Kirsten Gillibrand

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Mr. President, to clarify the record, it was not an unlimited amount of money appropriated; it was an authorization. This is the money--

Mrs. GILLIBRAND.--to pay for the shortfall, and--

Mrs. GILLIBRAND.--it is fully paid for.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Madam President, I rise to discuss helping our servicemembers exposed to toxic burn pits. For days now, servicemembers and their families have been camping outside this very building in desperation. They are pleading with us, they are begging us to pass this bill. They have been out there all weekend in 90-degree heat, sheltering themselves from thunderstorms, as well as oppressive humidity. I have been down there to visit them three times now, and I can tell you, they are exhausted. They miss their families. They want to go home, but they will not. They will not go home until the job is done because the suffering they are enduring now pales in comparison to the suffering they, their fellow veterans, or their fellow family members experience every day because of the injuries sustained because of the exposure to the toxins released at these burn pits. Last week, before it became clear that the PACT Act would fail, these families came to DC ready to celebrate. The mother-in-law of SFC Heath Robinson, who died because of burn pits, came with Heath's daughter Brielle, who was excited to finally celebrate her father's legacy finally coming to fruition. Instead, we had to explain to a crying 9- year-old girl why this would not be happening, why the Senate had failed them. So I don't want anyone to just listen to me rattle off a bunch of statistics or facts about burn pits; I want you to listen to these people, the families, people who are literally giving every ounce of their being in service to this country, people with families, people with kids, people who are willing to upend their lives at the very moment's notice to fight for the values that make us who we are. Instead, when their lungs were filled with toxins, the government turned its back on them when they needed us the most. We made a promise to them to care for them when they came home, and that promise has been broken. Failure to pass this bill again is not just some small disappointment, something that can be easily brushed off or disregarded; failure to pass this bill quite literally for many is a death sentence because every single day, every hour, every minute they don't get the healthcare they need to save their lives is just another minute lost to the diseases that are devouring them. It is another minute they won't have to be with their loved ones, to hug their children; another minute they don't get to be with their loved ones to kiss them goodbye; another minute they cannot do the things they love to do. So we don't have time to wait another week, another month; we have to do this now. This is what is at stake with this bill. It is the lives of the men and women who went to combat for this country over the last many decades and unfortunately have been so riddled with disease because of that exposure that they need our help. They need the VA to cover their healthcare. That is what this bill does. This is what they deserve. I hope that this Chamber can come back together again where it was before last week to do the right thing, to stand by those who stood by us, to stand by those who went into the breach, to stand by those who are now suffering and dying because it is a debt that we owe them. I yield the floor.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Madam President, I rise to discuss helping our servicemembers exposed to toxic burn pits. Let me tell you about U.S. Army SFC Heath Robinson. He was a strong, healthy, fit combat medic who served tours in Kosovo and Iraq. When he returned home, however, he began experiencing fatigue. He started bleeding from his ears and nose and completely lost his voice. After consulting multiple doctors, he and his wife were sitting in the exam room waiting for test results when the doctor came in with tears in his eyes. He explained that Sergeant Robinson had an extremely rare form of stage IV lung cancer and exclaimed: What have you been exposed to? Sergeant Robinson thought back to his tour in Iraq. He remembered seeing and smelling smoke from pits the size of football fields at his base near Baghdad. While serving in Iraq, Afghanistan, and beyond, millions of U.S. troops have lived and worked near burn pits. They are basically burning trash heaps that the military has used for decades to dispose of everything from human waste to trash and electronics and jet fuel, and they spew forth many of the same dangerous toxins that were at Ground Zero after 9/11. The VA estimates that 3.5 million servicemembers were exposed to burn pits around the world, many of them veterans who are now suffering from permanent injuries and illnesses ranging from chronic bronchitis to cancer. But when these veterans seek treatments, they face an often unsurmountable burden of proof. For SFC Heath Robinson, the VA denied him compensation and prescription medications because it wasn't proven that burn pits were the cause of his illness. Army Sergeant Robinson died in 2020. He was only 39 years old. I have heard from many veterans, servicemembers, and their families who have also been raising the alarm about burn pits. Gina Cancelino of New York told me about her husband Joseph, who was a Marine Corps veteran, an NYPD sergeant, and a dad of two girls. In 2017, he developed a very rare, very aggressive form of testicular cancer, as well as thyroid cancer. He died in 2019 when he was just 52. This is simply unacceptable. Our servicemembers risk their lives to keep us safe. All they ask for is care in return, but our government has failed them repeatedly. First, it was Agent Orange. Then, it was the Blue Water Navy vets. Today, it is burn pits. That is why, nearly 2 years ago, I started working with Jon Stewart, John Feal, and a strong coalition of veterans service organizations to craft the Presumptive Benefits for War Fighters Exposed to Burn Pits and Other Toxins Act. This bill forms the centerpiece of the Honoring Our PACT Act, which has now been named in honor of Sergeant Robinson. The bottom line: It would remove the unsurmountable and unreasonable burden of proof for veterans to receive care. No longer would these selfless individuals have to jump through hoops to get the care they actually have already earned. No longer would they have to spend hours upon hours researching the very diseases that are killing them. No longer would they have to spend their own money on biopsies to prove their illnesses are exposure-related and service-related. No longer would they be forced to suffer or even die like Sergeant Robinson, Sergeant Cancelino, and so many others as our Nation and government continue to fail them. Now we have the opportunity to pass this bill here in this Chamber at this moment in time. While we have incredible momentum, we still have to make sure we get 60 votes on final passage. I have been meeting with many of you to drum up the support we need for this critical bill to get it over the finish line. Its passage will represent an enormous victory for servicemembers and veterans across the country. I am proud of the enormous progress we have made in this effort, and I hope that all of my colleagues will join us in passing the PACT Act, not only for Sergeants Robinson and Cancelino but for all of the brave men and women who are still suffering and dying from their exposure to burn pits while serving this country so honorably. I yield the floor.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. I ask for the yeas and nays.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that the pro forma session scheduled for 4 p.m. on April 18, 2022, now be scheduled to occur at 12:30 p.m. on April 18; and the pro forma scheduled for noon on April 21, 2022, now be scheduled to occur at 8:45 a.m. on April 21.

Mrs. GILLIBRAND. Mr. President, I ask to be recognized notwithstanding the order that no business be conducted during today's pro forma session.

Mrs. GILLIBRAND

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

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Mr. President, I stand here to proudly support Judge Ketanji Brown Jackson's nomination to the U.S. Supreme Court. The Nation has had the opportunity to watch Judge Jackson during her confirmation hearing 2 weeks ago and see firsthand the temperament, knowledge of the law, and qualifications she brings to the highest Court in the land. She will be a fair and impartial jurist, just as she has proven herself to be on the district court and on the DC Circuit Court of Appeals. President Biden made a commitment before he was elected to appoint the first Black woman to the Supreme Court. Judge Jackson's historic nomination is long overdue. It was in my home State of New York where Constance Baker Motley became the first Black woman to be a Federal judge--in the Southern District. Having diverse representation on the Court does not mean someone will rule a certain way, and it doesn't mean that is why they deserve to be on the Bench. It is important because it strengthens our institutions. It is critical because it shows who we are as a nation, and it makes a difference to the girls and women across the country, who will now have a role model and know that they can aspire to do the same. That is why President Biden made that promise because he knew that it was beyond time to ensure the Supreme Court has that representation; and it is clear that Judge Jackson will be a highly qualified Justice to fulfill that promise. Who we confirm to the Supreme Court matters. While the work of the Court may feel distant from our daily decisions and day-to-day lives, the Supreme Court actually makes key decisions on whether individuals are protected when they go to school, work, or out in public; on who can and how we can cast our votes to determine our elected officials; on whether our future generations will have clean air to breathe, clean water to drink; on who we can choose to marry; and on what decisions women can make about their own bodies and their reproductive future. The nine Justices on the Supreme Court make important decisions that impact all Americans; and in the Senate, in our advice and consent role, we have a critical role to play in ensuring that we confirm Justices who follow the rule of law and provide equal justice to all. The perspectives Judge Jackson will bring to the highest Court of the land, both personally and professionally, will have a critical impact on all Americans. Judge Jackson will bring to the Bench significant criminal defense experience as a former public defender. She will also bring nearly a decade of judicial experience to her rulings. When I met Judge Jackson, I asked her which of her experiences have prepared her most for this moment to serve on the Supreme Court if she was confirmed. She answered by talking about her clerkships, which she completed at each level of the judiciary: the district court; First Circuit Court of Appeals; and for Supreme Court Justice Breyer, whose seat she is being nominated to fill. She talked about how she learned from others how to serve as a judge. She experienced firsthand what it means to fulfill the constitutional requirement of being a member of our Nation's Federal judiciary. I know that Judge Jackson will bring all of those perspectives and meaningful experiences with her to the Supreme Court, and those are critically needed on the highest Court of our land. It is those experiences and her record that have led to Judge Jackson's nomination receiving broad support--from the civil and human rights community to the law enforcement community and from colleagues in the judiciary nominated by Presidents of both parties, to name just a few. Given the fact that she was confirmed three times before this body with bipartisan support, the Senate should be able to once again confirm her with votes from my colleagues on both sides of the aisle. I look forward to enthusiastically casting my vote in support of Judge Jackson's confirmation to the Supreme Court of the United States. I urge my colleagues to join me and support her nomination as well. I suggest the absence of a quorum.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Mr. President, I just want to, for the record, talk about this legislation and how important it is. I am extremely grateful for the work of Senator Graham over the last 5 years in writing this bill. And I am very grateful to the majority leader for meeting with Senator Ernst and Senator Graham yesterday to make the final decisions on this bill and to close the deal. Senator Schumer is one of the greatest listeners and has the ability to bring legislation to fruition, and that is exactly what he did yesterday. And I am very grateful. This bill represents one of the most significant workplace reforms in American history. It will help us fix a broken system that protects perpetrators and corporations and end the days of silencing survivors. Too often, when survivors of sexual assault or harassment in the workplace come forward, they are told they are legally forbidden to sue their employer because somewhere buried in their employment contract was a forced arbitration clause, often accompanied by a nondisclosure agreement. Instead of being allowed their day in court, these survivors are pushed into a system designed by the same corporation that they are challenging. They are blocked from seeking information that could prove their case, and they are left in the hands of an extrajudicial arbitrator who is typically selected by their employer and is not always a trained lawyer. The arbitration process not only allows the corporations to hide sexual harassment and assault cases in this secretive and often biased process, but it shields those who have committed serious misconduct from the public eye. Across the board, employees are less likely to win an arbitration than they are in court. Even when they do win, they typically receive much lower monetary awards. And because the results of arbitration are secret and binding, there is no chance for an appeal, and repeat offenders are often not held to account. Estimates suggest that more than 60 million Americans are subject to arbitration clauses. Many don't even know it because the clauses are hidden in the fine print. Forced arbitration clauses are especially common in female-dominated industries. The ACLU has reported that 57.6 percent of female workers are subject to this practice. It is also especially prevalent in low-wage fields and industries with disproportionately high numbers of women of color. These clauses leave those women who often cannot afford to challenge their employers without recourse. But this affects women in every industry. A 2018 analysis of sexual harassment claims made on Wall Street found that in 30 years, just 17 women--30 years, just 17 women--won their claims before Wall Street's oversight body, and most cases were dismissed or denied. I want to share the stories of two survivors to illustrate how broken the system is. First is Lora Henry, who worked at a Kia dealership in Ohio where her boss sexually harassed her, touching her inappropriately, making inappropriate comments, bringing her inappropriate gifts. When she reported him, the company did a sham investigation and forced her into arbitration. She was only able to share her story because Congress issued her a subpoena. She should not have needed the protection of a congressional subpoena to speak out. She testified, ``The cycle of harassment will continue if you force women to be quiet and allow sexual harassers and the companies that allow them to hide behind arbitration agreements.'' The second story is about Andowah Newton, who was working for the vice president of legal affairs at the luxury goods company LVMH Moet Hennessy Louis Vuitton, Inc., in New York, when she reported being sexually harassed and assaulted by a colleague. Even though she filed her sexual harassment case in a New York State court, the company moved to compel forced arbitration on the grounds that Federal law supersedes New York State law that attempts to protect victims of harassment from being forced into arbitration. She said: Because of forced arbitration and [confidentiality agreements], I may never know the extent to which [this perpetrator] sexually assaulted or harassed others, [and] if LVMH retaliated against others as they did me. . . . His sexual harassment, attempted assault, and assault made me feel scared, demeaned, and ashamed. I found myself constantly agitated, distressed, and hypervigilant, preoccupied with avoiding the trauma of encountering him. Even with her legal expertise and experience as vice president of legal affairs, she was powerless in this system. She said the company convinced her ``that . . . harassment was just a byproduct of being an attractive woman who works at a company with a French culture.'' That is the same company running the arbitration process. That is why this bill fixes the problem. Survivors deserve a real chance at justice, and that is what this bill does. This bipartisan, bicameral bill would amend the Federal Arbitration Act to void all forced arbitration provisions for sexual assault and harassment survivors. Removing those provisions would give survivors their day in court, allow them to discuss their case publicly, and end the days of institutional protection of harassers. This legislation passed with bipartisan, broad support in the House, and I hope my colleagues will join us in supporting this critical workplace reform in the Senate. Again, I thank Senator Schumer and Senator Graham. I yield the floor.

Mrs. GILLIBRAND. Mr. President, I just want to thank my colleagues Senator Graham and Senator Ernst for their outstanding work in this regard. We have worked over many years to get a bill that can be agreed upon. Senator Ernst made sure that her concerns were met in several ways. But I agree with both of their statements. I do not believe that survivors of sexual assault and harassment will abuse the ability to file cases in court. The bill plainly reads, which is very relevant to Senator Ernst's concerns, that only disputes that relate to sexual assault or harassment conduct can escape the forced arbitration clauses. ``That relate to'' is in the text. The language of the bill specifically states that ``the term `sexual harassment dispute' means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law,'' and ``the term `sexual assault dispute' means a dispute involving a nonconsensual sexual act or sexual conduct.'' To be clear, there are no new legal burdens to sexual harassment established in the bill. This was another concern that Senator Ernst had. It is all tied to existing Federal, State, and Tribal law. This bill will basically give survivors the ability to go to court where they are ``alleging conduct constituting a sexual harassment dispute or a sexual assault dispute.'' When a sexual assault or sexual harassment survivor files a court case in order to seek accountability, her single case may include multiple claims. But as Senator Ernst said, if those claims on harassment or assault are dismissed, then she would go back to the arbitration process. But it is--and this is important to Senator Graham and I--it is essential that all the claims related to the sexual assault or harassment can be adjudicated at one time for the specific purpose that Senator Ernst is well aware of. We don't want to have to make a sexual assault or harassment victim relive that experience in multiple jurisdictions. So we want to be able to deal with all the harassment- and assault-related claims in one goal. But, again, if those aren't part of it, then this bill does not apply to it. So you are quite right in your clarification, and that is exactly what we intended the bill to do. Every State and Federal court in the country requires a person to allege certain things in a certain way in order to properly plead a case such that it won't be immediately dismissed. Victims here must follow the rules and plead a case correctly, and then they must also affirm to the Court that they have a good-faith basis for doing so. Attorneys must do the same thing. If victims and attorneys break those rules, they can be sanctioned in court, as Senator Graham mentioned. To ensure that a victim is able to realize the rights and protections intended to be restored to her by this legislation, all of the related claims will proceed together. I yield back to my colleagues. Can I just read my full statement now?

Mrs. GILLIBRAND. Do you have more to say, Senator Ernst?

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Madam President, I want to be clear, there is nothing in the bill requiring any court to adopt new dismissal mechanisms for victims' claims. How and when a case moves forward is by virtue of current existing State or Federal law. There is no new mechanism in this bill to allow for dismissal, and there is no reason to require victims to have to prove a sexual assault or harassment claim prior to trial or have it go back through a forced arbitration process. Civil assault and battery claims are very difficult to prove under especially arcane State laws. But this bill allows any conduct alleging a violation of those laws, and any claims related to such conduct, to move forward together in one case.

Mrs. GILLIBRAND

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

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Madam President, I rise today to once again call for every Senator to have the opportunity to cast their vote on the Military Justice Improvement and Increasing Prevention Act, which was unceremoniously and undemocratically removed from the NDAA behind closed doors. I started calling for an up-or-down vote on this bill on May 24 because I feared that this would happen and that the NDAA would not do enough to address the epidemic of sexual violence and serious crimes in the U.S. military. Now that we have seen the text, it is clear that those fears were well-founded. Committee leadership has overridden the will of a filibuster-proof majority in the Senate and a majority of the House, who called for real reform that would have moved serious crimes to independent military prosecutors. Instead, committee leadership has codified the status quo, leaving commanders as the convening authority-- even in sex crimes cases. That is the same system that everyone supposedly agreed is failing our servicemembers. Unfortunately, this does not fix the issue of convening authority, which was the singular ask from the survivor community. The NDAA does not make the necessary changes to the military justice system. The change we must make--the change that survivors and veterans have asked for--is to remove all serious nonmilitary crimes from the chain of command. Commanders are not lawyers or judges, and they don't have training or expertise necessary to make those complex legal decisions. Our servicemembers have told us that they do not trust commanders to be unbiased or to deliver real justice in cases where they know the survivor or the accused. Although I have heard from my colleagues saying otherwise, the NDAA does not remove sex crimes or any other serious crimes from the chain of command. And I want to be clear about this because the American people and our servicemembers deserve to know the truth. The NDAA keeps the commander as the convening authority. Every single court-martial will still begin with the words: ``This court-martial was convened by order of the commander.'' It tells you everything you need to know. The NDAA also continues to offer commanders the ability to choose the members of the jury panel. I want to address this point specifically because I have heard a few misleading statements about jury selection. The NDAA allows a commander who is creating the court-martial to handpick other members of his command to be the jury pool from which the jury will be formed. Our bill, on the other hand, would put this responsibility in the hands of an independent attorney without a stake in the outcome. Unlike what some who lack an understanding of the UCMJ have said, under our bill, the independent prosecutor is not the same person as the independent convening authority. Those are two separate military attorneys. Don Christensen, president of Protect Our Defenders, said about the NDAA that ``because commanders retain convening authority and associated powers such as selecting jury court members, commanders will still wield significant influence over the court-martial proceeding. Such influence erodes the independence of the special victims' prosecutor and fails to address the concerns of the survivor community that conflicted commanders still have too much influence over the military justice process.'' The command influence does not stop with jury selection. The NDAA also allows commanders to oversee the preliminary inquiry. It retains commanders' ability to order depositions and to order warrants of attachment. It continues to allow commanders to grant immunity and to approve delays. It retains commanders' power to determine the incapacity of the accused and to select witnesses. It allows commanders to approve of findings and sentences and to order the reconsideration of ambiguous sentences. It also allows the commanders to grant clemency and to allow the accused to separate from the service instead of facing a court-martial--fully eluding the justice system. Anyone who looks at the system sees a system where the commander is still in charge, where their influence cannot be overlooked. There is no way for the prosecutors to be or to be seen to be independent under that system. There will be no improvement in trust or, necessarily, in the results. Today, just one-third of survivors of sexual assault in the military are willing to come out of the shadows to report their crime, showing a clear lack of trust in the current system, but 44 percent of survivors indicate that they would have been more likely to come forward if the prosecutor were in charge of the decision over whether to move forward with their case. The Military Justice Improvement and Increasing Prevention Act is the only provision that would empower impartial, independent prosecutors to make the vital decisions necessary for a criminal justice system shielded from systemic command influence, while allowing commanders to focus on what they do best: warfighting, training troops. I want to share the words of Retired Navy LT Paula Coughlin, a survivor who brought the Tailhook Symposium scandal to light 30 years ago. She said: ``The efforts to gut reform are unacceptable to the survivor community and must be rejected. If this effort succeeds, it will be a slap in the face to those who have put it all on the line this past decade.'' Those survivors and the majority of my colleagues here in the Senate who support real reform deserve to have their voices heard. As if in legislative session, I ask unanimous consent that at a time to be determined by the majority leader in consultation with the Republican leader, the Senate Armed Services Committee be discharged from further consideration of S. 1520 and the Senate proceed to its consideration; that there be 2 hours of debate equally divided in the usual form; and that upon the use or yielding back of such time, the Senate vote on the bill with no intervening action or debate.

Mrs. GILLIBRAND. I would like to thank the chairman for his steadfast work on trying to find common ground here, but I disagree that ``all meaningful prosecutorial'' actions have been taken away from the commander. These are the actions that still rest with the commander, and these are meaningful: granting clemency, highly meaningful; grant sentencing witnesses, highly meaningful; granting immunity, highly meaningful; ordering depositions, highly meaningful; preliminary inquiries, highly meaningful; separation authority, highly meaningful. These are things that are essential to the prosecution of any case, and so if the prosecutor doesn't have the right to do these things, it means the prosecutor has to go ask the commander: May I do these things? May I call this witness? May I have approval for a witness at sentencing? May I have approval for this preliminary inquiry? That request alone sends the signal to survivors and to servicemembers that the chain of command is still in charge; that that independent prosecutor, while the language of the bill sounds really good--they are independent and their decision is binding, wonderful. The perception of servicemembers who understand the weight of convening authority, they know what the words ``convening authority'' mean; they know what the command ability and importance is. They may not receive these changes and these reforms in the way the chairman believes them to be seen. They may not see them as the ``most transformative reforms'' that have ever happened because if they still perceive the chain of command in charge, it may not dent their willingness to report these crimes. They may not have now the ability to report and to have a belief that they can have faith in this system. And so my question to the chairman is, Why didn't we take the extra step to do the one thing that we have been trying to do for 8 years, which was to make these prosecutors, these independent, specialized prosecutors--which is what we have been fighting for, for 8 years-- truly independent and give them all the authority the convening authority had? The only change they would have had to make is the designation of ``convening authority'' would go from the commander to these new, independent, trained prosecutors. It is a simple change. It is a change we have begged for from the survivor community, from the veterans organizations, from Protect Our Defenders, the best and most effective vocal organization, per the chairman. We have asked for that one change--to be denied by this conference committee of four men in a closed room making the decision themselves. And for the chairman to get up and say that having such an overwhelming vote by the House of Representatives just shows how right they are, well, then why does 220 cosponsors in the House mean nothing? Why does 66 sponsors in the Senate mean nothing? Why does the endorsement of every veterans group in America mean nothing? Why does the support of 29 attorneys general mean nothing? That is my question. And it is such a small thing. So, yes, having an independent, trained military prosecutor outside the chain of command whose decision is binding sounds amazing. That is what we have been fighting for. Why not make it really independent? Why not take the convening authority and give it to the independent, trained military prosecutor? And, sadly, the answer is the DOD does not want to change the status quo. They don't want to make these changes, and so what they are willing to do is they are willing to put a great label on it. They are willing to pretend that they are doing the thing that we have asked them to do. They are willing to create the impression that they are doing the thing we asked them to do. But they know what ``convening authority'' means, and they retained it. And when asked: Please, take the convening authority, give it to the trained military prosecutor; please make a truly independent system, like all these people are asking you to do, they said no. They said no over and over and over again. And, unfortunately, our chairman did not want to disregard the views of the Department of Defense. And, unfortunately, that is my job, to oversee, to provide oversight and accountability over the Department of Defense, over the executive branch. That is what the Constitution requires this Chamber, this body, this Senate to do. We are not supposed to take our marching orders from the Department of Defense. We are not supposed to do what the generals ask us to do. We are supposed to look hard and fast at a problem that has plagued our servicemembers who give their lives for this country. We are asked to solve the problem, and we have put forward legislation that has the blessing of 66 Senators and 220 House Members and every veterans organizations that we know of and every single of the 29 attorneys general who have written a letter. We have this breadth of support, but it doesn't matter because it is not what the DOD wants to do. So, yes, having independent, trained military prosecutors who make decisions outside the chain of command that cannot be changed is definitely a step in the right direction, but it is not the independent review that we asked for because without convening authority, the perception of servicemembers, of survivors, of the men and women this justice system is designed to protect will be that all these rights and privileges sit with the commander and that these are rights and privileges that have value, that have ``meaningful prosecutorial value.'' They are not meaningless, and if they were so meaningless, then you would have given it to independent prosecutors. That is why I will keep fighting on behalf of survivors. It is why we do not just say we are excited, and we go home. It is why we have not decided this is the moment to celebrate because, for us, it is not because I worry that that percentage of sexual assaults, rapes, and unwanted sexual contact--the 20,000 that are estimated every year--that the percentage of those that will be willing to come forward will not go up and the rate of cases will not go down and the rate of cases that end in conviction will not go up. So that is my concern. It is why I stand here gravely concerned and very dismayed and very disappointed that we did not take this moment in time to do the right thing on behalf of our servicemembers to have a military justice system that is worthy of their sacrifice. I yield the floor.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Madam President, I rise today to call for every Senator to have the opportunity to cast their vote on the Military Justice Improvement and Increasing Prevention Act. I started calling for this up-or-down vote since May 24, because I knew--sexual assault survivor advocates knew--that if the Armed Services Committee leadership had the chance, they would strip the provision out of the NDAA behind closed doors, despite the overwhelming support the bill has in both the Senate and House. That is exactly what has just happened. Time and time again, I have asked on this floor for the same opportunity to have an up-or-down vote. Time and time again, I have heard the same false promise that we would proceed under regular order and that the will of the Members of this body would be respected. I was told that ``the best way to move forward on this issue is to ensure that all 26 members of the Armed Services Committee have their voices heard and to consider this legislation in the course of the markup of the fiscal year 2022 Defense bill,'' and that it was ``the traditional means of making these decisions.'' I was assured that ``fulsome debate during committee markup of the annual defense bill . . . is the hallmark of our committee. It ensures that everyone's voice is heard.'' And here on this very floor, I heard that ``all amendments offered by Senators on the committee will be fully considered during the full committee markup'' and ``that is, in fact, the tradition of the committee. If a Member wants a vote on amendments, we will vote.'' So we took it to the committee, we had the fulsome debate, and we voted. The Military Justice Improvement and Increasing Prevention Act was included in the Senate Armed Services' NDAA bill and passed out of committee 23 to 3. That is a pretty decisive vote. But despite all of the claims that we would follow regular procedure and that everyone's voices would be heard, when the doors closed for the conference, the story changed. Our votes were not respected. Our voices were silenced. Those promises were broken. The House and Senate Armed Services leadership gutted our bipartisan military justice reforms, stripped them from the NDAA, and did a disservice to our servicemembers and our democracy. Committee leadership has ignored the will of a filibuster-proof majority in the Senate and a majority of the House in order to do the bidding of the Pentagon. This is an act of blatant disregard for the servicemembers, veterans, and survivors who have fought for an impartial and independent military justice system that is worthy of the sacrifice they make every day for our country. Committee leadership has also ignored President Biden, our Commander in Chief's public support for moving felonies from the chain of command and fallen short of even the limited reforms that Secretary of Defense Austin called for that would have removed sex crimes from the chain of command. Despite claims otherwise, the NDAA does not remove sex crimes from the chain of command because the commander remains the convening authority, a central role to the military justice system. Every single court-martial will still begin with the words: This court-martial was convened by order of the commander. Commanders can still pick the jury, select the witnesses, and allow servicemembers accused of crimes the option of separation from service instead of facing a court-martial--a total denial of justice. We know that removing convening authority from commanders is critical to providing a system that is fair and perceived to be fair by the servicemembers. To quote Secretary Austin's own panel: The DoD's Office of the Special Victim Prosecutor structure must be, and must be seen as, independent of the chains of command of the victim and of the accused all the way through the Secretaries of the Military Departments. Anything less will likely be seen as compromising what is designed to be an independent part of the military justice process, thus significantly undermining this recommendation. . . . Finally, because of the breadth and depth of the lack of trust by junior enlisted Service members in commanders-- The IRC goes on-- it was determined that the status quo or any variation on the status quo that retained commanders as disposition authorities in sexual harassment, sexual assault, and related cases would fail to offer the change required to restore confidence in the system. That was Secretary Austin's own panel. The NDAA bill does not provide meaningful change to the status quo. Our bill would provide it by moving serious crimes like sexual assault out of the chain of command completely, putting them in the hands of the most capable people in the military--those independent, impartial, highly trained, uniformed prosecutors. That is a system our servicemembers can trust. I know that because that is the reform that survivors have asked for over and over and over again. Since I started calling for this vote in May, we estimate that more than 11,000 servicemembers will have been raped or sexually assaulted and more will have been victims of other serious crimes. Two in three of those survivors will not even report those crimes because they know that under the current system, they are more likely to face retaliation than to receive justice. It is clear we cannot wait for committee leadership to recognize the importance of this reform. Madam President, as if in legislative session, I ask unanimous consent that at a time to be determined by the majority leader in consultation with the Republican leader, the Senate Armed Services Committee be discharged from further consideration of S. 1520 and the Senate proceed to its consideration; that there be 2 hours of debate equally divided in the usual form; and that upon the use or yielding back of that time, the Senate vote on the bill with no intervening action or debate.

Mrs. GILLIBRAND. I just want to thank the Senator from South Carolina for his work and support in this area. He has worked with me in trying to find common ground, and I appreciate that work very much. I just want to respond to a couple of his concerns. One of the reasons why we wanted to have a bright line at felonies is because we didn't want to marginalize women in the armed services. If you only remove a small number of crimes--just the 11 that are in this bill--that disproportionately affects women servicemembers. Oftentimes, there will be a belief that these changes are made to give special treatment just to women servicemembers. The reason why both Senator Joni Ernst and Senator Tammy Duckworth--two of the female armed service veterans in the U.S. Senate from both the Democratic and Republican Party--the reason they support this bill is because they believe that if you put the bright line at felonies and treat all servicemembers the same regardless of the crime, that you won't be further marginalizing women servicemembers. They won't be perceived as receiving special treatment. If they are being perceived as receiving special treatment, that is being perceived as a pink court, and we would like to avoid pink courts. We would like to avoid the perception of special treatment. We believe that if you are reforming the military justice system, as Secretary Austin has said, that it needs to be unbiased, it needs to be professionalized, and it needs to be independent of the chain of command; that what is good for this set of crimes is good for all sets of crimes, just as the IRC has recommended. Second, we know that this type of system actually strengthens commanders because it allows them to focus on winning wars and training troops. This bifurcated system under the NDAA is going to leave commanders without all authority to do what they would want to do and just some authority, so there will be a lot of bureaucracy that will take time and effort and may lead to undue command influence and unintended consequences. So a system that gives all that decisionmaking directly to trained, independent military prosecutors is preferable and a commander-friendly system. In fact, our allies chose to do a bright line at serious crimes for this very reason. UK, Israel, Australia, Netherlands, Canada, Germany--they did it specifically for both plaintiffs' and defendants' rights, so they had an equal justice system for all parties, and they allowed commanders to focus on commanding and doing the job of winning wars and training troops. Madam President, I ask unanimous consent to have printed in the Record a list of the roles that still remain with the commander, this larger list of what remains with the commander under this NDAA, as well as a list of the offenses the NDAA takes out of the chain of command, which is 11, versus our bill, which would have been 38, as well as an analysis that this is a less commander-friendly bill in current form.

Mrs. GILLIBRAND. I yield the floor.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Mr. President, I ask for the yeas and nays.

Mrs. GILLIBRAND. Mr. President, I ask unanimous consent that all time be yielded back.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Thank you. Thank you so much, Senator. Madam President, I rise to join my colleagues in calling for the Build Back Better bill to include provisions that will solve the problems that working people are facing every day because of the magnitude of the problems caused by the COVID pandemic. Paid leave is a perfect example of this. Today, nearly 8 in 10 workers in America don't have access to paid leave. Those numbers are even worse for lower wage workers, just 12 percent of whom had access to paid leave before the pandemic. But we know nearly every single worker will need paid leave at some point in their lives, whether they are dealing with another pandemic or a personal emergency. We have to recognize that workers are people first, people who get sick, have babies, adopt children, who need care for their children when they get sick, who have parents who will age and die. They work to provide for those families, but providing for your family means, first and foremost, being able to care for that family member when they need you. Without paid leave, most people can't. They are forced to make the impossible choice of either providing for their family by going to work or leaving their job to meet that need. And nobody should have to make that choice between earning a living and providing for an urgent family need. We send new mothers back to work when they are literally still bleeding, while they have stitches and they are still healing, before they can even recognize that they have postpartum depression. We force them to leave their infants when they are just days old. They can't nurse their infant. They can't bring them to work with them. They can't bond with them. They can't even put them in a childcare or a daycare center because most require an infant to be at least 6 weeks old. Right now, many women get less time with their babies than dogs get before they are separated from their puppies. That is how we are valuing women workers right now, less than we value dogs. This issue extends far beyond new moms. New dads should also be able to have time with their new children. Parents with sick children should be able to care for them without fear of losing their job. And workers who need to move a parent to a memory care facility or take them to chemotherapy or take them to doctors' appointments or nurse them when they are in very urgent care need--those are choices that families are making every day, and in this era of COVID, it is happening far more often. You shouldn't have to risk your job or professional future to meet those urgent needs. Without paid leave, far too many workers have to make that very choice and either risk losing their job or having to quit or not meeting that family need. It is inhumane. Not having a paid leave program also leaves us vulnerable to future health crises. If we had paid leave in place before the pandemic, millions of people could have stayed home from work when they got sick, limiting the spread of COVID, or they could have stayed home with their children when they were forced to learn remotely, limiting the number of people who have lost or had to leave their jobs when a child had to stay home. I heard from one New Yorker named Amir whose son's health and special needs were becoming significantly complex and required his or his spouse's full time attention around the clock for weeks. At a time of great stress, they were not only worrying about how they could best care for their son but also how they could maintain their livelihoods. Luckily, they were able to turn to New York State's paid leave program. He told me it saved their family. They were able to focus on being good parents without harming their ability to earn a living and be good professionals. Your ability to access that kind of support should not be dependent on where you live, but right now just nine States and DC have enacted paid leave legislation, leaving far too many Americans vulnerable. The numbers prove that paid leave keeps people employed, providing stability to their families and the companies they work for. A study in the Journal of Population Economics found that women who take paid leave are 40 percent more likely to return to work after having a new child than those who don't take it. And, in general, workers who can take paid leave return to their job up to 97 percent of the time. That makes paid leave a good business investment. It helps ensure that the time and money companies invest into an employee doesn't walk out the door when the employee gets sick. Furthermore, when paid leave was implemented in California, nine out of ten employers said it either did not change or improved their profitability, employee productivity, and morale, and many said it decreased turnover. Major corporations already know that offering paid leave helps them attract and retain the best talent. By making this program universal, we can level the playing field and allow small businesses to compete with them and hire the best of the best. In fact, the same survey of California employers found that small businesses were actually more likely to report seeing no change or an improvement in their productivity and profitability when paid leave was implemented. So it is not surprising to see that 70 percent of small business owners and operators support the creation of a national paid leave program--70 percent of small business owners. State programs have also shown us that the programs are not targets for fraud. In California, 91 percent of employers said that they were unaware of any instances where their employees abused the State leave program. And in a study of New Jersey employers, none were aware of any instances of employees abusing the State's paid leave program. Creating a national paid leave program makes economic sense. Every year that we go without paid leave costs American workers and their families $22.6 billion in lost wages. That is $22.6 billion that could be going back into our economy, helping families get groceries, pay bills, buy homes, start families, and live their lives. And it is estimated that the mass exodus of women from the workforce during COVID could have long-term costs as high as $64.5 billion in lost wages and economic activity every single year. We can stem those losses now if we take action. I would also like to note, for those who are worried about the pricetag of this bill, that paid leave was included in the House version of the bill, which CBO found essentially pays for itself. There is a reason every industrialized nation in the world has this kind of system. It has paid leave because it works. Most of them offer far more leave than this bill would, and their economies are proof that it is net positive. We cannot be a global economic leader when we are not even in the game. Beyond all of that, this is what the American people, the people who send us here, actually want. Seventy percent of all voters support paid leave, including 81 percent of Democrats and 58 percent of Republicans, who have said that paid family medical leave should be included in this reconciliation bill. This is an up-to-date survey. The bill is designed to help the American people, and this is what they are actually asking for. This is a once-in-a-generation opportunity to reshape the workplace. We shouldn't squander it. To my colleagues who say we should not proceed on paid leave until we can do so in a bipartisan manner, I say the American people cannot wait for us to have the same conversation for another year that lead us to the same result--offers of a plan that is not universal or mandatory. A voluntary plan is not what the American people want or need. They need a plan that covers all workers for all life events. There is good bipartisan work that can be done, and I will do that. But I believe this is a moment in time, if we want to have a universal plan that can cover low-wage and medium-wage workers in small States, in rural States, and in States that don't have their own paid leave plan. This is that one chance--that one chance in a generation. It is now in this reconciliation bill. We should not miss this chance. We should include a national paid leave plan. Remembering Abe Schumer Madam President, I rise to include one additional thought into the Record, and it is to recognize the life of Abe Schumer, Majority Leader Chuck Schumer's father and a lifelong New Yorker, who passed away on November 24, 2021, at the age of 98. Abe grew up in Utica, NY, and most recently resided in Queens. He was a devoted husband to Selma, a wonderful parent to Chuck, Fran, and Robert, and a loving grandparent and great-grandparent. Abe Schumer represented the values and service that he instilled in his son. He served in World War II in Burma as a radar operator in planes that flew over the Himalayan Mountains. As a child of the Depression, Abe knew what it meant to work hard and deal with financial struggles. When he returned to Brooklyn, NY, he took over a small exterminating business from his father in order to support his mother and younger brothers, and then his own wife and three children. As Senator Schumer has said, Abe ``personified the greatest generation.'' We are thankful for Abe's devotion to his country and his family. Learning about Abe's background and life, it is clear where my friend and colleague Chuck got his devotion to family, his commitment to service, and his work ethic. I send my deepest condolences to his wife of 72 years, Selma, and to his entire family. May his memory be a blessing. With that, Madam President, I yield to my colleague from Pennsylvania. Build Back Better

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Madam President, I ask for the yeas and nays.

Mrs. GILLIBRAND

Mrs. GILLIBRAND. Mr. President, I rise to join my colleagues in support of the Build Back Better plan budget resolution, which recognizes that care infrastructure is critical infrastructure. We know that our economy has not been working for working families. Then, we saw a pandemic make a precarious situation even worse for families across the entire country. Our economy cannot fully recover and will not survive another pandemic or health emergency if people can't keep their jobs or get back to work. That won't happen until we start providing the economic support that we have actually needed for decades--support like childcare, universal pre-K, and universal paid leave. Paid leave is what allows people to keep their jobs when they get sick. It allows parents to stay home with children who are ill or forced to learn remotely. It lets hard-working people care for their aging parents. And, right now, far too many people don't have access to it. More than 8 in 10 workers lack access to paid leave, and they are often left to make the very impossible choices of: Do I care for my loved one? Do I stay by the bedside of my mother as she is dying or do I earn a paycheck and feed my children? Those are choices that we shouldn't be forcing the American workforce to have to make every single day. So this budget reconciliation will help end the United States' reign of being the only industrialized country in the world that doesn't have access to paid family and medical leave for all workers. I have been fighting alongside Congresswoman Rosa DeLauro for years to pass the bill. Our bill is called the FAMILY Act, the model for the Build Back Better plan's paid leave program, which would provide every--nearly every worker with up to 12 weeks of paid leave. It will provide stability to workers, to families, to companies, and to our U.S. economy. Now, this is the moment that we can actually make it happen. This budget also recognizes the essential nature of the childcare industry. Nearly 27 million people rely on childcare just so they can go to work and feed their children. First, childcare is not readily available. Childcare deserts and shortages across the country leave families without local options. Before the pandemic in New York, there was one slot for every four children who wanted access to affordable, high-quality daycare. After the pandemic, there was one slot for every eight children who wanted access to affordable, quality daycare. In New York, a year of childcare is often more expensive than a year of in-State college tuition. Those problems were exacerbated by the pandemic. Staffing at childcare centers, which was already a problem pre-pandemic, is now down 15 percent. This budget will help us make the critical investments that are so long overdue. Childcare investments ensure families have access to high-quality care that cost low- and middle-income families no more than 7 percent of their income. It also recognizes the nature of childcare as essential work. Childcare providers are essential workers, and they deserve a long overdue raise. This investment is critical to our economic recovery and will help working parents get back to the office, get back to their jobs and know that their children are safe and having access to that critical early childhood education. Every parent in America knows that if their child has the chance from 0 to 5 to be in early childhood education, every dollar you put into early childhood education results in over $11 of benefit to society for that individual child over their lifetime. It is such an important investment. The Build Back Better plan invests in universal pre-K. It will not only help more parents of young children return to work, but it also ensures that those children get that early access to early childhood education, that high-quality learning gives them access to understanding their numbers, their letters, early reading, early math that is essential for them being able to thrive. These forms of care infrastructure are what make the difference between a family surviving or a family thriving, and that is what this country needs to actually recover from this global pandemic. These investments are just as important as our investments in roads and bridges and sewers and clean water and clean air and high-speed rail and rural broadband. All of that matters and, together, that is how we recover from this economy. This is the moment to make this once- in-a-generation investment in the future of our families, the future of our middle class, the future of our economy, and this is something that we can do together. So I ask all of my colleagues to join us in getting the Build Back Better plan over the finish line. It is about our families; it is about our economy; and, most importantly, it is about our future. I yield the floor.