Jon Kyl

Mr. KYL

Mr. KYL. Madam President, I, too, would like to speak to the conference report on financial regulatory reform, which we will presumably vote on in a couple of hours. I think we all agree that the purpose of financial regulatory reform should have been to tackle the problems that led to the financial crisis in the first place. That means serious reform must, at the very least, end too-big-to-fail financial institutions and rein in two government-sponsored enterprises, the GSEs, Fannie Mae and Freddie Mac. But despite its size and the hype behind it, the bill before us fails in those two key respects. Moreover, even though Main Street did not cause the problem, the bill is so pervasive in its regulatory reach that it creates new burdens for Main Street businesses. I am not sure that is what the bill's supporters want or its authors intend, but that will be the result. For example, a July 4 Wall Street Journal news article entitled ``Finance Overall Casts Long Shadow on the Plains'' explains how new derivatives rules will harm America's livestock farmers. There are other problems with the bill. The biggest new problem it causes is the harm to the availability of credit, something our colleague, Senator Gregg from New Hampshire, has talked a lot about. It implements one-size-fits-all capital standards and uses flawed funding mechanisms. It also perpetuates bailouts, and burdens small businesses with new regulations, which I will speak about in a moment. Let me address a few of these problems in more detail: First, the cost and offsets of the bill; second, the failure to address the GSEs, Fannie Mae and Freddie Mac; and, third, the job-killing Consumer Financial Protection Bureau that will reduce available credit for American businesses and thus reduce job creation. First, the cost and offsets. The Congressional Budget Office has put the 10-year cost of the conference report bill at approximately $19 billion. That is the cost of this alleged new reform. Democrats initially tried to fund this obligation with a new tax imposed on large financial institutions. When that could not be sustained, they decided on a new funding mechanism that, as National Review recently editorialized, ``were a corporation to try it, would get its accountants sent to prison for fraud.'' Here is how it works. The bill would now ``cancel'' the Troubled Asset Relief Program, or TARP, a few months early, thus ``saving,'' theoretically, the government around $11 billion, even though it is highly unlikely that money would ever have been used to make additional TARP loans. That $11 billion would then be used to partially offset the cost of the bill. Remember, that is money that has to be borrowed. So instead of simply borrowing 11 billion fewer dollars, we are going to pretend as though we already have that money and that we can save it by not spending it on TARP, so we will spend it on this legislation. It is a double counting that National Review is right about: It would have put a private business CEO or CFO in jail if he had tried to do an accounting trick such as that. The TARP law moreover states that any money rescinded from TARP shall not be counted for the purpose of budget enforcement. But to avoid violating the so-called pay-go rule in the House, the conference report nevertheless uses this alleged savings to pay for the financial reform provisions, thereby violating both the letter and the spirit of the TARP law. And, as I said, taking these funds to pay for something else rather than rescinding them simply pushes our Nation deeper into debt. So with regard to the cost of the bill--$19 billion--and the offset, much of which is not a true offset but simple double accounting with money we don't own or have anyway, but have to borrow, is a bad way to do business, to say the least, especially on something that is called a financial reform bill. Now, I guess, fortunately, we have changed the name to reflect the authors of the bill. It is no longer the financial reform bill; it is now the Dodd- Frank bill. I appreciate the naming of the bill for my good friend, the Senator from Connecticut, but it is supposed to be about financial reform, and it isn't financial reform when you take money you don't have, spend it for something you are not legally able to spend it for, and call that an offset for the cost of the bill. Nevertheless, problem No. 2: Fannie and Freddie. It is just unconscionable that this bill doesn't attempt to reform in any way the two biggest causes of the problem: Fannie Mae and Freddie Mac. It was their reckless behavior that was a major cause of the financial crisis. It is not for lack of trying on Republicans' part. Our Democratic friends say: Well, we will do that later, maybe next year. I suggest doing that is highly improbable. The way things work around here is, when you do a comprehensive bill such as this, there are a lot of tradeoffs, a lot of different interests involved. If you can't include all of the elements in one bill, it is very difficult to find the political will to tackle the biggest problem of all--Fannie and Freddie--next year without the leverage of the other provisions of the bill to deal with. The behavior of these two institutions--these GSEs that have come to epitomize too big to fail--has surged through the entire commercial banking sector and our economy as a whole and has turned out to be one of the most expensive aftereffects of the financial crisis. For years, Fannie and Freddie made mortgages available to too many people who could not afford them. Smaller companies were crushed while the two GSEs and their shareholders reaped enormous profits, recklessly taking advantage of the government's implicit guarantee to purchase trillions of dollars worth of bad mortgages, including those made to risky, so- called subprime borrowers. It was a textbook example of moral hazard on a massive scale. I was reminded of what I am speaking of this morning driving in and hearing an ad on the radio which said that through Fannie Mae, you could get a mortgage for 105 percent of the value of your home. Now that means that immediately you are so-called underwater; that is to say, you owe more than your home is worth. Why are we immediately making the same mistake with Fannie Mae that got us into the problem in the first place, where the mortgages exceeded the value of the homes? I don't understand it. The easy credit that was provided before is what helped to fuel the rising home prices that created the inflated housing bubble, especially in the subprime mortgage market. As prices rose, so too did the demand for even larger mortgages, so Fannie and Freddie looked for ways to make even more credit available to borrowers. But, of course, when the market collapsed, the two GSEs were left with billions of dollars of bad debt. By 2008 they held nearly $5 trillion in mortgages and mortgage-backed securities. They were overleveraged but, unfortunately, deemed too big to fail. So what do we have today? Fannie and Freddie hold a combined $8.1 trillion of outstanding debt. Think of that: $8.1 trillion. In total, taxpayers have lost already $145 billion bailing them out. When Secretary of the Treasury Geithner lifted the bailout cap last December, it put the taxpayers on the hook for the remainder of these losses, for unlimited losses at these two institutions. So let's be clear. Every day that Fannie and Freddie remain in their current form is a day that U.S. taxpayers are subsidizing the failed policies of the past. I think it is very doubtful we are going to get meaningful reform of Fannie and Freddie when it couldn't be done in the bill that is supposed to deal with all of the underlying problems that created the recession we are in now. The third problem: Harming small business through ``consumer protection.'' It harms far more than small business; it harms everyone who is attempting to get credit. As our friend and colleague, Senator Gregg, has said many times on this floor, perhaps the biggest problem with this legislation is the fact that it is going to make credit much more expensive for everyone. But let's start with small businesses. In my home State of Arizona and across the country, these are the entities that hire. They are supposed to be the first ones that hire coming out of a recession. The way they do that is to have access to credit. Well, they are obviously very wary of the intrusive new bureaucracy that masquerades as consumer protection in this bill, but which would compound the problem of credit availability. All of us here support the concept of consumer protection, so let's don't get off on a tangent of being for or against consumer protection. We all support that. The question is, How do you do it? Safeguards can be strengthened without creating a new regulatory bureaucracy with the powers that exist in this bill and all of the untoward ramifications that result. Unfortunately, the conference report maintains, with very little change, the flawed Consumer Financial Protection Bureau from the bill that was passed in the Senate, the so-called CFPB. It is housed in and funded by the Federal Reserve but theoretically would operate as an independent agency with an enormous budget and with rule-writing ability and enforcement authority that I think will, in fact, create independence from the Fed. The CFPB could significantly reduce credit access for small businesses and thereby jeopardize America's economic recovery. Without available credit, companies cannot grow and consequently will not hire additional American workers. Obviously, that is not what the bill's authors intended, but it is the inevitable result. The new bureau will have a say in almost every aspect of American business. In an attempt to ensure--and I am quoting now--``ensure the fair, equitable and nondiscriminatory access to credit for individuals and communities''--the wording in the law--the new bureau will have latitude to impose its will, with few checks and balances, on American credit providers, all of which will result in more expense, more regulation, higher costs for consumers, and less availability of credit. The CFPB also exposes companies to very costly compliance and extensive enforcement proceedings, including potentially frivolous lawsuits, by eliminating national preemption and other means. In my view, the potentially serious costs of this bureau do not justify its purported benefits. Consumer protection could have been accomplished in much less intrusive and fairer ways. We all want to shield consumers from abuses and exploitation, but this is obviously not the right way to do it. So we should ask ourselves one question: Why is it that the CEOs of some of the largest companies on Wall Street, some of the largest financial institutions, actually favor this bill? Well, it is no skin off their backs. They have the money, and they have the resources and the personnel to deal with its complexity and to put the money up front and then charge the consumers on down the line. It would entrench their privileged status, as they have the resources to maneuver around its provisions, as I said, and would certainly institutionalize the idea that certain big financial firms deserve preferential treatment by Federal regulators. So for all of the reasons I have discussed, as well as others, and despite my strong desire to enact prudent financial reforms, I think this legislation is misguided. I can't support it, and I urge my colleagues to vote against it.

Mr. KYL

Mr. KYL. Madam President, it is my honor to help host our guest Chaplain from Arizona, Rev. Donna Kafer. On behalf of Senator McCain and myself, I thank the Senate Chaplain and all others who have been so courteous to Reverend Kafer on her visit to Washington. She, I understand from the Chaplain, is the first legislative chaplain to provide the opening prayer in the Senate and only the second woman to have done so. There are milestones achieved today, and we appreciate her being with us. She has been the chaplain at the Arizona State Legislature for over 10 years through her nonprofit organization called Leadership Challenge of Arizona. She also serves as the Arizona area coordinator of the Daughters of Destiny Network, which is a women's prison ministry based out of Colorado Springs. She travels throughout the United States sharing her testimony with incarcerated women, encouraging them and sharing the freedom that is offered through the saving grace of Jesus Christ. Donna is an Arizona native. She and her husband Ross, a firefighter paramedic for almost 20 years, live in the Phoenix metropolitan area and have a daughter, Andrea Elizabeth. It is our proud opportunity to help to host her today and thank her for opening the Senate with that beautiful prayer.

Mr. KYL

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

Mr. KYL. Mr. President, I just want to take a moment to ask unanimous consent to have printed in the Record, at the conclusion of my remarks, an editorial dated today from the Arizona Republic. That is my hometown newspaper in Phoenix, AZ.

Mr. KYL. The editorial is entitled ``End run denies public a debate on health care.'' The point of the editorial is that while we had a very long debate over the so-called health care legislation--I think the name of the act was the Patient Protection and Affordable Health Care Act--we never had the kind of debate that would have edified the American public on the general question of a government-run health care system versus one that was more amenable to the doctor-patient relationship and the privacy that Republicans were suggesting was a better way to go. What the editorial says is that the President's recess appointment of Dr. Berwick obviated the kind of debate that could have occurred had he gone through the regular nomination process and had a hearing at which his views could be elicited, and we could have then debated whether he, with his views, was the right person to head the CMS, which is the entity that will be running the program. The editorial concludes with these comments, after noting that even Democratic leaders in the Senate were perplexed by the recess appointment, noting Senate Finance Committee chairman, Max Baucus, saying he was ``troubled'' by the move. The editorial concludes: Considering how dubious the public remains about Obamacare, there is every reason to believe the Republicans really did want an exchange with the candid, erudite Berwick. The recess appointment strongly suggests the White House simply did not want to have another fight over the contentious health care issue. Political parties can be devious. History is littered with appointments delayed to death out of little more than spite. This wasn't one of those appointments. Dr. Berwick will head a federal agency that spends $800 billion a year. The public deserves to know what he thinks. The point is, we would have had an opportunity to know what Dr. Berwick thinks and for the American people to express themselves on that issue through their representatives in the Senate had we gone through the regular nomination process. But because the President decided to short-circuit that while we were off and back home on our July 4th recess, and made the recess appointment, we will never have that opportunity. As the editorial notes, that is lamentable. It denies the public an opportunity they would have had to understand better what his point of view was and perhaps to have a debate about the general underlying nature of the health care bill that was passed. Exhibit 1 [From the Arizona Republic, July 13, 2010] End Run Denies Public a Debate on Health Care Crazy as it sounds, we did not have a real ``debate'' over health care lo those many months prior to the passage of the Patient Protection and Affordable Care Act in March. Basically, the warring factions had an 18-month fight over interpretations. President Barack Obama and Democrats interpreted the new law as one that would, affirmatively, lower costs, preserve existing options, extend coverage near-universally and improve care overall. On defense against the interpretations of mostly Republican critics, they argued the plan did not constitute socialized medicine, was not a Washington power grab, would not explode costs, would not create ``death panels,'' would not reduce insurance options, would not foist new burdens on the states, and wouldn't increase federal deficit spending. It was a debate over the meaning of a constantly evolving bill, not one of competing philosophies. But a debate over the efficacy of a centralized, govemment- led health-care system vs. a decentralized, mostly private system? Rarely was the epic struggle ever that straightforward. Senate hearings on the appointment of Obama's nominee to head the Centers for Medicare & Medicaid Services, Dr. Donald Berwick, would have been a great opportunity to hear those debates, at long last. Unfortunately, that isn't going to happen. The president short-circuited those hearings by using his power to make appointments during congressional recesses. According to a White House spokesman, the president anticipated Republican obstructionism, and so performed the end run. That explanation is debatable. There was no discernable ``impasse'' on the Berwick appointment. Republicans claim they greatly anticipated the Berwick hearings, given the Harvard-educated pediatrician's candid commentary over the years about his enthusiasm for a single- payer health-care system similar to that of Great Britain. Likewise, Democratic leaders in the Senate also were perplexed at the recess appointment. Senate Finance Committee Chairman Max Baucus of Montana said he was ``troubled'' by the move. Considering how dubious the public remains about Obamacare, there is every reason to believe the Republicans really did want an exchange with the candid, erudite Berwick. The recess appointment strongly suggests the White House simply did not want to have another fight over the contentious health-care issue. Political parties can be devious. History is littered with appointments delayed to death out of little more than spite. This wasn't one of those appointments. Dr. Berwick will head a federal agency that spends $800 billion a year. The public deserves to know what he thinks.

Mr. KYL. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Thank you, Mr. President. Now let me set the record straight. Republicans have never said no to Dr. Berwick. We have never blocked a vote on Dr. Berwick. There has never been a vote called on Dr. Berwick. In fact, there has never even been a hearing on Dr. Berwick. Republicans have not stopped his nomination. It is true there hasn't been a permanent director of the agency that Dr. Berwick will now head since 2006. When Barack Obama became President on January 20, he could have corrected that problem. But I suspect the reason he didn't nominate anyone to head CMS during the debate on the health care bill is because if Dr. Berwick was his nominee, the last thing the President wanted was a discussion of Dr. Berwick's views on health care. His views are antithetical to the views of the majority of the American people, supporting rationing, as he does, and his love affair with the British single payer system, as he has described it. This is not something the American people would have countenanced. So Barack Obama, the President, rather than filling the position, decided to hold off on nominating a person to head CMS until after the health care debate was over. Now, this is bait and switch. This is not the transparency that Barack Obama promised when he campaigned for the job of President. Instead, in my view, it is hiding the ball: Let's get health care passed, not tell anybody we are going to nominate Dr. Berwick to head CMS, and then, after the bill is passed--in fact, I think about 4 months after the bill is passed--nominate Dr. Berwick, and then have the gall to say Republicans stopped his nomination. We haven't stopped his nomination. There has been nothing for us to stop. There has been no vote. I am on the Finance Committee. The chairman of the Finance Committee, a Democrat, Max Baucus from Montana, was very upset about the fact that the President appointed Dr. Berwick because he said: I haven't even had a chance to call a hearing yet. Republicans stopped the nomination? No, we didn't stop it. Has there been a vote on the floor of the Senate? No. Has there been an attempt to have a vote? No. So how could we have filibustered a nominee who hasn't had a hearing, when his name hasn't even been brought up in committee, and who hasn't been sent to the Senate floor for action? Well, they say: We anticipated you would have objected to him. Yes, that is true. Knowing all we know about him, you are right; a lot of us would have objected to him. So bring him up for a vote, and let's have the vote, up or down. If he has the votes to pass, he passes. If he doesn't, then perhaps the American people's will has been expressed. I wish to remind my colleagues that the ranking Republican on the Senate Finance Committee, Chuck Grassley, requested a hearing for Dr. Berwick. He requested that it take place the week of June 21. Why? That was before the hearings for the Supreme Court nominee, Elena Kagan. The reason Senator Grassley did that was because he wanted to make sure for the several of us--there are three Republicans and I know at least one Democrat who serve on both the Judiciary Committee and the Finance Committee. He wanted to make sure we would have an opportunity to attend both hearings because we knew the time the Elena Kagan hearings were going to be held in the Judiciary Committee. He specifically requested that Senator Baucus schedule the hearing for Dr. Berwick the week of June 21. He would have been happy to be there. I would have been happy to be there. For anybody to suggest that Republicans are to blame for the fact that Dr. Berwick's nomination didn't come to a vote or wasn't brought to the Senate floor is sheer fantasy. We have not held up the nomination. We have not prevented a vote. We have not blocked the vote. Yes, we have been critical of Dr. Berwick. Since when is that a crime? Since when is that the party of no? Let me mention a few of the reasons we are critical of Dr. Berwick and why the American people are going to rue the day that the President, while we were gone from Washington over the July 4 recess, recess-appointed Dr. Berwick. He didn't go through the regular Senate process. He made a recess appointment before Senators had an opportunity to have a hearing or to have a vote. Well, I think I know some of the reasons. First of all, his radical views on health care policy. I am not going to quote all of the things he has said, but he did describe his love of the British single payer system in very poetic terms. He said he was in love with it. He has described it in the most glowing terms. He said his preference is for absolute caps on health care expenditures in the United States. He says competition is one of the biggest problems in American health care. He says he believes in one-size-fits-all care. That is a direct quotation. Everything I have said here are quotations from different things he has written, all the way from 1992 through 2008. We wanted to hear more about some of these views, especially since the CMS, or Center for Medicare and Medicaid Services of the Department of Health Care that he will head up, is in charge of administering the health care law we passed, a law that does--let me just mention four specific things it does, with a budget, as I said, larger than the Pentagon budget. I think he has something like $803 billion in benefits this fiscal year that he has the opportunity to dole out. So there is a great deal of power. First of all, we know the bill establishes a Medicare commission which is given the responsibility of finding sources of excess cost growth, meaning tests and treatments that are too expensive or whose coverage would mean too much government spending on seniors. There is an opportunity for rationing. The law will redistribute Medicare payments to physicians based on how much they spend treating seniors. That is a way they can adjust the payments and, therefore, determine care. Third, it will rely on recommendations from the U.S. Preventive Services Task Force--that is the entity that last year recommended against mammograms for women under the age of 50--in order to set preventive health care benefits, which is another form of rationing. Finally, it will authorize the Federal Government to use comparative effectiveness research, or CER, when making Medicare determinations. Republicans tried to get on a simple amendment to that to say: OK, you can compare effectiveness research but not to deny coverage based on cost. Our attempts to get that amendment passed were defeated. Why? Because they wanted to leave the flexibility in the law for the head of CMS, now Dr. Berwick, to ration care. What is done in Great Britain is what he says is good policy. He said: It's not a formula for comfort; it's a formula for constructive discomfort. He described in several other ways the fact that this would be something people would not like but they would get used to it and have to abide by it. He said: The decision is not whether or not we will ration care; the decision is whether we will ration with our eyes open. Indeed, at least his eyes will be open--the people who make the decisions on whether we can get health care for our families and what it is. He will know what is happening, but will we know until it is too late? We didn't even have a chance to ask Dr. Berwick questions about this because he never was given a hearing. We weren't given that opportunity. Instead, the President waits until we are out of town over the Fourth of July recess and recess-appoints the individual so that he doesn't have to have a hearing or a Senate vote. Here is another comment from Dr. Berwick: I would place a commitment to excellence--standardization to the best-known method--above clinician autonomy as a rule for care. That means the doctor gets to decide what happens to the patient, along with the patient, as opposed to standardization of the best known method, with a bunch of bureaucrats figuring out in a cookie-cutter way what kind of treatment is less costly and therefore best for people who receive government-paid health care. True, this is the way it is done in some other countries that he thinks are great in terms of their health care system. That is not the way it ought to be in the United States. By this individual now receiving this nomination and this appointment, he now will be the person who helps to determine that standardization rather than the clinician autonomy we have today. Again, Dr. Berwick will head the agency in charge of implementing much of the new health care law. He will have the responsibility to determine what your health care coverage entails. He is the person whom the President appointed to reduce the government's health care costs. I can guarantee you how that reduction will occur: it will occur when they decide that standardization requires that the government only approve the following kinds of treatment or drugs or services, and too bad if you expected something greater than that. Given Dr. Berwick's philosophy, public comments, and writings about rationing, I think we have a pretty clear picture of where he will look to achieve those savings. In 1996, he wrote a book entitled ``New Rules.'' He and his coauthor recommended ``protocols, guidelines, and algorithms for care,'' with the ``common underlying notion that someone knows or can discover the best way to carry out a task to reach a decision, and that improvement can come from standardizing processes and behaviors to conform to this ideal model.'' This is extraordinarily distressing when we are learning every day of innovative ways physicians and scientists have come up with to treat diseases and chronic conditions and illnesses--with new kinds of drugs, with other kinds of treatment, avoiding surgery in many cases, and now, importantly, using genomic research. The TGEN Institute in Phoenix, AZ, for example, is pioneering work involving the human genome so that ultimately we can determine what is best for each individual person in terms of a treatment. You may have breast cancer, for example, but physicians know all breast cancers are not the same and they are not all treated the same way. One woman can be treated with a particular form of radiation or chemotherapy or surgery, and yet for another person who seemingly has the same cancer, that treatment doesn't seem to work. Through human genome research, they basically map out each person's gene history, family history, and gene makeup in such a way as to know whether various kinds of treatment will be accepted or tolerated or successfully completed for each patient. They can tailor the treatments or the drugs for each particular patient. If you have standardization of processes and behaviors to conform to this ``ideal model,'' to quote Dr. Berwick, you are going to get away from the kinds of treatments that could really be breathtakingly innovative for the future and could save many lives and improve our quality of life for as long as we live. This is the future. The future isn't cookie-cutter medicine where the doctor has to do exactly what some group of bureaucrats says because they performed a test someplace and that was the most efficient way to treat the particular patient. Another couple of things. Dr. Berwick expressed his disapproval for costly cutting-edge medical technologies and has said prevention services such as ``annual physicals, screening tests, and other measures'' are ``over-demanded.'' One of the things we did in the health care legislation was provide a lot of different incentives for preventive care, for screening, to try to help people avoid illnesses on the theory that it would be a lot cheaper if we didn't do a lot of treatment that was unnecessary. If you could identify in advance that an individual had a need for some treatment, maybe you could catch the disease, say, the cancer, early and not have the expensive treatment, the end-of-life kind of care that is frequently very expensive. Let me close with a couple of things. The Wall Street Journal editorialized about Dr. Berwick's vision, saying this: Such a command-and-control vision is widespread among America's technocratic medical left, but it is also increasingly anachronistic amid today's breakneck medical progress. There isn't a single ``ideal model'' in a world of treatments tailored to the genetic patterns of specific cancers, or for the artificial pancreas for individual diabetics, or other innovations that are increasingly common. This is nonetheless where Dr. Berwick . . . will look for his ``savings.'' As CMS Administrator, Dr. Berwick will not only oversee billions in Federal spending but will be responsible for programs that cover millions of lives. It is perplexing, to say the least, that such an important position would bypass Senate consideration, without even so much as holding a hearing. Moreover, this appointment is just the latest self-contradiction of an administration that claimed it would be the most transparent in history. We now have another example of the lack of transparency--the President recess-appointing someone, I believe, in order to avoid having a hearing and to avoid having a debate that would inform the American people of the kind of person the President was putting into this enormously important position. Mr. President, I express the same concern Leader McConnell expressed. We regret that the President has seen fit to do this. I understand he can appoint anybody he wants, but what I really resent is turning around and having a spokesman for the President say that somehow or other the fact that he didn't have a hearing or the fact that he never was voted on is somehow the Republicans' fault. We had nothing to do with the fact that he didn't have a hearing. We asked for a hearing. We had nothing to do with the fact that he never had a vote. We never objected to any vote. There has never been a question of having a vote. Nobody ever said, in the Finance Committee or on the Senate floor, let's vote on Dr. Berwick. We had nothing to object to. The President can make the appointment if he wants to. We can still debate his qualifications even though he will now serve in this position. But to blame Republicans for having to do it in this nontransparent way is wrong, and I think Republicans are going to continue to demonstrate to the American people why this is a nominee who should have been aired out in public rather than appointed during the July 4 recess.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Kansas (Mr. Brownback), the Senator from Florida (Mr. LeMieux), the Senator from Alaska (Ms. Murkowski), the Senator from Kansas (Mr. Roberts), the Senator from Alabama (Mr. Sessions), and the Senator from Louisiana (Mr. Vitter).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. DeMint), the Senator from Kansas (Mr. Roberts), and the Senator from Missouri (Mr. Bond). Further, if present and voting, the Senator from South Carolina (Mr. DeMint) would have voted ``nay.''

Mr. KYL

Mr. KYL. Mr. President, during a recordbreaking six decades of public service, Senator Byrd served this Nation with diligence and spirit. As a legislator, Senator Byrd had many notable qualities, particularly his legendary oratory skills and his masterful knowledge of Senate procedure. Having authored a four-volume history of this Chamber, he understood its nuances and intricacies, and he was an articulate spokesman for protecting procedural rules. Senator Byrd kept a copy of the Constitution in his pocket, and he could recite it from memory. He was always first to remind us that the Framers intended the Senate to be different from the House of Representatives and to stand as a bastion of individual and minority rights. He celebrated these distinctions serving as they do the fundamental principle of checks and balances within the legislative branch. At a recent Rules Committee hearing, Senator Byrd said: The Senate is the only place in government where the rights of a numerical minority are so protected. The Senate is a forum of the States, where regardless of size or population, all States have an equal voice. . . . Without the protection of unlimited debate, small States like West Virginia might be trampled. Extended deliberation and debate--when employed judiciously--protect every Senator, and the interests of their constituency, and are essential to the protection of the liberties of a free people. Senator Byrd's insights, expertise, and constitutional scholarship will truly be missed. They are a great part of his legacy, one that I hope will be honored for generations. On a personal note, I will mention that while Senator Byrd and I did not share a perspective on many matters of public policy, we had a common appreciation for bluegrass music. I always enjoyed talking with him about that subject. He was a talented fiddler, playing on stage, on television, and while campaigning for office. He even recorded an album entitled ``Mountain Fiddler.'' He gave me a copy, and I was very impressed with his skill. Robert Byrd's knowledge, his hard work, his high spirit, and dedication to the people of West Virginia will always be remembered. My wife Caryll and I extend our thoughts and prayers to his family.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Utah (Mr. Bennett), the Senator from Missouri (Mr. Bond), the Senator from Kansas (Mr. Brownback), the Senator from North Carolina (Mr. Burr), the Senator from New Hampshire (Mr. Gregg), the Senator from Florida (Mr. LeMieux), the Senator from Alaska (Ms. Murkowski), the Senator from Alabama (Mr. Shelby), the Senator from Louisiana (Mr. Vitter), and the Senator from Ohio (Mr. Voinovich).

Mr. KYL

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

Mr. KYL. Mr. President, I wish to speak on the Iran sanctions conference report which I assume we will be approving in a matter of a few minutes. This is a very important event in the Congress and could play a very significant role in the history of our country. I support the conference report. It is designated as H.R. 2194. I reiterate, I believe it is crucial that the Senate approve the conference report and that the President sign it into law as soon as possible. I fully predict both of those things will occur. Let me mention three of the most important provisions of the bill so we know what it does. It deals with sanctions against Iran. There are two reasons: No. 1, to prevent Iran from acquiring a nuclear capability, and No. 2, to support the aspirations of the people of Iran for a more representative government. What the bill does first is to expand the scope of existing sanctions against companies that invest in Iran's energy sector, and it includes measures to punish firms that export gasoline to Iran. We would think a country such as Iran would have plenty of gasoline, but they do not have refinery capacity to create the finished product which their people must use. So something on the order of at least 40 percent of their gasoline has to be imported. Because of this heavy dependence on imported gasoline, it is vulnerable to outside pressure, and that is why this particular sanction is an important step. By putting a squeeze on Iran's gas supplies and dissuading energy firms from investing in the country, we can hopefully force the Iranian regime to make difficult decisions about its finances, thereby further increasing its unpopularity. Second, the bill limits nuclear cooperation agreements between the United States and countries which sell illicit materials to Iran. It also limits licenses under any such current agreements. A country that allows its citizens or companies to provide equipment or technologies or materials to Iran that make a material contribution to its nuclear capabilities should not benefit from nuclear cooperation with the United States, and we make it clear that won't be permitted under this provision. The third thing the bill does is it includes the so-called McCain language that requires the President to compile a list of Iranian officials, specific people who have brutalized the Iranian people, and to impose sanctions against those particular individuals identified as human rights violators. The administration can use the new authority it is given in this legislation to publicly identify those people in the Iranian Government who are actually responsible for perpetrating human rights violations in Iran since the fraudulent elections in June of 2009. It can hold these people accountable through these targeted sanctions. The measure also requires that such persons be subject to restrictions on financial and property transactions. It also makes such persons ineligible for U.S. visas. We can see there is a broad array of targeted kinds of sanctions that, combined, could have a significant impact on our policy with Iran. While I am pleased that the conferees concluded their work and the legislation is here on the floor, I do wish to note in passing that it is long overdue. At the request of the administration, Congress has repeatedly delayed action on bilateral sanctions legislation. Because sanctions take time to work, we have given up some time here. In some respects, we have wasted too much time waiting for the United Nations to finally act, as it eventually did earlier this month. The U.N. Security Council resolution, however, will do very little to slow down or stop Iran's nuclear weapons program or even prevent its support for terrorism around the world. Its provisions--the bulk of them--are voluntary. They don't deal with Iran's energy sector. This is primarily because of the demand of the Chinese Government. It also excludes Russia's cooperation with Iran on the Bushehr powerplant as well as the sale by Russia of the S-300 missile system to Iran, a very modern and effective anti-aircraft system which could certainly play a role in defending Iran against an attack on its nuclear facilities. In addition, the divided vote of the Security Council displays to Iran that the world is not united in dealing with its illicit conduct. In fact, I argue that, in a way, we are in a worse position than we were 18 months ago when the President started his diplomacy in dealing with Iran. Up to then, all of the resolutions that had been passed against Iran had been unanimous. This one was not unanimous. In some respects, we have lost ground. It is clear that the President's effort to get the Iranian regime to negotiate for that 18-month period did not achieve anything except allow the Iranians more time to develop their weaponry. The U.S. sanctions resolution is not going to be very effective in going any further than that, in my view, nor will the European Union add much to the U.N. resolution, although they will add something. Before I conclude, let me ponder for a second a question others have asked, which is, How important is it that we do everything we can to prevent Iran from acquiring a nuclear weapon? What would happen if it did acquire a nuclear weapon? What would be the big deal? Imagine a world in which Iran does have a nuclear weapon. Lay aside the fact that we have a picture of the Iranian leader, Ahmadinejad, with a nuclear weapon and just imagine what he would do with that. Would it really be possible to contain a nuclear Iran using conventional deterrence mechanisms? Some would say: We lived with a nuclear-armed Soviet Union for four decades. It worked with Moscow; why would it not work with Tehran? To some extent, it depends on the definition of ``work.'' Will it work? Remember that while the Soviets never actually used their nuclear weapons, the fact that they possessed the weapons made a big difference in political events over those 40 years. It allowed them to subjugate Eastern Europe, and we had no way of responding. Had we tried to respond, there was the nuclear threat against us. It allowed them to foment a Communist revolution around the world and to sponsor a range of international terrorist groups during this period of time. When the Soviets invaded Hungary in 1956 in order to crush a democratic uprising, they knew the risk of a nuclear exchange would prevent the United States from responding with military force. I remember at that time the disappointment of the Hungarians who thought the United States had led them to think we would be supportive. In effect, there was nothing we could do that wouldn't potentially provoke a nuclear attack by Russia, and nobody wanted that. In other words, Moscow's nuclear arsenal served as the ultimate deterrent. It allowed the Kremlin to undermine U.S. interests across the globe without fear of an American reprisal. The Soviets didn't need to use their nuclear weapons in order to achieve results; the mere fact that it had nuclear weapons dramatically increased both its strategic power and its leverage over foreign policy and, to some extent, over the United States. The same would be true if Iran acquired nuclear weapons. Even if the mullahs never actually detonated a nuclear bomb, their acquisition of a nuclear capability would forever change Iran's regional and global influence, and it would certainly forever change the Middle East. If Iran went nuclear, its neighbors--thinking particularly of Egypt, Saudi Arabia, and Turkey--might feel compelled to pursue their own nuclear arsenals. Tehran could easily trigger a dangerous chain reaction of nuclear proliferation. Once they had nuclear weapons, the Iranians would be much more aggressive in supporting terrorist organizations that are killing even American troops, for example, in Iraq. The Iranians would also ramp up their support for Hezbollah and Hamas and possibly provide them with nuclear materials. They would be emboldened to conduct economic warfare against the West, for example, by disrupting oil shipments traveling through the Straits of Hormuz. Iran would also be more confident about expanding its footprint in Latin America, where it has established a close working relationship with Venezuelan strongman Hugo Chavez. Governments around the world would lose faith in America's reliability as a strategic partner. U.S. credibility would be irrevocably weakened. Remember, this is not the worst-case scenario. We are assuming that a self-preservation instinct would dissuade the Iranians from ever launching nuclear weapons against our allies or even the United States. But then again, is this really a safe assumption? Iranian leader Ahmadinejad has repeatedly expressed his desire to destroy the State of Israel, and given his radical, millenarian religious views and the viciously anti-Semitic ideology espoused by the Iranian theocracy, we can't simply dismiss the idea that Iran would attack Israel with nuclear weapons. Because the United Nations took so long to act and because its sanctions are relatively weak, there is also the possibility, as the Jerusalem Post pointed out in an article entitled ``Too Little, Too Very Late,'' that U.N. sanctions could lull the international community into a false sense of security. That is where the action we take today could really help. Here is what the Post wrote: Breaking and evading these sanctions-- Talking about the U.S. sanctions-- ought to be a breeze for Ahmadinejad. A full year after Iran's deceptive elections, which spurred countrywide demonstrations, he may be less popular but his position is stable. After the regime brutally quashed his opposition, it is very doubtful that stunted sanctions will destabilize his hold on power. . . . [The U.N.] sanctions . . . are not the antidote to the Iranian nuclear threat that Israel had hoped for and that the free world so badly needs. In some ways, they may even exacerbate Israel's predicament. They will lend the appearance of an international mobilization to curb Iran's nuclear weapons ambitions, but in actuality will achieve nothing--the worst of all worlds. That is why I think the United States separate sanctions authorized by the legislation we will vote on shortly are so important to come in behind the United Nations sanctions and what the European Union might do to supplement those actions in a way that will truly be meaningful. Finally, I want to note something that, frankly, is as important as everything else I have said and should be seen as part and parcel to our action in adopting this sanctions legislation. It has nothing to do with nuclear weapons, but it has everything to do with human rights. We need to make it very clear to the Iranian people that we care about them, we care about their aspirations for more freedom, for more representative government, and for the ability to take advantage of the opportunities their country should be presenting for them. We can help the people of Iran achieve those aspirations by putting pressure on the people who prevent that from occurring, the regime in Tehran, the mullah-led government. These sanctions can have an impact on those mullahs and, in turn, help the Iranian people achieve their goals. We need to be lending moral and rhetorical support to the Iranian activists. These are the people who poured into the streets last summer in protest of a fraudulent election. Just as we championed the cause of Soviet and Eastern European dissidents during the Cold War, I believe we should promote the efforts of Iranian freedom fighters and, frankly, shine a spotlight on the regime's brutal repression. That can be done especially through the McCain provisions that are part of the Iran sanctions legislation we are considering. Had the United Nations imposed strong sanctions on Iran a long time ago when it was first found to be in violation of the Nuclear Non- Proliferation Treaty, I would be more optimistic about our chances of success. Iran's economy would have been under severe strain for an extended period, and the government would have had fewer resources to fund its nuclear program and less power to repress its people. As I said, there is still time, and because we are able to approve this conference report today and send it to the President for his signature, we are able to add to the sanctions that the rest of the world is willing to impose in such a way as to not only have an opportunity to dissuade the Iranian leaders from pursuing their nuclear program but, as I said, just as importantly, to demonstrate to the Iranian people we aim to support them in their quest for greater freedom. So I hope my colleagues will send a very strong message with a unanimous vote for the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2009. I hope the President will sign this legislation immediately and begin to implement its provisions. Mr. President, there is a long list of folks to thank: Representatives Berman and Harman and Cantor in the House of Representatives are just some who come to mind; Senator Lieberman and Senator Bayh, colleagues in the Senate; the leaders, Leader Reid and Leader McConnell, who have worked to bring this report to us for a vote today in an expedited way. I think this is a very good example of cooperation both between the House and the Senate and between Democrats and Republicans to accomplish something that is not just good for the people of the United States of America but people around the world--in the Middle East, and in particular the people of Iran. So I urge my colleagues to unanimously support the conference report when we have an opportunity to vote on it shortly. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. I thank my colleague from North Dakota for his work on this important bill. We held a field hearing in my State of Arizona on an early version of this bill. There we heard from tribal leaders about violence in their communities. In 2009, the Bureau of Indian Affairs reported that in my home State of Arizona the San Carlos Apache Tribe endured a violent crime rate that is more than six times the national average and the White Mountain Apache Tribe suffered a violent crime rate more than four times the national average. On the southern border, the Tohono O'odham Nation needs assistance in addressing the onslaught of Mexican drug and human traffickers that exploit the sprawling reservation, which is the size of the State of Connecticut. I would like to address changes made to section 201 of the Tribal Law and Order Act that concern Public Law No. 83-280, commonly known as Public Law. 280. This law was enacted on August 15, 1953. Public Law 280 removed the Federal Government's special Indian country law enforcement jurisdiction over almost all Indian lands in the States of Alaska, upon statehood, California, Minnesota, Nebraska, Oregon, and Wisconsin, and permitted these States to exercise criminal jurisdiction over those lands. The act specifically provides that these states ``shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country . . . to the same extent that such State . . . has jurisdiction over offenses committed elsewhere within the State . . . and the criminal laws of such State . . . shall have the same force and effect within such Indian country as they have elsewhere within the State.'' Public Law 280 has been a mixed bag for both tribes and States. The States that are subject to Public Law 280 possess authority and responsibility to investigate and prosecute crimes committed on reservations, but, because of subsequent court decisions that sharply limited the extent of Public Law 280's grant of civil jurisdiction to affected states, these states have almost no ability to raise revenue on Public Law 280 lands. And to the extent that tribal governments retained concurrent jurisdiction over crimes committed by Indians on these lands, such authority is currently limited, as my colleague from North Dakota states, to no more than 1 year for any one offense. Thus, residents of reservations subject to Public Law 280 have to rely principally on sometimes underfunded local and state law enforcement authorities to prosecute reservation crimes. Section 201 of the Tribal Law and Order Act of 2010 allows the Federal Government to reassume criminal jurisdiction on Public Law 280 lands when the affected Indian tribe requests the U.S. Attorney General do so. If the Attorney General concurs, the United States will reassume jurisdiction to prosecute violations of the General and Major Crimes Acts, sections 1152 and 1153 of title 18, that occur on the requesting tribe's reservation. The bill makes clear that, once the United States reassumes jurisdiction pursuant to this provision, criminal authority on the affected reservation will be concurrent among the Federal and State governments and, ``where applicable,'' tribal governments. Mr. President, I would like to ask the sponsor of the bill to make clear that nothing in the Tribal Law and Order Act retracts jurisdiction from the State governments, and nothing in the act will grant criminal jurisdiction in Indian country to an Indian tribe that does not currently have criminal jurisdiction over such land.

Mr. KYL. Mr. President, I concur with the interpretation of this provision expressed by my colleague from North Dakota.

Mr. KYL

Mr. KYL. Madam President, I will not take 2 minutes. First let me say that I associate myself fully with the remarks of my colleague, the senior Senator from Maine. Her analysis and criticism of the so-called S corp provision and retroactive tax provisions should be heeded by all of us. I thank my colleague from Maine for her indefatigable work on this bill and her leadership to reduce its costs and fix its bad policy. She has spent countless hours working in a bipartisan way to develop an approach that will extend unemployment benefits, ensure physicians are paid properly for caring for Medicare patients, and reduce the fiscal impact of the bill. It is certainly through no fault of her own that the product before us remains unsupportable. No one has fought harder to support the small businesses that create jobs in America than Senator Snowe. We need to extend the tax provisions in this bill and achieve its other objectives. Like my colleague, I hope we can reach the right result, one that responds to our constituents' pleas that we stop spending and taxing and focus on job creation and economic growth. The other side has offered several versions of the so-called tax extenders legislation. Unfortunately, each version has had at least two things in common with the previous versions--an increase in taxes and spending that leads to increased deficits. The provisions raising taxes are permanent changes even though they are being used to offset short- term tax cuts. I would like to focus on one of these tax increases that will be particularly harmful to many of our Nation's small businesses, which are incorporated as S corporations. Currently, limited partners pay payroll and other employment taxes on payments received for the services that they provide. Partners in small businesses organized as S corporations pay employment taxes on their compensation even if the earnings are not distributed. The Baucus substitute filed last night would essentially require partners providing ``professional services'' to pay payroll taxes on their investment income as well. The intent of the provision is to prevent cases of abuse as when former Senator John Edwards used the organization of an S corporation to avoid paying the 2.9 percent Medicare tax he owed as a lawyer on his wages. Edwards earned $26.9 million during the late 1990s while only reporting $360,000 in salary. However, the IRS has the ability to go after firms and individuals who do not pay themselves a reasonable wage using the reasonable compensation test. The service has already successfully litigated cases where compensation was considered less than reasonable. A few examples are Radtke v. US, 712 F.Supp. 143 (7th Cir., 1990) and Spicer Accounting v. US, 918 F.2d 90 (9th Cir., 1990). Furthermore, Congress just gave the IRS another anti-abuse tool when it codified the economic substance doctrine as part of the healthcare bill. Consequently, if the structure of the business is designed solely with the intent of avoiding the Medicare payroll tax, it would lack economic substance and the IRS could disallow it. Not only does the IRS already have the ability to go after those who try to avoid paying taxes through S corporation revenue abuse, but the provision as it is currently drafted will create uncertainty, cause additional compliance problems and unfairly hit those it is not intended to impact. One problem with the current proposal is that it will be very difficult to trace the hours of work for certain shareholders and link it back to the firm's revenues. Lawyers and CPAs can track their hours because that is how their businesses operate, but other service professionals such as engineers and architects do not. As such, this will be especially burdensome for a number of the covered businesses at a time when we are counting on these same small businesses to generate jobs. The provision also does not define what amount of participation in professional services activities determines if one must pay the new tax. The House version says ``substantially all.'' The Senate version seems to suggest that even very limited participation in any of the activities listed under the new definition of professional services would be subjected to the tax. Is that the intention? Finally, the family attribution rules would appear to hit inactive family members who are solely shareholders and do not actively participate in the day-to-day operations of the business by subjecting their investment income to payroll taxes. The bottom line is that this provision unnecessarily treats the income of 4 million small businesses organized as S corps all as wages, which undermines the entire rationale for having flow-through entities: to avoid the double taxation of entrepreneur's income. How are small businesses suppose to grow and hire more workers to get us out of this recession if we keep creating impediments to expanding investment opportunities? The most galling aspect of this debate is that if the extenders bill passes with this roughly $10 billion tax increase on small business, the next tax bill we expect to consider is a bill to help small businesses with just $5 billion in tax relief. So the net effect of these two bills would amount to a $5 billion tax increase on small business. I just don't understand the logic. Of course, the real logic is simple: Supporters of the bill need more offsets to pay for the increased spending. I support the efforts of the senior Senator from Maine to strike this tax on small businesses, and I commend her for leading the effort to solve this problem.

Mr. KYL. The following Senator is necessarily absent: the Senator from Alaska (Ms. Murkowski). Further, if present and voting, the Senator from Alaska (Ms. Murkowski) would have voted ``nay.''

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Kansas (Mr. Roberts).

Mr. KYL. The following Senator is necessarily absent: the Senator from Kansas (Mr. Roberts).

Mr. KYL

Mr. KYL. Mr. President, the stories we heard were human tragedies, and statistics don't tell the story adequately. Let me cite a few of the statistics and then ask my colleague to recount some of the heartrending stories that we heard from families in the area. When we talk about that, he can point to the extreme southeast corner of the State of Arizona, where we were, primarily, on Saturday, and where most of these folks live on ranches--places that used to be very safe. Today, these folks do not feel they can sleep at night or move around without carrying weapons. They need to travel in pairs. This is the area in which an extraordinarily difficult tragedy occurred when a long-time resident of the area was slain, it is believed by one of the drug cartels or other smugglers who frequent the area. The human tragedy is the real heart of this, but let me cite some statistics, because when the Secretary of Homeland Security says we are secure as we have ever been, I think these statistics would at least belie part of that claim. About 50 percent of all illegal immigrants enter through Arizona. In fact, they enter through essentially the eastern one-third of that particular map. The number of illegal immigrants living in Arizona increased over the last decade about twice, up to over 600,000 people. It is estimated that about 12 percent of Arizona's workers are illegal immigrants. According to the Maricopa County Attorney's office, about 12 percent of the county's population and about 22 percent of felony crimes committed are committed by illegal immigrants. My colleague has talked frequently about the fact that Phoenix, AZ, our hometown, is the second largest kidnapping capital of the world, and the largest in the United States--second in the world only to Mexico City. We can go on and on about the statistics. We have the highest rate of property crime among the 50 States in the last year for which the FBI reported the statistics in 2008. Our sheriffs and other law enforcement tell us that between 15 and 20 percent of the individuals apprehended at the border have criminal records or are wanted for crimes in the United States. Phoenix is a primary originating city, where drugs are brought from the border and held in Phoenix and then transported to other cities. We lead the Nation in marijuana seizures--50 percent. Heroin is increasingly found in Arizona, and on and on and on. The statistics don't lie, of course. But the real tragedy is the human tragedy--the fear that people have; people who are fourth or fifth generation ranch families in the area; people in town, who are increasingly the subject of break-ins and property crimes and the like. But none of this even begins to talk about what happens when the people who are smuggled into the country, are held in drop houses-- generally in the Phoenix area--for transport either west to Los Angeles or anywhere east in the country. They are essentially victimized by the very people who smuggle them in and who demand ransom from their families in Mexico, El Salvador, or Guatemala, or wherever they might have come from. And until they pay that ransom, they are brutalized and assaulted and become victims of crime themselves. And, of course, they rarely report that crime. So the human tragedy here is the real story. But it is important for us to at least cite the statistics and show our colleagues the signs that the U.S. Government itself feels constrained to post in order to warn people to stay out of an area which encompasses probably about 20 percent of the State of Arizona.

Mr. KYL. Mr. President, when Senator McCain and I asked the acting head of the Border Patrol in the area where we were on Saturday, what do you need, he basically said, ``More of everything.'' He talked about the need for 800 more Border Patrol agents. He talked about the need for more surveillance--something Senator McCain has talked about a lot, surveillance to cover a very big area where you are probably never going to have enough personnel even if we bring in National Guard troops. He welcomed the National Guard troops to the area. He said we are going to have to have consequences for people crossing. I talked to him about Operation Streamline. In the Yuma sector of the border, which is on the western part of the Arizona border, the Yuma sector is very close to being operationally clear of illegal immigration issues because they have enough agents, they have enough fencing. By the way, he talked about the need to repair and replace a lot of the fencing in his sector. But they also have a policy that, instead of catch and release, where the people are simply put on a bus and sent back to Mexico, they actually are prosecuted and have to spend at least 2 weeks in jail. That is a huge deterrent. Because if you are a criminal, obviously you don't want to be caught and go to jail, and if you are here to work and send money back to your family, you are obviously not doing that if you spend time in jail. He said there have to be consequences. We believe the expenditure of somewhere between $1 billion and $3 billion over the next couple of years could provide adequate resources--this is our 10-point plan--adequate personnel, the fencing that is required, the surveillance, the technology, and also the extra prosecutors, courtroom, and detention spaces that would be necessary to provide the deterrent or the consequences, as he put it. There is no doubt the border can be secured. What we need is the will to do it.

Mr. KYL. Mr. President, might I inquire how much time remains on our side?

Mr. KYL. That is the time remaining on our side.

Mr. KYL. Mr. President, what I wish to do is take about 3 more minutes and then my colleague can close. As he said, if you need a different kind of reason to want to secure the border, then look at what is happening to our environment. I know the Presiding Officer--and his father before him--is keen on protecting the great national treasures of our country, our environment. Coming from adjoining States, we share a lot of the same kind of country. The area in the extreme southwestern part of his State and the extreme southeastern part of our State is known for some of the best birding in the world. The part of northern Mexico that borders our States provides a sanctuary for birds that are not found anywhere else in the world. This fire my colleague mentioned is burning right up to the creek which is one of the watersheds that represents the prime area for these birds to exist. Their habitat will be destroyed if we continue to have fires set by illegal immigrants in the area that destroy the habitat. If you look at the environment of the area from the air, you see that there are thousands, if not hundreds of thousands, of paths that are worn in parts of the desert that are basically off limits to American citizens and even to our law enforcement officials, but the smugglers use these trails and they deposit their trash. Everybody knows that once you have cut the desert, it takes hundreds--hundreds--of years for that desert to respond. That is just one reason. Obviously the human tragedy is the one that is of most concern. If my colleagues would hear this one plaintive cry, we were told on numerous occasions on Saturday: Please, go back to Washington and tell your colleagues what it is like. Tell them how we are suffering. Tell them what we have to go through just to live here. Can't our Government at least provide basic protection from crime? These are members of the family of Robert Krantz, who was brutally gunned down, and fellow ranchers in the area and other citizens who live in the small communities there. They believe their government has abandoned them. They look right into our eyes and say: What are you going to do about it? The best we can do is to tell you the fear they have, the suffering they have gone through, the difficulty they have continuing to live in an area, as I said, in which some of their families have lived for four and five generations, to pass that message on to my colleagues and say: OK, if it is the environment you care about, there is a reason to be there; if it is crime, there is a huge reason to be there; if it is the cost to the Federal and State government, we need to get hold of this problem. But if you just care about the people who are there, we have an obligation as their representatives to assure their protection, and that is the message we are coming to the floor today to convey to our colleagues. Please listen, if not to us, to our constituents, and remember we all work for all of the people of the United States of America. We are all Senators. So every one of us here has an obligation to the folks--yes, in your State but also to the folks in our State--to at least provide them the basic protection and give them a sense that they do not live in a Third World country between the United States and Mexico; that they are American citizens deserving of the protection of the U.S. Government.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Utah (Mr. Bennett), the Senator from Missouri (Mr. Bond), the Senator from New Hampshire (Mr. Gregg), the Senator from Texas (Mrs. Hutchison), the Senator from South Dakota (Mr. Thune), and the Senator from Louisiana (Mr. Vitter).