Jeff Flake

Mr. FLAKE

Mr. FLAKE. Mr. President, according to the Border Patrol, more than 57,000 unaccompanied children have entered the United States illegally this year. That number is expected to grow to 90,000 by the end of the year and 140,000 by the end of next year. These startling facts speak for themselves. Swift and dramatic action, both on the part of Congress and the administration is needed. We know why most children are coming. America offers more opportunity than the country from which they are fleeing. Most of these children hope to be reunited with a parent or a relative. Many just hope to blend into the United States and to stay for an indefinite period of time. I understand that. I understand the incentive to be in the United States, but we cannot simply allow this to continue. According to reports about a recent White House meeting the President had with some people concerned about this wave of people coming from Central America, the President said that sometimes there is an inherent injustice in where you are born, and no President can solve that. He reportedly said that Presidents must send the message that you just cannot show up at the border, plead for asylum or refugee status and hope to get it. The President is quoted as saying: . . . then anyone can come in, and it means that, effectively, we don't have any kind of system. We are a Nation with borders that must be enforced. The President is right. If the reckless journey from Central America or Mexico or any other country to the United States is met with, at worst, long stays in the United States and, at best, long stays coupled with family reunification, these crossings will continue. It is just human nature. Even if every child and every adult is ultimately deported 6 months or a year from now, it will be too late, for in the intervening months the message is: Make it to the United States and you can stay. The incentives must change. When planes full of those who crossed are returned, people in those countries will stop paying smugglers thousands of dollars to take their children north. Incentives work, and in this case it may be the only way. So what are we to do? At one point the President asked Congress for some legal authority. Congress should give it to him. In addition, Senator McCain and I will offer a bill that will hinge U.S. foreign aid to Central American countries on their response to this situation, providing for refugee processing in those countries. They will heighten penalties for human trafficking and it will expedite the removal of those who are here without a legitimate claim. The President did ask for funds to deal with the crisis, although he asked for those funds without reforms. I am pleased to say that there appears to be a growing consensus that any funding request in a supplemental bill should include substantive reforms that deal with the existing circumstances that we are in as well as heading off future impacts. In the meantime the administration has at its discretion the ability to dramatically stem this wave of crossings. I will talk about a few of the options that the President clearly has right now. First and foremost, the Department of Homeland Security is not required to release unaccompanied children after they have been apprehended. While requiring DHS to transfer them to Health and Human Services within 72 hours, the 2008 trafficking law provides flexibility in ``exceptional circumstances.'' Second, the administration has at its discretion the ability to expedite or trim the timelines of hearings for unaccompanied children. For example, the President can direct the Department of Justice to not agree to continuances for these hearings. He should do that as well. Third, for children already released to HHS, the President can direct HHS to not place children automatically with their parents or family members. The 2008 trafficking protection law requires the administration to place children in the ``least restrictive setting'' in their best interest. The administration has discretion as to what constitutes least restrictive setting. If we acknowledge, as the President has, that most of these children will not be able to stay in the United States, why would we place them with a parent or a guardian only to take them from that parent or guardian months or years later? That, I would submit, is not in their best interest. I am certain that there are those who will object to these actions if taken by the President, but I will submit that we should do everything we can to ensure that another 30,000 or 60,000 or 100,000 children do not stream north on this dangerous journey. The real question is, What wouldn't we do to prevent that from happening? The current situation is not humane at all. It is not humane to allow these children to come forward this way. Let me be clear. For those seeking asylum, there will be many who will have a legitimate claim of persecution. Nobody is talking about shutting down the avenues to submit or to have such a claim. There will still be protections for genuine asylum seekers. It is best for those who seek refuge to do so in their own home country at an American embassy or consulate. That should, at best, be done in their own country. The legislation we will put forward will provide more resources for that to happen. Earlier this month the President's spokesman indicated that ``it's unlikely that most of the kids who go through this process will qualify for humanitarian relief, which is to say that most of them will not have a legal basis . . . to remain in the country.'' Cecilia Munoz, the Director of the White House Domestic Policy Council, made it clear: ``If you look at the history of these kinds of cases and apply them to the situation, it seems very unlikely that the majority of these children are going to have the ability to stay in the United States.'' Here is my primary concern: Despite discretion to do otherwise, the administration continues to provide precisely the goal of those crossing illegally--being allowed to enter the United States, reuniting with their families, and staying for an extended period of time. They are allowing these incentives to continue. Despite firm quotes and statements otherwise, the administration's response to the crisis is a case study in sending the wrong message. In his July 8 request for $3.7 billion in supplemental spending related to this crisis, the President stated that his administration would work with Congress to ``ensure that [they] have the legal authority'' they need, including ``providing the Secretary of Homeland Security additional authority to exercise discretion in processing the return and removal of unaccompanied children from these Central American countries.'' More than a week later, with the wave of children crossing illegally every day and increased anger pointed at the issue, it remains anyone's guess as to what the President is actually seeking. He didn't ask for any new authority in the funding request that was just sent up. In the days after the supplemental request was made, it became clear that nearly $2 billion of the funding request is for the Department of Health and Human Services--a department that plays no role in deportation and a department that the administration permits to place those who cross illegally with families inside the United States. Congress needs to do what it can to provide the statutory tools to address this crisis. As I mentioned earlier, the senior Senator from Arizona and I will offer a bill in the coming days to do that. In the meantime, the President has the discretion and the authority to act within the law, follow the law, and offer the right incentives so we don't have this situation continuing as it is today. I encourage the President to do so. With that, I yield back.

Mr. FLAKE

Mr. FLAKE. I thank the Senator for making that point with regard to the legislation. We propose to truly put border security first, and I continue to hope the House will take that up. But one of the points that has been made is we have to stem this humanitarian crisis in a way that will actually solve the problem, and that will be solved when parents and relatives in these countries realize that sending their children, unaccompanied minors, is futile, that they will spend a lot of money and it won't work. There is a good example of how we can give effect to this from a couple of years ago. In 2005, the country of Mexico allowed Brazilians to come in on kind of a visa waiver-type program. What happened is a lot of Brazilian nationals came through Mexico and used it as a conduit to come into this country. So we had a huge number of so-called OTMs or other-than-Mexicans coming up, Brazilians, and we were doing what can best be described as catch and release. We would take them back across the border and let them go. That wasn't solving the problem, so the Bush administration decided we needed to solve this problem. The way to actually solve it is to detain these individuals and then send them home to Brazil. We did that. It was an operation called Texas Hold 'Em. After that operation, within 30 days, the number of Brazilians coming through Mexico into this country dropped by 50 percent; within 60 days, that number dropped by 90 percent. So we can do this, but it needs to involve us changing the law with regard to trafficking, to allow us to treat children in Honduras, Guatemala, and El Salvador the same way we treat children who come from Mexico or from Canada and allow us to repatriate and to take these children back. Once that happens, when we actually do that, then we have a chance to stem this tide. It is the best thing we could do on a humanitarian basis as well, to not have these children subject to the cartels and human smugglers who are preying on them right now.

Mr. FLAKE. I thank the Senator. I have to run to a hearing, but I wish to say yes. I, Senator McCain, Senator Feinstein on the other side of the aisle, and many others--I think everyone here--signed a letter to the President asking him to make a clear statement that children coming now will be deported. He did so, and so did the Secretary of Homeland Security. Our State Department has relayed that message. And you can say that until you are blue in the face, but if the reality is that unaccompanied minors who get here are then placed with guardians or families around the country and we appropriate $1.8 billion to do so, then the message being sent is exactly the opposite of what the President is saying. I think that is what we are all here today to say--that we have to not just say the right thing, we have to do the right thing. And the right thing is to change the law that allows the loophole for people to stay here indefinitely and send the message by actually sending children--as we do with unaccompanied minors from Mexico and Canada-- back because that will send the message clearer than any words we could say to those tight-knit communities who hear by word of mouth. And nobody is going to pay another $5,000 or $6,000 or $7,000 to send a child through those dangerous conditions to the border if they know they are going to be returned home.

Mr. FLAKE. That is correct. The Senator from Texas is correct. Neither the President's deferred action program nor legislation passed by the Senate would allow people coming now to have some type of legal status. In the case of the President's DACA, or Deferred Action for Childhood Arrivals Program, you would have to have been here by 2007. Under the Senate legislation you would have to have been here by 2011 at a minimum. So it would not apply. The problem here--the root of it or the main part of it--is that people coming from noncontiguous countries to the United States, meaning Central American countries like Honduras, El Salvador, and Guatemala, are treated differently than kids who come from Mexico or Canada. In the case of kids coming--unaccompanied minors--from Mexico or Canada, the average is 3 days that we take care of them and then repatriate them or send them back. Here in this case, partly because of the law we have under the Trafficking Victims Protection Act, kids who come here need to be placed with a guardian or family. The President's proposal is asking nearly $2 billion for the Department of Health and Human Services, which has no role in border enforcement at all--none. It has no role in deportation or to repatriate these children back. It is simply to settle these children with families or guardians around the country. I should note that HHS does no due diligence whatsoever to ensure that the people they are placing them with are here legally. So the net effect is, when a child goes to a legal guardian or a parent, it is very unlikely that they will then show up later for deportation hearings. So, in effect, you are telling the cartels and the human smugglers and others: Keep doing what you are doing because it works. When those unaccompanied minors get here, they will be able to stay. They will be taken care of. As Senator McCain said, that is the least human thing we can do--to encourage parents and relatives in these countries to send their children or put them in the care of smugglers and others. If we want to stem the tide here, the way to stem the tide is to have parents and relatives in these countries seeing these children come back to these countries as we do to children in Mexico or Canada who come across the border. So I thank the Senator from Arizona for arranging this colloquy. We have to take action.

Mr. FLAKE

Mr. FLAKE. Madam President, I am pleased to have the opportunity to offer this amendment today, and I appreciate my colleague, the ranking member of the HELP Committee, working with my office to make this possible. The Workforce Innovation and Opportunity Act the Senate will vote on today establishes a performance accountability system for adults and youth core programs provided for within it. This bill also establishes sanctions for both States and localities that fail to meet the established accountability measures. My proposed amendment works to increase accountability in local training programs and one-stop providers. As the bill currently stands, a Governor can only take corrective action if a local area fails to meet performance accountability measures for 3 years in a row. That is a long period of time. My amendment moves the timeframe that a Governor can get involved in failing programs lacking corrective actions from 3 years to 1 year. I think that makes sense, certainly. Simply put, if training providers and one-stop partners are identified as ``poor performers'' after 1 year, the Governor should be required to remove them from the list of eligible providers. This amendment is simply common sense. Why should poorly performing programs continue to miss performance accountability measures for 3 years in a row before a Governor can get involved and take corrective action? In addition, under this amendment a Governor could replace a local board if necessary after just 1 year, but that wouldn't be required. My hope is that if we are going to do these kinds of things--if we are going to provide these funds--States and localities should work together to make these programs as successful and beneficial as possible. I believe this amendment will provide an additional level of oversight of these programs, and I ask my colleagues to support this amendment. Shifting now from this specific amendment, I now wish to talk a little bit about the amendment process in general and the position we find ourselves in today in this body. At their core, amendments offered on the floor serve as an opportunity to not only thoroughly debate an issue. We all know that legislation is often brought to the floor having only had the benefit of input from just a few Members. What amendments do is provide individual Senators the chance to change and often improve legislation. They are a right in this body, not a privilege. I believe in this fundamental process so strongly that I have supported controversial cloture motions and other motions to proceed on underlying bills even if I did not support that legislation, simply on good-faith assurances that amendments would be offered and that amendment debate would be allowed. Even though I did not support the bill as it stood, I would at least have the opportunity to make it better through an open legislative process. That is how I felt on a number of pieces of legislation that have moved through this body. Unfortunately, many of these assurances were not met and my fear is this body will continue to pass legislation with little to no amendment consideration. Since last July, Republicans have only had 11 rollcall votes on amendments, including the 2 we will see today. By comparison, in the other body, House Democrats have had over 160 votes on amendments during that same period--160 for the minority party in the House of Representatives. That is more than 14 times the votes Senate Republicans have had. As my good friend from Kentucky pointed out earlier, Representative Sheila Jackson Lee has singlehandedly received more amendment votes than all Senate Republicans, given that she has had 15 votes on her amendments since last July in the House of Representatives. Some who lionize this Chamber--and I am one of those--as the world's most deliberative body often take a dim view to the practices of the House--I am not one of those; but this is supposed to be the more deliberative body with open amendments and open debate--they will cite with trepidation the restrictive and structured approach to debate in the House and, with a shudder, the very fact that the House has the dread Rules Committee that picks and chooses which amendments will be offered. I can tell you from experience, when it comes to the ability to offer amendments, I now long for those days in the House. During my service in the House, between the 107th and 112th Congresses, I personally offered--this is offered; not filed, but offered on the floor of the House of Representatives--239 amendments. In fact, in the last four Congresses, I offered between 30 and 70 amendments per Congress. Outside of the sheer volume, one could reasonably chuckle at my amendment batting average since very few of my amendments passed. But I actually had more amendments adopted in the past two Congresses each than we have had rollcall votes on Republican amendments in the Senate since July. Under both Republican and Democratic leadership in the House, my right to offer amendments, particularly during the appropriations process, was respected. They were respected by both parties, even when I was offering dozens of earmark-limitation amendments that most of my colleagues preferred not see the light of day. Many of my colleagues here in the Senate served with me in the House. They all remember those times. Nobody wanted to vote on Flake amendments. These earmark-limitation amendments were not popular. They often did not get many votes. But, in fact, in all but one of the 140 earmark-limitation amendments I offered, they failed--all but 1. But I think we can all agree that joining with a small handful of my colleagues to spotlight precisely what was going on in these appropriations bills ultimately aided in the current earmark moratorium that is in force by both Houses. That is a good thing. While I prefer to have my amendments prevail, that certainly should not be the test for whether I am afforded the ability to offer them. Unfortunately, in my short time in the Senate, I have filed 85 amendments to improve underlying legislation and to address issues faced by my constituents. It is worth noting that this will be my first amendment that will be voted on by my colleagues. During last year's NDAA consideration, I filed an amendment that would simply ask DOD to report on OCO spending. The amendment would have required an accounting of OCO funds appropriated during fiscal year 2013 and requested in fiscal year 2014 and would have withheld 10 percent of the budget for the Office of the Secretary of Defense until the report was received. This amendment is not a fundamental policy change; it is simply a reporting requirement that all of us would benefit from. Last week, I filed 30 amendments to the minibus appropriations bill, but not one is likely to see the light of day. With no disrespect to my colleagues, and having served on the Appropriations Committee in the House myself, I think we can all agree that spending bills benefit from a good scrubbing by this entire body before they move through the legislative process. For example, one of those amendments would have reduced the USDA Single Family Housing Direct Loan Program from $560 million to $360 million--the same amount as is in the President's budget. I think most of us would be surprised to learn that the Department of Agriculture has a Single Family Housing Direct Loan Program and that we are funding it to the tune of $560 million. The President wants to move that down to $360 million. I agree with the President. We ought to. At least we ought to be allowed to debate it and vote on it. This is not an outlandish amendment. It would simply reduce funding levels to the President's request and, more importantly, give this body the opportunity to discuss the merits of the program. I know some of my colleagues will disagree and will ultimately oppose many of these amendments and others if they come to a vote, and that is fine. What is not fine is the fact that we in the U.S. Senate cannot even have that debate. To be clear, this is not just a Republican concern. A recent article in the Hill mentioned how my colleagues on the other side of the aisle are seemingly just as frustrated with the current amendment process. The article included a quote from a Democratic Senator who said: ``I've never been in a less productive time in my life than I am right now, in the United States Senate.'' So apparently I should count myself lucky to get a rollcall today on this amendment because there are many on the other side of the aisle who have not been afforded the same luxury. Both Democrats and Republicans are getting shut out of this process, and it is a very dangerous precedent. I urge my colleagues to encourage thoughtful, open debate from here on out. I also encourage support for my commonsense reform to the accountability provisions of this legislation we are debating today. I yield the floor.

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

Mr. FLAKE. Madam President, I call up my amendment No. 3379.

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

Mr. FLAKE

Mr. FLAKE. Mr. President, later this afternoon the Senate will vote on Leon Rodriguez as head of the U.S. Citizenship and Immigration Services. While I am unable to support this nomination, this is the prime time to raise some of the issues that are happening on the southwest border. I will summarize some of my remarks. We have an incredible situation, as we all know, happening on the border today. We have had thousands of kids cross the border. In fact, from October 1 to mid-May, there were 148,017 apprehensions. Of those, a significant number--this is just the Rio Grande Valley in Texas--a significant number of those were unaccompanied minors. In fact, there were so many that we did not have the capacity to deal with them there, and many, to the great chagrin of many in Arizona, were shipped to Arizona to process and then released into the custody of a guardian or someone. The Border Patrol and others are trying to make the best of a very tragic and unfortunate circumstance. I do not think anybody faults them for the big burden they have. I think they are doing the best they can. But what the situation really points out is that not only do we have insufficient resources on the border itself to deal with those trying to cross, but once people get here, we have insufficient resources, infrastructure, and policies to actually deal with them in a timely fashion. They are actually released--most of them--and asked to appear at a later date. It is estimated that quite a few do not. In fact, very few will show up at their court date. What are we to do here? Obviously those of us who have dealt with this situation for a long time--those of us from border States--have advocated broad legislation to deal with border security, a guest worker plan, mechanisms to deal with those who are here illegally now, employer enforcement--many items. But if we cannot get to that yet--I wish we could, but if we cannot get to that yet, then we need to have better policies for dealing with those who have come across the border and whom we are going to hold. If we are going to grant them asylum--or some of them--then that needs to be done. If not, we cannot just assume that we are going to release them and assume they will come back for their court date or at their appointed time. So this is a situation with which we have to deal. One thing we need to address immediately is to try to stem the tide of those who are coming. Interviews suggest overwhelmingly--in fact, in one case there were 250 crossers during a 1-week period or a 2-week period into Texas. I believe 95 percent of them indicated that the main motivation for them coming across the border--this is largely unaccompanied minors-- was that they would be granted some kind of legal status that would allow them to stay. This is contrary to our law. This is contrary to the President's deferred action program. To qualify for that program, you would have had to have been here for 7 years. You cannot just arrive today or yesterday or tomorrow and qualify for this program. Nor was this contemplated by any legislation that has been passed by either body. The legislation we passed in the Senate does not allow those who come now to stay. You will have had to have been here since, I believe, December of 2011. But what is happening is cartel members, human smugglers, and others are misinterpreting or willingly telling people they will receive some kind of legal status when they come. Too many people believe that, particularly from the countries of El Salvador, Honduras, and Guatemala. Some suggest it is just economic conditions or violence in those countries that is driving people northward. That, no doubt, has some truth to it. There are some who come for those reasons. But we have seen a massive spike just in the last couple of months that cannot be explained by economic conditions or violence in those countries. It is because they believe they will be afforded some legal status. Senator McCain, I, and many others in this body have raised this with the administration and have asked the administration to make it clear that those who come now will not be allowed to stay. I have a letter that has been--I think this is an advertisement or has been translated into Spanish. It is being circulated in the affected countries from Secretary Jeh Johnson at the Department of Homeland Security. It is a good letter. It says the right things. I am glad we have taken that step. Vice President Joe Biden was in those countries telling those in charge and others that those who come now will not be allowed to stay; they will be deported. That is good. We need to keep that up. But what we really need right now is for President Obama himself to make such a statement. In all deference to the Vice President and the Secretary of Homeland Security, they simply do not carry the weight of the President of the United States making a statement and then following up that statement with a concerted effort in those countries to let people know they should not come north. That would make a tremendous difference. I call upon the President to make such a statement and to follow up that statement with efforts in those countries to make sure people understand this. First and foremost, we need to stem the tide of those coming. It is estimated that this year there could be as many as 90,000 unaccompanied minors who come across the border. That figure may be higher next year. We have to stem that tide and then quickly figure out how we can deal with those who cross the border and whom we apprehend. We simply do not now have the infrastructure or policies that allow us to deal with them in a rationale, humane way. I would call upon the President to make such a statement. I yield the floor.

Mr. FLAKE

Mr. FLAKE. Mr. President, I rise today to discuss a matter of importance not just to Arizonans but to the people affected across the country by the Environmental Protection Agency's continuing overreach. Namely, I want to talk about air quality standards that are quite simply unattainable and those that penalize States where Mother Nature--not smokestacks, not factories, not evil industrialists, just Mother Nature--causes these events that affect air quality. Let me say from the outset we all love and deserve to have clean air, and when I am discussing these particular concerns I want to be clear that I am not in favor of pollution, dirty air or asthma. Instead what I am in favor of is a little more common sense from the EPA. It won't come as any surprise to most people that Arizona is a desert State. We have lots of cactus. We have scorpions. I was stung twice last year. In Arizona, just as in most deserts around the world, we have dust storms. These dust storms are not caused by eroding topsoil or overfarming or man. These are naturally occurring events just like tornadoes or blizzards in other parts of the country. When you live in a naturally dusty State, the dust storms sweep across the desert and across State lines. They can obviously cause local and regional air quality issues. The same goes for living in a forest-fire-prone State, which Arizona also is. States simply cannot be expected to control these issues. Yet despite adopting an ``exceptional events rule'' and issuing murky guidance, the EPA still forces States to squander resources on these spikes in air pollutants that are outside anybody's control, with no actual improvement to air quality. The EPA's reviews to prove that spikes in air quality are the result of naturally occurring events are arbitrary, cumbersome, and they are costly. Let me give you an example. In 2011 and 2012, the Arizona Department of Environmental Quality, the Maricopa County Air Quality Department, and the Maricopa Association of Governments were forced to spend $675,000 and 790 staff hours to prove to EPA's satisfaction something that anyone with two eyes could readily see: Dust storms trip the EPA's air quality sensors--not pollution, dust storms. The current regulations are entirely up to the EPA's discretion and they are final and they are not appealable. But in some cases such as those in Arizona, they are a violation of common sense as well. That is why I am introducing the CLEER Act. The CLEER Act will, among other things, require the EPA's decisions on those events to be based on a preponderance of evidence and to accord deference to States' own findings when such an event happens. It will also require the EPA to renew a State's exceptional event documentation within 90 days instead of dragging this process out, and to decide which States with exceptional events will be evaluated. I am also introducing two other bills: the ORDEAL Act and the Agency PAYGO for Greenhouse Gases Act. Much credit goes to the EPA for successfully reducing air pollution in the past few decades. This has led to benefits for everyone. But one of the most common pollutants--ozone, dealt with by the ORDEAL Act--has presented a nearly endless supply of redtape for States and municipalities for literally decades. When the EPA reduced its permitted ozone standards in 2008, counties across the country that were in ``nonattainment'' status were forced to enact expensive and complicated compliance plans. With scant scientific health bases, the EPA wants to further lower ozone emissions standards. But there are already 221 counties in 27 States that are noncompliant with the present standards. How will lowering these standards even further help these States, communities, and counties comply? Is this EPA's version of double-secret probation? By some estimates this lowering of ozone standards from 75 parts per billion to 60 parts per billion will cost a whopping $1 trillion per year from 2020 to 2030. The EPA's own estimate said the proposed standard will cost $25 billion per year at 70 ppb to $90 billion per year at 60 ppb. It will cost as many as 7.3 million jobs. The rationale for further reduction in ozone standards is the potential health benefits. The EPA consistently fails to meet its 5- year intervals for ozone, which results in lawsuits, bad policy, and poor analysis when the agency is forced by the courts to produce a new standard. My bill, the ORDEAL Act, would provide the EPA more flexibility by doubling the statutory review interval to 10 years. It would also push off any decision on EPA's proposal to tighten the ozone standards until 2018, putting that standard on a more realistic 10-year cycle. This will give businesses more certainty. It will give them a more certain regulatory environment, not a possible change every 5 years. If you can imagine how to plan on a 5-year cycle for standards that are rarely met and have to be adjusted again. It will also give State air quality agencies the time they need to implement their own plans. Finally, this administration has set its sights on reducing carbon emissions with the most recent attempt being draconian regulations on existing powerplants, despite inevitable job losses and spikes in energy costs. The Agency PAYGO Act I am introducing would simply give the EPA a taste of its own medicine by requiring the agency to offset the cost of any greenhouse gas rules to an equivalent reduction in agency spending. If the agency proceeds without offsetting these costs from its own budget, the final greenhouse gas rule must be approved by Congress. This bill specifically forbids the EPA from denying costs to Federal agencies by passing costs on to the Federal agency's ratepayers. If capital costs are imposed by the greenhouse gas rule, the EPA must offset those costs or get Congress's approval. Specifically this bill will not let underlying agencies--including power generating agencies such as the Western Power Authority--pass along these costs to consumers. The modern EPA has a history of implementing increasingly costly and stringent standards for negligible or even questionable benefit. All three of these bills, the CLEER Act, the ORDEAL Act, and the Agency PAYGO Act, provide more certainty than presently exist to States and businesses that have to deal with the EPA and will hold the agency accountable for its decision-making process. I hope my colleagues will join me in supporting these commonsense measures. With that, I yield the floor.

Mr. FLAKE

Mr. FLAKE. Mr. President, on behalf of Senator McCain and myself I am pleased to introduced S. 2503, the Bill Williams River Water Rights Settlement Act of 2014. This measure would confirm important water rights claims of the Hualapai Tribe to water in the Bill Williams River watershed; provide protections for the Tribe's culturally significant springs in that area; secure a non-federal contribution toward a future settlement of the Tribe's claims in other river basins; provide certainty for continued water use by the Freeport Minerals Corporation, Freeport, at the Bagdad Mine complex and townsite; and facilitate the transfer of a portion of land known as Planet Ranch for use in the Lower Colorado River Multi-Species Conservation Program or MSCP. It would do all of this without any new spending authorizations. Water users in Arizona have a long history of pro-actively addressing complex water challenges. Among the State's many accomplishments is the resolution, in whole or in part, of water rights claims asserted by 13 of the State's 22 federally recognized Indian tribes. This measure would carry forward that strong tradition by recognizing reserved water rights to a total of 694 acre-feet per year, afy, on three different parcels along the Big Sandy River as well as the Tribe's claims to the Cofer Hot Springs. For non-Indian communities, this legislation would confirm Freeport's right to withdraw 10,055 afy at the Wikieup Wellfield, which serves the Bagdad Mine and townsite. Achieving this level of certainty with regard to water supply would help to ensure continued economic benefits throughout the State. By enabling the transfer of a portion of Planet Ranch to the Lower Colorado River MSCP, the settlement would help Arizona, California, and Nevada meet their obligations to both water management and Endangered Species Act compliance. However, in order to properly effectuate the transfer, Congress must act before five-year window for abandonment and forfeiture of Planet Ranch's water rights expires. Finally, this bill would help to set the table for future negotiations regarding the Tribe's claims to water in the lower Colorado River and the Verde River by securing a non-federal contribution toward those settlement efforts. As those negotiations continue, I look forward to fully and fairly evaluating any subsequent settlement on its own merits. I am pleased to have the opportunity to work with the parties that have negotiated this settlement, and I am committed to bringing it to fruition through congressional enactment. The settlement resolves significant legal claims, provides certainty for water users, and enhances the MSCP without including any new spending. Therefore, I urge my colleagues to support this legislation.

Mr. FLAKE

Mr. FLAKE. Mr. President, on behalf of Senator McCain and myself I am pleased to introduced S. 2503, the Bill Williams River Water Rights Settlement Act of 2014. This measure would confirm important water rights claims of the Hualapai Tribe to water in the Bill Williams River watershed; provide protections for the Tribe's culturally significant springs in that area; secure a non-federal contribution toward a future settlement of the Tribe's claims in other river basins; provide certainty for continued water use by the Freeport Minerals Corporation, Freeport, at the Bagdad Mine complex and townsite; and facilitate the transfer of a portion of land known as Planet Ranch for use in the Lower Colorado River Multi-Species Conservation Program or MSCP. It would do all of this without any new spending authorizations. Water users in Arizona have a long history of pro-actively addressing complex water challenges. Among the State's many accomplishments is the resolution, in whole or in part, of water rights claims asserted by 13 of the State's 22 federally recognized Indian tribes. This measure would carry forward that strong tradition by recognizing reserved water rights to a total of 694 acre-feet per year, afy, on three different parcels along the Big Sandy River as well as the Tribe's claims to the Cofer Hot Springs. For non-Indian communities, this legislation would confirm Freeport's right to withdraw 10,055 afy at the Wikieup Wellfield, which serves the Bagdad Mine and townsite. Achieving this level of certainty with regard to water supply would help to ensure continued economic benefits throughout the State. By enabling the transfer of a portion of Planet Ranch to the Lower Colorado River MSCP, the settlement would help Arizona, California, and Nevada meet their obligations to both water management and Endangered Species Act compliance. However, in order to properly effectuate the transfer, Congress must act before five-year window for abandonment and forfeiture of Planet Ranch's water rights expires. Finally, this bill would help to set the table for future negotiations regarding the Tribe's claims to water in the lower Colorado River and the Verde River by securing a non-federal contribution toward those settlement efforts. As those negotiations continue, I look forward to fully and fairly evaluating any subsequent settlement on its own merits. I am pleased to have the opportunity to work with the parties that have negotiated this settlement, and I am committed to bringing it to fruition through congressional enactment. The settlement resolves significant legal claims, provides certainty for water users, and enhances the MSCP without including any new spending. Therefore, I urge my colleagues to support this legislation.

Mr. FLAKE

Mr. FLAKE. Madam President, I thank my colleagues for their prompt consideration and passage of H.R. 862, a bill that would authorize the conveyance of 2.67 acres within the Coconino National Forest to landowners who built on those parcels in reliance on an erroneous survey. On Tuesday, a relatively small 4-acre wildfire started just north of Sedona, AZ, near the Slide Rock State Park. It took less than 24 hours for the Slide Fire, as it is being called, to explode through the overgrown and dry vegetation and make its way up Oak Creek Canyon. In less than 2 days, estimates put the fire at 4,800 acres. Unfortunately, it appears poised to grow larger. Some areas have already been evacuated and an estimated 3,200 people in the Kachina Village and Forest Highland communities were put on pre- evacuation notice last night. Nearby, the Mountainaire community sits approximately five miles from the fire line. As they watch smoke fill the sky near their homes, residents are preparing for the possibility of having to evacuate. For some of those residents, the imminent fire threat brings added uncertainly due to a longstanding boundary dispute. The problem stems from an incorrect survey that was completed in 1960. Unbeknownst to the landowners, homes and other improvements were built based on that errant work. In 2007, a subsequent survey revealed the error and a number of landowners were alerted to the fact that portions of their property are within the Coconino National Forest boundary. As a result, these parcels have a cloud on their title that needs to be resolved through a land conveyance. The Slide Fire has brought the impact of this survey error into further focus. Some of those homeowners have apparently been told by their insurance companies that if the Slide Fire destroys their homes, they will be compensated. However, it is unlikely they will be able to rebuild on the property because of the boundary dispute. In my view, the least we can do during this difficult time is remove the boundary issue from the litany of concerns these families in the Mountainaire community are dealing with right now. That is why Senator McCain and I sought expedited consideration of H.R. 862 today through the unanimous consent process. This bill, which was introduced by Representatives Kirkpatrick and Gosar in the House, would enable the conveyance of the 2.67 acres that are tied up in this longstanding boundary issue to the private landowners. The House passed this measure in June of last year by a vote of 395- 1, and it was favorably reported out of the Senate Energy and Natural Resources Committee by voice vote late last year. The Forest Service has also issued a statement signaling its support for this measure. I am grateful to my colleagues in the Senate, in particular Senators McCain, Landrieu, and Murkowski, for their support in moving this bill through the Senate today. It provides a much needed sliver of good news for families that are dealing with a significant threat. Likewise, I look forward to working my colleagues to find a path forward to proactively address the catastrophic wildfire situation that continues to plague the West.

Mr. FLAKE

Mr. FLAKE. Mr. President, there has been a great deal of talk lately about earmarks. Some Members are even talking about bringing them back. I grew up earmarking. I grew up on a ranch, where we earmarked cattle. That is where earmarking gets its name. I didn't think much of the practice then. We already had a brand on the critter. An earmark seemed to be redundant. After a while, we didn't do it any more. Then I came to Congress--first in the House and now in the Senate-- and I had hoped not to be earmarking any more. But when I got to the House I found out the practice was not just prolific but rampant, so I come here today, after hearing some people want to bring the practice back--after we had the moratorium placed a couple years ago--and urge caution. Let me explain a few reasons why. One reason we lamented the absence of earmarks was the saying: Earmarks are the glue that helps legislation get passed. I would say it is a little more accurate to say: Earmarks usually represent the lard that allows earmarks to squeeze through the door and get through to the President's desk. Senator Tom Coburn has spoken often about earmarks. I think he at one point said the best statement ever made about earmarks: They are the gateway drug to spending addiction. Earmarks are usually small items, but they lead to massive spending overall. They leverage greater spending. Once you get an earmark in a bill, you usually vote for that bill no matter how big it becomes. We had years and years of that, and we shouldn't return to it. But now earmark fans have a new argument--spending oversight. They say we can provide better oversight when we earmark; we will keep better track of that spending. They argue that Congress is derelict in its article 1 constitutional responsibilities, the power-of-the-purse argument: By not allowing earmarks, we are somehow derelict in our duty. That is an interesting argument which we ought to explore for a minute. The same people who will defend earmarking as a constitutional right and responsibility will also note: Don't worry, it is only 1 percent or less than 1 percent of all Federal spending. But think about that for a minute. If it is our constitutional responsibility, why would we stop at 1 percent? That is not a valid argument at all. If it is constitutional, for our constitutional responsibility, shouldn't more than 1 percent be earmarked? When we look at when earmarks were here, they were never evenly spaced. Every Member of Congress in the House and the Senate has the same constitutional right, I would assume. But with earmarks, committee chairs or those on the appropriate committees get the lion's share of the earmarks when rank-and-file members get far fewer. So the constitutional argument is specious at best. I do share a concern that Congress has ceded to agency bureaucrats and administration officials much of our discretion over spending decisions. The culprit is not a lack of earmarks but the lack of oversight opportunities. The problem is we haven't gone through regular order for a long time. Right here in the Senate is the perfect example. We have only had nine votes on Republican amendments in this Senate Chamber since July. Nine votes. This is the most deliberative body in the world. The hallmark of this body is an open amendment process, open debate-- unlimited debate. Yet we have only had nine Republican amendments rollcalled in the Senate Chamber since last July. That is no way to provide oversight. We have to get back to regular order if we want to have oversight. We have a pretty dismal record lately on appropriations bills. We have become addicted to continuing resolutions, so-called CRs. According to the Congressional Research Service, between fiscal year 1977 and fiscal year 2014, in all that 30-year period there were only 4 years where all appropriations bills were enacted on time, and in only one other year were more than half of them completed on time. The last year Congress actually moved through all the appropriations bills and did it on time was 1997. That is the problem we are having with oversight: When we don't authorize and pass appropriations bills one by one, we lose the ability to conduct oversight over the Federal agencies and over Federal spending in general. Since then, there has been an average of six CRs per year. This year will be no different. I will consider some of the arguments. We are often told this is a way we can have a check on the agencies. But what we have seen in the past is that when we earmark, the bulk of the time spent by the Appropriations Committee is not spent in doing oversight but is spent in doling out earmarks. The last year we had earmarks, 2009, there were 9,000 earmarks in 1 Omnibus appropriations bill. What was the Appropriations Committee doing for months prior to that? Most of their time and staff's time-- time that should have been spent on the other 99 percent of Federal spending--was spent securing that 1 percent of Federal spending that constituted earmarks for the Members. So we are not exercising oversight with earmarks. We are abdicating our responsibility and spending far too much time on these earmarks. There are 43 Members of the Senate who are in their first 6 years in this body, myself included. I happened to have spent some time in the House, so I have some perspective there. For those who haven't seen the appropriations process with earmarks, I think it is useful to take a little walk down memory lane and see what it was like in years past. Jack Abramoff, who spent some time in prison for working the appropriations process pretty well, called the Appropriations Committee the earmark favor factory. That I don't think has been seriously refuted by anyone. That is what the Appropriations Committees became during that time--earmark favor factories. It is worth remembering some of the earmarks that finally galvanized the country against them: the Bridge to Nowhere; the indoor rainforest in Iowa. We could go on and on. I went to the House floor myself several hundred times over the period of a couple of years to challenge these individual spending projects. In 2008, there was a lobbying firm founded by a former Appropriations Committee staffer that specialized in getting particularly defense earmarks from the Appropriations Committee. The FBI finally got wind of some of this and started to investigate. Politico reported that sources within the FBI indicated they were ``conducting research on earmarks and campaign contributions.'' While they did so, this investigation commenced and within weeks the firm imploded. According to analysis by Taxpayers for Common Sense, clients of the firm received at least $299 million in earmarks. The firm or individuals from the firm made campaign contributions of more than $3 million to nearly 300 elected officials. ABC News said at the time of the firm's operation: Millions out to lawmakers, hundreds of millions back in the form of earmarks for clients, have made it for many observers the poster child for tacit pay-to-play politics. I don't think we want to go back to that time. News reports every day were looking at the link between earmarks and campaign contributions. There was a smack of corruption there. As I said, as soon as the FBI turned its attention to this firm doing a lot of this earmarking, it imploded almost overnight and went away. There was great public distrust in the process, and well there should have been. At that time I remember going to the House floor and offering over a series of weeks nine separate privileged resolutions asking for the Ethics Committee to look at that relationship between campaign contributions and earmarks. Let me take this time to say this is not a partisan issue. Republicans as well as Democrats over years past participated in this process of earmarking with equal abandon. I am not pointing the finger at either party. There are Members of both parties who seek to return to the practice. But we ought to remember that it wasn't good for this institution. For those who say we ought to go back to it, I don't understand. I would argue it doesn't give us any better oversight because we spend all of our time actually earmarking projects rather than providing oversight over the other 99 percent of government funding. There is no constitutional requirement. And, frankly, if it is just 1 percent of all spending, how can we argue it is our constitutional responsibility? Why wouldn't we be earmarking more of it? I don't know how the corruption that comes with it is avoided. Members may say it will be better now than it was before--names will be attached to earmarks. We will have total transparency. The investigation of this firm and others happened when there was transparency, when names were attached to earmarks. That didn't help. The corruption continued. There is no way to police this process adequately when we earmark in that way. I encourage my colleagues, when we hear Members pining for the old days when we earmarked, remember that Congress went for decades and decades with maybe one here or one there on the margins. It was only in those last couple of decades, the 1990s through about 2010, where we had a rampant corrupt process which I would argue we wouldn't want to return to. So let's think twice before doing that.

Mr. FLAKE

Mr. FLAKE. We come to the floor today to call attention to the tax extender bill currently being debated before the Senate. Included in this legislation is a provision extending the wind production tax credit, known as the PTC, for 2 additional years. This would be the ninth extension of a supposedly temporary tax credit. The PTC was first enacted in 1992 to jump-start the nascent wind industry. It was meant to expire in 1999, 15 years ago. But this one- time stimulus has turned into a never-ending tax subsidy that has been extended eight times, and the prospect for a ninth extension seems likely. The PTC spends precious tax dollars subsidizing a very mature industry and distorting our energy markets. My friend from Tennessee, Senator Alexander, and I have been vocal opponents of this Federal subsidy for years. Unfortunately, this credit has survived under the canard that wind power is an infant industry in need of Federal support. With the PTC's expiration on January 1 of this year, wind producers are once again igniting the rallying cry to continue their taxpayer- funded handout. I ask my friend from Tennessee, for those taxpayers who may not be familiar with this use of their hard-earned dollars, what is the PTC and why is it so valuable?

Mr. FLAKE. I thank the Senator. I don't think there is justification. The justification that often is given is that we have to give some kind of surety moving ahead, and people won't invest in this industry if they don't know that the subsidy is there. Again, this has been around since 1992. It was meant to expire in 1999. But it has been extended eight times. If anything is unsure, we are creating that unsurety--or insecurity--when Congress simply goes again and again and renews it. The Senator from Tennessee had a great column in the Wall Street Journal talking about part of the problem we have when we subsidize this kind of industry and what that does to baseload power--nuclear and coal--in the interim. Does the Senator wish to talk about that?

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

Mr. FLAKE. I ask unanimous consent that Senator Alexander and I be permitted to engage in a colloquy.

Mr. FLAKE. In that same column, the Senator also talked about the environmental impact. It is often thought that these renewables are all the same in terms of their impact on the environment. But the Senator points out where these need to be built generally, and they are not your typical picturesque windmill somewhere in Holland but something quite different. He also mentioned what it would take to generate the same amount of power that perhaps eight nuclear powerplants generate, what it would take in terms of these wind units. Does the Senator want to talk a bit about that?

Mr. FLAKE. I thank the Senator. Senator Alexander and I are introducing an amendment to the tax extenders bill currently on the floor. This amendment would simply strike that extension, do away with it completely. We also have another amendment as to when producers of wind energy claim the subsidy right now, they can claim it now but not have the clock start until they start producing. So if they do not start producing for another 10 years, the end point of that subsidy is a full 20 years from now and taxpayers are on the hook much longer than was anticipated. So this would simply say that the point at which the subsidy begins has to be immediately so we won't go too far in the future. Those amendments will be introduced tomorrow, and we hope to be able to debate those on the floor with this bill.

Mr. FLAKE. It is an increasing part of our energy load. In fact, the most new capacity actually went to wind as a percentage of the current output. There is an important place for it. It can and is being done in environmentally sensitive ways around the country. But it is time for the Federal subsidy to end. The problem is, when we distort the market the way we do--when at times you can actually pay a utility to take your power because that is the only time the wind is blowing, at night, and still make a profit from the Federal subsidy--there is a distortion in the markets we just shouldn't have, and we ought to let capital flow where it is most needed. So neither of us is saying there is no place for wind energy, but there is no place now or no reason to continue for the ninth time an extension of this Federal subsidy for wind.

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

Mr. FLAKE. Yes. And I want to point out as well that neither of us is saying there is no place for wind energy.

Mr. FLAKE. I thank the Senator. I have just one other point. The second amendment, as I mentioned-- and the Senator mentioned that this 2-year extension leads to another 10 years in subsidies. Depending on when they actually start production, it could be another 20 years. So it really distorts our budget process, our appropriations and authorizations and everything else, for a longer period of time than it should. I thank the Senator for his work and look forward to hopefully seeing these amendments debated. I yield the floor, unless the Senator has any closing remarks.

Mr. FLAKE

Mr. FLAKE. I thank the senior Senator from Arizona Mr. McCain for the work he has done to bring this panel forward with six judges to be confirmed this week. That is a big deal, a big deal for any State, and for a State such as Arizona that has had such a shortage for so long, this is particularly important. I just want to say a few words about the three judges we will vote on after I speak: Judge Steven Logan, John Tuchi, and Diane Humetewa. Judge Logan has a distinguished record in the military, where he earned a Bronze Star among many other honors. In discussing his military service at his nomination hearing, one of his statements stuck out because it exemplifies his dedication for the rule of law and his fitness to be a district judge. He said: The rule of law in the United States is very, very important. I have seen what happens in a country, two countries in particular-- He is referring to Iran and Afghanistan-- when there is no rule of law that is active. Judge Logan will bring this important perspective to the bench, as well as insights he has gained as an assistant U.S. attorney, both in Minnesota and in Arizona. He is familiar with immigration issues as well, which provide the bulk of the cases he will be looking at as a district court judge. Mr. Tuchi has a long career as a prosecutor, having served the bulk of his career in the Arizona U.S. attorney's office from 1998 until now. He is presently serving as chief assistant U.S. attorney, where he oversees civil and criminal personnel operations. In 2009 he served as interim U.S. attorney for several months. He began his legal career as a judicial clerk in the Ninth Circuit, and I think he is going to make a stellar district court judge as well. Ms. Humetewa, similar to Judge Logan, has served as both a prosecutor and a judge, serving in the Arizona U.S. attorney's office as an assistant U.S. attorney and then as a Senate-confirmed U.S. attorney for Arizona from 2007 to 2009. She was also acting chief prosecutor for the Hopi Tribe and appellate court judge for the tribe. As Senator McCain noted earlier, she will be the first Native American woman to serve on the Federal bench. I know her varied experience as a judge and prosecutor will serve her well in this capacity. Let me just say what a thrill it was to be on the Judiciary Committee and have all six of these prospective judges come with their families and talk about their experience and how it would relate to their new role if they were to be confirmed. It was great to be there to see Diane Humetewa and family and note that on the reservation there were many other family members watching that hearing being streamed and being proud that the first female Native American would be on the Federal bench. What a great occasion, what a great event to witness, and it speaks well for not only her qualifications but the qualifications of the others as well. We look forward in the coming days--hopefully tomorrow--to vote on Judge Rayes as well as Rosemary Marquez. Senator McCain mentioned Judge Soto. I have had the honor of getting to know Judge Soto and his family a bit. He served 13 years on the County of Santa Cruz's Superior Court and is currently a presiding judge. The comment in the confirmation hearing that came up is that the people of Santa Cruz County are going to be sad to lose him as a judge; he has been great there, and he will be a great district court judge. I am so happy to go through this process. This is my first time, being relatively new to this position, of nominating judges and going through the confirmation process. It was a pleasure working with Senator McCain and with the White House and the President in bringing these nominations forward. I urge my colleagues to vote both for cloture and for final confirmation of these three judges today and hopefully the other three tomorrow or later. I appreciate the President making these nominations. Arizona has waited a long time to fill these judgeships and we are pleased to do so this week. I yield the floor, and I note the absence of a quorum.