Chuck Grassley

Mr. GRASSLEY

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 Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GRASSLEY. Madam President, President Obama and his administration claim to be open and above board in their actions. As recently as July 1, the White House Chief of Staff, Jack Lew, told a television audience: This administration has been the most transparent administration ever. So I come to the floor now to say that is simply not the case, and I am going to highlight an outstanding example of how it is not the case. Last month, an attorney with the Department of Justice from the Civil Rights Division attended a public meeting in Louisiana--a public meeting in her official capacity. Before the meeting began, this attorney, Rachel Hranitzky, reportedly asked whether any representatives of the media were present at this meeting. A reporter from the Daily Iberian identified himself. This Justice Department attorney then announced: ``You can quote those who speak, but you can't quote me.'' On what basis does the Justice Department presume to tell a reporter who can be quoted at a public meeting? The reporter had the same question. It has been reported that he asked her to cite legal authority which would support her claim that he could not quote a Justice Department attorney at a public meeting. Ms. Hranitzky provided no such law. She did say the Justice Department has special rules on how its attorneys can be quoted. She did not back up that statement, however. So here is a public meeting anyone could attend and hear a lawyer from their government speak on civil rights enforcement. Yet a representative of that government claimed that it was the policy of the Justice Department that the press would have fewer rights than the general public to quote what that government representative said at that public meeting. This undercuts the claim that ``[t]his Administration has been the most transparent administration ever,'' going back to the quote of the Chief of Staff. This refusal to allow the public to know how government officials are performing their job is totally unacceptable--and I hope to everybody it would be unacceptable. As appalling as this reported action was, what followed was even worse. Ms. Hranitzky tried to kick the reporter out of an open meeting because he questioned her. She relented after he said--regrettably but understandably, in my view--that he would not quote her. Then the Justice Department attorney totally abused her power, according to press reports. She told the reporter she could have the Justice Department call the newspaper's publishers or editors and say something such as this: You don't want to get on the Department of Justice's bad side. That statement represents a raw abuse of power. We expect the Justice Department to investigate law-breaking and pursue appropriate cases without regard to politics. Threatening to use the power to bring a criminal case or civil action against any entity because it had the temerity to insist that the Department of Justice obey the first amendment is outrageous. The newspaper has protested to the Justice Department and has not, to my knowledge, received any response. The Department's public comment on the incident does not deny that any of the reported statements were made. That the Civil Rights Division and the Department of Justice have not committed to allowing the press to quote its attorneys at public meetings a month after one of its attorneys has claimed that it is the Department's policy not to permit such reporting is completely unacceptable. It leads one to ask: What does the Civil Rights Division wish to hide? I have received many complaints concerning the enforcement actions of the Civil Rights Division. When the division's attorneys will not allow themselves to be quoted, we can only conclude that they are saying things about enforcing the law that the American people would never accept. There are no statutes that deny the media the right to quote statements of Justice Department officials that are made at public meetings. If there were, they would violate the first amendment's protection of freedom of speech as well as protection of freedom of the press. There should be no Justice Department policies to that effect either, and for the very same reason. This administration says it is transparent. It wants people to believe that, but then it wants to prevent the press from reporting what it says in public. To carry out that plan, it threatens those reporters with a politically motivated legal action. That is thuggish, not transparent. To the extent the Department has a policy of preventing the press from quoting the statements of its attorneys at public meetings, that policy should be reversed immediately to comply with the first amendment. Whether it has a policy or not, the attorney who claimed that such a policy existed and tried to expel the reporter from a public meeting because he might quote her, and threatened the reporter for getting on the Department of Justice's bad side, should be appropriately disciplined. I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I come to the floor at this point to counteract and add substance to something the majority leader said today in regard to taxes. Recently, the Congressional Budget Office released an update to its report on average effective tax rates. Several of my colleagues on the other side of the aisle have pounced on this report claiming that tax rates are at historic lows. In a floor speech just this morning the majority leader said the lowest tax rates in 30 years was ``thanks to President Obama, who has consistently fought to lower taxes for the middle-class families over the last 3\1/2\ years.'' However, the majority leader and others of his political party are only telling half the story. The report also shows that incomes of households in all income groups have declined by an average of 12 percent since 2007. This means, then, that Americans are 12 percent poorer than they were in 2007. Now, should we also thank President Obama for this reduction in income? Essentially, this is what the majority leader is doing when he thanks President Obama for lower tax rates because when individuals have less income, they pay less in taxes. Now, isn't that common sense? Millions of Americans are out of work and have very little or no income. You would have better luck getting blood out of a turnip than collecting income taxes from someone who has no income. Over the past weeks and months we have heard a lot about income inequality. Occupy Wall Street has been very vocal on this issue. Many Members of Congress have also expressed concern that income inequality is ever increasing. The Finance Committee, of which I am a member, just recently had a hearing on this very topic. This most recent CBO data shows that income inequality is at the lowest point in more than a decade. The share of income held by the top 1 percent has shrunk by 28 percent. At the same time, the bottom 60 percent of households saw their share of income increase by an average 11 percent. So perhaps my friends on the other side of the aisle do have reason to cheer: The rich are much less rich but, of course, the poor are poorer as well. It is just that those in the lower incomes did not see their income shrink by as much as higher income people. Of course, those in the bottom 60 percent of households are not better off today than they were when income inequality was greater. In fact, they are poorer and struggling more than ever. So I just hope my colleagues on the other side of the aisle keep that in mind as we try to create a better future, and do it for everyone. Reduction in income inequality should not be a goal in and of itself. What really matters is individual well-being and opportunity for everybody to succeed. This is best achieved, then, through progrowth policies aimed at growing the economic pie, not by targeting certain unpopular groups for tax hikes. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to introduce important regulatory reform legislation. Recently, when describing the state of our economy, President Obama said that the private sector was ``doing fine.'' I disagree. I think that the American people disagree with the President's statement. There are 12.7 million Americans unemployed and another 8.2 million underemployed. 5.4 million Americans have been unemployed for 27 weeks or more. That's not ``doing fine.'' The Federal Government needs to do everything possible to create an environment that will allow private sector employers to create jobs. To accomplish that, common sense would tell us that the government needs to remove barriers to job creation rather than erect new ones. The Federal Government needs to listen to employers so it can learn from them exactly what it can do to help. Unfortunately, the Obama administration hasn't listened. In fact, unbelievably it is actually doing the opposite of what employers are saying they need. Employers are saying that they need relief from job killing regulations. For example, according to a Gallup survey, small-business owners in the United States are most likely to say that complying with government regulations is the biggest problem facing them today. Indeed, the burden of regulations is overwhelming. Recently, the Small Business Administration estimated that the Federal regulatory burden has reached $1.75 trillion per year. So what has the Obama administration's response been? It is planning to increase the number of regulations. The Obama administration's regulatory agenda has thousands of regulations in its production line, more than a hundred of which will have a major impact on the economy. Those are on top of more than one thousand regulations already completed. I am sorry to say that the news gets even worse. On top of the thousands of new regulations it to impose, it appears that the administration is trying to get around the procedures governing how regulations are enacted. In recent years, consent decrees and settlement agreements have been used to circumvent the laws and procedures that govern how regulations are enacted and to speed up the process in ways that limit the public's ability to fully participate and to exercise the rights guaranteed by our laws. These consent decrees or settlement agreements may come as a surprise to the regulated industry and the public. They usually establish truncated deadlines for the agency to promulgate a regulation. The lack of advance notice and the expedited schedule for the proposal and promulgation of regulations allows an agency to avoid the input that comes with meaningful public participation. It may also allow agencies to short-circuit the analytical requirements of regulatory process statutes, such as the Administrative Procedure Act. Expedited deadlines further allow agencies to undercut the review of proposed regulations by the Office of Management and Budget's Office of Information and Regulatory Affairs OIRA. The practice of using consent decrees and settlement agreements to enact regulations has become known as ``sue-and-settle'' litigation. The dangers of sue-and-settle litigation and of government by consent decree are not a new problem. Nearly 30 years ago, Judge Malcom Wilkey of the D.C. Circuit warned about the dangers of collusive consent decrees. In his dissenting opinion in Citizens for a Better Environment v. Gorsuch, Judge Wilkey explained: Government by consent decree enshrines at its very center those special interest groups who are party to the decree. They stand in a strong tactical position to oppose changing the decree, and so likely will enjoy material influence on proposed changes in agency policy. As a policy device, then, government by consent decree serves no necessary end. It opens the door to unforeseeable mischief; it degrades the institutions of representative democracy and augments the power of special interest groups. It does all of this in a society that hardly needs new devices that emasculate representative democracy and strengthen the power of special interests. Because the Obama administration is trying to dramatically increase the number of regulations, we must make sure that the laws and procedures governing rulemaking are followed and followed in a meaningful way. The debate about sue-and-settle litigation is important because it raises questions about fairness, transparency and public participation in administrative rulemaking. It also raises the issue of whether meaningful judicial review is taking place. Under the Administrative Procedure Act and other laws, the public and affected persons, in particular, have a right to adequate notice and an opportunity to comment on a proposed regulation. They also have a right to have their comments fully considered. However, when sue-and-settle litigation is used real, public participation is effectively eliminated. Generally speaking, the agreement on how to regulate is reached without the full input of the people and businesses that are affected. Discussions are held and agreements may be reached between government officials and special interest groups outside the public process. This is particularly true where career employees and political appointees at agencies share the agenda of the special interest group suing the agency and use the lawsuit as an opportunity to implement their common goals. Also, the negotiated deadlines for creating the new regulation can be so accelerated that the public's comments might receive little or no true consideration. Keep in mind that these regulations often involve complex scientific and economic issues. Those issues cannot generally be fully and properly considered under a truncated time frame. Another fundamental aspect of rulemaking is the opportunity to challenge a decision by participating as an intervenor. However, with sue-and-settle litigation, special interest groups and the government may reach an agreement before a lawsuit is even filed. This eliminates the opportunity for members of the public to intervene in the case to protect their interests. Even where a settlement occurs after affected parties may have been granted intervention, these parties have little or no chance to participate in settlement discussions because they are not invited by the government and the special interest groups. Moreover, when an agency creates a regulation through sue-and-settle litigation, it reorganizes its work by promising to take specific actions at specific times, before or instead of other projects that may be of greater benefit to the public. Also, sue-and-settle litigation helps officials and administrations to avoid accountability. Instead of having to answer to the public for controversial regulations and policy decisions, officials are able to point to a court order and maintain that they were required or forced to promulgate a controversial regulation. The case of American Nurses Association v. Jackson is an example of the sue-and-settle phenomenon. In that case, a group of environmental organizations sued the Environmental Protection Agency, EPA, in December 2008, challenging the agency's failure to create emissions standards for pollutants from power plants under the Clean Air Act. Subsequently, the Utility Air Regulatory Group, UARG, representing the utility industry, intervened as a defendant in the case. On October 22, 2009, the plaintiffs and the EPA filed a proposed consent decree. It was the result of a deal struck exclusively between them. They did not include the UARG in their discussions. Although the judge expressed concerns about the exclusion of the UARG from the settlement discussions, she was satisfied when the plaintiffs and the EPA informed her that this practice was the ``norm.'' Under the consent decree, the EPA conceded that it had failed to perform a mandatory duty under the Clean Air Act by failing to issue a ``maximum achievable control technology'', MACT, regulation for power plants. The EPA pledged that it would issue a proposed regulation by March 16, 2011 and a final regulation by November 16, 2011. The UARG objected to the consent decree. It argued that the proposed decree improperly limited the government's discretion because it required the EPA to find that standards under 112(d) of the Clean Air Act were required. Consequently, the decree prevented the agency from either declining to issue standards or adopting other standards instead of the more burdensome MACT standard. Although acknowledging the significance of the UARG's arguments, the judge nevertheless rejected them in its short opinion approving the consent decree. As to the language limiting the EPA's discretion in the rulemaking, the judge stated that the EPA believed itself to be obligated to promulgate 112(d) standards and, ``and by entering this consent decree the Court [wa]s only accepting the parties' agreement to settle, not adjudicating whether EPA's legal position [wa]s correct.'' The judge simply believed that ``[i]f necessary, [the] UARG c[ould] challenge [the] EPA's final rule and its legal position.'' With regard to the UARG's argument that the time frame within which the EPA proposed to carry out the rulemaking was insufficient, the judge noted that she ``appreciate[d]'' the concern that the schedule was too short for the critical and expensive regulatory decisions that would be made. Nevertheless, she held that it was enough that the proposed consent decree allowed for a change of the schedule if needed. The judge's reasoning on this point was interesting given that she acknowledged in a footnote that under the consent decree, the UARG could not petition for an extension of the deadlines. In the end, the judge acknowledged that the concerns raised by the UARG were not insubstantial. However, she did not believe that she could gauge the adequacy, or lack thereof, of the schedule. Consequently, in a somewhat cavalier manner the judge concluded that: ``[s]hould haste make waste, the resulting regulations will be subject to successful challenge''. . . . If EPA needs more time to get it right, it can seek more time.'' Unfortunately, it appears that the EPA's proposed regulation contained significant errors. Indeed, the EPA did not analyze the impact of its regulation on electric reliability or provide sufficient time for industry to do so. In November of 2011, the UARG brought its concerns to the judge, asking for relief from the consent decree. In particular, it argued that more time was needed to respond to the voluminous comments submitted during the rulemaking process, to fix the serious flaws, and to then more carefully consider the promulgation of a rule with such serious and far-reaching consequences. For example, the schedule under the consent decree only allowed 104 days for the EPA to consider and respond to 20,000 unique, public comments received before it published the final rule. In total, there were 960,000 comments submitted. The UARG's motion was supported by twenty-four states and Governor Terry Branstad on behalf of the people of Iowa. As part of their amicus brief, they pointed out that the American Coalition for Clean Coal Electricity, ACCCE, had estimated that the rule promulgated under the consent decree would result in the loss of 1.44 million jobs in the United States between 2013 and 2020. Because of the rule, the ACCCE also predicts national electricity price increases in 2016 to average 11.5 percent, with an increase of 23.5 percent in some regions. The EPA issued a final rule on December 21, 2011, and has argued that the UARG's motion is moot. As it stands, the rule is among the most costly of rules ever promulgated by the EPA with the agency estimating that the annualized cost at $9.6 billion in 2015. Industry estimates are even higher. Petitions for reconsideration of the rule are pending and more lawsuits are likely. The EPA could have done it right the first time by crafting a sensible, workable rule that both protects the environment and can be implemented without causing unnecessary job losses or higher electricity prices for hard-working families. Instead, we have flawed, controversial regulation that may have to be rewritten. Although we don't know how this will all turn out, we have to remember that the process by which this rule was created was the product of a consent decree. In sum, when special interest groups and agencies engage in sue-and- settle litigation, the end product is a regulation that implements the priorities of the special interest groups. Moreover, these regulations are created under schedules that render notice-and-comment rights a mere formality, eliminating the opportunities for regulated entities, the public and the OIRA to have any input on the content of final regulations. That is why I'm introducing the Sunshine for Regulatory Decrees and Settlements Act of 2012. Senators Kyl, Cornyn, Coburn, Lee and Paul are cosponsors of the bill. Representative Benjamin Quayle of Arizona has introduced a companion bill in the House. The Sunshine bill endeavors to solve the problems I have outlined. It does this by enacting reasonable pro-transparency measures. I'll just outline a few of those measures. First, the Sunshine bill provides for greater transparency, requiring agencies publicly to post and report to Congress information on sue- and-settle complaints, decrees and settlements. Second, the bill prohibits same-day filing of complaints and pre- negotiated consent decrees and settlement agreements in cases seeking to compel agency action. Instead, it requires that consent decrees and settlement agreements be filed only after interested parties have been able to intervene in the litigation and join settlement negotiations and only after any proposed decree or settlement has been published for notice and comment. Third, the Sunshine bill requires courts considering whether to approve proposed consent decrees and settlement agreements to account for public comments and compliance with regulatory process statutes and executive orders. This bill would facilitate public participation by allowing comment on any issue related to the matters alleged in the complaint or addressed in the proposed agreement. Government agencies would be required to respond to comments, and the court would assess whether the proposed schedule allows sufficient time for real and meaningful, public comment on the regulation. Fourth, the bill requires the Attorney General or, where appropriate, the defendant agency's head, to certify to the court that he or she has approved any proposed consent decree or settlement agreement that includes terms that: convert into a duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations, commit an agency to expend funds that have not been appropriated and budgeted, commit an agency to seek a particular appropriation or budget authorization, divest an agency of discretion committed to it by statute or the Constitution, or otherwise afford any relief that the court could not enter under its own authority. Finally, the Sunshine bill makes it easier for succeeding administrations to successfully move the courts for modifications of a prior administration's consent decrees by providing for de novo review of motions to modify if the circumstances have changed. Sue-and-settle litigation damages the transparency, public participation and judicial review protections Congress has guaranteed for all of our citizens in the rulemaking process. Regulations are laws. The procedure and process used to create them are important. They are part of our system. The American system of lawmaking and judicial review is a model for the world. Our system should not be distorted or manipulated. Regulations must be made in the open, through the procedures and processes established under our laws. The Sunshine for Regulatory Decrees and Settlements Act will help to ensure that established and well-grounded protections remain in place, while maintaining the government's ability to enter into consent decrees and settlement agreements, when appropriate. I urge all of my colleagues to work with me and to support this legislation.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to introduce important regulatory reform legislation. Recently, when describing the state of our economy, President Obama said that the private sector was ``doing fine.'' I disagree. I think that the American people disagree with the President's statement. There are 12.7 million Americans unemployed and another 8.2 million underemployed. 5.4 million Americans have been unemployed for 27 weeks or more. That's not ``doing fine.'' The Federal Government needs to do everything possible to create an environment that will allow private sector employers to create jobs. To accomplish that, common sense would tell us that the government needs to remove barriers to job creation rather than erect new ones. The Federal Government needs to listen to employers so it can learn from them exactly what it can do to help. Unfortunately, the Obama administration hasn't listened. In fact, unbelievably it is actually doing the opposite of what employers are saying they need. Employers are saying that they need relief from job killing regulations. For example, according to a Gallup survey, small-business owners in the United States are most likely to say that complying with government regulations is the biggest problem facing them today. Indeed, the burden of regulations is overwhelming. Recently, the Small Business Administration estimated that the Federal regulatory burden has reached $1.75 trillion per year. So what has the Obama administration's response been? It is planning to increase the number of regulations. The Obama administration's regulatory agenda has thousands of regulations in its production line, more than a hundred of which will have a major impact on the economy. Those are on top of more than one thousand regulations already completed. I am sorry to say that the news gets even worse. On top of the thousands of new regulations it to impose, it appears that the administration is trying to get around the procedures governing how regulations are enacted. In recent years, consent decrees and settlement agreements have been used to circumvent the laws and procedures that govern how regulations are enacted and to speed up the process in ways that limit the public's ability to fully participate and to exercise the rights guaranteed by our laws. These consent decrees or settlement agreements may come as a surprise to the regulated industry and the public. They usually establish truncated deadlines for the agency to promulgate a regulation. The lack of advance notice and the expedited schedule for the proposal and promulgation of regulations allows an agency to avoid the input that comes with meaningful public participation. It may also allow agencies to short-circuit the analytical requirements of regulatory process statutes, such as the Administrative Procedure Act. Expedited deadlines further allow agencies to undercut the review of proposed regulations by the Office of Management and Budget's Office of Information and Regulatory Affairs OIRA. The practice of using consent decrees and settlement agreements to enact regulations has become known as ``sue-and-settle'' litigation. The dangers of sue-and-settle litigation and of government by consent decree are not a new problem. Nearly 30 years ago, Judge Malcom Wilkey of the D.C. Circuit warned about the dangers of collusive consent decrees. In his dissenting opinion in Citizens for a Better Environment v. Gorsuch, Judge Wilkey explained: Government by consent decree enshrines at its very center those special interest groups who are party to the decree. They stand in a strong tactical position to oppose changing the decree, and so likely will enjoy material influence on proposed changes in agency policy. As a policy device, then, government by consent decree serves no necessary end. It opens the door to unforeseeable mischief; it degrades the institutions of representative democracy and augments the power of special interest groups. It does all of this in a society that hardly needs new devices that emasculate representative democracy and strengthen the power of special interests. Because the Obama administration is trying to dramatically increase the number of regulations, we must make sure that the laws and procedures governing rulemaking are followed and followed in a meaningful way. The debate about sue-and-settle litigation is important because it raises questions about fairness, transparency and public participation in administrative rulemaking. It also raises the issue of whether meaningful judicial review is taking place. Under the Administrative Procedure Act and other laws, the public and affected persons, in particular, have a right to adequate notice and an opportunity to comment on a proposed regulation. They also have a right to have their comments fully considered. However, when sue-and-settle litigation is used real, public participation is effectively eliminated. Generally speaking, the agreement on how to regulate is reached without the full input of the people and businesses that are affected. Discussions are held and agreements may be reached between government officials and special interest groups outside the public process. This is particularly true where career employees and political appointees at agencies share the agenda of the special interest group suing the agency and use the lawsuit as an opportunity to implement their common goals. Also, the negotiated deadlines for creating the new regulation can be so accelerated that the public's comments might receive little or no true consideration. Keep in mind that these regulations often involve complex scientific and economic issues. Those issues cannot generally be fully and properly considered under a truncated time frame. Another fundamental aspect of rulemaking is the opportunity to challenge a decision by participating as an intervenor. However, with sue-and-settle litigation, special interest groups and the government may reach an agreement before a lawsuit is even filed. This eliminates the opportunity for members of the public to intervene in the case to protect their interests. Even where a settlement occurs after affected parties may have been granted intervention, these parties have little or no chance to participate in settlement discussions because they are not invited by the government and the special interest groups. Moreover, when an agency creates a regulation through sue-and-settle litigation, it reorganizes its work by promising to take specific actions at specific times, before or instead of other projects that may be of greater benefit to the public. Also, sue-and-settle litigation helps officials and administrations to avoid accountability. Instead of having to answer to the public for controversial regulations and policy decisions, officials are able to point to a court order and maintain that they were required or forced to promulgate a controversial regulation. The case of American Nurses Association v. Jackson is an example of the sue-and-settle phenomenon. In that case, a group of environmental organizations sued the Environmental Protection Agency, EPA, in December 2008, challenging the agency's failure to create emissions standards for pollutants from power plants under the Clean Air Act. Subsequently, the Utility Air Regulatory Group, UARG, representing the utility industry, intervened as a defendant in the case. On October 22, 2009, the plaintiffs and the EPA filed a proposed consent decree. It was the result of a deal struck exclusively between them. They did not include the UARG in their discussions. Although the judge expressed concerns about the exclusion of the UARG from the settlement discussions, she was satisfied when the plaintiffs and the EPA informed her that this practice was the ``norm.'' Under the consent decree, the EPA conceded that it had failed to perform a mandatory duty under the Clean Air Act by failing to issue a ``maximum achievable control technology'', MACT, regulation for power plants. The EPA pledged that it would issue a proposed regulation by March 16, 2011 and a final regulation by November 16, 2011. The UARG objected to the consent decree. It argued that the proposed decree improperly limited the government's discretion because it required the EPA to find that standards under 112(d) of the Clean Air Act were required. Consequently, the decree prevented the agency from either declining to issue standards or adopting other standards instead of the more burdensome MACT standard. Although acknowledging the significance of the UARG's arguments, the judge nevertheless rejected them in its short opinion approving the consent decree. As to the language limiting the EPA's discretion in the rulemaking, the judge stated that the EPA believed itself to be obligated to promulgate 112(d) standards and, ``and by entering this consent decree the Court [wa]s only accepting the parties' agreement to settle, not adjudicating whether EPA's legal position [wa]s correct.'' The judge simply believed that ``[i]f necessary, [the] UARG c[ould] challenge [the] EPA's final rule and its legal position.'' With regard to the UARG's argument that the time frame within which the EPA proposed to carry out the rulemaking was insufficient, the judge noted that she ``appreciate[d]'' the concern that the schedule was too short for the critical and expensive regulatory decisions that would be made. Nevertheless, she held that it was enough that the proposed consent decree allowed for a change of the schedule if needed. The judge's reasoning on this point was interesting given that she acknowledged in a footnote that under the consent decree, the UARG could not petition for an extension of the deadlines. In the end, the judge acknowledged that the concerns raised by the UARG were not insubstantial. However, she did not believe that she could gauge the adequacy, or lack thereof, of the schedule. Consequently, in a somewhat cavalier manner the judge concluded that: ``[s]hould haste make waste, the resulting regulations will be subject to successful challenge''. . . . If EPA needs more time to get it right, it can seek more time.'' Unfortunately, it appears that the EPA's proposed regulation contained significant errors. Indeed, the EPA did not analyze the impact of its regulation on electric reliability or provide sufficient time for industry to do so. In November of 2011, the UARG brought its concerns to the judge, asking for relief from the consent decree. In particular, it argued that more time was needed to respond to the voluminous comments submitted during the rulemaking process, to fix the serious flaws, and to then more carefully consider the promulgation of a rule with such serious and far-reaching consequences. For example, the schedule under the consent decree only allowed 104 days for the EPA to consider and respond to 20,000 unique, public comments received before it published the final rule. In total, there were 960,000 comments submitted. The UARG's motion was supported by twenty-four states and Governor Terry Branstad on behalf of the people of Iowa. As part of their amicus brief, they pointed out that the American Coalition for Clean Coal Electricity, ACCCE, had estimated that the rule promulgated under the consent decree would result in the loss of 1.44 million jobs in the United States between 2013 and 2020. Because of the rule, the ACCCE also predicts national electricity price increases in 2016 to average 11.5 percent, with an increase of 23.5 percent in some regions. The EPA issued a final rule on December 21, 2011, and has argued that the UARG's motion is moot. As it stands, the rule is among the most costly of rules ever promulgated by the EPA with the agency estimating that the annualized cost at $9.6 billion in 2015. Industry estimates are even higher. Petitions for reconsideration of the rule are pending and more lawsuits are likely. The EPA could have done it right the first time by crafting a sensible, workable rule that both protects the environment and can be implemented without causing unnecessary job losses or higher electricity prices for hard-working families. Instead, we have flawed, controversial regulation that may have to be rewritten. Although we don't know how this will all turn out, we have to remember that the process by which this rule was created was the product of a consent decree. In sum, when special interest groups and agencies engage in sue-and- settle litigation, the end product is a regulation that implements the priorities of the special interest groups. Moreover, these regulations are created under schedules that render notice-and-comment rights a mere formality, eliminating the opportunities for regulated entities, the public and the OIRA to have any input on the content of final regulations. That is why I'm introducing the Sunshine for Regulatory Decrees and Settlements Act of 2012. Senators Kyl, Cornyn, Coburn, Lee and Paul are cosponsors of the bill. Representative Benjamin Quayle of Arizona has introduced a companion bill in the House. The Sunshine bill endeavors to solve the problems I have outlined. It does this by enacting reasonable pro-transparency measures. I'll just outline a few of those measures. First, the Sunshine bill provides for greater transparency, requiring agencies publicly to post and report to Congress information on sue- and-settle complaints, decrees and settlements. Second, the bill prohibits same-day filing of complaints and pre- negotiated consent decrees and settlement agreements in cases seeking to compel agency action. Instead, it requires that consent decrees and settlement agreements be filed only after interested parties have been able to intervene in the litigation and join settlement negotiations and only after any proposed decree or settlement has been published for notice and comment. Third, the Sunshine bill requires courts considering whether to approve proposed consent decrees and settlement agreements to account for public comments and compliance with regulatory process statutes and executive orders. This bill would facilitate public participation by allowing comment on any issue related to the matters alleged in the complaint or addressed in the proposed agreement. Government agencies would be required to respond to comments, and the court would assess whether the proposed schedule allows sufficient time for real and meaningful, public comment on the regulation. Fourth, the bill requires the Attorney General or, where appropriate, the defendant agency's head, to certify to the court that he or she has approved any proposed consent decree or settlement agreement that includes terms that: convert into a duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations, commit an agency to expend funds that have not been appropriated and budgeted, commit an agency to seek a particular appropriation or budget authorization, divest an agency of discretion committed to it by statute or the Constitution, or otherwise afford any relief that the court could not enter under its own authority. Finally, the Sunshine bill makes it easier for succeeding administrations to successfully move the courts for modifications of a prior administration's consent decrees by providing for de novo review of motions to modify if the circumstances have changed. Sue-and-settle litigation damages the transparency, public participation and judicial review protections Congress has guaranteed for all of our citizens in the rulemaking process. Regulations are laws. The procedure and process used to create them are important. They are part of our system. The American system of lawmaking and judicial review is a model for the world. Our system should not be distorted or manipulated. Regulations must be made in the open, through the procedures and processes established under our laws. The Sunshine for Regulatory Decrees and Settlements Act will help to ensure that established and well-grounded protections remain in place, while maintaining the government's ability to enter into consent decrees and settlement agreements, when appropriate. I urge all of my colleagues to work with me and to support this legislation.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today I lift my hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act. This bill would eliminate the per-country numerical limitations for employment based immigrants and change the per-country numerical limitations for family-based immigrants. When I placed a hold on the bill, I was concerned that the bill did nothing to better protect Americans at home who seek high- skilled jobs during this time of record unemployment. Today, I lift my hold because I have reached an agreement with the senior Senator from New York, the chairman of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security. I have spent a lot of time and effort into rooting out fraud and abuse in our visa programs, specifically the H-1B visa program. I have always said this program can and should serve as a benefit to our country, our economy and our U.S. employers. However, it is clear that it is not working as intended, and the program is having a detrimental effect on American workers. For many years, Senator Durbin and I have worked on legislation to close the loopholes in the H-1B visa program. Our legislation would ensure that American workers are afforded the first chance to obtain the available high paying and high skilled jobs in the United States. It would make sure visa holders know their rights. It would strengthen the wage requirements, ridding the incentives for companies to hire cheap, foreign labor. While I could not get everything that was included in the Durbin- Grassley visa reform bill, there is agreement to include in H.R. 3012 provisions that give greater authority to program overseers to investigate visa fraud and abuse. Specifically, there will be language authorizing the Department of Labor to better review labor condition applications and investigate fraud and misrepresentation by employers. There is also agreement to include a provision allowing the Federal Government to do annual compliance audits of employers who bring in foreign workers through the H-1B visa program. I appreciate the willingness of other members to work with me to include measures that will help us combat visa fraud, and ultimately protect more American workers. I look forward to working with others as H.R. 3012 progresses in the Senate.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I didn't come to the floor to speak about the wind energy tax credit, but I wish to say to my colleagues on the other side of the aisle that I agree with them, and they probably know I agree with them because I am the author of the wind energy tax credit of 1992. I often tell people that when we worked so hard on that, I did not have the slightest idea it would turn out to be such a big thing; that Iowa would be second in wind energy production in the Nation. I think Texas is No. 1. For sure, I did not know we would have manufacturing in our State as a result of it. We have had companies come from Spain, from Germany and then we have had from Colorado and Arizona component manufacturers that have come to Iowa. There are about 4,000 people, maybe 5,000 people, employed in my State in that, so I hope we can get it reauthorized.

Mr. GRASSLEY. Yes.

Mr. GRASSLEY. For the Senator from Rhode Island, I believe that Rhode Island facility went to an existing ethanol plant in Shenandoah, IA-- southwest Iowa.

Mr. GRASSLEY. Mr. President, I have come to the floor to speak about the issue of taxes--that is now a big issue--not about the issue the majority will set before the Senate to talk about today and tomorrow and however long it takes but the issue we heard about from President Obama yesterday, the talk about the need to raise taxes on those earning more than $250,000. We heard this from him again just yesterday, as we did last year quite a bit and the year before quite a bit, when he spoke in support of increasing taxes on the so-called wealthy. In his speech yesterday, he made the following points: that those making under $250,000 deserve certainty and they deserve it now; another point is that it is OK to increase taxes on small business owners making more than $250,000 because those tax increases would affect less than 3 percent of the small business owners; another point, that those making more than $250,000 are not paying their fair share; and another point, that we cannot afford to extend the 2001 and 2003 bipartisan tax relief to these households because of the impact on the deficit; and last, that if Congress sent him a bill to extend the 2001 bipartisan tax relief just for those making under $250,000, he would sign the bill into law right away. I come to the floor to highlight what the President is not telling the taxpayers. First, on the issue of certainty, the President fails to mention what his plans are for the dozens of tax provisions that expired at the end of last year and the dozens more that are expiring at the end of this year. These provisions affect everyone from teachers who dip into their own pockets to purchase school supplies to families and students struggling to pay for higher tuition. They also include key incentives for businesses to invest in new equipment and engage in research needed to produce the products of tomorrow. The President also failed to mention what he would do about the alternative minimum tax that threatens an ever-increasing number of middle-class Americans each year, the same middle class that the President is telling the world he wants to protect--and nothing wrong with protecting the middle class. Over the past several years, legislation was enacted in regard to the alternative minimum tax to avoid and avert this crisis happening to the middle class, and we did it through a series of patches to increase the exemption amount so these 30 million middle-class taxpayers are not hurt with the alternative minimum tax. The President also fails to mention whether he continues to support the middle-class tax increases he included in his budget proposal. This is how the President proposes to tax the middle class. Would he reinstate the personal exemption phaseout and the Pease limitation on itemized deductions? Additionally, would he impose a new 28-percent limitation on itemized deductions? Each of these provisions comes with its own income thresholds and phaseout rules that increase complexity and increase taxpayer burden. Finally, the President fails to mention the tax increases he supported to pay for the health care reform legislation. These provisions include a bigger haircut on the deductions for medical expenses, lower contribution amounts for flexible savings accounts, and taxes on artificial knees and hips that medical device manufacturers have to pass on to the patients. Given all the looming tax increases the President failed to mention in his speech yesterday, it is difficult to see how extending just the 2001 and 2003 bipartisan tax relief provides certainty to taxpayers, including small business. The President agrees they are job creators and engines of our economy, so the President recognizes a fact of life that middle-class small businesspeople are job creators. Unfortunately, he defends his tax increase this way on small businesses, by claiming the impact will be minimal because only 2 to 3 percent of the small businesses would be subject to this tax increase. What the President fails to mention is that this 2 or 3 percent account for a large amount of economic activity and a large amount of the jobs created. We often talk--people on both sides of the aisle--about small business providing 70 percent of the new jobs being created in America. I wish to see how the Joint Committee on Taxation, which is a nonpartisan congressional organization--and I wish to emphasize the nonpartisan aspect of this because we often refer to them as authorities in this area. According to this joint committee, 53 percent of the flowthrough business income would be subject to the President's proposed tax increases--so as I said, 70 percent of the new jobs created here--but this 2 or 3 percent also accounts for about 25 percent of all employment in America. The President claims he wants to give the 97 percent of small businesses a sense of permanence. Yet the tax relief for those in this group is only for another year. How do we get permanence if we only want to provide tax policy for 1 year? It does not add up. The President continues to claim we cannot afford to extend tax relief for those earning above $250,000 because of our current deficit situation, but he fails to mention any ideas for reducing the deficit by controlling spending or by enacting tax reform, which is the only real way to provide a sense of permanence and eliminate the uncertainty we all agree keeps small and even larger corporations from hiring. At the start of his administration, the President established the Simpson-Bowles Commission to come up with a framework to address our current out-of-control spending as well as to reform the Tax Code. The Commission issued a report over 1 year ago that included substantive proposals on how to reform the Tax Code. There are some proposals in the Simpson-Bowles plan I like and some proposals I do not like. I like that it would streamline the Tax Code, reduce tax rates across the board, broaden the tax base, enhance economic opportunity in the process. At the same time, it violates one of my core tenets of tax reform: that it not increase taxes overall. But the Simpson-Bowles plan is at least a serious proposal. I think most everybody recognizes that. However, the President failed to embrace the Simpson-Bowles plan and offered a token framework for corporate tax reform. While the President agrees our current corporate tax rate is too high, his framework is overly vague and provides little in the way of simplification. Instead, as one commentator put it, his proposal on corporate tax reform simply ``rearranges the deck chairs on the Titanic.'' That being said, at least the President took a position on lowering the corporate tax rate to 28 percent. This is in stark contrast to his ideas on individual tax reform he put on the table yesterday. Even thinner on details, his overarching principle for individual tax reform seems to be the wealthy should pay their fair share. Yet after years of talking about the wealthy paying their fair share, he never defines what rate or amount of tax constitutes fair share for individual taxpayers. Adopting this rhetoric seems to indicate support for using the Tax Code to reduce income disparity between the highest and lowest taxpayers. However, data from the nonpartisan Congressional Budget Office--again I emphasize nonpartisan-- shows the so-called wealthy already pay the bulk of the taxes and that our Tax Code is highly progressive. I put a chart up. This chart will show that if all Federal taxes are considered, the top 5 percent of households pay an average effective rate of about 28 percent and account for nearly 45 percent of all Federal receipts. In contrast, the bottom 20 percent, as we can see, pay average effective tax rate of about 4 percent and account for less than 1 percent of all Federal receipts. All Federal taxes include individual income taxes, corporate tax, excise, and payroll tax. The disparity is even greater when we only consider individual income taxes. This is actually a better measure, since the President proposes to increase just income taxes on the so-called wealthy. If we look at the chart that is before us, we will see that the bottom 40 percent of households have an average effective tax rate below zero. In contrast, the top 5 percent have an average effective tax rate of nearly 18 percent and account for 61 percent of income tax receipts. I have highlighted the top 5 percent in these charts because these are the households generally earning more than $250,000--in other words, these are the wealthy households, according to the President. When we look at these numbers, it is fair to ask the President, once again, to define what he means by ``fair share.'' How high is the President willing to raise taxes to meet this objective? In other words, if this 5 percent is paying 61 percent of all the income tax receipts, how much more do they have to pay to satisfy the President in order to pay their fair share? In other words, define ``fair share.'' I have always stated that taxpayers should pay what they owe, not one penny more and not one penny less. Anyone who looks at my record will see I have fought long and hard to shut down loopholes and to ensure taxpayers of all income levels pay what they legally owe. However, I hold a fundamentally different view from the President on how the economy works and what the government's role should be and the rate of taxation in contributing to the government's role in enhancing the economy. I believe the money one earns is that individual's money, not a pittance that a taxpayer can keep based upon the good graces of the government. I generally believe individuals have the right to enjoy the fruit of their success. I believe the best way to increase the wealth and livelihood of all Americans is through progrowth policies that increase the size of the economic pie, not by redistributing the pie based upon some unspecified definition of fairness. I believe 18 percent of the gross domestic product of this country is good enough for the government to collect and spend, and for the most part it has been that way over a 50-year average of taxes. That benchmark of 18 percent is what the government has collected consistently regardless of the statutory tax rates. Whether tax rates have been high or low, they generally bring in about the same amount of money. In other words, just because they raise tax rates on the so- called wealthy people does not necessarily mean that we get the influx of revenue that some believe we will get. This is obviously something the President has not considered. As I have done so often in recent years, I have come to the Senate floor to say we still end up with the same amount of money regardless of what the effective tax rate is because higher income individuals have the ability to choose the form of income they will receive. They also have a greater ability to decide when they will recognize this income, such as through the sale of stock, as a way to limit their taxable income in a given year. They also have accountants and attorneys to help them legally shield income from the view of the IRS. As taxes go up, so does the incentive to reduce one's income through legal and nonlegal means. I have a chart that shows annual revenues as a percentage of gross national product in relationship to top marginal tax rates. This is in a period of time since World War II. So getting back to what I previously said, over a long period of time the revenue coming into the Federal Treasury tends to be about the same amount. I think this averages out to about 18.2 percent of GDP. We can see during the Eisenhower years the marginal tax rate was 90 percent. Starting with Kennedy, it became 70 percent. Starting with Reagan, it became 50 percent. Once again, starting with Reagan, it came down to 30 percent. When Bush, the father, didn't keep his promise of, ``Read my lips; no new taxes,'' he gave in on that, it went back to 40 percent. Now under the 2001-2003 tax bills, it is at 35 percent. The President says we need to raise the tax rate back to this level. As this chart shows, we can have high marginal tax rates or low marginal tax rates, but the people of this country have decided they are going to send just so much money to us bums in Congress to spend. So they decide how much we are going to get, and we can raise marginal tax rates, we can do what the first President Bush did, but we are still going to get about the same amount of revenue. So I hope the President takes that into consideration and also considers the negative aspect when marginal tax rates are reduced. This means we are not going to be able to tax our way to surpluses. We are going to have to make substantial adjustments on the spending side to bring it in line with revenues. In other words, the bottom line of what I would like to tell the President is that the American people of this country have not come to the conclusion that they are undertaxed. They have come to the conclusion that Congress spends too much, and the problem isn't on the tax side; the problem is on the expenditure side. History also shows that tax increases just lead to spending increases. Often on the floor of the Senate I quote Professor Vedder of Ohio State University who has studied tax increases and spending for more than two decades. Some of his research goes back to World War II. His most recent work on this subject was with Steven Moore and published in the Wall Street Journal: Over the entire post World War II era through 2009, each dollar of new tax revenue has been associated with $1.17 in new spending. So we raise a dollar here, and we spend $1.17 over there. It is pretty obvious that bringing in more revenue isn't going to reduce the deficit. Another study by the National Bureau of Economic Research states that when it comes to fiscal adjustments: Those based upon spending cuts and no tax increases are more likely to reduce deficits and debt over Gross Domestic Product ratios than those based upon tax increases. In addition, adjustments on the spending side rather than on the tax side are less likely to create recessions. So we know increasing taxes, including on targeted groups, is not going to reduce the deficit. American workers and businesses deserve tax reform and tax certainty. There is bipartisan agreement that we need comprehensive tax reform. What we need to get that done is real leadership, to be sure. Lack of leadership is not because of lack of interest. The Senate Finance Committee, on which I serve, has held more than a dozen tax reform hearings during this Congress. The Senate Budget Committee has also held tax reform hearings. What has been lacking is what is so important in this town, Presidential leadership. The President's speech yesterday was just that, a speech. As I outlined, he spoke only about extending certain tax relief measures for those earning under $250,000. However, he failed to address other looming tax increases and failed to discuss how his other tax increase proposals provide the certainty that he claims he wants to provide. It is easy for the President to engage in election year antics and goad Congress to send him a bill. Unfortunately, that is not leadership, and such speeches do nothing to help individuals and small businesses. If the President really was concerned about preventing tax increases on the middle class and small businesses, he would at least be working with leaders in his own party to make sure they all agreed on who the wealthy in this country really are and who ought to have their taxes increased. Democratic leaders in the House and Senate have signaled that they support extension of lower income tax rates for those making up to $1 million. In fact, a year ago this week, we in the Senate were debating the majority party's ``millionaire tax resolution.'' So if the President really wanted Congress to send him a bill that provided certainty to the taxpayers, he would make it a priority to get it done. Unfortunately, he is busy traipsing around the country raising money for his reelection. That is not leadership, and it is certainly not going to provide timely tax relief to the millions of taxpayers who need it. I yield the floor, and I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I support the nomination of John Thomas Fowlkes, to be U.S. district judge for the Western District of Tennessee. Although it is the practice and tradition of the Senate to not confirm circuit nominees in the closing months of a Presidential election year, we continue to confirm consensus district judge nominees. Today's vote will be the 152nd nominee of this President confirmed to the district and circuit courts. We also have confirmed two Supreme Court nominees during President Obama's term. I continue to hear some Members repeatedly ask the question, ``What is different about this President that he has to be treated differently than all these other Presidents?'' I won't speculate as to any inference that might be intended by that question, but I can tell you that this President is not being treated differently than previous Presidents. By any objective measure, this President has been treated fairly and consistent with past Senate practices. For example, with regard to the number of confirmations, let me put that in perspective for my colleagues with an apples-to-apples comparison. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. And during President Bush's entire second term the Senate confirmed a total of only 119 district and circuit court nominees. With Judge Fowlkes' confirmation today, we will have confirmed 33 more district and circuit nominees for President Obama than we did for President Bush, in similar circumstances. During the last Presidential election year, 2008, the Senate confirmed a total of 28 judges--24 district and 4 circuit. Today, we will exceed the number of district court judges confirmed. We have already confirmed 5 circuit nominees, and this will be the 25th district judge confirmed this year. Those who say that this President is being treated differently either fail to recognize history or want to ignore the facts. Judge Fowlkes received his B.A. from Valparaiso University in 1975 and his J.D. from University of Denver School of Law in 1977. From 1978 to 1979 he worked as an assistant public defender at the Shelby County Public Defender's Office, where he represented indigent defendants. In 1979, he joined the Shelby County District Attorney General's Office and served as an assistant district attorney for the next 10 years. There he tried nearly 150 jury trials, handling homicide, assault, sex offense, robbery, and burglary cases. In 1989, he became an assistant U.S. attorney, trying criminal cases until 2002. As an AUSA, he tried over 100 jury trials and handled all appellate level work. During his time at the attorney's office, Judge Fowlkes was a first assistant for several years, directing day-to-day operations of the office. From 2002 to 2007, Judge Fowlkes was the chief administrative officer for Shelby County. He was not engaged in the practice of law during this period. In 2007, then-Governor Phil Bredesen appointed Judge Fowlkes to be a criminal court judge for Division VI of the 30th Judicial District at Memphis. In November 2008, he was elected to a full, 8-year term. In 2011, he was elected by judges of the 30th Judicial District to serve as presiding judge. The ABA Standing Committee on the Federal Judiciary unanimously rated Judge Fowlkes as ``well qualified.'' I support the nomination and congratulate Judge Fowlkes on his confirmation today. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today I wish to pay tribute to SGT James Skalberg, Jr., who made the ultimate sacrifice on June 27, in Wardak Province, Afghanistan. James was driving his vehicle when an improvised explosive device detonated, injuring him fatally. My thoughts and prayers go out to his wife, Jessica, his son, Carter, his parents, James and Kelli, and all his other family and friends who are grieving his loss. Sergeant Skalberg grew up an athlete. He graduated from Nishna Valley High School in Hastings, IA in 2005, and enlisted in the Army in 2007. James deployed to Iraq with his unit in 2008 through 2009 and deployed again to Afghanistan in 2011. His awards and decorations include the Bronze Star Medal, Purple Heart, Army Commendation Medal, Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, Driver's Badge, Air Assault Badge, and Combat Action Badge. James is remembered by his family as having been loved by everyone for being a gentleman in every respect. He was remembered by teachers and coaches as a star player and caring student. He was carefree, easy going, reliable, levelheaded, and loving. He was a family man who loved his wife since they met as teenagers in high school, and his son, Carter, whom he hoped to one day teach to play basketball. James was the kind of man we can be proud to call a native son of Iowa. He stood as an example to others in his actions and his character. We owe SGT James Skalberg, and others like him, our most sincere gratitude and appreciation for their willingness to make the ultimate sacrifice for our great country. I call on my colleagues in the Senate and every American to pay tribute to this brave American.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, yesterday the Supreme Court overturned the mandatory Medicaid expansion in the Affordable Care Act. As of yesterday, the States now have a choice to expand or not expand coverage to the poorest people in society without being subjected to harsh Federal penalties. I would like to draw attention to a speech I gave on the Senate floor in December 2011 on the subject of the constitutionality of the Medicaid expansion. I expressed my concerns then about the potential impact of a Supreme Court decision on Medicaid expansion. I said on the floor that day: A Supreme Court ruling in favor of the States in this case could not only jeopardize the mandated Medicaid expansion in the Affordable Care Act but could challenge the fundamental structure of Medicaid and have broader implications outside of health care. The concerns I expressed then have, to a degree, come true. Reading from a Washington Post editorial this morning about the Court ruling on Medicaid: This restriction of federal authority may have greater ramifications than the court's limiting of the Commerce Clause. One can imagine challenges to federal conditions across a wide spectrum of programs, including but not limited to the environment, education and transportation. This decision overturns the mandatory expansion of the Medicaid Program. While I realize most of the focus is on the decision related to the tax mandate, we should spend a moment talking about the consequence of the Medicaid decision. Mr. President, one of the goals of the health care reform was to provide coverage for people in need. I would argue the people most in need of coverage are people without a job, people without an income, and the poorest of the poor. The Affordable Care Act required States to cover people below poverty through Medicaid. States were mandated to expand to cover people below poverty. Yesterday, the Supreme Court ruled that mandatory expansion unconstitutional. Writing for the majority, Chief Justice Roberts said: Nothing in our opinion precludes Congress from offering funds under the Affordable Care Act to expand the availability of health care, and requiring the States accepting such funds to comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding. With this decision, States now have the option to expand Medicaid to cover people below poverty. Mr. President, the States had that option even before the Affordable Care Act was passed. So what does this decision mean in real terms? It will be up to the States to determine if they will cover the poorest of the poor. The Federal Government cannot guarantee coverage. So now people with jobs will have to purchase insurance under the tax mandate. People without an income, people who are below poverty, are dependent upon the State in which they reside. I know some people will believe the choice is perfunctory, that Medicaid expansion will move forward because the Federal Government has offered to pay for more than 90 percent of the expansion. But if you were a State, would you really trust a promise from a Federal Government that is $15 trillion in debt? If you were a State, would you really trust an Obama administration that proposed eliminating that special Federal payment rate through a proposal known as the blended rate? States will very reasonably be risk averse. States can now expand if they choose to or not at all. No one should assume for a second all States will expand to cover as much as was mandated under the Affordable Care Act. Of course, one might think people below poverty could still get health care through tax credits, but the people who wrote this bill made people below poverty ineligible for tax credits. That is right-- ineligible. It is all or nothing for the poor with Medicaid. With today's ruling, the answer is, nothing. On December 15, 2011, I said on the Senate floor that the expansion of Medicaid and the coverage of poor people was in jeopardy because ``the White House and the Democratic majority put their partisan goals ahead of collaboration with Republicans and States to build legitimate public policy.'' Today, that is the outcome. When people with income, people with jobs are mandated to purchase health insurance and face a tax penalty if they do not, while the poorest people in society, those without a job or without income have a guarantee of nothing, I think victory laps are premature. After this decision, a person in a family with an income of more than $80,000 a year would be guaranteed access to a subsidy to buy private insurance, while a person in a family with no income would be guaranteed nothing. When people below poverty, the people who can least afford coverage or the consequence of not having coverage are left with nothing, it sounds like failure to me. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I intend to object to proceeding to the nominations of Mark J. Mazur, to be an Assistant Secretary of the Treasury and Matthew S. Rutherford to be an Assistant Secretary of the Treasury. My support for the final confirmation of these nominees will depend on both Treasury and Internal Revenue Service responses to questions I have posed regarding their implementation of the tax whistleblower program. I rewrote the statute in 2006 to encourage whistleblowing on big-dollar tax cheats. However, nearly six years since those changes were enacted, Treasury has yet to issue much needed regulations and IRS has paid less than a half dozen awards under the new program. I have sent several letters to Secretary Geithner and Commissioner Shulman to get to the bottom of this. Our staffs have been meeting, including most recently on June 26, 2012. I understand that Secretary Geithner and Commissioner Shulman intend to provide written responses to my questions. Until I receive those responses, I will object to proceeding with the nominations of Mr. Rutherford and Dr. Mazur.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise in support of the nomination of Robin S. Rosenbaum, to be U.S. district judge for the Southern District of Florida. Although it is the practice and tradition of the Senate to not confirm circuit nominees in the closing months of a Presidential election year, we continue to confirm consensus district judge nominees. We have now confirmed 151 nominees of this President to the district and circuit courts. We also have confirmed two Supreme Court nominees during President Obama's term. I have heard some Members repeatedly ask the question, ``What is different about this President that he has to be treated differently than all these other Presidents?'' I won't speculate as to any inference that might be intended by that question, but I can tell you that this President is not being treated differently than previous Presidents. By any objective measure, this President has been treated fairly and consistent with past Senate practices. For example, with regard to the number of confirmations, let me put that in perspective for my colleagues with an apples-to-apples comparison. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. And during President Bush's entire second term the Senate confirmed a total of only 119 district and circuit court nominees. With Ms. Rosenbaum's confirmation today, we will have confirmed 32 more district and circuit nominees for President Obama than we did for President Bush in similar circumstances. During the last Presidential election year, 2008, the Senate confirmed a total of 28 judges--24 district and 4 circuit. Today, we will exceed that number, as well. We have already confirmed 5 Circuit nominees, and this will be the 24th district judge confirmed this year. Those who say this President is being treated differently either fail to recognize history or want to ignore the facts. After graduating from the University of Miami School of Law in 1991, Judge Rosenbaum worked as a trial attorney for the Federal Programs Branch of the Department of Justice. Her practice involved defending the constitutionality of Federal statutes and agency programs. In September 1995, she joined the Independent Counsel Office's investigation of former U.S. Secretary of Commerce Ronald Brown. She served as staff counsel, participating in the criminal investigation and providing advice to other team members. Upon closure of the investigation, Judge Rosenbaum joined the law firm of Holland & Knight LLP as an associate. While there, from 1996 to 1997, she worked on a variety of civil matters, including Federal employment law. Judge Rosenbaum then accepted a position as a law clerk for Judge Stanley Marcus on the U.S. Circuit Court of Appeals for the Eleventh Circuit, where she worked from January to October 1998. After her clerkship, Judge Rosenbaum became an assistant U.S. attorney. She specialized in criminal prosecutions such as securities fraud, bank fraud, identity theft, tax fraud, telemarketing fraud, health care fraud, internet fraud, and computer crimes. In 2002, she became the chief of the Economic Crimes Section for the Central Division, Fort Lauderdale, which gave her supervisory responsibilities over 8 to 10 other assistant U.S. attorneys. She held that title until her appointment as a magistrate judge in 2007. In 2007, the U.S. district judges for the Southern District of Florida appointed Judge Rosenbaum to be a U.S. magistrate judge. As magistrate judge in the District of Southern District of Florida, she manages all aspects of the pretrial process in civil and criminal cases: conducting evidentiary hearings, ruling on nondispositive motions, making reports and recommendations regarding dispositive motions, and issuing criminal complaints, search warrants, and arrest warrants. The ABA Standing Committee on the Federal Judiciary unanimously rated Judge Rosenbaum as ``well qualified.''

Mr. GRASSLEY

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

Mr. GRASSLEY. Mr. President, since the victory of the Socialist candidate for the President of France, opponents of fiscal responsibility have found renewed vigor for their pro-spending ideology--more stimulus, as we might call it here in this country. There is interest in this country also in more fiscal stimulus. The new French President talked about choosing growth over austerity. Many liberal pundits and politicians on this side of the Atlantic have now begun to echo this call. When you put it that way, it barely sounds like a choice at all. The term ``austerity'' sounds so severe, but almost everybody agrees that economic growth is good. Just what is this austerity all about? In Europe, ``austerity'' is often used to describe an attempt to reduce budget deficits by reining in unsustainable spending. In this country, we more often talk about fiscal responsibility. For Europeans who have grown accustomed to generous social benefits, even modest reforms to government programs are apparently cause to take to the streets and demonstrate. But for the millions of Americans who still believe in limited government and who do not feel entitled to programs or benefits paid for by the earnings of others, there is nothing austere about government spending within its means. So then what about the other aspect of it--growth? The implication of the supposed choice between growth and austerity is that we must accept irresponsible levels of spending in order to have that economic growth. Obviously this is absurd. The politically convenient economic theory was summed up by Margaret Thatcher as, ``The more you spend, the richer you get.'' That doesn't meet the commonsense test in the Midwest of America. It was the rationale behind President Obama's massive $800 billion stimulus bill. The bill looked suspiciously like a grab bag of pent-up Democratic spending priorities, but we were told that all of this spending was necessary to keep unemployment below 8 percent. Of course, as we all know, unemployment soon soared well above 8 percent and has never dipped below 8 percent now more than 3 years later. I would say to all of those across the Atlantic in Europe calling for new stimulus spending: We tried it, and it didn't work. Not only didn't it work but it made things worse. All of that government spending crowded out private sector activity that would have helped the recovery and saddled our economy and our children with even more debt. Conversely, reining in government spending will unleash the power of free enterprise to create wealth and grow our economy in ways no government central planner can ever accomplish. Despite the clear results of the most recent American experience with stimulus spending, liberal pundits are now blaming Europe's current economic troubles on efforts to reduce government spending. They say that savage cuts by pro-austerity governments in countries such as Britain, France, and Spain have actually damaged their economies. So just how deep did these countries of Europe actually cut? Spain increased spending after the recession started, then implemented some modest cuts but is still spending more than it did before the recession. Britain and France have continued to increase spending. So much for savage spending cuts. It defies common sense, but, as you know, in this town smaller increases in spending than previously planned can qualify somehow as a cut in spending. However, to most Americans, cutting spending actually means spending less than you were the year before. The fact that there have been no serious spending cuts in these supposedly pro-austerity countries is enough to dismiss the accusations that spending cuts are the cause of Europe's current troubles. But there is another part of the story that is too often ignored: Governments that talk about the need to reduce deficits but are too timid to enact necessary spending cuts invariably turn to tax increases. For instance, since the recession started, Britain has raised the top marginal income tax rate as well as increased the capital gains tax, the national insurance tax, and the value-added tax. Spain has enacted hikes in personal income tax and property taxes and seems to be planning even more taxes. This year the Spanish Government is looking to address its deficit with a $19.2 billion package of spending reductions paired with another $16 billion worth of tax increases. Of course, to us here in the United States, that sounds a lot like what Democrats have been calling a balanced approach. And so it is--just like giving a patient an equal dose of medicine and poison would be a balanced approach. However, across Europe there has been a lot more emphasis on the poison of tax increases than on the medicine of spending cuts. In fact, while government spending across the entire European Union fell by just 2.6 billion euros between 2010 and 2011, taxes rose by a staggering 235 billion euros. So while critics of austerity are flatout wrong to blame the largely mythical spending cuts for Europe's economic troubles, they may have stumbled onto something. To the extent that austerity really means big tax increases rather than serious spending cuts, I think it identifies a big part of Europe's fiscal and economic problems. These facts notwithstanding, if I couldn't point to an example where economic growth resulted from spending restraint, my arguments would ring hollow. I would sound like those radical intellectuals who still refuse to accept that Marxism has been totally discredited both morally and economically by claiming that it has never truly been tried. However, what I am talking about has been tried. There are plenty of examples of where bold leadership to dramatically rein in government spending has resulted in economic growth. There is actually a prime example right in Europe and in the euro area--Estonia. In response to the 2008 economic crisis, Estonia's free enterprise- oriented government focused on real spending cuts, including major structural reforms. Estonia cut private sector wages, raised the pension age, and reformed health benefits. When it comes to taxes, Estonia already had a low flat tax and didn't raise rates. While there was an increase in the value-added tax, the overwhelming emphasis was on spending cuts. As a result, the Estonian economy grew at 7.6 percent last year. And it happens that Estonia is the only country in the eurozone with an actual budget surplus, and the country has a national debt that is only 6 percent of GDP. Can you imagine that, a debt of only 6 percent of GDP? Moreover, Estonia had an especially deep hole to climb out of. The Estonian economy was devastated by the global financial crisis. It contracted by 18 percent, which is more than Greece. Nevertheless, Estonia's economy is well on its way back to prerecession levels. I should add that in response to the spending cuts, Estonians didn't riot in the streets. Instead, they reelected their government. Also, while Estonia is the most impressive example, a similar story also holds true for the other Baltic countries of Latvia and Lithuania. Perhaps their unhappy experience of Soviet domination has made them extra skeptical of big government solutions to problems. It is possible that the unique history of the Baltic countries makes it easier for them to break the spending addiction, but that doesn't mean it can't be done here. In fact, I will give you an example that is much closer to home--Canada. In the 1990s Canada was facing the same problem the United States is now. It suffered a recession and had a looming debt crisis. The Canadian Government's response was to dramatically cut spending. Again, I am not talking about slowing the rate of growth but actual spending cuts. In just 2 years, starting in 1995, total noninterest spending fell 10 percent. Canadian federal spending as a share of GDP dropped from 22 percent in 1995 to 15 percent 11 years later. Canada's federal debt was at 68 percent of GDP in 1995 and is down to just 34 percent today. Now a lesson for America: Compare that to our national debt, which is more than 70 percent of GDP. Like Estonia, the overwhelming emphasis in Canada was on spending cuts rather than tax increases. Moreover, these cuts included structural reforms. Canada's Government fixed its version of Social Security, which is the third rail of American politics, as we say here. Unlike Social Security, the Canadian pension plan is solvent for the foreseeable future. What is really interesting is that these reforms were not implemented by some rightwing ideologues; these reforms were all implemented by the Canadian Liberal Party, which is a center-left party like America's Democrats. However, when President Bush suggested fixing Social Security upon his reelection, the issue was relentlessly demagogued by Democrats in Congress. More recently, when Paul Ryan unveiled a plan to save Medicare, rather than present alternative ideas, liberal groups depicted him in political advertisements pushing grandmother off a cliff. If our Democrats had shown the same leadership the Canadian Liberals did, we would be in a lot better economic shape right now. Instead, what we get from the other side of the aisle are demands for more stimulus spending and head-in-the-sand denial about the impending bankruptcy of Medicare and Social Security. There are a lot of other examples where low taxes and spending restraint have led an economic recovery after a downturn. In fact, a 2009 paper by two Harvard economists, Alberto Alesina and Silvia Ardagna, reviewed 107 examples of fiscal adjustments in industrialized countries between 1970 and the year 2007. They found that, statistically, tax cuts are more likely to increase growth than spending. They also found that spending cuts without tax increases are more likely to reduce deficits and debt than increased taxes. The historical record is clear. We know what path leads to economic growth and prosperity. However, that is not an easy path to follow. Unlike the ``have your cake and eat it too'' philosophy that says more government spending will somehow make us all richer, the real road to recovery requires real leadership and less spending. Earlier in my comments I mentioned a statement by Margaret Thatcher's contempt for stimulus ideology. When she took office, Britain was in deep debt and known as ``the sick man of Europe.'' In fact, Britain had been forced to go to the IMF for a bailout and was regularly rocked by massive strikes. In many ways it was the Greece of the 1970s. When Thatcher began making the difficult decisions necessary to rescue the British economy, many people, including some of her own party, pleaded for her to return to the big spending policies of previous British Governments. Her response is applicable to our country today as it was to Britain back then. I wish to quote Margaret Thatcher: If spending money like water was the answer to our country's problems, we would have no problems now. If ever a nation has spent, spent, spent and spent again, ours has. Today that dream is over. All of that money has got us nowhere but it still has to come from somewhere. Those who urge us to relax the squeeze, to spend yet more money indiscriminately in the belief that it will help the unemployed and the small businessman, are not being kind or compassionate or caring. They are not the friends of the unemployed or the small business. They are asking us to do again the very thing that caused the problem in the first place. I leave with this proposition. Can Congress learn from the experiences of Estonia, Canada, and Britain's Thatcher? If we can, we can turn this U.S. economy around--and the economy and jobs are the issue of this Presidential campaign season. I suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, 2 years ago a constituent of mine named David Rozga committed suicide shortly after smoking a product called K2--a synthetic form of marijuana. A week before he passed away David had graduated from Indianola High School. He was looking forward to attending my alma mater, the University of Northern Iowa, that fall. David and his friends spent the week after graduation going to parties and celebrating their achievements. Some of David's friends heard about K2 from some other friends who were home from college. They were told that if you smoked this product like marijuana you could get a high. David and his friends were about to go to a concert and thought smoking K2 before would be nothing but harmless fun. However, shortly after smoking K2, David became highly agitated and terrified. His friends tried to calm him down and once he appeared calmer he decided to go home instead of going out with them. Tragically, David took his own life shortly after returning home-- only about 90 minutes after smoking K2 for the first time. The only chemicals in his system at the time of his death were those that comprised K2. David's tragic death is one of the first in what has been a rapidly growing drug abuse trend. In the past 2 years, the availability and popularity of synthetic drugs like K2, Spice, Bath Salts, and 2C-E has exploded. These drugs are labeled and disguised as legitimate products to circumvent the law. They are easily purchased online, at gas stations, in shopping malls and in other novelty stores. Poison control centers and emergency rooms around the country are reporting skyrocketing cases of calls and visits resulting from synthetic drug use. The physical effects associated with this use include increased agitation, elevated heart rate and blood pressure, hallucinations, and seizures. A number of people across the country have acted violently while under the influence of the drug, dying or injuring themselves and others. Just a few weeks ago a man in Miami, Florida attacked a homeless man and ate nearly half his face before police had to shoot him to stop him. Two weeks ago, police in upstate New York tazered a woman who was choking her 3-year-old son after smoking bath salts. These ongoing and mounting tragedies underscore the fact that Congress must take action to stop these drugs from causing further damage to our society. I introduced the David Mitchell Rozga Act a year ago last March to ban the drugs that comprised K2. My colleagues Senators Schumer, Klobuchar, and Portman have also joined me to ban synthetic drugs including bath salts and 2-CE compounds. Today our separate bills are included as part of the House and Senate agreement on the FDA User Fee bill we will be voting on shortly. I thank all who have worked very hard to get my bill, as well as the other bills banning synthetic drugs, through Congress. I especially want to thank Mike and Jan Rozga and their family for their tireless efforts to prevent more tragedy from befalling other families. This legislation will drastically help to remove these poisons from the store shelves and protect our children from becoming more victims. I urge my colleagues to support cloture on this bill.

Mr. GRASSLEY

Mr. GRASSLEY. Amen.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I call up my marketing loan amendment, amendment No. 2167.

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

Mr. GRASSLEY. Mr. President, I tried to get this amendment adopted in the 2008 farm bill. It got 57 votes, but it was under a 60-vote rule, so obviously it did not get adopted. This amendment would cap payments that one farmer can get on marketing loans and loan deficiency payments. We cannot have 70 percent of the farm payments going to 10 percent of the largest farmers. I think this amendment will help add integrity to the program. We should have caps on title I commodity programs. This will add defensibility to this bill, along with the payment limit reforms we were able to put in in the committee before the bill was voted out. Opponents will argue--I am sure you will hear this argument--that this would increase forfeitures of crop. But I believe they are overstating that issue, especially given current prices. And even if a farmer did forfeit crop----

Mr. GRASSLEY. Well, this is a commonsense amendment. I hope you will vote for it.

Mr. GRASSLEY

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

Mr. GRASSLEY. Mr. President, I yield to the Chairman.