Heidi Heitkamp

Ms. HEITKAMP

Ms. HEITKAMP. To add another point to what Senator Manchin has spoken about, which is that the results have not been satisfactory--I think the other point we need to make is the results of all that interaction over this decade-plus of activity in this region have not been what was promised. It has made the American people perhaps cynical and very hesitant to rely on what is being said today. As one of the great honors, but also amazing pieces of sadness in my first days of being a Senator-elect, I attended two funerals for two National Guardsmen who were killed in action in Afghanistan. I remember sitting at the funerals and remember telling myself: Before you vote ever to engage in that kind of conflict, you absolutely need to look at alternatives. You owe it to our men and women in uniform. You owe it to the people of this country who have lost not only the lives of their brothers and sisters and family and friends but the people who have also invested American treasure. What we are seeking is a discussion, a broader discussion beyond two opposite and unacceptable alternatives. What we are seeing this week-- much to our appreciation--is in fact not just our proposal but other proposals coming forth, a broader discussion about what all the options are, and taking a look at how we can work together as a United States government, speak with one voice, and walk together to resolve this conflict. We cannot ignore that we have a national security interest in working together. We have a national security interest in addressing and resolving the current issues in front of us. That discussion cannot be done among a small group of Senators. It cannot be done in back rooms with a promise of ``trust us,'' because some of that trust has been broken over time. So a broad, open discussion as we are having here today I think is absolutely critical to reestablishing Americans' trust that we can in fact make the right decision in their interests and really in the interests of protecting our servicemen from chemical weapon attacks. That is obviously a great concern of ours. We need to continue to have this dialog and we need some kind of response. The question is how measured and what that response should be. I have very much appreciated the Senator's willingness to work with me and I thank the rest of the Members who have approached us who want to talk about this proposal and other proposals for their willingness to broaden their thinking about what those options are.

Ms. HEITKAMP. There are some who may question whether this is capitulation or whether in fact this is a lack of showing of American unity. How would the Senator respond to those concerns?

Ms. HEITKAMP

Ms. HEITKAMP. I thank the Senator from West Virginia for the work he has done and the leadership he has shown. I believe that when we work together, collaborate, and actually begin the discussion about what is in America's national security interest and how we can fashion a position and a resolution that reflects that national security interest and open the opportunity for a broader dialog--not just two choices but a broader dialog--we can build consensus in this body. If we can build consensus in this body and if we can work forward to build consensus in America, we can, in fact, move this issue forward, and it might be an example of what we can do with our future. Again, I thank the Senator from West Virginia for his participation, inclusion, and the work he has done. I believe it has not only offered a very significant alternative, but it has also set an example of where we can go.

Ms. HEITKAMP

Ms. HEITKAMP. Madam President, I was unable to cast my vote earlier this week on the nomination of James Comey to be the Director of the Federal Bureau of Investigation, FBI, and the nominees for the National Labor Relations Board. Had I been present, I would have voted to confirm Mr. Comey as FBI Director and would have voted in support of the motions to invoke cloture and confirmation of the nominations of Kent Hirozawa, Nancy Schiffer, and Mark Pearce to be members of the National Labor Relations Board.

Ms. HEITKAMP

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

Ms. HEITKAMP

Ms. HEITKAMP. Mr. President, I rise today to say a few words about my friend who is leaving the Senate this week, Massachusetts Senator Mo Cowan. I have to admit that when he first arrived I was excited because I was no longer going to be 100th in seniority. That job went to Mo, and I would be 99. However, quickly after he was sworn in, I realized he was one of the nicest and smartest Members of this body. During his recent farewell speech, Mo referred to me as the North Dakota sister he never knew he had. I already have six siblings, but I would welcome him into the Heitkamp family any day. In all seriousness, Mo was an excellent addition to this body. After the Boston massacre tragedy, he showed incredible leadership skills. He was a source of guidance and comfort to countless folks from Massachusetts in the weeks and months that followed that horrific act of terrorism. During his short tenure, Mo has distinguished himself in this body. First, Mo listens more than he talks. His acute observation skills have made him a trusted adviser to many. Equally important, Mo's observations are without judgment; rather, Mo listens and tries to understand how he can advance the issue and not judge the speaker's motivations. Mo is a serious thinker, always trying to find a path forward to resolve the important issues of our time. I can only imagine the important and great legislation Mo would have advanced if he had more time here. Although Mo is a serious guy, he also loves to laugh--mostly at his own expense. Mo's desk in the Senate was often the gathering site for many freshman Senators because everyone was just a little happier and a little smarter after spending time with Mo. Mo is also an extraordinarily humble human being--not the false modesty of a seasoned politician but the humility that comes from a deep faith and a lifetime of self-reflection. One should never mistake that humility for a lack of self-confidence. Mo is very surefooted and anchored in the one great belief that his job is and always will be to make the world a more just place for his sons and for all the children of our country. So beyond the ritual of carving a name in a desk and his recorded rollcall votes on important issues like immigration, what will be Mo Cowan's Senate legacy? History may mark his time here in a footnote, but Mo's impact has been much greater. I cannot speak for others in this body, but because I served with Mo Cowan, I will be a better Senator. I will listen more and talk less. I will always remember not to judge the motivations of others; instead, seek solutions with others. I will redouble my efforts to make our great country a more just place for our children. I will miss you, Senator Mo Cowan. You are a great Senator, but more importantly, you are a wonderful and kind human being. Thank you for your service to our country. I yield the floor, and I suggest the absence of a quorum.

Ms. HEITKAMP

Ms. HEITKAMP. I ask unanimous consent that the order for the quorum call be rescinded.

Ms. HEITKAMP

Ms. HEITKAMP. Madam President, I would first like to thank the Senator from the great State of Michigan for her incredible leadership. I met her over a year ago and knew she was a force to be reckoned with, not only because she has red hair but because she is someone who understands that to move something forward, we need to have compromise and we need to understand that a farm bill represents the interests of the entire country, not just the interests of maybe the Great Plains States or the Southern States or even our urban areas that care desperately about nutrition. She understands that we need to forge a bill that can pass both Chambers and keep our country moving. The fact is that agriculture is a shining star in the American economy today. When we look at States such as North Dakota and Nebraska and Kansas and South Dakota, all agriculture-based States, we see they did not have the deep trough of this recession because agriculture did pretty well. And why did agriculture do pretty well? Because the last farm bill that was crafted provided an appropriate balance of concern for our long-term fiscal obligations along with providing our producers with a legitimate and appropriate safety net. We have a farm bill today that is even better that we are going to be voting on. Why is it better? Because it not only provides that certainty and that safety net for American producers--the backbone, historically, of our economy--but it reduces the deficit $24 billion by eliminating a process of direct payments, by cutting some unnecessary expenditures, by streamlining conservation, and by taking a look at a rational and reasonable approach to some of the issues regarding nutrition. So I am very proud today to stand before this body about to cast one of my first votes--not the first vote but one of my first votes--doing what is absolutely essential for the North Dakota economy; that is, passing a farm bill. I want to give an idea of what North Dakota is all about because we like to brag but also because people forget about North Dakota being an agricultural State with so much attention having been focused in recent months and recent years on our dramatic energy development. So let me give a rundown on what we do in North Dakota as far as our production. We are No. 1 in barley; No. 1 in beans, dry and edible; No. 1 in navy beans and pinto beans; No. 1 in canola, flaxseed, and honey; No. 1 in lentils and dry edible peas; No. 1 in all forms of sunflower; No. 1 in durum wheat and spring wheat; and we are No. 2 in sugar beets and No. 2 in all wheat. So 90 percent of North Dakota's land base--90 percent--is engaged in agriculture. It is the backbone of what we do. As we talk about the importance of public policy not only to protect our producers but to give them opportunities for certainty, I would like to talk about two unique things of which I am exceptionally proud. The first is that this Crop Insurance Program will provide the safety net so many of our young farmers in our States need to get engaged in the business of farming. Why is that important? Well, 10 years ago when I was still in elected office, I would go to farm meetings and look around the table, and everybody was in their fifties and sixties and a 50-year-old farmer would be a young farmer. Now we go to those same meetings, and sitting around that table are 20- and 30- and 40-year-old farm families saying: We want to engage in the business of agriculture. And that is good for the world because we not only need to produce our products for America, we need to produce our products for the entire world. So this is a farm bill that strikes the right balance. It is a farm bill that addresses the priorities not only of my State but hopefully the priorities of this country. There are 16 million jobs--16 million American jobs--depending on this bill. The second point I wish to make about this bill--and people remind me occasionally that it is a year late because we have already gone to one extension since I have been here--is that it is a bill which will send a message to the American people that we need to provide certainty once and for all. We need to do things in a timely fashion, and I think moving this farm bill right now is moving it in a timely fashion. This is an excellent piece of legislation, and I urge all of my colleagues to vote for it. I thank the chairwoman from Michigan for her excellent and exceptional leadership, along with her ranking member Senator Cochran, who has been so instrumental in forging the compromises that make today possible. I yield the floor.

Ms. HEITKAMP

Ms. HEITKAMP. Mr. President, yesterday I came to the floor of the Senate to talk not only about the farm bill, but specifically about the importance of the Sugar Program to the compromise that is the farm bill. I talked about growers getting protections in terms of crop insurance, I talked about the dairy program, I talked about specialty crops, and I talked about the importance of protecting the domestic sugar industry and using a no-cost approach which has been the approach we have dealt with for years in the Sugar Program. Today I don't want to repeat all of that discussion. What I would like to do, however, is respond directly to the Shaheen amendment and some of the information we have been hearing about the Shaheen amendment going forward. I think it is important because we have heard the Shaheen amendment would simply roll back the Sugar Program to the policies in place before the 2008 farm bill. In reality, this amendment would do far more than what was included in the program prior to 2008 and would, in fact, threaten 142,000 American sugar-producing jobs in 22 States. I want to be very specific about the uniqueness of this compared to pre-2008. So, specifically, the amendment institutes two new policies beyond repealing the 2008 farm bill changes to the Sugar Program that are damaging to our farmers and sugar manufacturers in the United States. First, the amendment would mandate for the first time a 15.5-percent stocks-to-use ratio. Sugar supplies in the United States are already at historically high surplus levels at a stocks-to-use ratio in the 18-to- 20 percent range. This proposal would mandate artificially inflated increased inventories in order, really--realistically--to push down prices for food processing companies. At a stocks-to-use ratio of less than 15.5 percent earlier this year, sugar producer prices were collapsing below average levels of the 1980s and the 1990s. We hear over and over again about how we have had this dramatic increase in sugar prices, and that has led to the loss of American processing jobs. Really, nothing could be further from the truth. In fact, we have seen historically low prices. In fact, sugar prices earlier this year were collapsing below the levels of the 1980s and 1990s. Second, it would make U.S. sugar import quota rights tradable-- tradable--on the open market, and I think that would risk potential fraud and abuse and denial of quota benefits to developing countries that count on the quotas. So if a country could not, in fact, meet their quota, that quota could be traded on the open market. I think that is a formula for interjecting a factor that has never been instituted before in the sugar bill. I think U.S. policy provides access to developing world countries to our sugar market, one of the largest in the world. Allowing governments of developing nations to trade their quotas does nothing to empower those farmers in developing countries. Instead, the quota rights will be traded to subsidized industries in powerful sugar companies such as Brazil, which could lead to further excess supply in the American market. Because everybody seems to believe that pre-2008 was a panacea for sugar, and if we just went back there everything would once again be fine, I wish to set the stage for what the world was like before the 2008 farm bill. The 2008 farm bill updated the Sugar Program in response to a change in the relationship between the United States and Mexico regarding sugar. Under NAFTA, agricultural trade was liberalized between our two countries which removed barriers and allowed a more free flow of goods. The NAFTA provisions regarding sugar were fully realized in 2008. If dropping the trade barriers resulted in a level playing field, this would have been no problem because our American farmers are the most efficient in the world, and we can win in a free market condition. However, a level playing field was not the case. Mexican sugar is highly subsidized. In fact, the government owns approximately 20 percent of their sugar industry. Candy and major food-producing companies are having some of their most successful years in memory. When we hear the stories of lost jobs and additional burden, I think we need to look at reality, and I think reality is that nothing has--the price of sugar has not prevented them from achieving record profits, strong profits, and continued growth. Another fact that doesn't get talked about much when we talk about the Sugar Program is that today the price of sugar is roughly the same as what it was in 1985. What product can we say that is true of? Sugar is the exact price as it was in 1985. Additionally, the domestic price of sugar is often lower than the international price when factoring in transportation costs. To claim the Sugar Program is breaking the backs of American consumers, again, is not a fair or accurate statement. The U.S. wholesale sugar price in April was 26 cents per pound. The internationally traded sugar price in April was 22 cents per pound. The transportation cost of bringing sugar to the United States from Brazil, the Dominican Republic, or the Philippines--three of the largest importers of sugar under the program--exceeds the 4 cents-per-pound difference. So I think it is important that we at least have some response to this idea that, No. 1, things were good in 2008 so we should just roll back the program to 2008. If that were true, obviously, I do not think we would be standing here fighting this amendment. But I do not think it is true. Plus, I think there are provisions in this amendment that have not yet been revealed as provisions that were not included in the pre-2008 Sugar Program, and that concerns me. It concerns me that this amendment has not had a discussion in committee. This amendment has not been something that the experts on the Agriculture Committee have deliberated. Then I want to kind of pull back and look at a higher view, which is the American farmer, American agriculture, and what the farm bill attempts to do to guarantee a sure and steady supply of food for our country and, arguably, for the world. The farm bill is a compromise package. The farm bill represents, in each one of those elements, a different provision for different parts of our country: dairy, important in Wisconsin; dairy, important in Vermont; dairy, not so important in North Dakota. But sugar is critically important to the economy of North Dakota. Sugar is important to the economy of Minnesota, the economy of Florida, the economy of Hawaii. All of us have come together to fashion a farm bill that responds to the need for certainty in American agricultural policy. The farm bill is critical not only to our farmers but to the 16 million jobs the farm bill supports, and we forget that. We forget that this is much bigger than a sugar program, it is much bigger than any one individual commodity. It is about food security, combined with an effort to do what we need to do to provide certainty and surety to American producers. My concern is that when you single out one commodity--whether it is soybeans or corn or sugar or tobacco or rice--when you single out one commodity, you threaten the effectiveness of the overall farm bill. So I would urge my colleagues to work within the structure of the Agriculture Committee, understand that where you may have individual concerns about each piece of this--and I may have individual concerns about varying pieces of this farm bill, this ag bill, but it is critically important that we not single out one commodity on which to reduce our support. Sugar is too important to our economy, it is too important to our food processing to risk simply that we are going to have enough sugar on the international market, that we are not going to have a domestic supply because many of these provisions would drive the domestic producer out of the market, making us beholden to foreign sources of sugar. I do not think that is why we have a farm bill. I think we have a farm bill so we can guarantee that farm commodities and farm products that we are able to grow in this country are available and local. So I urge a ``no'' vote on this amendment. I think it is extreme. This amendment, which has basically been reported to be a simple rollback to 2008, is not exactly as it appears. I believe it is critically important that we keep the compromise, which is the farm bill as reported out of the committee, essentially intact by recognizing the needs of all the commodity groups. I yield the floor.

Ms. HEITKAMP

Ms. HEITKAMP. Mr. President, on the floor of the Senate Senators often come to praise a local university football team that just won a championship or a famous coach who is retiring or maybe even a famous politician who has passed away. Today I come to the floor of the Senate to thank a man who will never be written about in the history books or even known outside of my small hometown of Mantador, ND. Brad Hejtmanek's life and his accomplishments were pretty modest by national standards, but nevertheless, for the people of my small hometown, Brad was something special. Brad was a standout high school athlete, a veteran, a softball coach, a National Guardsman, a coworker, a husband, a father, a gardener, and a friend. For most of his adult life, Brad was the mayor of Mantador-- not exactly the most glamorous of jobs. Mantador runs exclusively on volunteer labor. For years he made sure the city water and sewer were working, the Christmas tree got decorated, that barking dogs were attended to, that the garbage got picked up, the roads got fixed, and abandoned lots did not get overrun with weeds and junk. For years Brad got to do the great ceremonies incumbent of a small- town mayor. For example, after I was elected attorney general of North Dakota, Brad presented me with the key to the city. This was no ceremonial key; it was the real deal. I wondered for months after getting that key what that key actually opened, until one day I got a call from Brad asking me if I could send the key back. You see, the key was actually to the town dump and spring cleaning was coming. But that was Brad. You can't look anywhere in Mantador and not see his impact. One can go to the small ballpark and remember that Brad organized the National Guard to come and clean out the old grove of trees, look to the large VFW and remember that Brad recruited folks to come and help build it, look to the fire hall and remember the games of pickup baseball we played when we were kids, look to the Mantador grade school and remember that Brad was the kid who always took the dare, the kid who always organized the pickup football games, and that every kid in grade school knew the lyrics to the ``Marine Corps Hymn'' because Brad made sure at every choir practice we sang it not only once but twice. Men and women such as Brad Hejtmanek are the unsung heroes of our democracy. They step up and volunteer when their country and their community need them. They are friends when a person needs a friend, and they never forget where they came from. So even though he will never have a chapter in a history book, he will always have a place in the hearts of the people of Mantador. In my book that is an honor unequalled. Thank you, Brad, for all you did for your country and your small town. Godspeed, my friend. I and all of Mantador will miss you. I ask unanimous consent to have his obituary printed in the Record.

Ms. HEITKAMP

Ms. HEITKAMP. Mr. President, it should come as no surprise that two Senators from the great State of North Dakota stand today and talk about the importance of American agriculture. Ninety percent of the land we have in North Dakota is engaged in production agriculture. As much as we have heard--and it is all true--about this great economic renaissance we are having in our State, agriculture is still No. 1. Every year American farmers--North Dakota farmers--bet. They bet on good weather, good prices, that the crop will grow, and they spend millions of dollars on that bet. They are the biggest gamblers in the history of the world, and they are asking for a farm bill that gives them a little bit of risk help and makes sure when they plant, they know that maybe they have a chance to get cost of production back out. Why is that important? It is important because who is going to take that risk on behalf of the American people, on behalf of a global and worldwide supply of food? Who is going to take that risk if we don't help a little bit? Today in America almost every State which has an agricultural base is doing a little bit better because agriculture has led the way. Agriculture has aided this economy. States with an agriculture base have a much lower rate of unemployment, and they have been leading the way on our trade deficit. It cannot be overstated how significant this farm bill is not only to States such as North Dakota but to every State and every economy in this Union. There are 16 million jobs which hang in the balance. They are waiting for this body--the Congress--to give some assurance, to pass a farm bill. I applaud both the ranking member and the committee chair for their excellent work. No bill which comes out of a committee with diverse opinions is absolutely perfect where everyone will agree on everything in the bill, but it is part of the great American compromise we have been talking about and striving for in this body. We are working to move the issues forward and do what Americans sent us here to do. We are here to deliberate, discuss, debate, and compromise, and that is what this bill is about. Every piece of this bill is important. Every piece is a linchpin to make sure we pass a farm bill. We are going to hear a lot in the next couple of days about the Sugar Program. I will talk broadly about the other provisions of the bill tomorrow on this floor, but I want to spend today talking a little bit about the Sugar Program within the farm bill because it is absolutely significant and important. I know Senator Hoeven outlined some of the statistics we talk about when we talk about sugar. The U.S. sugar policy defends more than 142,000 jobs--not just in North Dakota, Minnesota, Florida, and Hawaii, but in 22 States. It defends those jobs from unfair foreign competition, and it results in nearly $20 billion in annual economic activity in the United States. Of course, many of these jobs are in North Dakota. We grow a lot of sugar beets in the Red River Valley, we process a lot of sugar beets in the Red River Valley, and those processing jobs are the value-added jobs that led the way to a value-added economy in our State. We are pretty protective of our sugar economy. In many rural communities sugar is the linchpin of the local economy. Make no mistake that if we bend to the reforms we will hear talked about or bend to the ideas some have today about the Sugar Program, we will lose our domestic sugar industry. Why? Because we cannot compete. Make no mistake about that. I am not saying our producers cannot produce or compete with producers from other parts of the world if the playing field is level. In fact, not only can we compete, we can best them. However, the sugar playing field is not level. Other countries have subsidized their sugar programs for years. More than 120 countries actually produce sugar. Every one of them intervenes to defend their producers from global crisis where surplus sugar is dumped. No one could survive at historic world-level prices without these government interventions. If our farmers could go head to head with their foreign counterparts, they would robustly compete and, I believe, capture much of the market. Unfortunately, with Federal subsidization and protections in place, a fair fight is not available to our American sugar beet and sugar cane growers. Opponents of the Sugar Program would have us do one thing: Unilaterally disarm and surrender our market to foreign producers. For over two decades, from 1989 to 2008--and I want everyone to remember the date of 2008--the average world cost of sugar production averaged about 51 percent more than the world price. Let me say that again: The world average cost of sugar production averaged 51 percent more than the sugar price. How does that happen? How does anyone produce a product that costs more than they sell it for? They are subsidized, which means sugar producers have received support from governments that allow them to stay in business even when their production costs exceed the price. In order for those sugar industries to survive, governments in foreign countries provide some buffer to the world market with a wide variety of import tariffs, nontariff import barriers, price and income supports, and direct and indirect subsidies. We have heard that sugar prices are too high, and if we eliminate the Sugar Program--the risk program for our sugar growers--that sugar prices would drop. Food corporation opponents say the U.S. sugar price is too high. They further argue that high sugar prices threaten their competitiveness given foreign competition for processed foods. The truth is that sugar prices have held relatively stable over the course of the last three decades. This cannot be said about most other agricultural commodities. Imagine if we were debating today about $2-a- bushel corn. U.S. raw sugar prices have dropped by more than half since the fall of 2011. Prices are now below the average price of the 1980s, below the average of the 1990s, and below the average of the decade of 2000. Our sugar farmers have struggled for decades and many have not have survived. Since 1985, more than half of the sugar beet and sugar cane operations shut down. It is hard to survive in 2013 when the price they get for their product is the same price they would have received in 1980. The amendment we are going to be debating here will drive the U.S. sugar price down even further, which will allow more subsidized sugar to flow into our market and put our sugar farmers out of business. If we look at all of the commodities that are in the farm bill--look at every piece of that compromised bill--and start singling out one commodity for special treatment--let's forget for a minute we are talking about sugar. Let's talk about dairy. Would a sugar bill survive if we were to eliminate the dairy program? Would a farm bill survive if we were to eliminate the dairy program? Our concern today is that this industry is critical to our food security but also, importantly, it is critical to the compromise of the farm bill itself. This is a farm bill that supports over 16 million jobs in an economy that struggles except on the farm. These programs have worked. As someone who is from North Dakota, I have lived through bad farm bills. My producers have lived through bad farm bills. The last 5 to 6 years have been an enormous improvement, not only to market-driven techniques but it has been an enormous improvement in allowing our producers to make the market decisions they are going to make, but also get the help that is going to give them surety. When a small North Dakota producer--and I am not exaggerating--spends $1 million putting a crop in the ground, they do that for their family, they do that for their State, but they also do it for the country and for the world because they know the American farmer feeds the world and it is a pretty important job. So I say, let the compromise stay. Let the bill stay intact. Let's move this bill forward, let's get it into conference with the House, and for once let's tell the American people we can get something done in Congress. Let's tell them we can respond to the needs of this country and move our country forward. I yield the floor.

Ms. HEITKAMP

Ms. HEITKAMP. Mr. President, my colleagues from North and South Dakota and I come from practical States. We come from States where we try to anticipate problems and we solve problems before they turn into big, expensive pieces of litigation, and that is what that amendment does. This amendment addresses, in a proactive way, a policy we know will not be put to bed until this body speaks. Let's do it now. Let's do it kind of in the way we do it in our States. Let's be proactive. Let's make sure we aren't wasting money and wasting relationships on litigation and that we are moving forward to manage the Upper Basin as best we can and that we do what is right by the people of our State and the people in our tribal governments and our Native American neighbors. Amendment No. 909

Ms. HEITKAMP. I say thank you to my colleagues from North Dakota and South Dakota. Mr. President, this is not a new issue. This is an issue--even back in the 1990s--I dealt with as the State's attorney general. Why do I mention that? I mention it because we were able to persuade the corps at the time that the intake pipe they were attempting to charge for surplus water was actually in the original river bed. I--just tongue-in-cheek--suggested I would charge them for putting their water on top of our water, and maybe they should pay a fee to us for the storage we were going to allow them. In all seriousness, this is not an issue that is going to go away. If any of our colleagues think this is an issue where we can just let it go and ride it out, this is an issue that has percolated for a lot of years. It has culminated right now to this effort to be proactive in this body to prevent litigation, prevent excess expense, and prevent a deterioration of a relationship that is essential to making sure we have flood protection and all of the other good that came out of the Flood Control Act. So the time is now to take an immediate step to prevent this issue from going any further and to address the concerns that upstream States have. I want to spend just a few moments talking about this from a legal perspective and what could happen if, in fact, the Federal Government engaged in litigation with the States. We have heard today from both South Dakota and North Dakota Senators. I am reasonably sure Montana would not allow this precedent to stand without some pushback and an absolute commitment from a bipartisan standpoint from all the upstream States for a pushback. Let's talk about why there are legal problems with the corps approach. Charging fees for surplus waters, I believe, would violate a State's right to the water that naturally flows through the boundaries as historically recognized by the Federal Government and as recognized by the 10th Amendment. Charging fees would violate statutory law. Section 1 of the 1944 Flood Control Act provides protection for water resources in Western States. We have a common law water rights argument, a historic argument, and we have a statutory argument. I think charging fees would reverse decades of corps policy on surplus water and create a precedent which should not be established, not only in the upper Missouri basin but should not be established anyplace in this country. That is why this is an issue that is not just about the Dakotas, it is not just about Montana and the upstream States, it is an issue that every one of our colleagues has an interest in reviewing. If they can do it in this case, why can't they do it in any other reservoir. Charging fees would penalize Montana, North Dakota, and South Dakota by charging for water that is freely available in the absence of the corps reservoir. If there were no reservoir, there would be no issue. In fact, if they tried to charge, most of our colleagues would find that absolutely atrocious. This is in the face of what we know we have sacrificed for flood control in that basin. I want to mention the unique interest that the Mandan, Hidatsa, Arikara Nation, along with the Standing Rock Nation have and what they have sacrificed for flood control, what they have sacrificed in terms of loss of their land, division of their reservation boundaries, and division of their property. Now, the corps is saying: Yes, we took your land. Yes, we disrupted your natural boundaries and your natural way of life, and now we are going to charge you for the water that sits on your historic homeland.

Ms. HEITKAMP

Ms. HEITKAMP. Madam President, I thank Senator Enzi, Senator Durbin, and Senator Alexander for their leadership on the Marketplace Fairness Act and am proud to join them to address an issue I have been working on for just over 20 years now. Tribes that have adopted sales taxes are faced with the same situation as States with regard to the collection of taxes on remote sales. Tribal governments provide essential government services to their communities, and including them in the Marketplace Fairness Act simply gives them the equal footing that they deserve. Tribal governments that attempt to collect sales and use taxes from remote sellers will have to follow the same streamlined requirements that all States must use, including software and audit compliance. Additionally, the software provided--free-of-charge--to remote sellers under this bill can easily calculate sales tax at the point of sale. Most tribal governments will negotiate agreements with their States to provide for the collection of sales and use taxes from remote sellers and remittance to the tribe. As a result, businesses will have no additional burden. It is important to note that this bill does not authorize States to collect a tax on sales to tribal members in Indian country. Under the bill's sourcing rules, read in conjunction with the definition of ``State,'' a sale within a tribe's jurisdiction would be subject only to the tribal tax, and not to a non-tribal State or local tax. It is not the intent of the bill to subject such a sale to dual taxation--State and tribal-- or to extend State taxation to tribal members residing in Indian country.

Ms. HEITKAMP

Ms. HEITKAMP. Mr. President, this is a day that has been 20 years in the making. You have heard argument after argument here about how this bill has been rushed, how it is not ready, how we have not yet had enough debate or deliberation. I tell you on behalf of the small business owners in my State who have told me it is about darn time we do something, I stand today and congratulate this body for taking on this issue and taking a system that has been grossly unjust and incredibly unfair to Main Street businesses in our country and in our State and said, yes, the Senate will not stand back and wait any longer before we give you marketplace fairness. This bill could not be and could not have a better name than Marketplace Fairness. I got involved in this issue as a very young person--I like to say that because it was 20 years ago--litigating a case before the U.S. Supreme Court. I was moved to take that case to the Court by a woman who approached me and said: Look, I am trying to survive. I am trying to participate as a good businessperson in North Dakota, trying to support my community, trying to do everything right, collect my sales tax, but I am getting killed in the marketplace, because people are sending catalogs; people come into my store; they will look at my products. Then they order this stuff through a mail order business. Please help me. Those pleas have for the last 20 years gone unheard by this body and by the House of Representatives. But today we have a chance. We have a chance to say to all of those businesspeople throughout our country who have been unfairly treated by a tax system that does not recognize today's modern-day method of marketing, this modern-day way we do business and commerce in our country has not been recognized. They continue to struggle, continue to try. I congratulate the Senate. I congratulate all of the other Senators who have pursued this with such vigor and with such hope. I say today is the day that we say yes to America's small businesses. I yield the floor.

Ms. HEITKAMP

Ms. HEITKAMP. Mr. President, in response to my friend from Tennessee, the first thing I will say is the tools we have today were not available 20 years ago. The simplification, the immediacy of buying a $15 opportunity from e-bay so you can collect sales tax in all jurisdictions on products that are unique to each State, that was not even a thought when we litigated Quill. Yet we came pretty close to convincing the Court this should be allowed under the interstate commerce clause. I think, at the end of the day, the Court decided that case because they were concerned mainly about retroactivity. But now, if we compare the experience of 20 years ago to what we know in terms of data availability and the ease of administration today, which is being further streamlined by requiring a streamlined tax, one single tax base--what do I mean by that? The city of Fargo imposes sales tax. Let's assume for a moment we allow them to tax different products than what the State taxes. This requires one tax per product. We don't get to have different tax bases. So we have streamlined that piece that concerned the Court at the time. When we think about it, local sales taxes were not unique and were prevalent even at the time we litigated Quill. This argument was overwhelming for the Court. They looked at the burden on interstate commerce, coupled with the potential of retroactive application, which would have meant huge audits where there was no opportunity to collect, and said: You know what. We think this is better left to Congress. We share an obligation with Congress on interstate commerce. We think Congress can do the right thing. The world has changed since then. What we know that Internet sellers know about us today is remarkable. Can we imagine litigation, I say to my friend from Tennessee, where we show that we simply order--in my case one plus-size blouse--and we get all kinds of plus-size ads on the side. Some people think that is kind of insulting, but I think it is an interesting evaluation of how much these retail sellers know about us individually. If they can know that, they can collect the sales tax. The other piece of this that is new in this statute that I think further compels us is we are not talking about the small mom-and-pops. The other reason why I am supporting this legislation is I have small beekeepers who make wax candles and maybe they put those wax candles on the Internet; maybe they make $20,000, $30,000 a year selling wax candles. I don't want them, after further litigation, to have a burden of sales tax collection. They are small mom-and-pops, and we are talking about $1 million. So, in many ways, this legislation is prosmall business, it is prostreamlining tax. If we let this go back to the Court with a better argument than we are not burdening interstate commerce, with an argument that we can do it for $15 a month, the Court is going to be persuaded that there is no impediment to interstate commerce, and that is the risk we run by not acting and not acting soon.

Ms. HEITKAMP. Yes.

Ms. HEITKAMP. Mr. President, I will be very brief. I want to respond to a couple of claims that have been made, especially with how they relate to foreign corporations. I think there is a sense that foreign corporations have absolutely no State tax obligations no matter what they do in their State or what their presence is. I want to clarify a couple of points. People argue that foreign corporations that make remote sales will have an advantage over domestic companies. We need to understand that is not true. The Marketplace Fairness Act treats foreign corporations the same as it treats domestic corporations, and by that I mean corporations which are incorporated in the 50 States in our country. All online retailers who make over $1 million in remote sales, regardless of where the retailer is located, must collect and remit sales tax to States that require it. States currently have and do exert jurisdiction over foreign companies. In fact, States collect different types of tax from foreign companies even when those companies are exempt from Federal taxation. Locating facilities--there has been a big argument here--means people will now move their operations to Canada and operate out of a foreign country. That has its own brand of problems for any corporation that would consider that, and I will outline some of those. Locating facilities outside of the 46 States while still selling to the U.S. consumers would actually increase some costs for retailers and complicate the sales process. Locating farther away from customers would increase shipping costs. Many online retailers are moving their distribution and other facilities closer to their consumers so they can be more responsive to their customers. In fact, we are seeing 1-day shipping or same-day shipping. International sales may be subject to duties. Foreign currency exchanges may be needed to conduct the sale, and so it is a whole brave new world. It is a very complicated world. The other thing is there is a big discussion about how to enforce it. States can currently request information from Customs and Border Protection about international shipments into their States so they know what products are coming in and where they come from. I want to take a moment to explain how this works. As my colleagues have heard in this discussion on the floor, I, in fact, was the tax commissioner of the State of North Dakota who initiated the action in Quill, but that is not the extent of my experience. I also spent a great deal of time--in fact, 6 years of my life--as a tax commissioner collecting sales and use taxes. We frequently have people go across the border and shop in Canada or spend a weekend in Canada. Their Customs reports are filed. We typically would send a sales tax auditor up to review those Customs reports and send use tax collection statements out as a result of that. That kind of compliance is already happening. States also have enforcement options available to them to ensure that foreign corporation compliance is completed, including liens and other kinds of discussions. I want to offer a CRS report on this issue, which said: Finally, some have noted that U.S. based retailers may respond to the expanded state tax collection authority by shifting operations outside the U.S. to avoid the collection burden. The costs of moving operations and increased shipping costs, however, would seem greater than any benefit conferred by avoiding the collection burden. Again, as my colleagues have heard over and over, we have heard about how expensive this is. Yet we have vendors out there. In fact, eBay is charging no more than $15 a month to provide this service to businesses they have. Some may say, Well, that is all fine and good, Senator Heitkamp, I don't believe that actually happens. I requested some information from our current tax commissioner in the tax department in North Dakota because I know a little bit about sales and use tax, and I know we actually have foreign corporations--Canadian corporations--that are, in fact, licensed or permitted as retailers. In fact, the State tax department records show that in calendar year 2011 we collected $1.6 million from Canadian companies that were registered and actually remitted the tax. So anyone listening understands the level of business North Dakota is doing; our sales tax is 5 percent. There was a big leap in 2012 as we saw almost $3.8 million. That is, I am sure, due to Canadian companies supplying North Dakota corporations and North Dakota businesses in the oilfield. We already do this, and very many Canadian companies already know what these requirements are, just like a North Dakota domiciled company that does business and takes advantage of the Canadian marketplace will be subject to Manitoba taxes or subject to Sasquatchian taxes. We know what our obligations are. It is very important that we do not mix concepts here. I think the Senate is a place where they do understand foreign tax treaties. But provinces of Canada and States such as North Dakota are subnationals, which is their classification within trade law. They are not bound by very many of these treaties. They are not obligated under these foreign tax agreements we hear over and over, and it is not make-believe. The reality is that in States such as North Dakota, we collect taxes from Canadian companies. I yield the floor.

Ms. HEITKAMP. Mr. President, I say to the Senator from Montana, what the bill exerts jurisdiction over is remote sellers. It does not differentiate whether they are foreign nationals or domestic corporations. In State law we have the ability to enforce State laws against anyone who is obligated under the jurisdiction of the State to comply. I will tell the Senator that the jurisdiction in here is not over States. It is not over Oregon or New Hampshire. It is over a remote seller. It does not differentiate anywhere in this bill in terms of a remote seller. I will also tell the Senator that as the former tax commissioner of the State of North Dakota, I have enforced State tax laws against foreign corporations just as foreign corporations have enforced their provincial laws against North Dakota domiciled companies. It happens every day in America.

Ms. HEITKAMP. Mr. President, and my friend from Montana, we will provide the citations and the Supreme Court cases that talk about the exertion of jurisdiction over foreign corporations by State taxing authorities. I will offer up this document which outlines that we are not parties to foreign treaties: Nelson v. Sears, Roebuck & Co., which is a 1941 Supreme Court case. Felt & Tarrant Manufacturing v. Gallagher, which is a 1939 U.S. Supreme Court case. It is a well-established and longstanding precedent in this country that if a company is doing business as a foreign company in a State or in our jurisdictions, we have jurisdiction and can apply our State law and our State taxing authority over a foreign company that has jurisdiction and nexus in our----

Ms. HEITKAMP. Mr. President, I wish to clarify one point about nexus versus commerce clause, and I think it has been misstated about tax jurisdiction. There was a case decided in the 1950s called National Bellas Hess that said remote sellers do not have nexus nor can we apply the collection burden because of the commerce clause. When it was decided, what was decided is that, yes, North Dakota had nexus over Quill. We could not apply the sales tax because it was in violation of the commerce clause. The nexus standards have changed from physical presence to economic activity and that is why we are here. We cannot, in my opinion, as a body--and as a lawyer who has studied this area--we cannot change the nexus standards by any statute in this body, so every State will have to defend their own application of nexus. What we are talking about is not nexus; it is commerce clause jurisdiction--the ability to apply it and not violate the interstate commerce clause. So I think we need to be very careful about our terminology. I yield the floor.

Ms. HEITKAMP

Ms. HEITKAMP. Madam President, this is a challenge the States have been confronted with since 1992--a challenge of trying to get equity for Main Street businesses. The Supreme Court told us that Congress is best equipped to make a determination on how we implement something that would level the playing fields for Main Street businesses under our notion of what constitutes appropriate regulation and controls of interstate commerce. The challenge was passed over 20 years ago to Congress, and the Main Street businesses have been waiting for 20 years for equity, for fairness, and for a system that does not discriminate against them. Only in Washington, DC, could waiting 20 years for a solution we are debating today be considered ramming something through Congress. Only in Washington, DC, can a 20-year delay for equity and justice and fairness in our tax policy be considered too soon for a debate. This is an 11-page bill. This is a very simple bill. I can attest, having been here only a short period of time, to the fact that most Senators have very capable staff. Quite honestly, most Senators have an enormous capacity to read this 11-page bill, understand it, and appreciate what the bill says and to make a determination. In fact, this concept--just in concept--received an overwhelming vote from this body. This bill, in consideration now in two votes, has received an overwhelming show of support because colleagues know their Main Street businesses have waited too long. They know we need to accomplish something. We need to move forward. We need to do what is easy because we have so many hard things to do in the Congress. We have a budget out of control, we have an energy policy we need to prepare for the future, and we have challenges with sequestration and making sure we are making the right investments in our future. We have big issues. I would suggest that what we are looking at, albeit a small issue in this body, is a big issue for Main Street businesses. We heard from a woman just a couple days ago--a woman named Teresa-- who runs a little pet food store. She has trained all of her people on what is great nutrition. So when clients or customers come in, she can talk about the age of their pets, she can talk about what the nutritional problems are and give them advice and then, she said, only to watch them walk out the door with that advice and order that product on the Internet. One might say that is competition or whatever. But she is not afraid of competition. Her challenge is that if they buy in her store, the sales tax her city and State will charge is 9\1/2\ percent. So she is immediately at a 9\1/2\-percent disadvantage. Yet they use her expertise. I would like someone to explain to me how we can't be moved by a story such as that and to correct the inequity; how we can't be sophisticated enough as legislators to read an 11-page bill and understand what it says with all the staffing we have. I am confident, as we go forward, we are doing what is right. Any State that doesn't want to participate, any State that doesn't want to collect remote sales tax in this fashion, either streamlined or under the alternative process provided in the bill, does not have to pursue this collection mechanism. They can continue to do what they are doing. The bill talks about a remote seller who has sales over $1 million. This young woman said to us, when she was talking about her pet store, that she also runs a little online business. We asked: How would you feel? She said: I could only hope for $1 million of online sales. I would be glad to collect the tax if that was my business. She is a small businesswoman. So if we can't bring equity now, then when? We have been waiting 20 years. We have an opportunity to show this country and show those Main Street businesses, show our friends and neighbors who support the Little League, who support our school newspapers, who support our communities, that someone in this body cares. In fact, the majority of people in this body cares. In fact, a supermajority of this body cares, and we are listening to you. Maybe, in some small way--in some very small way--we will have told them Washington is still a place where people will listen and respond and actually get something done. That is what we are trying to do. I yield the floor.

Ms. HEITKAMP

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

Ms. HEITKAMP. Mr. President, I rise in response to my good friend, the Senator from New Hampshire, who obviously feels very passionately about the bill, as do all of us who have worked for years and years to try to create a marketplace that is fair and equitable for so many people in this country, particularly our brick-and-mortar Main Street businesses. I can certainly appreciate that remote sellers in New Hampshire who have, in fact, enjoyed a nice opportunity to move products into the marketplace free of any burden--unlike a Main Street business with any tax collection burden--that they do not want to lose that advantage they have. In many States that advantage can be quite significant. I want to give you an example. Today, in our news conference we heard from a woman named Teresa Miller. Teresa Miller sells pet supplies both in her store and remotely. She operates out of the State of Missouri, and in many of the jurisdictions where she sells pet supplies, the tax rate can be as high as 9.5 percent. She has a trained sales force that listens to customers' concerns about their pets and what their pets need in terms of nutrition. The customer will walk out of the store, never to return. It is pretty clear those customers are buying those products on the Internet having used the expertise of Ms. Miller's staff. I would suggest that is exactly the situation that we are trying to address. The Senator from New Hampshire raised a fair number of points which, ironically, can all be responded to and can be addressed by simply reading the bill. The first point I want to make is the point that someone will have to deal with upwards of 9,600 different jurisdictions. That is not true. In fact, this bill mandates that if you are going to expand your collection obligation to remote sellers, you need to participate as a State in a streamlined process either through the streamlined process that is already set up or you need to look at a bill or some kind of process in your State that will reduce those compliance burdens to simply 46 State jurisdictions. The other concerns that have been raised--and I want to just take a moment. Sometimes too often we do not actually look at what we are debating. I want to take a moment and talk a little bit about page 3 of the bill. Page 3 provides that in order to qualify, a single entity within the State responsible for all State and local taxes and return processing and audits for remote sales needs to be sourced to the State. There is a single audit requirement and a single State or use tax return. So these jurisdictions will be limited to simply one within the State. The bill clearly provides that. In discussing the certified software, talking about how that would provide additional burdens, again, understand this bill requires that certified software be provided for free to the remote seller. If the remote seller, in fact, does use the certified software, that certified software then gives them immunity from any future tax liability and audits and gives them basically the ability to say: I did my job. I did my due diligence. I used the software you told us to use. I do not expect that there is going to be an audit that could assess me any additional taxes having used that safe harbor. The next issue the Senator from New Hampshire raised is the effect of this bill on nexus requirements. It gets a little tricky because in law we have an obligation in this body to regulate interstate commerce. But what we do not, I believe--and some people may disagree. I believe, as a lawyer who has litigated a lot of cases, this body does not have the authority to determine due process standards under the Constitution. To reiterate, it is clearly stated that nothing in this bill affects State nexus. So when the good Senator from New Hampshire suggests that this will change nexus standards, that is absolutely incorrect. The final issue I want to touch on is the issue of the financial services tax. I want to make the point that in the bill itself it is clearly limited to imposing a sales and use tax obligation. It clearly states no other tax will be, in fact, affected by this bill. So I think frequently we get into discussions about what if. All of those discussions can be clearly clarified by simply reading the bill. That is what I would suggest. It is 11 pages. It is very straightforward. There has been a lot of work put into this piece of legislation over very many years, and a lot of accommodations, including an accommodation that you are only required to do this if you have $1 million in remote sales. I am going to close with the words of Teresa Miller. When someone asked her how she would feel about this, because she also markets on the Internet, she said she would be thrilled to have this obligation because it would mean that her remote sales exceeded $1 million. I yield the floor.

Ms. HEITKAMP. I suggest the absence of a quorum. The PRESIDING OFFICER (Ms. Warren.) The clerk will call the roll.