firm of Norman & Wohlgemuth as an associate. In 1987, he was promoted to partner and the firm became Norman Wohlgemuth Chandler & Dowdell. Mr. Dowdell's practice areas include complex litigation and appellate work. He has been involved with six cases before the U.S. Supreme Court and has litigated before the Tenth Circuit Court of Appeals on numerous occasions. In addition to his legal practice, Mr. Dowdell serves as an Adjunct Settlement Judge in the Northern District of Oklahoma. In this capacity he has conducted over 50 mediations on a pro bono basis. He has also performed extensive pro bono work for several criminal appellate cases and his alma mater, Bishop Kelley High School. Additionally, Mr. Dowdell is a member of the Editorial Board of the Oklahoma Bar Association, a former president of the Bishop Kelley High School Board of Directors, and was appointed by the mayor to serve on Tulsa's Public Facilities Board. Mr. Dowdell has received numerous honors for his legal practice, including being rated as one of Oklahoma's ``Super Lawyers'' from 2006 through 2011 and being named a Top Commercial Litigation Lawyer by American Litigation Magazine. He also was the recipient of the Distinguished Service Award of the American Inns of Court in 1993 and the Jack R. Givens Award for Professionalism and Service in 1998. The Oklahoma Bar Association Board of Governors has endorsed Mr. Dowdell's nomination to this judicial position and passed a resolution praising his demeanor, intelligence, and legal skills. I firmly believe the rule of law is the foundation of our great Nation. By confirming judges of high character and integrity such as Mr. Dowdell, who are committed to the principles established by our Founders, we will ensure our Federal court system continues to dispense fair and predictable justice to all. I thank my colleagues for joining me in supporting John Dowdell's confirmation to the District Court for the Northern District of Oklahoma.

Mr. COBURN

Mr. COBURN. Mr. President, I wish to explain my vote against Mr. Michael Shea, nominee to the District Court of Connecticut. My decision is based on Mr. Shea's assistance in drafting an anticus brief in the Supreme Court case of Kelo v. New London on behalf of the Connecticut Conference of Municipalities and other municipalities. The Kelo decision delivered a serious blow to private property rights by upholding a municipality's use of eminent domain to seize private homes and transfer the property to a pharmaceutical company for purposes of ``economic development.'' As Justice Sandra Day O'Connor stated in her dissent, the ``Court abandoned its long-held, basis limitation on government power'' in the Kelo case. The Fifth Amendment of the Constitution states: ``No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'' The Kelo decision altered what was traditionally viewed as ``public use.'' As Justice O'Connor noted, as a result of this decision, ``Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. . . . Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.'' In contrast, Mr. Shea's amicus brief argued the eminent domain action taken by New London was constitutional and should be upheld. He asserted the ``taking of some of the petitioners'' homes'' is ``undeniably a genuine cost of realizing the City's goal of improving the economic well-being of its citizens?' But, the Public Use Clause ``sweeps as broadly as the [State's] police powers.'' He said siding with the Kelo plaintiffs in the case would ``contort'' the Public Use Clause. Justice Stevens, the author of the 5-4 majority opinion in Kelo, cited Mr. Shea's brief in his opinion. Perhaps the saddest aspect of this case is the ``economic development'' that was key to the taking being a ``public use'' never happened because the developer could not get funding. Susette Kelo lost her property for nothing. The site of her former home is a garbage dump. This fact exposes another reason the takings clause was only intended for public use, because the government is more likely to have the funding ready to use the property. Normally, I would not hold a lawyer responsible for the legal views of his clients, but the Kelo decision dealt such a serious blow to private property rights, a crucial element of our founding principles, and so clearly departs from the original understanding of the Constitution, I feel I must vote no.

Mr. COBURN

Mr. COBURN. I just wanted to spend a few minutes talking about Reed amendment No. 3255 and to point out to my colleagues I know this amendment will pass, but I believe we ought to be on record as voting to add $1.7 billion in additional funds that our kids are going to pay for. This is paid for, but it is smoke and mirrors. We have used a trick in how we do this. Ultimately, what is going to happen is here is another bill that will require funding from the health account at the Pentagon, which is in operations and maintenance, which means we will not have $1.7 billion for naval exercises, for flight training, for tank training, for range training. In other words, out of this account is where it comes to all the preparedness. I must give President Obama credit. He has recommended what the committee recommended doing for the last 2\1/2\ years. Now we have an amendment that takes where the committee went to, actually, a small copay, increasing copay on pharmacy benefits for retirees, and reverses that and forces our veterans to have to use mail order. I am OK with mail order. I know we save a lot of money with that, but the CBO says as soon as we stop this one year, the mandate is going to go back the other way and the cost is going to be this amount of money. They have met the literal requirements of pay-go, but they haven't met the functional requirements. Here we have another amendment that we will take out of the operations and maintenance account, and that is important. But the most important issue in this debate is we continue to want to have benefits for our retired military that are growing faster than the rate of inflation--certainly faster than--and not have them help pay for the increase in the benefits. We have $16.4 trillion worth of debt this morning. We have $88 trillion worth of unfunded liabilities, and now we are at this juncture where we are having a discussion between the Speaker of the House and the President on how we get over the fiscal cliff and start to solve some of these problems. We have an amendment put up because there is a very powerful force, all the service organizations and everything else, that said don't do this. Everybody in our country, if we are to get out of the problem, is going to have to pay a small sacrifice. This is not a large amount of money, unless you are absolutely destitute, in terms of the copays. The President has recommended we do that, the committee recommended it and we are reversing it and using the gimmick so there can't be a budget point of order on it. There will be a time in the not-too-distant future when the decisions to control our future will be out of our hands in terms of the economics and the debt. Delaying that now, because we do not want to yield against the popular criticism, will cause us to pay a further great price. The very people who are going to be asked to contribute as part of fixing our country are going to be paying a greater price. I just received a book from our colleague, the Senator from Rhode Island, Sheldon Whitehouse. I received it today, and I have already finished half of it. It has a wonderful introduction. I would recommend to all my colleagues--I know they will get one--to read it. It is a collection of thoughts and sayings. If we read what Daniel Webster said, we read what Benjamin Franklin said, and we read what Winston Churchill has said about bowing to the public pressure rather than doing the best right thing, we will not regret it. This is a popular amendment. It is going to pass. The service organizations want us to do it, but it is not the right thing to do. We have to begin, as we negotiate, to increase revenues from the very wealthy in this country, declining expenses at the Defense Department; everybody has to share, everybody in America. If they don't share now, they will share much more painfully in the future. I don't have anything else to say on this other than I will vote against it, not because I want veterans to have to have a copay but because I want our country to get out of the hole we are in. Part of the sharing of that is a copay on retail pharmacy. I yield the floor, and I suggest the absence of a quorum.

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

Mr. COBURN

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