John Cornyn

Mr. CORNYN

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 Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. CORNYN. No.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to share my views on the nomination of Elena Kagan, who has been nominated by President Obama to serve as Solicitor General of the United States. As my colleagues know, I have supported several of President Obama's executive nominees and opposed a few others. I believe that it is my constitutional duty to carefully review the record and qualifications of each nominee, while giving an appropriate amount of deference to the President when a nominee is objectively qualified for the position to which they are nominated, regardless of political orientation. For example, I voted to confirm Secretary of State Hillary Clinton. I likewise voted to confirm Ambassador Ron Kirk to be U.S. Trade Representative. Unfortunately, I could not reach the same conclusion with Attorney General Eric Holder regarding his fitness to serve as the Nation's top law enforcement official. And, for the reasons outlined below, I cannot support Elena Kagan's nomination to be Solicitor General. My primary concern with Ms. Kagan's nomination is her continued failure to respond to legitimate and relevant questions posed by me and others. As I explained when the Judiciary Committee approved Ms. Kagan's nomination on March 5: Ms. Kagan notes how much she respects the Senate and its institutional role in the nominations process. Regrettably, her refusal to answer legitimate and relevant questions posed by me and others belies this claimed respect. For this reason, I will be voting `no' this morning and do not believe that her nomination should be advanced. I hope that Ms. Kagan reconsiders her position because I believe that she is otherwise qualified to serve as Solicitor General. In response to Senator Specter's subsequent request to supplement her answers in writing, Ms. Kagan returned a 22-page letter purporting to do just that. But I concur with Senator Specter, the ranking member on the Judiciary Committee, who has determined that too many of Ms. Kagan's answers to relevant and legitimate questions remain incomplete and unresponsive. As Senator Specter correctly notes, this is about the Senate's institutional prerogatives. In sum, I do not believe that Ms. Kagan has provided the basic level of responsiveness that the Senate's constitutional advice and consent function demands. And for that reason I am forced to vote against her.

Mr. CORNYN

Mr. CORNYN. Madam President, I rise to speak about the public's outrage over the revelations that senior executives at AIG have received bailout bonuses. This company received $173 billion in taxpayer money, including tens of billions of dollars through the Troubled Asset Relief Program. The American people do deserve to know where their money is going. I confess that last year I supported the first round of TARP money based on the representation from what I thought were the smartest people in the country that it was absolutely necessary to unfreeze the frozen credit markets in our country. But I did not support additional money for the TARP funding when it was requested--the second tranche, so to speak--because the accountability and the transparency we were promised by the Treasury Department the first time around never materialized. We were told this money was necessary to prevent a crisis in our country. Now, we do have a crisis, but that crisis is a crisis of confidence in this administration and in the leaders of this Congress. The American people have legitimate and urgent questions about these bailout bonuses, and these questions demand answers. First of all, they want to know how this happened. A lot of people are pointing fingers over these bailout bonuses, and right now there is a lot we do not know. I appreciate the fact that President Obama said: You know what, people are trying to find fault. I accept the blame. I appreciate the gesture, but that is simply not good enough. We do not know when the administration became aware of these bonuses. Secretary Geithner says he learned of the bonuses last Tuesday. President Obama said he learned about them on Thursday. Yet the Federal Reserve Bank of New York says it notified Treasury in February. And Edward Liddy, the CEO of AIG, testified that everyone knew about these bonuses for months and that he and Secretary Geithner spoke about the bailout bonuses 2 weeks ago. What is clear is that the administration should have known about these bonuses a lot earlier and they should have taken action before they sent AIG another $30 billion this month. We also know how these bailout bonuses got legal protection in the stimulus bill. I voted against the stimulus bill for reasons too numerous to mention here. Yet the bill that passed out of this Chamber had two amendments that addressed bailout bonuses: One amendment, sponsored by Senator Wyden and Senator Snowe, would have taxed these bonuses; another, sponsored by Senator Dodd, the Senator from Connecticut, would have banned the bailout bonuses altogether. These amendments were in the bill that passed out of the Senate, but something happened in the conference. The Snowe-Wyden amendment disappeared completely and the Dodd amendment was changed so that it grandfathered in all the bailout bonuses in place on or before February 11. No one admits to knowing how this happened. None of the conferees admit to knowing. There have been conflicting reports about who knew what when. But the American people need to know who protected these bailout bonuses in a law that was signed by President Obama--one among those who claim outrage at the revelation that now these bonuses are going to be received. He signed the law into effect that actually protected these bonuses in the stimulus plan. The American people deserve to know who proposed these changes in the stimulus bill, who knew about these changes, and who approved these changes. The American people deserve to know who is responsible and how they intend to fix this problem and get the bailout bonus money back in a constitutional and legal way. How do we assure this does not happen again? As those responsible scramble to come up with an explanation, we must also understand what we must do to ensure this type of thing never happens again. I would like to offer a few suggestions. First, Congress needs to stop passing bills without reading them, finding out what is in them, and preparing for their implementation. During the transition, the then-incoming administration said they didn't want to waste a crisis, and Congress complied. Yet their leadership has taught us a different lesson: Treating everything like a crisis actually leads to waste. Second, it is clear the administration needs to get its team in place. Better oversight by the Treasury Department could have avoided this problem. Yet, as Paul Volcker observed, Secretary Geithner ``is sitting there without a deputy, without any under secretaries, with no assistant secretary responsible in substantive areas at a time of obviously very severe crisis.'' I appreciate that President Obama has completed his March Madness tournament bracket. Yet the organization chart for this administration still has far too many open slots. Third, the President needs to shelve his plans to grow the size of Government. His plans to raise more taxes can wait until the administration proves they can be good stewards of the tax dollars we are already spending. His plans to nationalize health care, energy, and education can also wait until he addresses the problem of toxic assets in our financial system and gets our economy moving again. Fourth, the President needs to fulfill his pledge to promote transparency and accountability and bipartisanship in Washington-- something I agree with. The President won the support of the American people because he promised to be a different kind of leader. Yet we see that the more things change, the more they seem to be the same here in Washington. Lack of transparency in Congress helped protect these bailout bonuses in law--passed by the Senate without my vote and signed by the President of the United States. Lack of accountability at the other end of Pennsylvania Avenue speeded this money out the door. If the President's efforts at bipartisanship had been substantive-- more than photo ops and press releases--then we might have delivered a better stimulus bill and not squandered the trust of the American people. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to congratulate Mayor Ron Kirk on his nomination to serve as President Obama's U.S. trade representative. I am proud to support the confirmation of my fellow Texan. Following World War II, the United States recognized a need to engage foreign nations and harmonize global economic trade. President Kennedy recognized the value in placing a single chief U.S. trade negotiator in charge of these responsibilities. Later, President Ford elevated this important position to Cabinet rank. Since then, Congress has worked with many administrations to strengthen the ability of the U.S. trade representative to enforce existing trade agreements and open new markets for American workers, farmers, and consumers. Mayor Kirk would lead the office of U.S. trade representative during the most challenging global financial crisis in history. The World Bank predicts that the global economy will shrink this year for the first time in more than six decades. People in many nations are suffering, and calls for new trade barriers grow louder. However, the U.S. trade representative must speak clearly and calmly against protectionism. He must show how open markets can renew global prosperity and lift millions in the developing world out of poverty. I believe President Obama chose the right man for this job. As mayor of Dallas, Ron Kirk saw how open markets create new opportunities for our people. His trade missions to other nations encouraged new export growth. He engaged and recruited foreign investors thereby attracting new jobs into the city. And he recognized that the North American Free Trade Agreement would bring additional export-related jobs to the region. While many roundly criticized that accord, Mayor Kirk put it to work for the residents of Dallas. His leadership in the late 1990s helped reenergize the local economy. By 2007, the Dallas-Fort Worth area was exporting more than $22 billion of goods and services to foreign markets. Mayor Kirk's confirmation will fill an important void in President Obama's Cabinet. Mayor Kirk has demonstrated that he will warn against protectionism. This voice is needed in the Cabinet. Congress recently voted to suspend the cross-border transportation pilot program occurring at the southern border of my State of Texas. This shortsighted cancellation was met immediately with news that the government of Mexico will retaliate by levying new tariffs on U.S. made products. This unfortunate situation was avoidable had my colleagues heeded warnings of the retaliation that this policy change would incur upon our economy. These tariffs amount to a $2.4 billion tax increase on American made products, and one economist estimates a loss of approximately 40,000 jobs. At a time when Congress should be working to expand markets for our goods and create jobs in the United States, Congress is instead provoking the ire of the customers who buy American products and services. Our workers and our consumers deserve a trade ambassador that will ensure economic policy is rooted in the best interest of the economy rather than political payback. The President has three economic remedies available immediately. The pending trade agreements with Colombia, Panama, and Korea will create jobs in the United States. Consumers in these countries have a voracious appetite for American goods and services. My State of Texas is the top exporter to both Colombia and Panama and the second leading exporter to Korea. These destinations represented a $9.5 billion market for Texas-made goods and services in 2008. The hard work is over; these agreements have been negotiated and signed. I urge the administration to work with Congress and pass these beneficial accords. Mayor Kirk is not the first choice of those who fail to recognize the benefits of free trade, but he's the first choice of the President--and a good choice for American exporters and consumers. The continuing global financial crisis demands a strong leader at USTR--and Mayor Kirk will fill this role well.

Mr. CORNYN

Mr. CORNYN. For that reason I ask my colleagues to support the amendment.

Mr. CORNYN. Mr. President, if amendment No. 673 is adopted, State attorneys general could still enforce the Truth in Lending Act, they can still hire outside counsel, they just could not do so on a contingency fee basis. Contingency fee contracts offer three hazards in this context that are not presented with more traditional fee arrangements. First, there is a serious risk of overcompensating the lawyer at a loss to taxpayers, since typically they work on 30 percent up to 50 percent of whatever is recovered goes to the lawyers and not to the taxpayers, as should be the case. Second, the proposed prospect of contingency fees actually creates an incentive for trial lawyers to encourage litigation that State would not otherwise bring. State attorneys general could initiate this litigation when it is in the public interest. With contingency arrangements, too often the lawyer decides who should initiate the case because, of course, of the profit motive. And this undermines the current regulatory regime. Third, contingency fee agreements have been proven to be a temptation for corruption.

Mr. CORNYN. Mr. President, my amendment would protect workers' paychecks and promote transparency. Currently, the NLRB permits an employer and union to enter into a contract that requires all employees in a bargaining unit to pay union dues as a condition of employment whether or not the employee actually is a member of the union. In a Supreme Court case recently, Communication Workers v. Beck, the Court ruled that nonunion workers could get a refund for that portion of their dues which would be used for political action or other purposes other than collective bargaining. President Obama has now changed the rules by Executive order, and now Federal contractors are no longer required to post signs in the workplace informing workers of their rights regarding union dues. President Obama's Executive order does not change the law, for workers are still entitled to the refund. It is just that now, under the Executive order, employers don't have to tell the workers of their rights, which they should. My amendment prohibits omnibus funds from being used for this provision of the Executive order. I ask my colleagues for their support.

Mr. CORNYN. Mr. President, I ask for the yeas and nays.

Mr. CORNYN

Mr. CORNYN. Madam President, my second and final amendment to this Omnibus appropriations bill would help protect workers' paychecks and increase transparency, something we all heard our new President speak about just a few short weeks ago--I believe about 50 days ago now--when he said he believed increased transparency would increase accountability and help restore the public's confidence in their Government. This amendment is offered in that vein. The U.S. Supreme Court, in Communication Workers v. Beck, said workers could not be forced to pay dues for purposes other than collective bargaining. That means workers have the right to keep more of their money rather than support political action committees, lobbying and gifts, things they may not even agree with. We know every dollar counts in this economy, and many workers object to scenes such as the one we saw last week in Miami. There, the AFL-CIO held a meeting at the Fontainebleau Resort, which describes itself as ``the epicenter of style, fame, and glamour.'' Now, if workers don't want to support that kind of extravagance based on their union dues, they shouldn't have to. And, frankly, who can blame them? The Bush administration issued an Executive order that required employers to post signs at the workplace that informed workers of these rights regarding union dues. These notices are similar to those that inform workers of their rights regarding family and medical leave, workplace safety, equal employment opportunity, and other rights they have under the law. Now, this chart shows what the notice says. It says: Under Federal law, employees cannot be required to join a union or maintain membership in a union in order to retain their jobs. Under certain conditions, the law permits a union and an employer to enter into a union security agreement requiring employees to pay uniform periodic dues and initiation fees. However, employees who are not union members can object to the use of their payments for certain purposes and can only be required to pay their share of union costs relating to collective bargaining, contract administration, and grievance adjustment. It goes on to say: If you do not want to pay that portion of dues or fees used to support activities not related to collective bargaining, contract administration, or grievance adjustment, you are entitled to an appropriate reduction in your payment. Meaning your payment of your union dues. If you believe that you have been required to pay dues or fees used in part to support activities not related to collective bargaining, contract administration, or grievance adjustment, you may be entitled to a refund and to appropriate reduction in future payments. For further information concerning your rights, you may wish to contact the National Labor Relations Board, either at one of its regional offices or at the following address. The Supreme Court has said when a worker pays their dues, they cannot be forced to financially support things they don't agree with, whether it is extravagant spending at the Fontainebleau Resort or perhaps even a political speech where a union might use those dues to help finance a campaign against a political candidate or perhaps an incumbent. President Obama, unfortunately, has signed an Executive order that, among other things, rescinds the requirement to inform workers of their rights regarding union dues. This Executive order, contrary to what we heard a few short weeks ago, actually reduces transparency in the workplace, and it places unnecessary limits on the information available to help workers make informed decisions about their union dues. Amendment No. 674 would prohibit Federal funds from being used to implement that part of President Obama's Executive order related to this notice to workers. It would have no other effect on the Executive order, other than to reinstate this notice to workers that you don't have to join a union; and, No. 2, if you do not join a union, you cannot be forced to finance points of view or activities you disagree with, and you can assure that your money can only be used for legitimate collective bargaining contract administration and grievance adjustment. I urge my colleagues to support amendment No. 674. I yield the floor and suggest the absence of a quorum.

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

Mr. CORNYN. Madam President, I rise to offer an amendment 673 to the Omnibus appropriations bill. As a former State attorney general, I am very concerned that the current bill lets State attorneys general outsource their responsibilities on behalf of their citizens to enforce the Truth in Lending Act. This is a very important piece of legislation that was passed in 1968 to protect consumers in credit transactions by requiring clear disclosure of key terms of the lending agreement at all costs. As I said, this is an important piece of legislation. However, the current provision in the bill allows the attorney general, the elected representative of the people--the people's lawyer--to basically hire trial lawyers on a contingency fee arrangement. Thus, the litigation that might follow under this piece of legislation would benefit not just the citizens, not just the public, not just the taxpayers but trial lawyers too. I don't believe that should be the intent of Congress. Specifically, this amendment clarifies that State attorneys general may not outsource these lawsuits to outside lawyers or expert witnesses on a contingency fee basis. As we all know, contingency fee means you get a piece of the pie if you win. This would not prohibit attorneys general from hiring lawyers on a more reasonable basis, such as a set fee or an hourly rate, but the new causes of action created by this bill could add up to significant money damages, and this money, as I indicated, should be paid to the people, not to private lawyers. Both Democrats and Republicans have expressed some concerns about the enforcement of this Truth in Lending Act by State attorneys general. Senator Dodd, the distinguished Senator from Connecticut, said that ``giving such broad authority to State attorneys general would be a departure from the current regulatory regime,'' and he is right. This amendment prevents the authority to enforce the Truth in Lending Act from being further disbursed by State attorneys general delegating it to trial lawyers on a contingency fee basis. Without this amendment, it is likely that plaintiffs' lawyers will develop class action lawsuits, then go to their State attorney general proposing to pursue these cases on a contingency fee basis, perhaps reaping millions of dollars in attorneys' fees awards. My colleagues have expressed concerns the bill would increase the number of authorized enforcers from 1 to 51. I would submit that unless this amendment is adopted, we are effectively increasing the number of authorized enforcers of this legislation from 1 to 5,100 or more. Hiring outside counsel on a contingency fee basis, unfortunately, as we have learned through hard experience, can lead to other problems, including the appearance of corruption or outright corruption. For example, my predecessor in office, the Texas attorney general, entered into contingency fee agreements with outside lawyers in the tobacco litigation, which was then being pursued across the country. These lawyers ended up making roughly $3 billion in attorneys fees through contingency fee provisions that my predecessor in office entered into. Unfortunately, my predecessor also falsified records in an attempt to funnel some of that money to a friend, and he paid the price. He went to the Federal penitentiary. This is not just a problem in my State; this is a national problem as well. Last year, the Wall Street Journal reported and editorialized about the appearance of corruption in Mississippi, where the State attorney general had retained as many as 27 law firms as outside counsel to pursue at least 20 different State lawsuits over a 5-year period. In 2007 alone, the attorney general received almost $800,000 in political contributions from those same lawyers and law firms and, thus, the appearance of conflict of interest, if not an outright conflict, was created. This kind of conflict of interest has no place in the attorney general's job, which is to protect the legal interests of the people of his or her State. Amendment No. 673 would ensure that State attorneys general either do the work themselves in enforcing this law or hire an outside lawyer at a reasonable, competitive hourly rate or flat rate; no windfall attorneys' fees for hitting the long ball over the fence. When Federal agencies bring suits to enforce the Truth in Lending Act, they are barred from hiring outside counsel on a contingency fee basis. All I am suggesting is that this same rule should apply to the State attorneys general who are now authorized enforcers under the law. Particularly at this time in our Nation's economic history, it should hardly be one of Congress's priorities to increase the number of lawsuits. We cannot sue our way to recovery. Unless amendment 673 is adopted, the bill would give trial lawyers a share of the public's money and will disrupt the Federal credit regulatory regime and, as I indicated a moment ago, create dangerous incentives to corruption. I ask my colleagues to support amendment No. 673. Amendment No. 674 Madam President, I have another amendment, Cornyn amendment No. 674, so I now ask unanimous consent to set aside temporarily my previous amendment and ask for the immediate consideration of amendment No. 674.

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

Mr. CORNYN. Madam President, I ask unanimous consent to set aside any pending amendment and call up Cornyn amendment No. 673 and ask for its immediate consideration.

Mr. CORNYN

Mr. CORNYN. Madam President, I thank the distinguished bill managers for the opportunity to speak by unanimous consent as in morning business for up to 10 minutes.

Mr. CORNYN. Madam President, I rise to speak on behalf of Texas Independence Day, March 2. On this date in 1836, delegates from 59 Texas settlements in what was then Mexico declared their independence from that country and their determination to live in liberty. The delegates who met in this small town known as Washington-on-the-Brazos were a diverse group. Two of the delegates were native Mexicans, Jose Francisco Ruiz and Jose Antonio Navarro. The rest were immigrants from Europe, from Mexico, and, yes, from the United States. Two-thirds of the delegates were less than 40 years old. Several of the delegates had political experience, men such as Sam Houston, who had been Governor of the State of Tennessee. He, Robert Potter, and Samuel Carson had all served in the Congress. Richard Ellis had participated in the constitutional convention of the State of Alabama, and Martin Parmer had done the same in Missouri. These delegates, and the people they represented, had a clear goal. They wanted freedom. In this case, the freedom guaranteed to them under the Mexican Constitution but which had been lost under the dictatorship of then-President Antonio Lopez de Santa Anna. The Texas delegates modeled their declaration of independence on the one signed in Philadelphia 60 years earlier. They expressed their grievances, their determination to protect their freedoms, and their vision for a new nation--the Republic of Texas. The ``Unanimous Declaration of Independence by the Delegates of the People of Texas'' was signed by those 59 delegates on March 2. Five copies were sent to the towns of Bexar, Goliad, Nacogdoches, Brazoria, and San Felipe. Because there were no printing presses in Washington- on-the-Brazos, the printer in San Felipe was ordered to print 1,000 copies in handbill form. The original copy was sent to the U.S. Department of State in Washington, where it would stay for six decades before being returned to the State where it was written. Even as the delegates signed this historic document, they knew their love of liberty might demand the ultimate sacrifice. At that moment, less than 200 miles to the west, Santa Anna's army was laying siege to the Alamo. Just days earlier, its young commander, William Barret Travis, sent out this letter. He wrote: Fellow citizens & compatriots--I am besieged, by a thousand or more of the Mexicans under Santa Anna--I have sustained a continual Bombardment & cannonade for 24 hours & have not lost a man--The enemy has demanded a surrender at discretion, otherwise, the garrison are to be put to the sword, if the forth is taken--I have answered the demand with a cannon shot, & our flag still waves proudly from the walls--I shall never surrender or retreat. Then, I call on you in the name of Liberty, of patriotism and everything dear to the American character, to come to our aid, with all dispatch--The enemy is receiving reinforcements daily & will no doubt increase to three or four thousand in four or five days. If this call is neglected, I am determined to sustain myself as long as possible & die like a soldier who never forgets what is due to his own honor & that of his country--Victory or Death! Madam President, death came to the defenders of the Alamo, but victory came to the people of Texas shortly thereafter. On April 21 of that year, Sam Houston and about 900 Texas soldiers defeated the larger Mexican Army at the Battle of San Jacinto. The surprise attack was so successful. It lasted all of 18 minutes, and the next day, Santa Anna himself was captured. By this victory, Texans won the independence they had declared less than 2 months earlier. Sam Houston went on to serve as President of the Republic of Texas, after serving as Governor of Tennessee, a Member of the House of Representatives from Tennessee, then as President of the Republic of Texas. And after statehood, he served right here in the Senate as one of the first two Senators from our State. I am honored to hold the same seat in this body that was first held by Sam Houston. He served here for 13 years. He was a champion of Native Americans and raised his voice against secession and Civil War. Today, Texans honor the courage and sacrifices of those who won our independence and those who have followed in their footsteps to this day. In the past year alone, I have had the honor to present a Bronze Star to a native of Harlingen, TX, who helped lead the breakout from a beachhead in Anzio during World War II. I was honored to present a Purple Heart to a resident of Seguin who was severely wounded by mortar fire in Korea. I have seen tears of sorrow and of pride of those who have lost loved ones in Iraq. And I have honored young men and women who even now are completing their first year of study at our Nation's service academies. All these heroes and their families have paid the ultimate tribute to those who stood for freedom 173 years ago. In remembrance of all those who have risked their lives to keep Texas and the United States a land of liberty, I close with the words of our State song: God bless you Texas! And keep you brave and strong, That you may grow in power and worth, Thro'out the ages long. Madam President, I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent a Washington Times article by George Smith on February 13, 2009; testimony by John P. Elwood, Deputy Assistant Attorney General before the Subcommittee on the Constitution, Civil Rights, and Property Rights, Senate Committee on the Judiciary on May 23, 2007; and a Statement of Administration Policy from September 18, 2007, be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Madam President, when we are sworn in to the Senate, we raise our right hand, put our left hand on the Bible, and swear to uphold the Constitution and laws of the United States. That is why I am very troubled and concerned that those of us who have taken that sacred oath to uphold the Constitution would, in fact, purport to violate the Constitution by passage of S. 160, the DC voting rights bill. This bill, at various times, has been called the DC voting rights bill; at other times it has been called the DC statehood bill. Of course, DC is not a State, but DC would have to be a State under the Constitution to get the voting Member of the Congress for which the proponents of this legislation are calling. By the way, if DC is a State for the purpose of creating a district for a Member of Congress, why would not DC be a State for the purpose of having two U.S. Senators? Of course, even the proponents of this legislation know that would be a bridge too far, but this is the first incremental step to considering the District of Columbia as a State entitled, they say, to a Member of Congress, as well as two Members of the Senate. I believe this legislation is unconstitutional. There is a constitutional way to do it, but the proponents of this result have found that to be a tough row to hoe, to pass a constitutional amendment. So now they have come back trying to do it the so-called easy way but in a way that violates the Constitution and, I would say, cannot be reconciled with the oath that each of us takes. I know it is common to say the courts will fix it. We ourselves have a duty to pass only legislation that we believe is truly constitutional. For us to say we have the votes now, as some of my colleagues have indicated, we have the votes to do it, but let's not pay attention to the constitutionality of it I think is a very serious mistake. We all sympathize with the desire of the residents of the District of Columbia to be represented in Congress. But as I said, there are constitutional ways to do this, and this legislation is not a constitutional way to accomplish that goal. I don't know how the constitutional limitation or, indeed, the prohibition to passing this legislation and expecting it to be enforced could be more plain. Of course, the Constitution in article I, section 2, limits House seats to States alone. The District of Columbia is not a State and, therefore, the District of Columbia may not have a House district and be represented by a voting Member of the House of Representatives. I am not asking anybody to take my word for it. Let's just look at the text of the Constitution. The text of the Constitution repeatedly and clearly limits representation in the House of Representatives to the States. The apportionment of Representatives is governed by section 2 of the 14th amendment, which provides: ``Representatives shall be apportioned among the several States.'' As I mentioned a moment ago, article I, section 2, of the Constitution establishes the House of Representatives and governs its membership. Each of that section's first four clauses specifies States--not cities, not the District of Columbia--as those entities that are entitled to representation in the House. The first clause provides that Representatives are chosen ``by the People of the several States.'' The second clause provides that a Representative must be ``an inhabitant of the State in which he [or she] shall be chosen.'' The third clause says that ``each State shall have at least one Representative.'' The fourth clause specifies that ``when vacancies happen in the Representation from any State,'' the Governor of that State shall call an election. Article I, section 4, of the U.S. Constitution provides that rules for the elections of House Members ``shall be prescribed in each State by the Legislature thereof. . . .'' Just as the text of the U.S. Constitution makes plain that only States are to be represented in the House of Representatives, it is equally clear the District of Columbia is not a State for purposes of such representation. Article I, section 8, of the Constitution specifies that the Federal Government ``District,'' the District of Columbia, was to be formed ``by Cession of particular States.'' This provision distinguishes between States and the Federal District in which we are presently located formed by cession of the States. If that is not enough--the plain text of the Constitution--then I think all we need to do is look back at the 23rd amendment of the Constitution, where the proponents of this result actually tried to do it the right way. The 23rd amendment to the Constitution, which granted the District of Columbia Presidential electors, gives the District of Columbia the number of electors it would be entitled to if it were a State. This constitutional text presupposes that the District is not a State, as that term is used in the Constitution, for purposes of apportioning Representatives, Senators, and electors. In short, the text of the Constitution could not be clearer, that Members of Congress are to be elected only from States and that the District of Columbia is not a State. One may be asking why would we be having this debate 230-something years since this country was founded. It has been understood and, indeed, has been the uninterrupted practice and precedent of our Republic that people have regarded the District of Columbia not as a State and not entitled to a Member of the House. Otherwise, why would this just be coming up now? From the founding until recently, the evidence shows it was understood that a constitutional amendment would be required to give the District a voting seat in Congress. Of course, since the founding, the District has never been granted a voting seat in Congress. Representation has been apportioned in accordance with the constitutional provisions I have cited every 10 years since 1790. In other words, every 10 years we have a census, and every 10 years Congress apportions seats in accordance with these constitutional provisions, every 10 years since 1790. Never in the history of this country has a Congress or a President acted on the belief or on the theory that they had the power somehow to apportion a Representative to the District of Columbia. Indeed, the Framers of the 23rd amendment clearly thought that granting the District Presidential electors, as I mentioned a moment ago, required a constitutional amendment. Similarly, in 1977, Congress passed a constitutional amendment that would actually have given the District residents what they seek by this act of legislation. At least at that time, the consensus of Congress was a constitutional amendment was required. If the Framers of the 23rd amendment or the authors of the DC voting rights amendment believed they could have achieved their ends by mere legislation alone without submitting themselves to the admittedly difficult process of constitutional amendment, don't you think they would have done so? Clearly, they would have done so. Furthermore, the Federal courts have long interpreted the word ``State'' in section 1 of the 14th amendment to exclude the District of Columbia. Thus, due process, equal protection, and other constitutional challenges to District laws, such as in the recent Heller case--that was the DC gun rights case--are brought under the Bill of Rights rather than the fourteenth amendment that would incorporate the Bill of Rights and apply them to the States. If the District of Columbia is not a State for purposes of section 1 of the 14th amendment, it seems odd to argue it is a State for purposes of section 2 of the 14th amendment in the very next sentence of the U.S. Constitution. The history of our first two centuries under our Constitution demonstrates an uninterrupted consensus by all three branches of Government that the District could not be represented in Congress without a constitutional amendment. Why Congress would even consider passing a piece of legislation that is going to be challenged in the courts and ultimately be decided by the U.S. Supreme Court--and I am predicting here today they will say this is an unconstitutional act by the very same Federal officials who have taken an oath to uphold and defend the laws and Constitution of the United States--why we would do this is baffling to me. So why could anyone think a bill such as this might actually be upheld? Well, there was a clever lawyer, as there frequently is behind novel legal theories. It was not until 1991, shortly after the Constitution's bicentennial, that a clever law student first advanced the argument that Congress could create a Representative for the District of Columbia through simple legislation. Legislation purporting to do that was first introduced in 2004. This novel legal theory lacks merit, as I have argued, and cannot overcome the weight of textual and historical evidence that would all but declare that this bill is unconstitutional. Supporters of this theory cite the District clause of the Constitution that gives Congress power to ``exercise exclusive legislation in all cases whatsoever'' over the District. Because the District is not a State, it doesn't have a State legislature, and so Congress is given that authority under the Constitution. This plenary power, it is argued, gives Congress unfettered power to determine the District's representation in Congress. But this power cannot be used in any kind of logical way to vitiate the carefully crafted apportionment of representation elsewhere in the four corners of the Constitution. By the logic of the act's supporters, Congress would exercise unlimited plenary power to repeal freedom of speech in the District or give the District 436 representatives in the House and 101 Senators. The absurdity of this argument is highlighted by the fact this District clause goes on to give Congress the same plenary power--``Like Authority''--over Federal institutions such as, ``Forts, Magazines, Arsenals, dock- Yards, and other needful Buildings,'' in the quaint language of the Constitution. But surely this does not mean that on the basis of the District clause Congress can grant a vote in Congress to a federal dockyard or an arsenal. It doesn't make any sense. Congress should not adopt an overly aggressive or overly expansive role of its powers under one section of the Constitution that allows it to violate--somehow magically--the clear language and intent of other provisions of the same Constitution. Like all of Congress's powers, the District clause is limited by the context and the rest of the same Constitution. As the Supreme Court of the United States first noted back in the early 19th century in Marbury v. Madison, and has continually affirmed throughout our history, if Congress could alter the Constitution's meaning through mere legislation, then the Constitution would cease to be ``superior, paramount law, unchangeable by ordinary means.'' On another note, having argued from a historical perspective, and from the text of the Constitution the historical practice, the political impact of what the Senate is being asked to do--aside from these constitutional concerns--we need to look at the impact of this legislation on the size of congressional delegations in all other States after the 2010 census and beyond. As I noted earlier, every 10 years we recalculate how many seats will be available to the U.S. House of Representatives from each State, since there is a fixed number. Of course now it is 435. Because of that, every 10 years some States are winners and some States are losers. High population growth States, such as my State--Texas--are likely to get as many as three new congressional seats after the next census. This bill would change the list of winners and losers after the 2010 census and for every census thereafter. Think about this, colleagues: Some States clearly are going to lose a seat or two in Congress after the 2010 census. Just as my State will gain up to three seats, there will be other States that will lose a seat because of population shifts in our country. There are other States that are not clear winners or clear losers but are on the bubble. I ask my colleagues to consider what they are doing to the interests of their State before they vote on this bill. It could be that by voting for this legislation some Senators will be putting their States on the bubble now and for decades to come. Now, what does that mean? Well, let me ask this question: Do you want to explain to your constituents that your State must lose a seat after the census so the District of Columbia can gain a seat by this legislation? Are Senators going to vote for a bill that might mean their State would receive one less congressional district after the next census, because they want the District to have one? Do you want to explain to your constituents that you would have had another seat after the census, but instead you are going to have the same number and the District of Columbia is going to grow by an additional seat as a result of your vote on this legislation? The increase in House membership from 435 to 437 disguises this issue, but only if you are not paying very close attention. Think about this: If the membership of the House had been 437 after the 2000 census, which States would hold those two seats today? The answer would be Utah and New York. So New York is a big loser in this bill because we are expanding membership in the House without giving New York the seat its people deserve based on the current law. We don't know which State will be the biggest loser after 2010. If the current census projection holds, it is likely to be New Jersey or Oregon. The fact is we don't know which State would be entitled to that 437th seat if it weren't awarded to the District of Columbia by this legislation. But we do know this: There will be winners and there will be losers. And there will be a new loser every 10 years after this bill passes if it is not struck down, as I predict it will be, by the U.S. Supreme Court. The ultimate impact of this bill on our representation in the House of Representatives is unclear, but I believe the bill's lack of constitutional foundation is clear. For that reason, I believe Senator McCain's constitutional point of order should be sustained. I will close where I started: Each of us, as U.S. Senators, has taken a sacred oath to uphold the laws and Constitution of the United States. So how, under any interpretation, would we vote to pass a law that is so clearly unconstitutional? Why is it that Congress would totally abdicate its responsibility in considering legislation to determine whether it is constitutional or not and to kick that responsibility over to the Federal courts? I believe all of us--Members of the House, Members of the Senate, Federal judges, the President of the United States--have a responsibility to uphold the laws and the Constitution of the United States. And if this Senate passes this clearly unconstitutional legislation, it will have violated its sacred oath to uphold the Constitution, in my humble view. I yield the floor, and I suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. Thank you, Mr. President. Mr. President, the administration and many of my colleagues have argued that we cannot rely upon the same strategies that got us into this mess to get us out of it, and I wholeheartedly agree. I am voting against this stimulus bill because I believe it replicates a failed strategy. Some of my colleagues have claimed that a ``nay'' vote on the bill means we are for doing nothing. I want to correct that misimpression. That is just not true. We all understand the economy is in crisis. This week, the president of the Federal Reserve Bank in Dallas said that my State--which had been doing well relative to the rest of the country in job growth and from an economic standpoint--is now officially in recession, which confirmed what small businesses have been telling me for weeks. None of us disputes we are in a crisis. Some of us disagree about what we ought to do in order to get out of this crisis. I believe a stimulus bill would have been a good idea if it had been focused on the right priorities. That, I believe, was President Obama's original vision. The administration said it wanted a bill that was timely, targeted, and temporary when it came to the spending that is contained in it. I daresay that if this bill had reflected President Obama's priorities, it might well then have received the 80 votes he said he wished it could receive, if it had truly been the product of bipartisan collaboration and cooperation. But it was not. The fact is, we never saw the bill the President said he wanted. We saw instead that Speaker Pelosi and Democrats in the House essentially wrote the bill themselves and really redefined the word ``stimulus'' to mean nearly anything they wanted in a bill which they knew they could pass because they knew this was an emergency, there was not adequate time to scrutinize the spending and projects, so they knew this was a moving vehicle, and they took every opportunity to load it up with a lot that is certainly not targeted, timely, or temporary and thus breached with the vision President Obama had said he envisioned for the bill. That is the reason why this bill will receive very little support on this side of the aisle. In fact, out of 535 Members of Congress, I would be surprised if there are more than 3 on this side of the aisle who will support this bill because it was essentially written by the leadership in the House and the leadership in the Senate and without Republican contributions. Indeed, every amendment that was offered, with only rare exception, was rejected upon party-line votes--both in the Finance Committee, on which I serve, and here on the floor. That is not bipartisan. If, in fact, this bill had been produced by a bipartisan process, I have every conviction it could well receive an overwhelming vote on both sides of the aisle in this body. But this was a failed opportunity, I believe. Many of the programs in this bill are, in fact, wasteful and unnecessary. These are earmarks in all but name only: golf carts, art projects, company cars, and new buildings for Federal employees. And these are only some of the spending plans that we know are contained in this 1,100-page bill which, as the Senator from Kansas pointed out, we did not get a copy of until roughly midnight last night--without enough time for Senators to actually read every line, to discuss it and deliberate on it and to make sure we understand what is in it and that we are not simply wasting taxpayer money. The fact is, we will not have even had 24 hours to look at the conference report before being required to vote on it later today, a report negotiated in secret, behind closed doors, and which seemed to be briefed to reporters and leaked to the press before many Members of Congress actually got a chance to look at it, but we are told: Don't worry. Trust us. The people in my State of Texas were promised many benefits under this bill, at least $10 billion of direct spending and aid to our State, according to the Democratic policy committee--$10 billion. Well, that is one reason some of my constituents are saying: Senator Cornyn, we want some of that even if we understand your point that in order to get it, my State's share of the cost of this bill will roughly include $90 billion, including interest. Mr. President, $10 billion for $90 billion in debt? That does not strike me as a great bargain. Now, I am not an accountant, and I am not sure the Democratic policy committee's numbers are accurate. I just cannot vouch for them. But accumulating $90 billion in debt to receive about $10 billion in benefits does not strike me as a good deal. And I suspect the deal is not much better for any of our other States. The math does not work on a national scale either. Even if this bill does ``create or preserve'' up to 4 million jobs, that means we are paying about $300,000 per job--$300,000--which is more than five times the median household income in the country. Now, if we are going to do this, why don't we just give the money directly to the people through lower taxes, letting them keep more of what they earn? They would create and preserve far more jobs than the Government is going to be able to do and we would not be in the process of picking political winners and losers in the process. But now the tax relief in this bill is even weaker tea than it was before, averaging only about $8 a week, according to some accounts-- hardly stimulative. The simple truth is, Government is inefficient at creating jobs, and this morning the Wall Street Journal explained some of the reasons why. Many Federal agencies, such as the Department of Energy, simply do not have the capacity to spend all of this money as quickly as Congress is appropriating it through this bill. I expect the same is true for many State and local governments. But the fact is, we in Congress have simply not taken the time to find out. Instead, we are determined to turn up the water pressure across all levels of government without thinking about which pipes will burst and whether they can handle the load. Nobody knows what will happen once this bill is actually implemented. I appreciate the distinguished Senator from Connecticut saying he and the ranking member on the Homeland Security and Governmental Affairs Committee are going to do extensive oversight. But I would suggest, the time to do our due diligence is before passing the legislation, before spending the money, not after it is already spent, when Government does not have the capacity to deal with it. And then there is this: The Congressional Budget Office estimates that this so-called stimulus bill will actually reduce growth of gross domestic product over the next 10 years. Because as the CBO says, it will actually--because of such enormous direct Government spending, it will crowd out private investment in the economy and actually hurt the economy, rather than help it as its proponents have promised. That means many millions of our children will have fewer opportunities as they enter the workforce, even as they inherit more and more public debt than any generation in history. The tragedy of this $1 trillion bill is it ignores hard-learned lessons. We cannot spend our way to prosperity. During the Bush administration over the last 8 years, we spent a lot of money. We strengthened our homeland defenses, we delivered a prescription drug benefit under Medicare, and we increased Federal support for education. Yet all that additional spending--for the war on terror, for homeland defense, prescription drugs, and education--did not protect us from a recession. In last year's stimulus package, we sent out rebate checks. Remember that was about a year ago where we sent out cash to taxpayers ostensibly as a rebate which, in fact, represented a redistribution of money from people who did pay income taxes to people who don't. You know what. It had virtually zero effect in terms of stimulus. Now we are going to do it all over again, this time under the guise of refundable tax credits, again sending money to people who don't pay income taxes from people who do pay income taxes in a vast redistribution of wealth and replicating the failed example of the stimulus package we passed a year ago. Now, I understand these are unprecedented economic times. I understand even the smartest people in the world have a hard time knowing what we should do, but shouldn't we at least prevent repeating mistakes we know don't work? I don't think it takes a rocket scientist or a master of the universe to know that.

Mr. CORNYN. Mr. President, it is not as though my colleagues are just complaining about the bill on the floor. We offered a constructive alternative to fix housing first that got us into this mess and which, I believe, if we had listened to some constructive suggestions on this side, would help lead us out of it. We also know that letting people keep more of what they earn exerts a much greater multiplier effect in terms of the economy than does direct Government spending. Finally, the idea that we can spend money we don't have on things we can't afford simply defies logic. I am sorry this is a missed opportunity, both for bipartisanship and an opportunity to actually solve a real problem confronting the American people. I believe there are better ideas available, and those ideas remain available if we simply have the will to embrace them. I yield the floor.

Mr. CORNYN. Mr. President, I ask unanimous consent for 1 more minute.

Mr. CORNYN

Mr. CORNYN. I ask my colleagues to support the amendment.

Mr. CORNYN. Mr. President, I move to waive the applicable portion of the Budget Act and ask for the yeas and nays.

Mr. CORNYN. Mr. President, my amendment reduces the 10-percent marginal income tax bracket to 5 percent--10 percent to 5 percent--in 2009 and 2010. Currently, the 10-percent tax bracket that was created in 2001 by the Economic Growth and Tax Relief Reconciliation Act applies to the first roughly $8,000 that a single taxpayer earns and $16,000 for a joint tax return. My amendment provides broad-based relief to more than 105 million taxpayers, including every hard-working American with an income tax liability. My amendment does not add to the bill's total. Instead, my amendment is paid for by striking the refundable making work pay credit which picks winners and losers by providing relief to only a select group of taxpayers. It also, I might say, repeats a mistake we made last year, or earlier--I guess last year, last January--when we spent $150 billion of our children's and grandchildren's money to try to stimulate the economy, and everybody agrees it did not work.

Mr. CORNYN. Mr. President, simply stated, the amendment I offer today is based on the experience of what works. We have been presented all sorts of economic theories, some of which I have even bought into because I thought the smartest people on the planet knew more than I did, and perhaps I had to have faith in some of these smart people. But we know based on experience, not just based on faith, that this amendment will work to stimulate the economy. This amendment cuts the income tax rate in the lowest tax bracket from 10 percent to 5 percent, so it will immediately help some of the people who earn the least amount of money in our society, and it will in fact help all working Americans immediately. Currently, married couples pay a 10-percent tax on income up to $16,050, which is roughly $8,000 for a single tax return. They pay a 10-percent tax on that now, and my amendment would cut it to 5 percent. That would put about $500 per year back into the family budget, or roughly the same amount as the provisions in the current bill known as the ``Making Work Pay'' refundable tax credit. And I will talk about that in a minute. But this amendment would provide meaningful tax relief to more than 105 million Americans--to everyone who must file a tax return by April 15. This amendment would provide an immediate economic stimulus and jolt to our economy and would show the American people and the global financial community that we are serious about delivering an economic stimulus that will actually work. Isn't that the first question we ought to ask: Will it work? This one will work, because experience proves it. This amendment will cut the size of this $1 trillion bill by about $25 billion because it replaces the so-called ``Making Work Pay'' refundable tax credit. Now, the refundable tax credit, so everybody understands, is not like the usual credit against income. This is cash money paid by the Federal Government to a person whether they pay income taxes or not. In fact, what it amounts to is taking money from people who do pay taxes and giving it to people who don't necessarily pay taxes. It represents a huge transfer of wealth. But even worse, in this bill it represents a repetition of the failed stimulus bill that we voted on roughly 1 year ago. I am sorry to say now I was one of those votes in favor of that stimulus bill. That is in the category of what I described earlier, where I believed the smartest people on the planet were telling us we had to spend this $150 billion-plus. And we had bipartisan support for the bill. We borrowed $150 billion or so from our children and grandchildren. In other words, we added it to the Federal deficit. You know what kind of impact it had? It had zero, zip, nada, no impact on the economy, other than to rack up another $150 billion in debt for our children. So this refundable tax credit, if passed in its current form, represents a repetition of what we know will not work and which will in fact make our economic situation worse. It will represent a $46 billion transfer of wealth to folks who don't pay income taxes in the first place. We should provide tax relief in a straightforward and transparent way to all taxpayers who owe income taxes. In other words, this amendment is about providing tax relief for taxpayers which, according to Ms. Romer, is the most efficient way to get our economy moving again, and one that will not pick winners and losers here in Washington, DC, after Congress takes its cut, but allows it to be kept by the people who earned it in the first place. I ask my colleagues to support this amendment when we have an opportunity to vote on it later on. This is, once again, amendment No. 277, and I urge my colleagues to support it. Mr. President, I yield the floor.