Byron Dorgan

Mr. DORGAN

Mr. DORGAN. I will not yield, and I will not do so because the Senator from Colorado asked a question on his time and said he would not allow me to answer on his time, so I will not allow him to ask questions on our time. I would be very happy, however, by consent, to spend a full hour with the Senator from Colorado or any other Senator, for that matter, just back and forth with two or three of us asking and answering questions. I would enjoy that opportunity. But having said all that, let me explain that this 168 to 4 is, in my judgment, a lot of shadow boxing. It might be fun for some. I am sure it is not fun for those who have to spend their time for the next 30 hours--the doorkeepers and the members of the police, and others, the security, and the folks at the desk, and the folks who do the service that is performed here to keep the records of the Senate--they have to be here 30 hours. If it makes people feel better doing this, they have a right to do it. I will not complain about it. They have a perfect right to do this. But let me tell you what I have a right to do as well. I have a right, at least as one Member of this Senate, to wish--to wish--just for a moment that I were in control of this agenda. And I will tell you what I would do today if I were in control of this agenda. I would bring something to the floor of the Senate that deals with the subject of jobs. I know what I would want to talk about today. I would want to have some legislation on the floor, and I will tell you what it would be about. Huffy bicycles. Let me tell you about Huffy bicycles. Huffy bicycles have 20 percent of the market in this country for bicycles--20 percent. They used to be made in America. They were made in Celina, OH, made by 850 good workers, 850 union members in a plant in Ohio. They made $11 an hour in wages plus benefits. And they made a great bicycle, sold at Wal-Mart, Sears, Kmart. Do you know what this bicycle had on the front, right underneath the handlebar? It had a picture of an American flag on a decal, a decal for the Huffy bicycle--an American flag, American made. God bless them. But then it became too expensive to make Huffy bicycles in America. Mr. President, $11 an hour was too much to pay workers. So do you know where these Huffy bicycles are made now? In China. Do you know why? Because they get paid 33 cents an hour. And do you know what they did when they moved the Huffy bicycles to China? They laid off all those workers in Ohio--850 of them--who now work 2 jobs, 3 jobs to make ends meet, and some do not work at all. What they did, when they went to China and started producing these bicycles, was they took off that American flag decal right underneath the handlebar and they changed that American flag to a picture of the globe--the globe. Well, God bless the globe. But I happen to care a great deal about jobs in Ohio--American workers who get up in the morning and say goodbye to their family because they are going to a job that they love: I make Huffy bicycles. No, I don't make a fortune; I make $11 an hour, but I work hard, and I do a good job. And then I am told one day my last job will be to replace the decal on the front of the bicycle from a flag to a globe before they fire me and move the jobs to China. I want to talk about that. If I were running this place, we would be talking about legislation to address this question of whether American workers ought to be told: You must compete with 33-cent-an-hour labor. And if you can't, tough luck; you lose your job. We are talking about four jobs this morning that my colleagues on the other side of the aisle are upset they were not advanced to the Federal bench. I am talking about 850 people in Ohio who used to make Huffy bicycles, and proud to do so, who discovered they were too expensive at $11 an hour. Huffy wanted to make bicycles for 33 cents an hour. I would like to talk about that on the floor of the Senate and have policies dealing with international trade on the floor of the Senate. And that relates to jobs, not just relating to 850 people, but it relates to millions of jobs. Three million people had to tell somebody in their family they lost a job in the last few years. These are people at the bottom of the economic ladder. These are people who know about secondhand, second- shift, second jobs. They are the ones who lose their jobs. We ought to talk about joblessness in this country and the fact that our economy is expanding but the job base is not. Last month we had good news, and good for us, good economic growth. Do you know what happened? We lost manufacturing jobs again last month, 50,000 of them. I suppose if you wear a suit, it does not matter much, and if you serve in the Senate, you will not notice it much. But I guarantee you, if you were one of those last month who had a good manufacturing job, who had to come home and tell your spouse and your family, ``I have just lost my job; no, not because I am a bad worker but because I can't compete with 12-year-olds working 12 hours a day being paid 12 cents an hour''--and yes, that happens. Yes, that happens. And I can show you where and tell you when. So I would talk about that. That is what I would have on the agenda. While I am at it, while I am halfway irritated about what we are not doing, let me also talk, just for a moment, about something I discussed yesterday. At 11 o'clock last night in a conference committee in the basement of this Capitol, I lost this issue, and I am a little irritated about that this morning. This is a picture of a young woman, a young Christian woman from this country, and her name is Joni Scott. She came to see me 2 days ago. Do you know why? Because her Government has levied a $10,000 fine against her. Do you know why? Because the Government discovered she went to Cuba, and she went to Cuba in order to deliver free Bibles to the Cuban people with her church group. So this young woman, named Joni Scott, took Bibles with her church group, went to Cuba, and distributed free Bibles in the country of Cuba. And when she came back to this country, do you know what her country said to her? We have got the Department of the Treasury, with an organization called OFAC, Office of Foreign Asset Control, and they sent her a notice and said: You are fined $10,000. You must pay a $10,000 fine. Why? Because you went to Cuba. Mr. President, we ought to talk about that today. I had an amendment on the conference committee last night. The amendment passed the Senate. The amendment passed the House of Representatives. It was bipartisan. Republicans and Democrats voted for it in the Senate and the House, to say: Let's not enforce this travel ban against Cuba. It is not fair to the American people. That is an attempt to slap around Fidel Castro, and by doing that, we are injuring American people's right to travel. Well, we went to conference last night, and this bipartisan approach--in both the Senate and the House--was kicked out. Why? Because the White House threatened to veto the bill if it was in it. This bill still stands. This young lady has a $10,000 fine. I have written to the Treasury Department saying: How dare you? How dare you? But it is not just her. It is farmers from my State who want to sell farm products into Cuba. The Farm Bureau is denied a license to travel to Cuba to promote farm exports. It is about using food as a weapon. That is what the administration wants to do with Cuba; it is about embargoes. This does not make any sense. So if I were running this place today--and I am not, unfortunately--I would be talking about that. I would be talking about the ability of our farmers to sell into that marketplace and, why on Earth will you not give a license to a farm group to go to Cuba to promote agricultural sales while you penalize a young lady who goes to Cuba to hand out free Bibles? Is there anybody here who thinks this makes any sense? Have we lost all bases of common sense? Or will someone at some point stand up and say, let's do the right thing here? So instead, we are here 30 hours. It started with Fox News and the majority party combining so that at 6 o'clock they could do a live news shot. They are excited about it. They want the people to talk in the Chamber. It is all in a memorandum: We need to do this. And they are very excited. Britt Hume is very excited to have on his show a live shot of the Republicans walking into the Chamber. And for 30 hours we talk about judges. It is fine. They have a perfect right to do that. I do not disparage that right at all. I say, however, it certainly is not the topic that is on the minds of most of the American people. There is so much misinformation about this subject that ricochets around this Chamber. We are told by our colleagues: You are filibustering; that has never been done. I don't know where they get that. Do they just not do the basic research? I do not understand that. Do they just not do basic research at all? Tell me about Abe Fortas. Many years ago, was there a filibuster? Of course there was. Tell me about Richard Paez. Tell me about all the cloture votes we have had to cast around here because Republicans forced us to have cloture votes. Why do you have a cloture vote? Because there is a filibuster, in order to break a filibuster. And I could go through, but my colleagues already have, name after name after name where there has been a filibuster by the Republicans. Then let me just indicate, finally, that my colleague from Iowa indicated there are many men and women who never even got a hearing. That is a filibuster by one person demanding the Judiciary Committee refuse to even give a hearing to candidates. Yes, for the Ninth Circuit, but for judgeships all around this country. So I know we are going to vent out here for, I suppose, another 12--I guess 12 hours. And it will amount to nothing. We ought to be talking about jobs and a range of things that are very important to the future of this country.

Mr. DORGAN

Mr. DORGAN. Mr. President, I appreciate the comments of my colleague from Illinois. This is, in many ways, an interesting debate and certainly an important debate largely because it is alleged that we have embarked on something unusual, something unique. Of course, that is not the case. The issue of filibusters is not a unique issue in the Senate. Let me talk just for a moment about something I listened to on the radio on the way in. C-SPAN is covering this by radio. I heard my colleagues, as my colleague from Illinois indicated, on the other side of the aisle talk about this issue of right to privacy. There is no right to privacy, they say. What is this right to privacy that somehow has been manufactured? They don't agree with the right to privacy. The American people don't have a right to privacy, they say; that is not in the U.S. Constitution. Let me give an example of right to privacy issues that relate directly to the issue of judgeships. We have a nominee before us named Carolyn Kuhl who is a State judge. Carolyn Kuhl was involved in a case and dismissed a claim and then was overturned in her dismissal. Let me describe the claim. It was an egregious invasion of privacy. An oncologist was giving a breast exam--in fact, a full examine, including a breast exam--to a woman in his examination room. Another person was in the room with a white coat, another male. That male turned out to be a pharmaceutical salesman. No, not a doctor, a pharmaceutical salesman observing the full physical, including the breast exam of this patient. The patient sued. Judge Kuhl dismissed it, just threw it out. This woman had no right to privacy, no right to expect privacy. That is what the judge said. That judge was overturned on appeal, and the court that unanimously overturned that said: The conduct was highly offensive--that is, allowing another male in the room to observe, and not even a doctor but a pharmaceutical salesman--that conduct was highly offensive and the patient had an ``objectively reasonable expectation of privacy.'' My colleagues suggest this is a manufacturing of some right that doesn't exist. This woman has no right no privacy in the Constitution. Judge Kuhl would have it right, they would say. Judge Kuhl didn't have it right. This happens to be one of the judges who has been held up by the Senate--one of the 4; 168 approved, 4 not approved. This particular judge we decided does not merit approval by the Senate. The other side says there is no right to privacy, so don't be critical of this judge; there is no right to privacy for the American people. I don't understand that argument. I hear it, but I don't understand it. That is rooted somewhere in the 1930s or the 1920s or perhaps the 1880s. It is certainly not what the American people would expect someone in the Senate to be asserting in the year 2003, that the American people have no right to privacy, or that Judge Kuhl's decision is the right decision, and that has already been determined. That was thrown out on appeal--unanimously, I might say. So Judge Kuhl is not advancing in the Senate. We make no apologies for that. This is someone far outside the mainstream whose record of decisions indicates to us we don't want to elevate this person to a lifetime on the Federal bench. Let me just say with respect to the 168 approved, 4 not, 2 of those are North Dakota Federal judges, judges from my State. Both are Republican and both nominations I was proud to support. They are both now on the Federal bench in North Dakota. I played a role in getting them there, and I am pleased I did. I think they will be great Federal judges. That happened the right way. The administration visited with Senator Conrad and myself and selected from among some good candidates two judge candidates we supported who we think will do well on the Federal bench. There are other approaches to this. One is, for example, saying to the two California Senators: It doesn't matter what you think, we are going to pick an ultraconservative in California whose record doesn't merit support by the Senate, and we are going to try to shove it down your throat because we believe we have a right to do that. That is the attitude. There is a kind of arrogance there, in my judgment. When they wrote the U.S. Constitution, the Framers decided they were going to have a couple of steps to this process. I am glad they did. In fact, they almost decided the President should not be involved in the process. That was part of the discussion because they didn't want to give that much power to one person in this country, but they finally made a compromise with respect to judges. They said the President will nominate and the Congress will have a role of advising and consenting. That is, the President will nominate and the Congress will say yes or no. We have been extraordinarily cooperative with respect to this President. In almost all cases, we have said yes. In four, we have said no. For that, we now have a 30- or 39-hour extravaganza in which, when I was driving in this morning, I heard my colleagues talk about corruption and all the code words they have developed especially for this debate, especially for their political friends so the word will mean something and it becomes much more than actually exists. This is all a manufactured debate. They say there has never been a filibuster. That is not true. But if you say it eight times an hour for 39 hours, maybe some people will believe it. I don't know. This is the oft-repeated old story about the man who comes home at 2 o'clock in the morning, having been drinking and with lipstick on his collar. And his spouse angrily confronts him and says: Where have you been? He says: Riding my bicycle. She says: That can't be true, I took your bicycle to the shop yesterday. He says: That's my story, and I'm going to stick to it. That is what is happening here: It is my story, patently untrue, obviously false, but they stick to it. They say there has never been a filibuster. The fact is, when the Republicans were in the minority, they filibustered 16 nominations in 1 Congress alone. So if they say it eight times the next half hour, just understand, it is not true. They can say it, say it, and say it, but it is not true. I guess debate is an opportunity to exchange views. It does not require someone to tell you the facts. The facts are, as my colleague from Illinois indicated, many of the nominees in the previous administration never even got a hearing--not even a hearing. But in addition to that, there have been numerous filibusters, and some of my colleagues, in fact, who are here this morning voted against cloture to sustain a filibuster, some of the same ones who are making this claim. I don't understand, I guess, how they think it sticks just to stand up here and say something they believe to be the case when they know it is simply not true. Let me, in the couple of minutes I have remaining, talk about some of the issues I wish they had passion to address. This, in many ways, relates to the right to privacy. The President and my colleagues on the other side of the aisle have decided in recent days that this young lady--her name is Joni Scott, who went to Cuba to distribute free Bibles--will be fined $10,000 by the U.S. Department of the Treasury. Why? Because she exercised her right to travel and distributed free Bibles to the poor people of Cuba. She now is subject to a $10,000 fine. I tried to change that the other night. I couldn't do it. The majority in this Congress and the President said: Absolutely not, we are going to maintain these travel restrictions that restrict the right of the American people to travel. By the way, this woman is going to get no relief. A $10,000 fine for an American citizen who distributes free Bibles in Cuba--maybe we could be talking about that this morning and see if we can agree that it is a perversion to do this. It seems to me this woman has some rights. Yes, the right to travel, perhaps the right to privacy, the right to distribute free Bibles. But the majority party says: No, she has no such right, none at all. Let me ask if we might not want to talk about another subject during these 39 hours. We have lost 3 million jobs in the last couple of years with a failed economic policy. This is a picture of a Huffy bicycle. They used to be made in the United States. In fact, right here under the handlebar they used to have a decal that was the American flag decal. Mr. President, 850 workers in Ohio were fired because they were making $11 an hour, and they moved this bicycle manufacturing plant to China where they can pay 33 cents an hour, and they took this flag decal off the handlebar and put on a decal of the globe. Not an American flag, a globe. Why? Because they decided $11 an hour is an egregious wage, outrageous amount of money to pay people when you can make it for 33 cents an hour in China, working 16 hours a day, 7 days a week. So we lost 850 jobs. These 850 people went home and had to tell their families: I lost my job. I am a good worker. I tried hard, but I couldn't compete with 33 cents an hour. I wonder if maybe we wouldn't have the same passion on this floor to talk about jobs that Americans had but don't have any longer. Could we have a few of our friends stand up and join us to have a 39-hour debate about jobs the American people need, want, and deserve but don't have because these jobs are moved to parts of the world where people are paid 33 cents an hour. I could hold up another chart to show you 12-year-old kids working 12 hours a day, being paid 12 cents an hour, and they get the jobs and those jobs leave this country. Is there a passion on this floor to talk about that? Oh, no, we don't have time. This isn't a big issue. The passion is to stand up here and say with respect to the four nominees to the court who have not advanced that we are engaged in a filibuster that has never before been done. That is absolutely, patently false, and the people who make that charge know it. My hope is we can stop some of this and get on to the things that really matter to the American people and the economy and the future of this country. My colleague from Illinois I know has additional comments.

Mr. DORGAN. Mr. President, will the Senator from Illinois yield?

Mr. DORGAN

Mr. DORGAN. Mr. President, in April of this year I was in Italy. I had stopped at an American military cemetery about 15, 20 minutes outside of Florence. On a beautiful morning, the sun was shining on the graves of 5,000 American soldiers who left their homes, left their families, and answered the call to serve their country and gave their lives during the Second World War. Their final resting place is now a cemetery, a beautifully kept military cemetery maintained by the Battlefield Monuments Commission of our country south of Florence. I was thinking of that prose that says: When the night is full of knives and the lightning is seen and the drums are heard, the patriots are always there, ready to fight and ready to die, if necessary, to defend their country. Those patriots have given the ultimate sacrifice all across the world in defense of freedom here. I was thinking this morning of a telephone call last week. I called a German hospital in which Brandon Olson was resting. He had just been wounded in Iraq. I called him in the hospital and I called his mother. Brandon Olson's mother called him on Thursday. On Friday he had his foot amputated. She called him prior to surgery. When I talked to her, she told me her son was under heavy medication. She could tell when she called him that he was in pain and his voice was weak. This mother told her son, lying in the German hospital: You don't have to talk. I just want to hear you breathe. It is a mother, concerned about her son, who left this small town of Hazen, ND to answer the call of his country. That is Brandon Olson. But it was also Brandon Ericson and Jason Frey, young men and women, in this case three North Dakotans, who lost their lives fighting in Iraq. Finally, I believe, after some long period, this country is reaching out to its veterans and finally understanding its requirement, its obligation to say thank you--thank you for your sacrifice and thank you for honoring our country. This morning in the newspaper in our largest city, Fargo, ND, they pointed out that: The planeload of civilian passengers in a metropolitan airport terminal a couple of weeks back who stood and cheered in unison when asked by United Airlines to give up their seats on an overbooked flight and take a later flight so that soldiers headed home on 14-day leaves from Iraq could get there a few hours earlier. Every soldier got a seat on that airplane. They all got on that flight because other passengers gave up their seats. That is what is happening in this country today as we face danger, difficulty, and challenges as a nation in Iraq and Afghanistan, and danger from terrorists around the world. Our country is saying to those who wear our uniform: Thank you. We owe you a great debt, one which we may never be able to repay, but we recognize your sacrifice and commitment to our country. As I looked at those gravesites south of Florence, Italy, in that beautiful cemetery on that April morning, I thought of John McCrae's wonderful poem ``In Flanders Fields.'' He wrote: In Flanders fields the poppies blow Between the crosses, row on row, That mark our place; and in the sky The larks, still bravely singing, fly Scarce heard amid the guns below. We are the Dead. Short day ago We lived, felt dawn, saw sunset glow, Loved and were loved, and now we lie, In Flanders fields. Take up our quarrel with the foe: To you from failing hands we throw The torch; be yours to hold it high. If ye break faith with us who die We shall not sleep, though poppies grow In Flanders fields. It reminds us again--especially today, on Veterans Day--all across America that the liberty we enjoy, the freedom we take for granted was paid for by the blood of patriots, and every American family has been touched by those patriots who have given the ultimate sacrifice. Every American community can and should recognize today those who live up the block or down the block or on the farm, who went all across this world and have fought valiantly for America's freedom, and have come home to live quietly among neighbors, never talking much about their service to our country. But that service is what has made this the wonderful country it is. There is no place like it on Earth. There is no place quite as free as the United States of America, and that freedom has not been achieved without great sacrifice by young men and women. When America sends its sons and daughters to war, when America asks its sons and daughters to fight, then we must resolve to do everything we can to make that a successful fight on behalf of America's freedom. Today, we honor wonderful veterans who have served this country for many decades. I yield the floor.

Mr. DORGAN. The Senator from Texas just inquired whether the Senator from Alabama might go next. I understand I have 5 minutes remaining; is that correct?

Mr. DORGAN. I would be happy to have the Senator from Alabama finish his remarks which are 5 minutes. I will take 5 minutes, and then we will finish.

Mr. DORGAN. Mr. President, how much time remains?

Mr. DORGAN

Mr. DORGAN. Will the Senator yield for a question?

Mr. DORGAN. Mr. President, my colleague from Arizona, I know, did not intend to think that if I were here last night, I would have advanced the cause of his legislation. I have no amendment to offer to the legislation. I had an opportunity yesterday to speak on several amendments. I think he probably inartfully described his angst about last evening. I didn't cause this legislation to be delayed. I am sure he knows that. Aside from that, I wonder if the Senator from Nevada will tell me about the urgency of legislation on the floor. The majority leader expresses an interest in moving this Senate along on legislation we need to get done. I am pretty unimpressed with the plea to do that when we understand that next week we are going to find nearly 2 days taken in a carnival situation with judgeships, when we have approved 98 percent of the judges who have been sent to us by the White House. Now, in the middle of next week, as we try to finish this session, we are told we are going to have 30 hours, or take the better part of 2 days, to sit here around the clock to talk about the several judges we have not confirmed. I ask the Senator from Nevada if that seems to him like we have an urgent situation when somebody is going to take 30 hours out of the middle of next week and move off to have a 30-hour discussion on judgeships. I am pretty unimpressed with the plea for cooperation and expedited procedures on these issues as long as somebody is going to take nearly 2 days out of the middle of next week to do something that has nothing to do with moving appropriations bills. As I ask the question, I wish to make an additional comment. I am an appropriator as well. I am not very impressed with what has happened. We were supposed to have done the appropriations bills and finished by October 1. We have been off and on appropriations bills. Look, if this is a priority, let's get on appropriations bills and stay on appropriations bills. That is what we ought to do. Isn't that the case, I ask my friend from Nevada?

Mr. DORGAN. Mr. President, will the Senator from Nevada yield for a question?

Mr. DORGAN. I wonder if perhaps next week when the other side wishes to take 30 hours in the middle of the week to talk about the handful of judges--I believe the four who have not been confirmed by the Senate--I wonder if perhaps we should not take the time next week to talk individually about the 168 we have confirmed. Perhaps we ought to go through each one and talk about all 168. If time is not the issue--if the majority leader says time is urgent to talk about all of these other bills but in the middle of next week they will use 30 hours to come to the floor and talk about the 4 who have not been confirmed--perhaps we ought to take 60 hours to talk about the 168 we have confirmed. Let us move on the things that matter now and scuttle the 30 hours next week and this 30-hour discussion of the handful of judges who have not been approved. That doesn't make any sense to me.

Mr. DORGAN. Mr. President, I have not spoken on this issue this morning. This is a very important issue. I have been a supporter of the moratorium. I have supported the initial moratorium and the extension of the moratorium and will support again a moratorium. As far as I am concerned, it could be permanent if the proposition is, let us not tax the connection to the Internet. That was the presumption from the start. Let us not retard the growth of this industry. Let us not allow States to create some special tax that could be discriminatory or punitive with respect to the Internet itself. Having said that, it is very important we create a definition that is appropriate. We have a current law. That current law could just be extended. Some of my colleagues say, if you just extend that and do not do anything about the circumstance with DSL, then you have an unfairness. That is something I understand and I am certainly willing to deal with that. But if we do not deal with the issue of how you interpret or how you describe what it is you are exempting, you can have serious financial problems. We are talking about billions of dollars' worth of problems for State and local governments. When we passed this moratorium out of the Commerce Committee, my colleague, Senator Hollings, was absolutely correct. We passed it out, I believe, 31 to 0. But we did it by saying we understand the definition of what is going to be exempted is not yet right. There is great controversy about it. So we will move this bill to the Senate but will work on solving the problem of the definition and what it means and its consequences before we get to the Senate. We tried very hard to do that but regrettably that has not been done. I want people to understand the framework in which this comes to the floor. Yes, the Commerce Committee passed it 31 to 0, but with the caveat that the definition of what is exempt is not yet solved or at least not yet agreed. So between then and now we have tried hard to see if we could fix that. At this point, it is not yet fixed.

Mr. DORGAN. Mr. President, I agree with that view expressed by Senator Burns. Let me continue by saying definitions are everything. The reason the States are very concerned is if the definition is not correct--that is, if it is not specific in exactly what Congress proposes--we could see billions and billions of dollars lost to the State and local governments in revenue they otherwise would have expected. We have a situation where we have a moratorium that expired. The moratorium ought to be extended. I was prepared to extend it permanently if we could find a definition that would be acceptable. That has not yet proven to be the case. Some are now discussing, and I was in some discussions a few moments ago, about a shorter term extension, perhaps 4 years, and use the definition that exists in current law in the moratorium that expired November 1 and try to fix the position with respect to DSL, which is a problem. I don't know how this will come out, but we have a responsibility to try to get this right. We would not want to do something permanently that has a problem attached to it, that will be a growing problem for State and local governments. Let me describe something that was in the newspaper recently because it tells the dilemma we face if we get this wrong. We have been moving in information technology from the old circuit switch telephone network to an Internet-based network. Whether we communicate by voice, e-mail, wireless, instant message, the data is being transmitted over the Internet in digital packets. If anyone wonders what I mean, look at a story in the Minneapolis Star and Tribune. It is Quest Corporation announcing this past week that it will roll out an Internet-based telephone service in Minnesota. It describes that. That is the Internet-based service called VoIP, Voice Over Internet Protocol. They say the approach to moving this out over the Internet--that is, telephone service over the Internet--will save on regulatory expenses and other costs and break the regulatory logjam that exists. The article goes on to say: The Quest Internet phone service would also be exempt from salestax if Congress, as expected, extended and expands a tax ban on Internet access to include Internet telephone service. You can see the consequences. If you do not understand exactly what you are doing and you have a definition that is not articulate and not focused exactly on what you intend to accomplish, we can have very significant consequences for State and local governments. Let me end where I started by saying I happen to have supported both of the previous moratoriums, and I will support a moratorium now because I don't believe we want tax policy that retards the development of the Internet. I don't believe we want tax policy that in any way injures or interrupts the substantial expansion in technology and information technology that we have seen in a very short period of time. However, even as we do this, let's make sure that we do not injure or provide significant problems for State and local governments because while we want to exempt the connection to the Internet, we did not want to, with an unfunded mandate as my colleague from Tennessee calls it, or some other approach, we begin preempting a retinue of State and local taxes that have been legitimately allied to various kinds of services. It is not unusual to pay a tax on certain kinds of telephone services. It is not unusual. That is one of the methods by which State and local governments have developed a revenue base. We described a very specific area that is off limits. Let's make sure that description is appropriate, fair, and specific relating to how the Congress intends this to work. I know my colleague from California wishes to speak. I yield the floor.

Mr. DORGAN. Mr. President, I say to the Senator from Arizona, this is not my amendment, so I would have to consult with the author of the amendment. As you know, the amendment is prompted by a news story today from the White House suggesting they will not be answering inquiries except by certain Members of Congress. So that prompted her to offer this amendment. I will certainly consult with--she is on the Senate floor, so perhaps we can ask her directly.

Mr. DORGAN. Madam President, I mentioned that the event that has prompted this amendment, I understand, was in the newspaper this morning. It was apparently a report that the White House would limit their responses to questions from Members of Congress. I, at one point, chaired the appropriations subcommittee here in the Senate that actually funds the operations of the White House. We always work very closely with the White House. When they request the necessary funding, we provide it. We never have any difficulty. The same is true with respect to the agencies. We fund all of the agencies of the executive branch. We spend a great deal of money in doing that. We work together to find the appropriate number and the appropriate amount of resources that are needed. The White House is a little different. When they make the request, we fund the request. That is the way we deal with the White House. But with the executive agencies, of course, we have disagreements and differences from time to time, but we end up sending billions and billions--hundreds of billions--of dollars for expenditures through these agencies. If ever--if ever--the Members of the Congress are prevented from asking questions about how the money is used, how the money is spent, then there is something fundamentally broken. So I was as surprised as my colleague from Michigan to read the story in the newspaper this morning. I know it is nettlesome, I know it is a pain, it is a bur under the saddle to get questions from Members of Congress if you are a member of the executive branch. At one point, I was a member of the executive branch in State government, and all the State legislators were always peppering us with questions. Sure, that is a nuisance. Nobody likes that. But the fact is, the congressional actions here determine how much money is made available. The same is true in the State legislatures. They have every right--in fact, they have a responsibility--to the taxpayer to try to determine how that money is spent. If they have questions about it, they ask those questions. If they ask those questions, they darn well expect an answer, even if it is considered a nuisance by those who are receiving the questions. So my hope is they will just accept this amendment at some point today. I understand what has prompted the amendment. Let me just, for a moment, talk about the underlying proposition before the Senate; that is, the bill that is brought to the floor today, the moratorium on Internet taxation. I want to see us pass a piece of legislation. I do not think it is satisfactory to have the moratorium expire on November 1, and then to just let that be the word. That is not where I would like to see this end up. So we have a bill on the floor that came from the Commerce Committee. That legislation passed the Commerce Committee unanimously, but it was not quite the way it seemed when you take a look at that vote because we also agreed that the definition of that Internet tax moratorium was faulty or at least not agreed to, and we would work on it coming to the floor of the Senate. We have not yet reached a compromise. That definition is the key. It is the linchpin to this legislation. So we have to find a way to resolve that. We thought this morning perhaps there was a way to do that. That appears not to be the case. I think we still have some distance between the various thoughts about how one would craft this in a way that is helpful to not retard and not injure the buildout of the infrastructure for the Internet and, at the same time, be fair to State and local governments with respect to their revenue base and not be preempting the opportunity they need and they would have, as they have always had, to tax certain services. So we continue to try to talk and see if we can find a way to reach some kind of agreement on this definition. Now, I want to make an additional point because I think it is important to continue to make this point even as we work on these issues. We have this issue on the Senate floor today. I understand why that is the case, because this issue had a November 1 deadline by which the moratorium on Internet taxation expired. We have a responsibility to try to see if we can pass this legislation. So there was a deadline with respect to this legislation. But there was a deadline on appropriations bills as well. That deadline was October 1. It is now November. We still have appropriations bills that have not been considered in the Senate. Yesterday there was great urgency about an appropriations bill. Everybody cooperated to try to get that done. We are told today there is great urgency about legislation. We are told that the majority leader wants the Congress to work on Veterans Day and so on. Then we are told, despite the fact that there is this urgency to get appropriations bills done and they request cooperation, that beginning next Wednesday we will spend 30 hours so that the majority can talk about the four judges they have not been able to get confirmed. It seems to me perhaps we should talk about the 168 judges we have confirmed. If we are going to take time in the middle of next week, after having worked on Veterans Day, because we believe there is such an urgency--and I believe there is an urgency with appropriations bills; we should get them done--if we are going to take 30 hours in the middle of the week in order to try to convince the American people that the Congress is not moving forward on judgeship nominations, and they are going to take 30 hours to talk about four judges who didn't get confirmed by the Senate, I think perhaps then we need to take much more time to talk about the 168 judges we did confirm. I am a little miffed at having these talk shows and others get all their talking points about how the Senate is stalling on judgeships. We are not stalling on judgeships. Most all of the Federal judges who have been nominated by this President have been confirmed by this Senate. We have an advise and consent responsibility. The Constitution does not say the President has a right to pick somebody and say to that person: For the rest of your life you will be a Federal judge. That is not the way the Framers of the Constitution described it. This described a dual role. The President shall nominate; the U.S. Senate shall confirm--advise and consent. Even George Washington ran into some tough sledding. Even George Washington lost a Federal judge in the Senate because they wouldn't confirm one of George Washington's judgeship appointments or nominations. So it started with George Washington. But when you talk about cooperation, this Senate has provided extraordinary cooperation with this President. We have confirmed 168 judges. We have tried in every way possible to be cooperative. We have the lowest vacancy rate in 15 years on the Federal bench. Why? Because this Senate has worked with the President to confirm 168 judges. I understand my colleague wishes me to yield. I do so without losing my right to the floor.

Mr. DORGAN. Providing that I am recognized at the conclusion of the remarks of the Senator from Arizona.

Mr. DORGAN. Mr. President, I yield to the Senator from Kansas for a question.

Mr. DORGAN. I will agree, provided I am recognized following the presentation.

Mr. DORGAN. Mr. President, I know my colleague from West Virginia is preparing to speak. I will not be long. I will make a couple of comments to finish what I was discussing about next week's schedule. It is true the minority party in the Senate does not schedule the Senate; the majority party does and the majority leader does. This Senate is 51 to 49. Some pretend it is 100 to zero. In the circumstances, for example, with the energy conference, I am a Democratic conferee, and we have been disinvited and not allowed to attend any of the conferences with respect to the Energy bill. That is the wrong way, in my judgment, to do business in the Senate. It pretends as if one-half of the Senate doesn't exist when you do that. Having said all that, I understand we don't schedule the Senate; the majority leader does. We find ourselves now in the first week in November, with a number of very important appropriations bills not yet completed, with stories earlier in this week that the majority may well want to put unfinished appropriations bills in another appropriations conference and create an omnibus bill, and bring it to the Senate as a conference report so Members of the Senate would be prevented from offering any amendments to the legislation. Well, that is not acceptable; it is not the way to do business. I don't know whether that is what is being planned. I can only tell you that is what I read early this week, as described by some majority party aides, I guess they are called. In addition to the urgency of getting appropriations bills completed, we are now told next week's schedule will include 30 hours of debate on judges. Actually, there won't be any business before the Senate to debate; it will just be an opportunity for the majority party to ruminate for 30 hours about how unfair it has been that 4 nominees have not been approved by the Senate--4. Mr. President, 168 judicial nominees sent to us by the President have been confirmed by the Senate, and 4 have not been. Yet you would be led to believe by all of the information spewed out of this Chamber, from all of the political vents that exist here, that somehow the Senate has just been unwilling to approve judgeships. We have the lowest vacancy rate on the Federal bench in 15 years. Why? Because this Senate has been cooperative with this President with respect to judgeships. He has nominated and we have confirmed 168. If next week they want to spend time, in a moment when it is urgent to finish our work on appropriations bills, instead to talk about the 4 judges who were not confirmed by the Senate, I want to come to spend some time talking about the 168 judges, including 2 from my State, both Republicans, both of whom I supported and was pleased to do so--I want to talk about the 168 judges we did confirm. I want the American people to understand what our record is with judges. My colleague from West Virginia knows about the Constitution, perhaps more than anyone in this Chamber. He has studied it, he has lived it, and he carries it in his pocket every day. His copy of the Constitution is one I enjoy seeing when he pulls it out of his pocket during debate on the floor of the Senate, because he describes it in vivid detail and gives life to this fabric of American Government. The Constitution does not say the President has a right to put a man or woman on the Federal bench for the rest of their lives. That is not what the Constitution says. The Constitution says we will provide lifetime appointments to the judiciary in the following manner: The President shall nominate, and the Senate shall give its advice and consent. So there are two steps: The President shall nominate and the Senate shall decide yes or no. There are circumstances where a President might say: I want to put someone on a very important Federal bench who is way outside the norm in terms of behavior, thought, or experience, or whatever; and the Senate has a right to say in that circumstance we are sorry, that is a person we are simply not going to confirm, Mr. President. That is not terribly unusual. George Washington failed to get one of his nominees confirmed--America's first President. So it is not unusual for the Senate to say, no, this is not a candidate we agree should be put on the Federal bench for a lifetime. In most cases, the President has sent us nominees we are satisfied with, and 168 of them have been approved; 4 have not been. In the middle of this time, when time is so critical and the appropriations bills are so urgently needed to be completed, the majority wants to ruminate and vent for 30 hours in the middle of next week about the 4 who have not been approved. I say, as my colleague from Nevada has, I make no excuses for deciding not to support the nomination of Mr. Estrada. I make no excuses for that. Mr. Estrada wouldn't answer the questions when asked by the Senate Judiciary Committee. How do I know that? Because the same day that he was a witness before that committee, the same day his nomination was considered by that committee, a nominee for a judgeship in North Dakota was there before the committee. That candidate from North Dakota, whom I supported--and, incidentally, is a Republican--is a fine judge. I was pleased to support him. He answered the very questions put to him by that committee that Mr. Estrada refused to answer. Mr. Estrada refused to answer questions. He and the administration refused to release information that was requested. I have no reason to make any excuses for deciding to vote against Mr. Estrada. I wouldn't have voted for him and didn't vote for him. I am not apologetic about that. If next week in the middle of all of this urgency we are going to take 30 hours and decide just to have the majority party ventilate about the four who did not get approved by the Senate, then I say--my colleague from Nevada is here--I would like to be part of a process that talks about the 168 Federal judges we did approve, all Republican incidentally--168 of them we did approve. We will get some pictures and get their story. I will talk about a few of them. I hope my colleagues will as well because the American people need to understand the story, and the story is not of the four who didn't get approved by the Senate. The story is the lowest vacancy rate in 15 years on the Federal bench because the Senate has moved forward on judgeships and because we have confirmed judges sent to us by this President and because we have succeeded in that effort. That is the story next week. If we are going to have 30 hours for the other side to ventilate about the 4 who didn't make it, I want 60 hours to talk about the 168 we did confirm. Mr. President, I yield the floor.

Mr. DORGAN

Mr. DORGAN. Will the Senator from Nevada yield?

Mr. DORGAN. Reserving the right to object.

Mr. DORGAN. I object.

Mr. DORGAN

Mr. DORGAN. Mr. President, I ask unanimous consent Jason Estep, a fellow from my office, have floor privileges for today.

Mr. DORGAN

Mr. DORGAN. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. DORGAN. Mr. President, I send an amendment to the desk.