John Cornyn

Mr. CORNYN

Mr. CORNYN. If the Senator will yield for one final question, I just want to be sure I understood his earlier comments from the National Security Adviser for the Government of Iraq. There had been some suggestion that the Iraqis were planning on granting amnesty to those who had killed American soldiers. But if I understood the distinguished majority whip, the National Security Adviser said: And we will never give amnesty to those who killed American soldiers or who killed Iraqi soldiers or civilians. If that language is true, that they would never do that, would the Senator care to venture a guess as to what the reason for this supposed sense of the Senate is to condemn some amnesty that will never be given?

Mr. CORNYN. Mr. President, if the Senator will yield for an additional question, I ask the distinguished majority whip, what does he believe the consequences in Iraq to be--and not just to Iraq, but to America itself in terms of our own security--if we were to precipitously draw down our forces and leave a void there that might then be filled by enemies of our country and, indeed, terrorists akin to those who attacked our country on 9/11?

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to speak about S. 3499, the Internet SAFETY Act, a bill that I have co-sponsored with Senator Kyl and other Members of this body. This legislation targets child pornographers, and it continues the important progress this Congress has made to crack down on those who commit crimes against children. Earlier this year, the Senate passed S. 1086, which would require lifetime registration by sex offenders throughout the United States and would substantially increase punishments for those convicted of sex crimes against children. The House has passed its own sex offender bill, which contains many sensible provisions. And the two Chambers are negotiating to resolve their differences. Hopefully we will soon reach an agreement--and a tough, smart bill will be reported to the President. I firmly believe there is only one way to deal with those who prey on children: they must be caught sooner, punished longer and more stringently, and they must be watched much more closely than they are today. I began advancing this law enforcement theme while I served as Texas attorney general. There, I created a specialized unit known as the Texas Internet Bureau to coordinate and direct efforts to fight Internet crimes such as fraud, child pornography, and privacy concerns. The Texas Internet Bureau successfully identified several Internet predators that were caught, prosecuted and convicted. I will continue to work in the Senate to ensure that law enforcement agencies have every tool they need to bring these criminals to justice. The Internet SAFETY Act will play an integral part in bringing child crime predators to justice. This bill creates a new Federal offense for financially facilitating access to child pornography on the Internet, mandates penalties for Web site operators who insert words or images into their internet source codes with the intent to deceive persons into viewing obscene material on the internet; and requires commercial Web site operators to place warning marks prescribed by the Federal Trade Commission on Web pages that contain sexually explicit material. It is critical that this legislation become law. The supposed anonymity of the Internet has apparently emboldened child pornographers. The availability of child pornography on the Internet is staggering, as is the presence of those who would prey on innocent children. To illustrate this point, consider that in 1998 the National Center for Missing and Exploited Children's CyberTipline received 3,267 reports of child pornography. In 2004, the CyberTipline received 106,119 of these reports, marking more than a thirtyfold increase in child pornography reports in just a 6-year period. This is more than a disturbing trend, and it shows no sign of slowing down. The Internet is uniquely suited to facilitate the creation and replication of pornographic images of children, as well as the speed and anonymity to distribute them. And, not surprisingly, criminal enterprises spring up for the purpose of distributing child pornography and feeding the insatiable desire of those who target children. Let me provide an example from my home State of Texas. Several years ago, the U.S. Postal Inspection Service, in cooperation with Dallas's Internet Crimes Against Children, ICAC, task force, was able to locate and dismantle a multimillion-dollar child pornography enterprise conducting business over the Internet. This effort, dubbed Operation Avalanche, resulted in over 7,000 searches and more than 4,000 arrests around the world. This Congress simply cannot stop working until we are certain that we have provided all of the resources necessary to stop those who commit crimes by exploiting children. And so this bill, in addition to providing additional legal authorities, also creates an Office on Sexual Violence and Crimes Against Children within the Department of Justice to coordinate sex offender registration and notification programs, directs the Attorney General to provide grants to state and local governments for child sexual abuse prevention programs, and authorizes 200 additional child exploitation prosecutors in U.S. attorneys offices around the country and 20 additional Internet Crimes Against Children, ICAC, task forces. I urge my colleagues to study this bill carefully. I am hopeful that we can garner enough support to quickly bring it to a vote and pass it out of the Senate.

Mr. CORNYN

Mr. CORNYN. Mr. President, thank you. Mr. President, I express my gratitude to the Senator from Georgia for his remarks. Mr. President, I rise to speak on the National Defense Authorization Act for 2007, the bill that is on the floor. Passage of the bill is critical to ensuring that our military has the resources necessary to accomplish the demanding missions we have asked them to undertake around the globe. I am privileged to chair, on the Senate Armed Services Committee, the Subcommittee on Emerging Threats and Capabilities, and to work closely with my colleague on the other side of the aisle, the ranking member, Senator Jack Reed. Together, we ensured that this year's National Defense Authorization Act would make a number of important contributions in the areas of combating terrorism, homeland defense, nonproliferation, and investments in defense science and technology. I want to spend a few minutes highlighting the subcommittee's work as part of this larger Defense authorization bill. But before addressing those specifics, I commend Chairman Warner for his outstanding leadership of the Armed Services Committee in the time I have been in the Senate. This markup, as has already been noted, is his last markup as chairman of the committee. But I am confident that Senator Warner will continue to contribute in many ways and play a key role in the work of the committee, even after he no longer is chairman. We are fortunate to have his expertise in the Senate, particularly on the Senate Armed Services Committee. And I congratulate him for a job well done. This bill builds on the President's budget request of $11.1 billion for science and technology by adding $362 million in authorization language to these important programs. This year's additional science and technology investment is focused on unmanned systems, energy and power, information assurance, combat medicine, force protection, transformational technologies, and basic research. The bill sustains the committee's investment in research and technology to defeat improvised explosive devices, otherwise known as IEDs, that are having such a devastating effect on our troops and civilians in Afghanistan and Iraq. Reflecting a focus on transformational technologies, the bill directs the Secretary of Defense to develop a Department-wide unmanned systems policy, and to give preference to unmanned systems and vehicles in development of these new systems. The bill also directs the Secretary of Defense to establish a joint technology office to coordinate, integrate, and manage hypsersonic research, development and demonstration projects and budgets. To support the Department's commitment to combat terrorism and to protect our homeland, this bill authorizes nearly $150 million above the President's budget request in this area. The bill adds $13.5 million for homeland defense research, equipment and operations, and $17.3 million to meet unfunded priorities of the Northern Command responsible for the area, including the continental United States. The bill provides additional resources and authorities for the Weapons of Mass Destruction--Civil Support Teams, including adding $8.5 million for the development of a sustainment training program for the 55 congressionally authorized WMD- CSTs--Weapons of Mass Destruction--Civil Support Teams--and an additional $5 million to address equipment upgrades for the first 32 of those teams to ensure standardization of equipment for all teams. The bill authorizes the Secretary of Defense to approve the deployment of these teams to Canada and Mexico, with the consent of appropriate authorities in each of those countries, and expands the types of emergencies for which the Secretary may prepare or employ these civil support teams. The recent arrests of terrorists in Canada make it all too easy to imagine a circumstance in which we might want to employ these Weapons of Mass Destruction--Civil Support Teams beyond our borders when requested by our neighbors either to the north or to the south. Reflecting the importance the committee places on information assurance and cyber-security, the bill requires the Department to report to Congress on progress in addressing a list of identified deficiencies in the area of cyber-security, information assurance, and network protection. In recognition of the critical and growing role of Special Operations Forces in the global war on terrorism, this bill adds $102.4 million for Special Operations Command to address unfunded priorities, and includes a provision to enhance acquisition oversight for the Special Operations Command to make sure the dollars it does spend are spent well. Our troops must be prepared for the possibility of a chemical or biological attack by terrorists at home or on the battlefield. Accordingly, the bill adds $68 million for chemical-biological defense, including $30 million to procure equipment to address shortfalls in National Guard units for chemical agent detection equipment and monitors, and $38 million for chemical and biological defense research, development, test, and evaluation programs to counter the threat of chemical and biological weapons. In the area of nonproliferation and weapons of mass destruction threat reduction, this bill fully supports the President's budget request, authorizing $1.7 billion for the Department of Energy nuclear nonproliferation programs and more than $372 million for the Department of Defense Cooperative Threat Reduction Program. These important programs are preventing weapons of mass destruction from getting into the hands of terrorists. Finally, the bill includes several provisions to extend and expand the Department of Defense counterdrug authorities, including those relating to support of Colombian efforts against terrorist organizations involved in narcotics activity; DOD support of the counterdrug activities of other U.S. Government agencies; and Department of Defense support of the counterdrug activities of other countries. Before I conclude, I would like to spend just a couple minutes on a section of the bill with which I strongly disagree. The committee bill recommends a 1-year delay in the production of the Joint Strike Fighter. I share my colleagues' concerns and commitment to acquisition reform, and I am pleased that the committee bill contains many provisions to improve our acquisition process. We have to get acquisition costs under control if we are going to be able to procure the weapons systems our Nation needs to meet the threats of the 21st century. But I am deeply concerned that the committee's recommendation will undermine the Joint Strike Fighter Program in terms of cost increases and schedule slips. The Joint Strike Fighter Program is the largest acquisition program in the history of the Department of Defense. There are legitimate questions regarding the level of concurrency between research and development and procurement in this program that have been subject to criticism by the General Accounting Office. The committee recommendations closely follow those recent GAO reports on the Joint Strike Fighter. But I would note that the GAO recommendations have not been subject to a business-case analysis. In fact, implementation of the General Accounting Office recommendations could likely cost more and result in further delays of the program. In short, I am concerned that the committee recommendation of a 1- year production delay may be penny-wise and pound-foolish. For example, do we know how the proposed 1-year delay in production will affect the overall cost of the Joint Strike Fighter program? Do we know how the proposed 1-year delay in production will affect the Initial Operational Capability of the Joint Strike Fighter? And, finally, do we know how the proposed 1-year delay in production will affect our international partners? These are questions raised at the committee level and I think still are deserving of good, solid answers. I strongly believe we need the answers to these questions before undertaking major changes in this important program. I am hopeful that as we move forward we can get the answers Congress needs in order to help, and not hurt, this important program. I have highlighted those elements of the fiscal year 2007 national Defense authorization bill that were developed by the Subcommittee on Emerging Threats and Capabilities. There are, of course, many other important provisions in this bill which my colleagues on the committee will have the opportunity to describe. I urge all Senators to support the legislation and, in doing so, send a resounding signal of support to our men and women in uniform. I yield the floor.

Mr. CORNYN

Mr. CORNYN. I thank the Chair.

Mr. CORNYN. Mr. President, I ask unanimous consent to speak for up to 20 minutes in morning business.

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

Mr. CORNYN

Mr. CORNYN. Mr. President, there are two things on my mind today that I wanted to share with our colleagues. First of all, I wanted to come to the floor to take issue with something that I view as a disturbing trend that I have seen develop over the last few days when it comes to our ongoing efforts to liberate the Iraqi people and to fight the global war on terror. Yesterday, during a 9 a.m. press conference with MG Bill Caldwell, the military spokesman in Baghdad, regarding the mission that killed terrorist Abu Mus'ab al-Zarqawi, one reporter asked: Were you going for Zarqawi? We've heard that you have been going for some other people and then there was some luck involved. To which Major General Caldwell replied: We knew exactly who was there. We knew it was Zarqawi. And that was the deliberate target that we went to get. An AP story yesterday said: What may have changed the Americans' luck was U.S. Ambassador Zalmay Khalilzad's efforts to mend relations with Iraq's minority Sunni Arabs, alienated by the U.S. invasion and the new Shiite-dominated government. And a story yesterday in Time Magazine entitled ``How They Got Zarqawi; the Manhunt That Snared Him.'' In part I quote that story: The fact that intelligence agencies were able to close in on a man who had eluded capture for three years, during which his terror operations left thousands of Iraqis dead, suggests that some of those close enough to know Zarqawi's whereabouts and connections may have been ready to shop him to his enemies. Not necessarily, of course. The story goes on to say: The intel services could have simply gotten a lucky break through the slow but steady gathering of information, or Zarqawi could have made a mistake. Either way, a key agent in the chaos gripping Iraq has now been taken out of the equation. Also, as we know, recently there were arrests of 12 men and 5 youths in Canada last weekend, foiling a major terrorist plot to attack targets in southern Ontario. The assistant director of operations of the Canadian Security Intelligence Service said the men arrested are followers of a ``violent ideology inspired by al-Qaida.'' In reporting on this story, CBS News also had this to say with regard to recent terror arrests: Police in Toledo, Ohio busted another cell in February. This one consisted of three men training to attack U.S. forces overseas. Once again, luck played a role. So, Mr. President, I got to thinking about this word, this four- letter word ``luck.'' It is certainly a loaded term, and in the context of yesterday's operation, I think it is a pretty dismissive term as well. Instead of luck, I would suggest that the elimination of Abu Mus'ab al-Zarqawi was a combination of professionalism, patience, persistence, and precision munitions, not luck. Professionalism, patience, persistence, and precision munitions, not luck. To me, attributing all of this somehow to luck devalues the preparation of our men and women in uniform as well as our intelligence services and our coalition forces. It doesn't give adequate credit to the heightened awareness that we have exercised since September 11, 2001, and it certainly doesn't do justice to patient, relentless execution of the war on terror by our fighting forces and allies. So I think it is time we get a little perspective. Was it luck when officials were conducting an investigation that foiled a plot the impact of which had the potential to rival the bombing of the Oklahoma City Federal Building? Was it luck that motivated the Iraqis to tip U.S. forces to Zarqawi's whereabouts? Was it luck that trained our forces to execute that critical mission? And while we are on the subject, was it luck that our men and women in uniform executed the invasion and liberation of Iraq successfully and in a miraculously short period of time? Was it luck that Saddam Hussein was removed from his position as head of a terrible, tortuous regime and found cowering in a spider hole and brought to justice? Was it luck when CIA forces joined with Pakistani authorities to capture top al- Qaida operative Khalid Shaikh Mohammed? I can't help but find it interesting that, as the old adage goes, the harder our military and intelligence forces work, the luckier they seem to get. Or it could be more apt to say it this way, in the words of the old adage, luck is when preparation meets opportunity. All of these achievements were hard won, and all of the victories in this global war are bought with a dear price--and we should never forget that or try to dismiss that hard work and those efforts, the determination and sacrifice as merely luck. It is not luck that is bringing the fight to the terrorists' doorstep. It is not luck that our country and our allies are hunting down those who would threaten our freedom and perhaps even our very way of life. September 11, 2001, was a dark day in our Nation's history. But let's not forget the meaning of our actions as we fight and win the war on terror is inextricably linked to the events on that day, the day the world mourned with us, the day our friends said, ``Today we are all Americans.'' Since that day we have worked to bring terrorists to justice, and we are succeeding. We are succeeding because of commitment, dedication, hard work, patience, and sacrifice. We are going to continue doing all that we can and all that we must to defend the cause of freedom. I caution those who would dismiss these efforts in a world that in this context has little meaning. Let's recognize these accomplishments for what they are and be thankful for the protection provided by our men and women in uniform, our intelligence communities, our friends, and our allies.

Mr. CORNYN

Mr. CORNYN. Mr. President, I note that today the Department of Homeland Security is announcing the publication of a regulation that addresses a deficiency in the work verification process to make sure that only people who can legally work in the United States are capable of doing so. Of course, this is long overdue. The Senate and the House have both passed immigration bills that would overhaul employment verification laws. Restricting the employment of undocumented workers as a means of reducing illegal immigration is not a new concept. For decades, policymakers have recognized that eliminating the magnet of illegal employment is the key, some might even say the linchpin, to controlling illegal immigration. In 1981, the bipartisan Select Commission on Immigration and Refugee Policy recommended legislation making it illegal to hire undocumented workers. In 1997, the bipartisan U.S. Commission on Immigration Reform stated that eliminating the employment magnet is the linchpin of a comprehensive strategy to deter unlawful immigration. The U.S. Commission on Immigration Reform went on to conclude that ``the most promising option for verifying work authorization is a computerized registry based on the Social Security number.'' Despite 25 years of consensus, current employment verification laws are unworkable and unenforceable. An employer must review some combination of up to 29 different documents to determine whether a new worker is legal. Document fraud and identity theft have contributed to the problem, making it easier for unscrupulous employers to look the other way and hire unauthorized workers. The employer sanctions provisions that were passed in 1986, which were supposed to be the tradeoff for the amnesty provided to 3 million people--those employer sanctions have been completely ineffective. So while the amnesty was a success in the sense that 3 million people got a pass, the enforcement necessary to avoid another buildup of illegal aliens was never delivered. As I said at the outset, the Department of Homeland Security is issuing the publication of a regulation today that addresses this deficiency. It is proposing a rule that will help responsible employers ensure that they are not employing individuals who cannot legally work in the United States. When hired, employees in the United States must present documents to their employers to show that they can work here legally. Many people use their Social Security card as one of those documents. When unauthorized aliens try to defraud their employers by presenting fraudulent identification or Social Security cards, the employers will often receive a ``no match'' letter from the Social Security administration. This ``no match'' letter informs the employer that the name associated with the Social Security number does not match. Until now, many employers have not known what steps to take upon receiving such a mismatch notice. Many mistakenly believe that they must immediately fire the employee. The absence of clear guidance has frustrated employers and, all too often, legal employees end up losing their jobs because of this confusion. The proposed rule outlines clear steps that employers can take in reaction to receiving ``no match'' letters. The proposed rule contains a safe harbor for employers. If businesses follow these procedures in good faith, they can be assured they will not be subject to sanctions. While the vast majority of employers seek to comply with the law, too many employers turn a blind eye to obvious violations of the law. In fact, a small percentage of employers are responsible for a large percentage of ``no match'' letters. The General Accounting Office reported that between 1985 and the year 2000, only 8,900 employers were responsible for 30 percent of ``no match'' reports. Some of the other statistics in the General Accounting Office report are even more troubling. Several employers used one Social Security number for more than 100 different employees--the same Social Security number for more than 100 different employees. One employer used a single Social Security number for 2,580 different wage reports. Mr. President, 8.9 million wage reports had all zeros for the Social Security number. In other words, there was no attempt made whatsoever to come up with the correct and accurate number, so zeros were offered as a Social Security number in 8.9 million wage reports. Mr. President, 43 different employers used the same Social Security number for more than one employee--for 16 years in a row. The Department of Homeland Security recently conducted the largest worksite enforcement raid to date against a company known as IFCO Systems, arresting more than 1,000 illegal aliens and charging several managers with criminal violations. Approximately 53.4 percent of the Social Security numbers for IFCO systems were invalid--half--and Social Security had notified the company more than 13 times regarding these discrepancies before it finally acted. This regulation will therefore provide guidance to employers who seek to comply with the law and will allow the Government to prosecute those who turn a blind eye. But this action by the Department of Homeland Security is only a Band-Aid for the underlying problem. Employers do not have a reliable method to ascertain whether employees are eligible to work in the United States. A paper-based system such as we have now, where you can use up to 29 different documents, will always be vulnerable to fraud and abuse. Electronic verification is the way. It has been tested for more than 10 years, and an independent review of the program, the so-called basic pilot program, found that 96 percent of participating employers believe the electronic verification system is an effective tool for employment verification. The Senate immigration bill improves upon the current paper-based system and requires an expansion of the electronic verification system. But the Department of Homeland Security Secretary Chertoff told me personally that he has problems with some of the provisions in the Senate bill and that, as drafted, he considers it unworkable. In my capacity as chairman of the Immigration, Border Security and Citizenship Subcommittee of the Senate Judiciary Committee, I intend to hold a hearing in the coming weeks on this critical issue of employment verification to make sure we get it right. Twenty years ago Congress sold Americans a bill of goods. They said if you will accept the amnesty, then we will have workable worksite verifications and sanctions against employers who cheat. Yet today, here we are wrestling with the problem, not of 3 million undocumented workers but 12 million. Obviously, the amnesty without worksite verification and employer sanctions is merely a magnet for future illegal immigration. I believe Americans are a forgiving people. If someone makes a mistake and repents, asks forgiveness and says; I'll try better next time, they are pretty forgiving. But if we are viewed as merely repeating the same mistakes and attempting to trick the American people into accepting another amnesty without actually trying to solve the problem, the consequences for our society and for our national security and for our economy will be too great. I will, therefore, continue to work with my colleagues diligently during the conference with the House to develop an employment verification system, along with a temporary worker program, that reduces employer burdens and protects workers' rights, but which will allow us finally, once and for all, to come to grips with our broken immigration system.

Mr. CORNYN

Mr. CORNYN. Mr. President, yesterday, when I came to the floor and spoke on this legislation--the so-called Native Hawaiian legislation--I indicated that I had profound concerns about the constitutionality of the bill. I might add that it is not sufficient for Members of Congress to say that the courts will clean up the mess after we pass the bill. Indeed, it is our responsibility to uphold and defend the Constitution as Members of the Senate. Yesterday, we heard a few hours of discussion from both those who support and those who oppose the bill. I have made no secret of my opposition. Simply put, I cannot and I will not support a bill the purpose of which is to divide America and is based upon race, and which is clearly contrary to our fundamental American principle of equal justice under the law. The bill would create a separate race-based government for Native Hawaiians to the exclusion of all other Americans. And because of its very focus on race, the legislation creates particularly troublesome constitutional problems. In fact, it appears to be designed to be an end-run around the U.S. Supreme Court decision in the year 2000, in Rice v. Cayetano, a Ninth Circuit Court of Appeals decision which has struck down the practice of segmenting Hawaiians based upon race. I mentioned the 2000 decision in Rice v. Cayetano. That was a 7-to-2 decision which struck down the ancestry requirements for voting for the Office of Native Hawaiian Affairs trustee elections. The Court found that because ancestry was a proxy for race and the election was an affair of the State, it was in violation of the Constitution, and particularly the 15th amendment to the Constitution. Justice Kennedy, writing for the majority, makes clear why the very purpose of S. 147 creates broad constitutional concerns: One of the reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens. Some say this bill simply equates Native Hawaiians to Indian tribes. But Congress cannot simply and arbitrarily create Indian tribes where they don't exist. The Constitution does not authorize Congress to make Indian tribes out of subsets of Americans who have no relationship whatsoever to an Indian tribe. The Supreme Court has been clear that Congress may not insulate a program from the Constitution's strict scrutiny for legal distinctions based upon race by ``bring[ing] a community or body of people within the range of this [congressional] power by arbitrarily calling them an Indian tribe.'' In addition, the 14th amendment precludes the use of race in making appointments--something clearly contemplated by this bill. This bill perhaps most clearly raises constitutional concerns in its direct contravention of the Supreme Court ruling in Rice. The legislation would require that the Department of the Interior manage a special election in which eligibility depends entirely on race. As I have pointed out before, the Court made clear that racial restrictions relating to Native Hawaiians is prohibited by the 15th amendment. In summary, in its attempt to pigeonhole Native Hawaiians as equivalent to an Indian tribe and to create a governmental entity based entirely on race, S. 147 runs counter to the express letter and certainly the spirit of the Constitution. Unfortunately, despite these clear constitutional problems, it seems that some in the Senate are content to acquiesce--to accept passing an unconstitutional bill, while passing the buck to the courts to bail us out. Yet just 2 days ago, my colleagues on the other side of the aisle were talking about what they thought was ``wasting time'' on defending marriage, a basic institution--perhaps the most basic institution--in our society. And yet they are willing to spend a week debating a measure that has little chance of passing and that flies squarely in the face of the Constitution. I find these inconsistencies difficult to reconcile. The sponsors of this legislation last year wrote a Dear Colleague letter that suggests that any constitutional inquiries should be left to the courts, the implication of which is Congress should not concern itself with the bill's constitutionality. I could not disagree more. When I came to Washington, I, like the rest of my colleagues, swore an oath to defend and uphold the Constitution of the United States. That pledge is non-negotiable and does not allow, much less require, me or any Member of the Senate to defer our obligations to pass legislation that reasonably appears to be within the four corners of the United States Constitution. Congress is required to uphold the Constitution, as are judges. More importantly, it is imperative that we pass legislation that furthers the principles of the Constitution rather than dissolve them. A constitutional commitment to equal justice for all would be undermined should we choose today to endorse the creation of a race-based government. This is not a question that should be passed off to the courts. We should decide right here and right now. I urge my colleagues to vote against cloture on the motion to proceed. If they are serious about working on issues that really matter, I urge them to allow the Senate to move on to consider other pressing business. I yield the floor.

Mr. CORNYN. Mr. President, how much time remains on our side of the aisle?

Mr. CORNYN. I ask unanimous consent that I be allotted 10 minutes out of that time.

Mr. CORNYN

Mr. CORNYN. Mr. President, earlier today, we witnessed an important victory in the war on terror and in the continued march of freedom and democracy in Iraq. Al-Zarqawi, like Saddam Hussein, was a mass murderer. I am not sad to say that he has made his last video. I could not be more proud of our men and women in uniform--our military and intelligence services and those individuals who participated in this particular operation. Our intelligence and military forces have demonstrated their exceptional abilities and reminded us yet again that, through patience and resolve, we will continue to win the war on terror and advance the cause of freedom around the globe. So I want to say to our military forces and our intelligence community serving all around the world that we support you, we are proud of you, and we know that you will continue to keep up the good work.

Mr. CORNYN

Mr. CORNYN. I ask unanimous consent a law clerk on my staff, Sam Burk, be granted floor privileges for the duration of the debate on S. 147.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to speak on this bill with some trepidation, because, as I heard the Senator from Tennessee say earlier as I was watching the debate from my office, everyone in this Chamber has enormous respect and affection for the Senator from Hawaii. We understand how important this issue is to him and believe he is making his arguments in the best of faith. I must say, though, that it is staggering to me to think of how important the issues are that underlie this bill. This is not a bill which just affects the State of the Senators from Hawaii; this is a bill which would potentially affect what it means to be an American. One of the defining characteristics of this great country in which we live is that no matter where we come from, no matter what our ethnic or racial heritage might be, no matter where we were raised, once we pledged allegiance to the United States of America, we became an American, someone who believes in the ideal of America's values, including equal justice under the law. So the very concept that people would be treated differently based upon whether they are Native Hawaiians or whether they came from Ireland or whether they are some other ethnic or racial group is anathema to what it means to be an American. This bill, it has been observed, would create a race-based and racially separate government for Native Hawaiians. It has been observed by the U.S. Supreme Court in the year 2000 in the Rice v. Cayetano lawsuit that this legislation is actually addressed to limit participation in a government based on one's consanguinity or bloodline, is in effect a proxy for race. What we are talking about is participating in the benefits of being a Native Hawaiian based upon race and racial differences rather than saying to anyone and everyone that America remains a nation where anyone and everyone, based upon their hard work, based upon their willingness to try to accomplish the most they can with the freedoms that we are given--it is totally in contradiction to that goal and that aspiration we have for all Americans. It is important to address some of the specific allegations that have been made. First of all, this is equivalent to creating an Indian tribe. The State of Hawaii has stated in court, in 1985, the tribal concept has no place in the context of Hawaiian history. In the Rice v. Cayetano case, the brief said that for Indians, the formerly independent sovereignty that governed them was for the tribe, but for the Native Hawaiians, their formally independent sovereign nation was the kingdom of Hawaii, not any particular tribe or equivalent political entity. The tribal concept, the brief went on to say, on behalf of the State of Hawaii, the tribal concept simply has no place in the context of Hawaiian history. If we think about that, it is clear Native Hawaiians, if they are going to be identified based upon having Native Hawaiian blood, do not live on a reservation or any geographically discrete plot of land. Indeed, they are dispersed throughout Hawaii and throughout the Nation. The only defining characteristic is whether an individual has any Native Hawaiian blood. It is completely different from Indian tribes which were, at the time of the founding of this Nation, sovereign entities unto themselves, so it was entirely appropriate that the Government negotiated relationships with those existing sovereign entities, the Indian tribes, as they exist even today. But to say today, in 2006, we all of a sudden are going to identify some 400,000 Native Hawaiians wherever they may live in Hawaii and elsewhere and create a tribe, or a tribe equivalent, out of thin air has simply no counterpart in the way the Indian tribes are created. And, indeed, as the State of Hawaii has said for itself, the tribal concept simply has no place in the context of Hawaiian history. As to the goals and the aspirations of this particular legislation, it is clear this bill lays down some rudimentary, I would say early, steps in the recognition of a political governing body. But as to the goals of this legislation and the supporters of this legislation, the Office of Hawaiian Affairs acknowledges what the goals are under the Akaka bill. It says: The Native Hawaiian people may exercise their right to self-determination by selecting another form of government, including free association or total independence. The concept of any people within the confines of the United States claiming their total independence is not unknown to our Nation's history. Six hundred thousand people died in a civil war, claiming a right to independence from the Union. There has been much bloodshed, many lives lost, to preserve this great Union that we call the United States of America. When I say this seemingly innocuous legislation raises profound issues that affect who we are as a Nation and what we will be as a Nation, I mean that in all sincerity. This legislation would be a serious step backward for our Nation and could not be any further from the American ideal. From the beginning, Americans have been a people bound together not by blood or ancestry but rather by a set of ideas. These ideas are familiar to all of us: liberty, democracy, freedom, and most of all, equal justice under the law. These are the ideas that unite all Americans. They are ideas that have literally changed the course of human events. No longer are the greatest civilizations in the world recognized or measured by how many subjects bow before a king or how many nations are conquered by armies. Today, we measure greatness of a nation to the extent that the nation's people are recognized as equal under the law. This is enshrined in our most basic documents. Thomas Jefferson's Declaration of Independence, stating ``that all men are created equal.'' But we know too well that those are words on paper. The long road to equality, on which we most certainly continue to travel and which continues to be a work in progress, has been costly to our Nation. As I mentioned a moment ago, it has been paid for with the blood of hundreds of thousands of American patriots. Unfortunately, the signposts along the way have been too often marked by violence and bigotry when we have seen Americans pitted against other Americans claiming special status because of the color of their skin or because of their relationships. Today, however, America stands as a shining example of what happens when people set the ideal in their mind as the goal to work forward. As Justice Harlan noted in his classic dissent in the case Plessy v. Ferguson: [O]ur Constitution is color-blind, and knows neither nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. While it certainly took far too long in our own Nation's history to embrace the truth of Justice Harlan's position, and we certainly have more to do as a work in progress ourselves, America has made significant progress toward equality. Unfortunately, this bill--whatever good the intentions may be, and I grant those without any argument--the bill threatens to undermine all of the progress we have made by establishing a race-based government and requiring the Federal Government enforce its creation. There are the bill sponsors, the Governor of Hawaii, and the Attorney General, who argue that the bill does not establish a race-based government. Indeed, they say that the bill neither further balkanizes the United States nor sets up a race-based separate government in Hawaii. With all due respect, a plain reading of the legislation indicates otherwise. The bill clearly states that only Native Hawaiians can participate in the newly established community, period. And a Native Hawaiian is defined in part as ``[o]ne of the indigenous, native people of Hawaii and who is a direct lineal descendant of the aboriginal, indigenous native people.'' But perhaps the most troubling description of the bill comes from our friends, the Senators from Hawaii: . . . the first step is to create a list of Native Hawaiians eligible . . . The individuals on the list will be verified by a commission of individuals in Hawaii with demonstrated expertise and knowledge in Hawaiian genealogy. The list will be forwarded to the Secretary of the Department of Interior who is authorized to certify the list only if the Secretary is fully satisfied that the individuals meet the necessary criteria. In other words, the legislation requires that the Federal Government hire Federal employees to serve on a race-based commission that itself would use a racial test to determine membership in the race-based so- called tribe. I ask my colleagues to explain to me how this does not ``set up a race-based separate government in Hawaii.'' It seems that if words have any meaning, the truth is plain to see that it does, indeed, establish a race-based system without precedent in American history. What concerns me even more is that the proponents claim the legislation will not balkanize the United States. But this claim virtually ignores the entirety of our Nation's long and historic struggle over issues of race from slavery to Jim Crow laws and beyond, laws and policies that define our people based on race are bound to ultimately fail. Furthermore, by claiming to create an analogy to an Indian tribe out of Native Hawaiians scattered across the planet, Congress will be giving the new government some of the same benefits as other Indian tribes. Yet the new government will operate at a very different environment with no geographic boundaries nor physical communities. The people who may be confirmed as Native Hawaiians are completely integrated with all others throughout Hawaii and throughout the 50 States. Developing this government will create a large number of structural and practical difficulties that one can only imagine. Since time is short today, and it is my sincere hope that our colleagues will vote against cloture on this bill, I will reserve additional comments for a later time. I conclude by saying this is an idea that runs completely counter to America as a melting pot, which has been so often used to describe our Nation as a Nation that is comprised of many races and many ethnicities, people of wildly divergent beliefs. But the one thing we do agree on is the founding ideals that have made America unique, none of which is more important than equal justice under the law. If we are to embrace for the first time in American history, as a matter of our legislative actions, race-based distinctions for Americans, it will be a day we will long rue and will be a black mark in our Nation's long march toward equal justice. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Madam President, I congratulate Senator Kyl, who has been a true champion of this effort and a leader on a bipartisan basis, for his good work. I know we were delayed a little bit because we thought we were going to come to the floor with this important legislation about the time that Mother Nature sent us Hurricanes Katrina and Rita. But we are back here through no small effort on the part of Senator Kyl. I thank him for his leadership. This is an issue which affects my constituents in Texas a lot and concerns Americans, as we know, across a broad political spectrum, as a result of public opinion polls. It goes back to 2001, when Congress passed the Economic Growth and Tax Relief Reconciliation Act which included a phaseout of the death tax. Eliminating the death tax was an important part of that overall tax relief package which has played no small part in the incredible economic expansion we have seen in America since that time: 2 million new payroll jobs in the past year; more than 5 million new payroll jobs since May of 2003; unemployment is at 4.6 percent, the lowest in almost 5 years; home ownership has reached alltime highs, including among those categories of minority owners who traditionally have lagged behind in terms of their pursuit of the American dream. The economic growth and expansion we are seeing today would not have been possible but for the important tax relief this Congress passed with President Bush's leadership in 2001 and 2003. Unfortunately, because of our budget rules, because of our inability to get 60 votes for permanent repeal, Congress has been unable to completely eliminate the death tax. The death tax will amazingly disappear in 2010 but then rear its ugly head in 2011 and revert to its pre-2001 level. In other words, unless we act, the American taxpayer will see a huge tax increase. This debate is about whether Members of the Senate truly believe that death should remain a taxable event for American taxpayers, especially those who are hit in a disproportionately disadvantageous way-- ranchers, farmers, and small business owners. I favor eliminating the death tax because, fundamentally, it is an unfair tax. Once you earn income and pay taxes on your income, then Uncle Sam comes along, when your loved one is lying on their deathbed, and says: We want another bite out of your savings and assets that have accumulated due to your hard work and industry. There are those who say this is just to benefit the rich and wealthy. That ignores the reality on the ground. The death tax brings the hammer down on Texas farmers and ranchers whose most valuable asset is their land. To pay this double tax, farmers and ranchers are threatened with the prospect of selling just to pay their tax. This is true of small business owners who have chosen perhaps not to incorporate or form a business organization such that they can take advantage of other tax exclusions and exemptions but, rather, this affects small business owners in a disproportionately negative way as well. The death tax discourages savings. By taxing bequests, the death tax discourages small business owners and family farms from saving and reinvesting in their business. Many economists bemoan the fact that Americans don't save enough compared to other countries. Eliminating the death tax would lower the barrier to savings that so many Americans face. Not only does the death tax discourage small businesses and farmers and ranchers from saving, it also hinders their ability to operate from generation to generation. The current death tax burden especially makes it progressively more difficult for each succeeding generation to keep an agricultural operation going. The death tax reduces the inheritance available to heirs, again discouraging people from working, saving, and investing. We are all familiar with the stories of sons and daughters having to sell the family farm their parents gave them so they could merely pay the tax bill upon the demise of their loved one. The death tax also discourages entrepreneurial activity, which is the key to keeping America competitive in the global economy. As ironic as it may seem, the former Soviet Union, our opponent in the Cold War, understands the positive economic benefits of eliminating the death tax. Last year, Russia eliminated its own death tax. In fact, 414 Members of the Duma, the Russian Parliament's lower house, voted in favor of the proposal, a record at the time. Dying should not be a further burdensome, expensive, and complicated event because of the death tax. Right now, it is. IRS data indicates that more than half of the estates of those who die in America are required to file a death tax return even though they never owe any death tax to begin with. In addition, complying with one or more of the complicated parts of the Internal Revenue Code can be crushing when you consider that taxpayers need to hire attorneys and accountants, appraisers, and other experts to make sure that all their t's are crossed and their i's are dotted. Many taxpayers are not lucky enough to afford the armies of accountants and tax lawyers needed to avoid the death tax through the use of legal and reasonable trusts or foundations. The IRS interacts with American taxpayers every day in one way or another. It should not be there on the day those taxpayers leave this Earth. I know there are concerns expressed by some colleagues with regard to the budget deficit. There is no doubt that Congress needs to do all it can to responsibly control the rate at which we spend on mandatory programs which are the primary cause of our deficit, growing as they are at the rate of 8 percent or more a year--Medicare, Social Security, and Medicaid. Earlier this year, I offered an amendment to the budget resolution that would have built on the successes of the Deficit Reduction Act and further reduced the growth in mandatory spending. Unfortunately, it was not accepted. Some advocate keeping the death tax in the IRS Code as the key to opening the door of fiscal discipline. I disagree. Following this path will lead to nowhere and lead there fast. What it will do, instead, is slam the door on ranchers and farmers and family-owned businesses. That is not something I am prepared to do. To ensure the economy's continued momentum, we need to make sure the permanent elimination of the death tax is included in this legislation. We have to end the death tax once and for all as a matter of fundamental fairness. The fact is, by cutting taxes, we spur economic activity, which, in part, accounts for why the budget deficit is actually lower than had been projected earlier, because the revenue to the American Treasury has increased with the burst and expansion of economic activity. With more people working, more people paying taxes, there is more revenue into the Treasury. We have been through a recession, national emergencies, corporate scandals, and a war. Yet because of the President's leadership and the leadership of this Congress in passing important tax relief, we were able to put money back in the pockets of ordinary Americans so that they could then invest and help grow the economy that has benefited us all. Let us not get in the way of that important progress by failing to take the necessary action to end the death tax once and for all.

Mr. CORNYN

Mr. CORNYN. Mr. President, I wanted to spend a few minutes here to respond to the allegations made on the other side of the aisle that the protection of marriage is not important enough for the U.S. Senate to take a day or two to debate and then to vote on a constitutional amendment. I really am astonished to hear our friends on the other side of the aisle take that position because, frankly, I think the American people disagree with them and agree that marriage is important. I think they agree that when it comes to social experimentation by our courts, by a handful of activist judges who think they know better than the American people what is good for us, that they want that kind of experimentation to stop unless, of course, it is authorized by a vote of we, the people, rather than imposed upon us from on high by judges. This kind of experimentation when it comes to living arrangements and now with the institution of marriage are not without costs, and, most often, the individuals who pay the price for that kind of experimentation are America's children. I just can't disagree more with our colleagues on the other side of the aisle who seem to think that the preservation of our society's most basic institution--the institution of marriage--isn't important enough for our time and it is not important enough to take the time to discuss this issue and talk about what the solution might be to preserve the power of we, the people, to determine the laws and policies that affect our lives, and certainly the next generation of our children. I think this time is important, this issue is important, and we will find out when we vote on this issue who it is that believes that the American people should make these sorts of decisions and not a handful of activist judges such as occurred in Massachusetts, and now with a decision out of the Federal court in Nebraska holding that State's constitutional provision that limits marriage to one man and one woman unconstitutional under the Federal Constitution. I don't know who it was that woke up 200 years or more after the Constitution was written and decided that the Founding Fathers wrote into the Constitution discrimination when it comes to marriage between one man and one woman. Obviously this is an issue that we have not initiated, we haven't brought up, but this is a fight that has been brought to us, those of us who believe it is important to preserve traditional marriage. Mr. President, I would ask if I might be notified after 15 minutes of our 30-minute allotment has been used.

Mr. CORNYN. Mr. President, I would also like to spend just a few minutes examining what our colleagues on the other side of the aisle have said. For example, this morning our Democratic leader has said that Nevada has the third highest gas prices in the whole country, and he says that taking care of gas prices is more important than preserving marriage between a man and a woman. But I would like to point out that it is because of obstruction on the other side of the aisle that we have been unable to address the importance of access to domestic production of oil and gas in this country. And, because of obstruction on the other side of the aisle, we have been unable to create new refinery capacity that would make more gasoline, increase the supply and necessarily then, under the economic laws, bring down the price. It has been because of the obstruction that we have seen on the other side of the aisle that we have been unable to address that issue. Again, another example of block and blame. Then we are told that somehow we should be talking about solving the health care needs of the American people. It was just a few weeks ago when our colleagues on the other side of the aisle denied sufficient votes to allow us to consider a small business comprehensive health plan brought up by the Senator from Wyoming, Mr. Enzi. If our friends on the other side of the aisle were serious about solving America's health care problems and providing greater access to health insurance, they wouldn't have voted against that bill just a few short weeks ago. Yet, now they want to change the subject, saying we shouldn't be talking about marriage; we should be talking about health care. The fact is they are the ones who blocked our ability to proceed on that important issue and to find a real solution to that problem. But again, it is an instance of block and blame. Then the Democratic leader this morning said, we ought to be doing something about health care costs. We tried to bring up the issue of health care costs earlier as well, in a case where we have said there ought to be some reasonable limits on noneconomic damages in medical liability cases. That has been tried in my State, the State of Texas, and we have seen medical liability insurance go down into the double- digit range. We have seen more doctors coming into communities where they have been afraid to practice, and we have seen greater access to health care as a result of those efforts. Yet when we tried to change that here in the U.S. Senate, again, we were blocked by our colleagues on the other side of the aisle and then blamed when we are debating about the preservation of the institution of marriage and not addressing medical costs by dealing with the medical liability crisis. Of course, then they also claim that really they ought to be the ones to control the legislative agenda, and that is really what this is all about. But they mentioned the war in Iraq, the energy crisis, the price of gasoline, health care, and said that the priorities of the Republican leadership are misplaced when it comes to addressing America's real needs, but neglecting all the while in pointing out that they themselves are the ones who are the primary reasons why we have been unsuccessful in addressing some critical improvements and reforms in those areas. Our colleagues on the other side of the aisle need to make up their minds. They are literally schizophrenic--of two minds--when it comes to what to do about our energy crisis in America. They blocked building new refineries; they held up an energy bill for 3 years; they blocked exploration for domestic production in the Arctic National Wildlife Refuge, which we know, given modern exploration and drilling techniques, can be done in an environmentally friendly sort of way; and they blocked the President's Clear Skies initiative, which is designed to cut down on emissions and protect the environment. Rather than demagog the issue, rather than to try and pin blame on the President or the Republican leadership, our colleagues on the other side of the aisle would be better served, and certainly the American people would be better served, by working with this side of the aisle in trying to find real solutions, particularly when it comes to our energy needs, to reduce America's dependence on foreign sources of energy and help reduce gas prices. If they are really concerned about energy costs, then they would have made it easier by working together with us to expand clean nuclear energy. On the issue of the marriage amendment, the Democratic leader this morning said this is an issue that ought to be left to the States. Certainly many States, including my State, have passed a constitutional amendment protecting traditional marriage. The problem is some Federal courts, notably one in Nebraska most recently, held that very State solution is itself in violation of the Federal Constitution. The Democratic leader is a distinguished lawyer in his own right. He understands that a Federal court which holds that the Federal Constitution violates the State Constitution, that the Federal decision preempts the State constitutional solution. So again, this is not an issue that we have gratuitously brought up; this is one that has been forced upon us. I think what our colleagues on the other side of the aisle would prefer is if we would just be quiet and gradually allow the Constitution of the United States to be amended, but not as it turns out by the American people by voting on a constitutional amendment, but rather by a handful of activist judges who have somehow taken it upon themselves to define what is good for us and in fact what is and is not unlawful discrimination when it comes to our traditional marriage laws. We know what happens when the American people have a chance to vote on these issues. Overwhelmingly, they vote in favor of preserving traditional marriage because instinctively they know it is the best solution for our society and certainly in the best interests of our children. We have seen too many of our children suffer as a result of social experimentation, certainly by the courts, and we ought to make sure that we preserve the right for we, the people, to make those important decisions rather than allow them to be made by judges who would amend the Constitution themselves under the guise of interpreting the Constitution. How is it that someone can decide after 200 years or more that the U.S. Constitution or even a State constitution modeled after the U.S. Constitution would result in a decision that traditional marriage laws are somehow discrimination is really just beyond me. As I said yesterday on this floor, it is almost surreal. It is almost as if we have been asked to voluntarily suspend our powers of disbelief. The American people know what we are talking about is important. They know what we are talking about here in terms of preserving marriage and a better future for our children is fundamental to our way of life. It is not frivolous. It is not politics. It is absolutely essential that we do so. They try to raise red herrings like: Well, we ought to be talking about health care, or we ought to be talking about the energy crisis, or we ought to be talking about the medical liability crisis, when the truth is they blocked every opportunity we have had recently to try to do something about those issues. The truth is what they want to do is to try to score political points rather than solve the very real problems that confront our Nation. Finally, let me just add that recently I know the Democratic leadership in the other House criticized--if you can believe this-- criticized the performance of the economy. Are they really complaining that 75,000 new jobs last month, not to mention 33 consecutive months of job gains and more than 5.3 million new jobs created since August of 2003, is the wrong direction for this country? The fact is the economy is doing well. But we need to continue to try to make sure that America remains competitive in a global economy by making sure that we keep taxes as low as possible, and by making sure that we keep our regulatory environment one that can protect us but, at the same time, not kill good business opportunities and job creation in this country. We need to look at our litigation system and make sure that we are not imposing a litigation tax on the American consumer and making it harder for legitimate employers to create those jobs. We need to make sure that we continue to try to work together to solve the very real problems that confront our Nation. I don't apologize for a minute in saying that I believe we should vote on a constitutional amendment to protect traditional marriage. I don't think it is a waste of time. I think we can spend a day or two talking about this issue and its impact on our children and on the next generation. I think that is as weighty an issue as we will ever consider here, because it may well determine the long-term direction of our society and the welfare certainly of the next generation. Mr. President, I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I appreciate the Senator from Kansas giving me a chance to speak on the marriage amendment. I know there is no one who cares more deeply or who has fought harder on this cause than the Senator from Kansas. I am glad to join him on the Senate floor. It has been kind of interesting to hear some of the comments that have been made by the majority leader's stated intent to go to the marriage amendment again this week and the kind of comments that some have made about that decision. One of our colleagues on the other side of the aisle was on one of the Sunday morning interview shows, ``Meet the Press,'' where he said: You know, I think about this--the world is going to Hades in a hand basket. We are desperately concerned about the circumstance relating to avian flu. We don't have enough vaccines, we don't have enough police officers, and we're going to debate for the next 3 weeks, I am told, gay marriage, a flag amendment, and God knows what else. I can't believe the American people can't see through this. We already have a law, the Defense of Marriage Act. We have all voted--not where I voted and others voted. Look, marriage is between a man and a woman, and States must respect that. Nobody has violated that law. There has been no challenge to the law. Why do we need a Constitutional amendment? Marriage is between a man and a woman. What is the game going on here? First of all, I would suggest to my colleague who made those statements this last Sunday that protection of traditional marriage is important. This is not an issue which we have raised gratuitously or out of thin air. This is a fight which really has been brought to the American people by those who would seek to use the courts to advance their agenda to call marriage between one man and one woman some form of discrimination or violation of their civil rights. So this is not an issue which we have taken up without provocation or without cause but one which I believe is a legitimate and important response to the challenges we have seen in the courts across our country, including most famously in Massachusetts but elsewhere in addition. Just to correct the misimpression of my colleague whose statements I just quoted, there are challenges to the Federal Defense of Marriage Act pending in a Federal district court in both Oklahoma and Washington. It is simply wrong to suggest that we are introducing this issue without provocation or without cause, and it is simply erroneous to say there have been no developments in the courts across our land that cause good people of good faith some legitimate concern about what the future of our marriage laws might be. Tomorrow, we will vote on an amendment to the Constitution that would define marriage as the union of one man and one woman. Constitutional amendments should obviously not be brought for light or insignificant reasons but, rather, to preserve some of the most fundamental principles of our way of life--and those principles deserving of the ultimate legal protection. The institution of marriage, notwithstanding some of the comments of some, I believe is one of those fundamental principles deserving the ultimate legal protection. It is arguably the fundamental building block of our society. Throughout human history, traditional marriage between a woman and a man has been viewed as the ideal. It is the ideal environment in which to raise children. It is the ideal environment in which to promote families, the most important institution in our society. And, in my view, it should be protected and preserved. I am not the only one who feels that way. The Federal Defense of Marriage Act, which defined marriage as between a man and a woman that the Senator mentioned in the Sunday morning talk show, passed the U.S. Senate by a vote of 85 to 14 in 1996, obviously indicating that this is not a partisan issue. It is not a sort of vocal minority that is saying this is something we need to do. It got overwhelming support in 1996. Moreover, legislators in 45 of 50 States have adopted State legislation generally known as defense of marriage acts. In recent years, the American people across the Nation have gone to the polls to support State constitutional amendments designed to protect marriage and have done so with overwhelming numbers. Voters in my State adopted a constitutional amendment in 2004 with 76 percent support. In fact, in the 19 States that have considered State constitutional amendments, all have passed, and with an average support of 71.5 percent. This year, seven more States will consider constitutional amendments preserving traditional marriage. You might legitimately ask, given all of this activity at the State level, why is there a need for a Federal constitutional amendment? Indeed, even with the Federal Government passing the Defense of Marriage Act in 1996, why do we need the added protection? The fact is, despite the overwhelming will of the American people, traditional marriage has been undermined by activist judges and continues to face challenge after challenge after challenge in State and Federal courts throughout the Nation. It is important to look back at what first signaled that traditional marriage was in jeopardy in the courts. It goes back to the decision of the U.S. Supreme Court, Lawrence v. Texas. The most remarkable thing about that decision is not the result but how the Court came to the result it reached. There is the case that struck down the antisodomy laws in Texas law. Indeed, it was widely anticipated that the Court would overrule the decision in Bowers v. Hardwick, which upheld the antisodomy law in Georgia. But in this case, the Court not only struck down this antisodomy law on equal protection basis--Justice Kennedy, writing for the majority, created a new constitutional right, which raised the specter of legal challenges to traditional marriage laws. That new constitutional right created in that decision was one that said you are free in one's intimate sexual and personal relationships such that the Constitution now prohibits any sort of restriction by legislation or official policy on those intimate relationships between adults. At the time, Justice Scalia rightly noted that the opinion ``leaves on pretty shaky grounds State laws limiting marriage to opposite-sex couples.'' Within months of that decision, the Federal constitutional decision in Lawrence v. Texas was used by the Massachusetts Supreme Court as the basis to interpret its State constitution to require same-sex marriage, writing that ``no amount of tinkering with language will eradicate the stain of traditional marriage.'' This almost seems surreal to me. The last thing I thought I would end up doing coming to Washington and to the Senate is that I would be standing here on the Senate floor having to defend the institution of traditional marriage. I thought some things were a given and there would be other issues that we would be arguing about and fighting about and debating about--the great issues of the day. But we are here because of the provocation of not only overly broad decisions made by the U.S. Supreme Court but essentially State courts now finding the license in other courts to say that traditional marriage laws are somehow unlawful discrimination. It is also important to note why this should be handled at the Federal level. I already mentioned that State voters, when given an opportunity, had readily passed State constitutional amendments, or Texas legislators, as in my State, readily would pass a statute. But we all know that under our Federal scheme of government, State laws, including State constitutional provisions, cannot withstand a decision by a Federal court, that the U.S. Constitution will not allow those State provisions, either of statute or constitution, to stand if indeed it is found to be in violation of the United States Constitution. That is the very real threat here which has already been realized in Nebraska's Federal court and which now is pending in at least two other courts. In the 108th Congress, as chairman of the Subcommittee on the Constitution, Civil Rights and Property Rights, I chaired three hearings on the subject of marriage. These included a hearing focusing on the statutes of the bipartisan Defense of Marriage Act, which I mentioned a moment ago; another studied whether an amendment to the Constitution was necessary at all; and a third that addressed the specific amendment language that had been introduced in the Senate and which is now the subject of the pending resolution. Through that process, we learned time and time again from legal experts across the political spectrum that the only way for Congress to permanently protect and preserve marriage against judicial activism is through an amendment to the U.S. Constitution. I think it is also important for people to understand, even when Congress passes by the appropriate supermajorities a resolution like this to amend the Constitution, that it also then has to go to the States, and three-quarters of the States have to ratify that resolution as well before it becomes a constitutional provision. Some have said that this issue is not sufficiently important to justify an amendment to the U.S. Constitution. But I would point out that the 27th amendment to the U.S. Constitution adopted in 1992 provides that ``no compensation for Members of Congress shall take effect until an election of representatives shall have intervened.'' In other words, Congress can't give itself a pay raise without having to actually stand for election during an intervening period of time. I would humbly suggest that protecting the institution of marriage is at least as important as the pay provisions governing Congress. People can decide for themselves where it matches up on the spectrum, but it is at least as important as that. To suggest that somehow the Constitution is so sacrosanct that we cannot offer amendments to the Constitution is to deny government of the people, by the people, and for the people. This is our Constitution. It is the people's prerogative to say whether we will amend the Constitution, and if so, what goes in that provision. We already know there are some judges who are using their interpretive power under the Constitution to rewrite it or to amend it under the guise of interpretation. So the question is not whether it will be amended; the question is, Who will amend it? I believe we the people should reserve our rights to determine the laws that govern our society and that govern our families. Through the hearing process I mentioned a moment ago, I came to believe that a constitutional amendment was entirely appropriate. We know 2 years ago the Senate failed to overcome a filibuster against proceeding to the amendment by a vote of 48 to 50. That was unfortunate. Now we have another chance, yet some question whether we should take advantage of that opportunity, even accusing supporters of some type of political expediency in even raising this issue. The simple answer is that the institution of marriage continues to be under assault by an organized, coordinated campaign of legal activists seeking to quietly but methodically undermine this institution through lawsuits filed around the country. Since the 2004 vote, State courts in Washington State, New York, California, Maryland, and Oregon have found traditional marriage laws to be unconstitutional. As I mentioned a moment ago, a Nebraska judge has struck down a State constitutional amendment on the same basis, claiming that somehow, after more than 200 years of our Constitution's existence, during which time we all assumed traditional marriage laws were sacrosanct, that somehow all of a sudden these judges have divined that, no, the Founding Fathers really intended to find that traditional marriage laws were discriminatory and unconstitutional. It would be laughable if it were not so serious. At the present time, nine States face challenges of their traditional marriage laws. Some challenges are in State court, and some are based on Federal constitutional claims. Even others challenge the Defense of Marriage Act. Last week, I read in the New York Times that New York's marriage laws are now before that State's highest court, as well. Numerous other lawsuits have been filed and will continue to be filed across the Nation even as voters take to the polls in support of laws protecting marriage. Tomorrow, the Senate faces an important and necessary question: Do we believe that traditional marriage is important enough to deserve full legal protection? In my view, the answer to that simple question is a simple yes. Marriage must be protected by the Constitution, and the American people should preserve their right to choose for themselves how to define our society and not have invalidation of traditional marriage forced on them by activist courts. This amendment language would provide that protection and that reassurance. It would define marriage as the union of a man and a woman and would protect the American people against judicial activism and being forced to live in a country with laws that do not reflect their will. I urge my colleagues to support this measure and to move this important amendment to the Senate for full consideration. I yield the floor and suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that a law clerk on my staff, Andrea Bouressa, be given floor privileges for the duration of the debate on S.J. Res. 1, the marriage amendment.

Mr. CORNYN

Mr. CORNYN. Mr. President, I call up my amendment No. 4097, which is at the desk.

Mr. CORNYN. Mr. President, this amendment is one I believe is absolutely essential to the functioning of this comprehensive immigration reform plan which has been shaped over the last 2 weeks on the Senate floor. It is premised upon the concept of information sharing, and in a post-9/11 world this is the concept with which we have become familiar because the failure to share information between law enforcement and intelligence-gathering authorities and other agencies of the Federal Government was one of the causes of the terrible disaster this country sustained on September 11, 2001. This amendment strikes an appropriate balance between confidentiality of the records of the applicant for benefits under this bill and fraud detection. The compromise we have heard and which has been carefully crafted by a bipartisan coalition here will not in any way be unraveled or hurt by this amendment. Finally, I believe an illegal alien will not be deterred from applying because of this amendment. This amendment does not remove confidentiality per se. It applies only after an application is denied and the need for confidentiality passes. The text is modeled after the Violence Against Women Act. And I ask my colleagues, if the limitation on confidentiality is OK in the case of women who are subjected to violence, why isn't it OK for workers who are simply here illegally? This country's early experience--about 20 years ago now--with immigration reform shows that legalization or an amnesty program is a magnet for fraud and can be exploited in a number of ways. We know that this vulnerability can be exploited, not only by common criminals but also by terrorists. Three terrorists convicted in the 1993 World Trade Center bombing obtained green cards through the 1986 amnesty, including New York City cabdriver Mohammed Abouhalima, who obtained a green card through the agricultural worker amnesty program. The New York Times has described the 1986 amnesty as ``one of the most extensive immigration frauds ever perpetrated against the United States Government.'' Within just a few years, it was reported that the Government had already identified almost 400,000 cases of possible fraud. One of the reasons there was so much fraud in the 1986 amnesty was because the law did not allow the Government to share information even after an application was denied. Yet the current bill contains the exact same text and the exact same flaws. My amendment does not eliminate any confidentiality provisions in the bill. The workers who apply will be protected by the existing confidentiality provisions. My amendment simply allows the Government to share and use information once the worker's application and all appeals are denied. As I mentioned, my amendment is modeled after the current legal protections provided in the Violence Against Women Act, which allows the Government to share and use information submitted in an application ``when the application for relief is denied and all opportunities for appeal of that denial have been exhausted.'' If the limitation is OK in that context, why is it not appropriate in this context? I don't believe this amendment would deter any alien from applying for legal status. Illegal workers face deportation, a secure border, and worksite enforcement. We may hear some say that in order for undocumented individuals to come forward and take advantage of the legalization program provided by this underlying bill, we can't do anything that might cause them to second-guess or question whether they should come forward. But the fact is, I think there has to be a balance struck. I don't believe any illegal alien will be deterred from participating in the very generous provisions of this underlying bill because of concerns that if their application is denied, that information can then be shared with law enforcement personnel. The fact is, the kinds of things we are looking out for are fraud-- massive fraud--schemes which would be designed to undermine the very structure of this negotiated comprehensive immigration reform bill. Paul Virtue, President Clinton's general counsel at the Immigration and Naturalization Service, testified before Congress that: The confidentiality restrictions of law [in the 1986 amnesty] also prevented INS from pursuing cases of possible fraud detected during the application process. That was before the House Judiciary Committee on March 4, 1999. One of our colleagues who was then in the House of Representatives, Senator Schumer, was quoted in the New York Times in 1989 as saying: One certain product of the agricultural amnesty program . . . is that in developing immigration policies in the future, Congress will be much more wary of the potential for fraud and will do more to stop it. It has been said famously that those who refuse to learn from history are condemned to relive it. I suggest to my colleagues that we should have learned something from the massive fraud in the 1986 amnesty, and we should not relive that in this bill today. This amendment improves the current bill by preserving the confidentiality of applicants while allowing the Government to share information, perhaps to uncover massive frauds, criminal syndicates that are designed to try to circumvent the protections in this bill and gain access to our country and our immigration system in spite of massive criminal organized crime. I ask my colleagues, do we really want to grant impunity for fraud? Do we really want to invite criminals and those who would perpetrate such fraud to do so again when we have the very tools at our command which will allow us to strike the proper balance between prosecution for fraud and yet at the same time encouraging those who would benefit from this program to come forward? I have heard some suggestion that the only way we are going to encourage people to come forward is if we make doing so an unequivocally positive experience. In other words, it is all carrot and no stick. But I would suggest that the most practical way to deal with the current situation is for a combination of carrot and stick--the carrot being, obviously, the offer of the great benefits and very generous benefits provided by this underlying legislation, but the stick has to be things such as worksite verification. Ultimately, I believe that is the linchpin of the success of this entire program. Not even border security represents the linchpin for the success of this comprehensive immigration reform plan because 45 percent of illegal aliens currently in the United States entered legally, like the three convicted bombers of the 1993 World Trade Center explosion. But we need a combination of border security, worksite verification and enforcement, and employer sanctions for those who cheat, in order to dry up the attraction of those who want to come to the United States to work. But in doing so, we can provide a good balance for those who are here and who Congress is in the process of determining should be available for certain benefits under this bill, but I believe do so in a way that would prevent and make far less likely the massive fraud which undermined the 1986 amnesty. I reserve the remainder of our time and yield the floor.

Mr. CORNYN. I have enormous respect for the knowledge and passion the Senator from Massachusetts brings to this issue. He is reading more into the amendment than certainly I intend. I would like to explain that. First of all, I don't want to get into an argument with him today about what is and what is not amnesty. We have had that debate. We will leave further discussion of that for another day. I agree with the Senator that what undermined the 1986 amnesty, which I think we both agree was amnesty, was the proliferation, as he said, of fraudulent documents. He acknowledges, and correctly so, coming here now 5 years post-September 11, that it is important all of our law enforcement and intelligence agencies communicate with one another in a way that protects the American people. He talks about tamper-proof documents. This bill does not provide for such tamper-proof documents. In fact, it maintains the current regime of allowing people to prove their eligibility to work by showing some combination of up to 20 different documents. That is where fraud has such great potential. We know there are document mills, there are criminal organizations that will generate a passport, a Social Security card, a driver's license--you name it. Some of the quality of their work is very high, and it easily passes for a valid document. But we do not have that tamper-proof document in this bill, and I hope in the conference committee we will agree among ourselves that is an essential part of this comprehensive immigration reform. What I am getting is, if someone used a fraudulent document to apply for the benefits under this bill, and they are denied the benefits under this legalization program, that information ought to be shared with the FBI and with, potentially, the CIA in cases where their jurisdiction is invoked. This has the opportunity not only to lead our law enforcement personnel to shut down these fraudulent document mills, but also potentially to crack criminal syndicates engaged not only in generating false documents but trafficking in persons, in drugs, in guns, and even potentially terrorist organizations. It is absolutely critical we have the Department of Homeland Security able to share that kind of information with the CIA and the FBI. It is important we bring down those stovepipes that prevented the information sharing that might have prevented September 11. I am not suggesting a good-faith mistake in an application for the benefits under this bill would result in deportation. To the contrary. I am glad to hear the Senator from Massachusetts say, if you lie, you lose, you get deported. I believe we need to have a commonsense availability of this information--not on a widespread basis; we are not going to publish it on the Internet. But law enforcement ought to be able to share in some of this information on a case-by-case basis in a way designed not only to root out and prevent crime and punish crimes that already have been committed but potentially protect America against future terrorist attacks. I cannot for the life of me understand why this is controversial, particularly coming up as we are on the fifth anniversary of September 11. I withhold the remainder of my time.

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

Mr. CORNYN. Mr. President, it really boggles my mind we are having a debate over such a commonsense and straightforward amendment coming up on the anniversary of 9/11. To say the Department of Homeland Security cannot share information about potential fraud and crime and potentially disclose organized criminal activity and potentially even terrorist activity because of the provisions of this underlying bill--I cannot believe we are having that debate. But we are. Hopefully, our colleagues will join us in accepting this amendment which will reconcile this bill with other provisions of the law that we have amended and reformed over the last few years, which have improved information sharing between our intelligence community and our law enforcement agencies, which have made us safer. I don't think it is any accident that while there have been terrorist activities taking human life in places such as Madrid and London and Beslan and other places, we have been fortunate enough to avoid another travesty such as occurred on September 11. Part of it is because of information sharing. This amendment would not deter any alien from applying for legal status. If we are going to say that once that application is denied for whatever reason that it can't be used to investigate potential crimes and fraud and potential terrorist links, that doesn't do anything to encourage or discourage people from coming forward. This is somebody whose application has already been denied. They already have come forward. If we are going to have any criteria at all for taking 12 million people and moving them from an illegal status to some sort of legal status, we ought to be willing to enforce that criteria. That requires access to information and facts that will inform whether or not an individual satisfies the criteria that Congress has put in place. I suggest to my colleagues that the American people are profoundly skeptical of taking 12 million people from undocumented or illegal status and all of a sudden putting them on a path to legalization and citizenship. That skepticism comes from many different directions. One of those is because they saw the tremendous fraud associated with the 1986 amnesty. The language here is precisely the same as was contained in that legislation. What we are saying by refusing to adopt this amendment is, we haven't learned any lessons, either from the mistakes that were made in the 1986 amnesty and the fraud that occurred in connection with that, or from the terrible tragedies of 9/11. There is not a lot more that can be said about it that we haven't already said. I hope my colleagues are listening. I hope they will consider this carefully. I hope they will consider the fact that all we are doing is something that is contained in established laws such as the Violence Against Women Act. This does not undermine the ability of people to take advantage of the benefits of this program. What it does is help make that program work, work for people who are actually qualified to receive the benefits of the program while eliminating those who are not and those who engage in fraud and criminal activities to facilitate the immigration into this country of people who are not legally authorized to be here. May I ask how much time I have remaining?