Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I want to take a moment to recognize the service of one of my longtime legal counsels on the Judiciary Committee, Joe Matal. Joe will be leaving the Senate in a few weeks after 12 years of Senate service, and I wanted to say a few words of thanks. Joe is well-known on Capitol Hill as a sharp, tenacious, and principled lawyer who fights hard for principle and the public good. It is frankly remarkable to reflect on the breadth of issues where Joe has played a major role in his years of service, but I will list a few. Joe was intimately involved in our efforts to grapple with post-9/11 realities, in particular through the Military Commissions Act and the Detainee Treatment Act and the reauthorizations of the USA Patriot Act. Joe has been instrumental in efforts to ensure appropriate DNA testing of criminals and to ensure that the rape-kit backlogs are cleared. He worked on the Adam Walsh Act and the Internet SAFETY Act. He is a go-to lawyer on criminal sentencing issues. Very recently, he has been an essential adviser on negotiations relating to the cybersecurity legislation. I could go on and on. Joe has worked on the animal crush video law I sponsored, on False Claims Act amendments, on open government laws, and on legal reform bills such as asbestos litigation reform, the Class Action Fairness Act, and Bankruptcy Reform. He is also an expert on Indian Law and has been an indispensable counsel on my work that relates to Indian Country in Arizona, but also on Indian policy nationwide. Finally, and most obviously, in recent years Joe has justly earned the respect of the legal and policy community nationwide as a major force in the development of the patent reform bill that Congress passed a year ago. In fact, when Joe leaves my office, he will remain in government service and begin work as an assistant solicitor in the U.S. Patent and Trademark Office. Joe's service there will be essential given that the agency is continuing to implement the patent reform bill that Joe did so much to create. I would be remiss if I did not also note that some of Joe's important service has been in the bills he helped ensure did not become law. Our job as legislators is not to jump at every shadow, but to exercise caution when others seek to rush ill-considered legislation through the body. Joe's counsel and his strategic guidance have been essential in protecting the Nation from many, many bills that would have been contrary to good public policy. So I want to thank Joe and wish him the best as he leaves for the PTO. I also want to thank his wife, Maren, and his three children, John, Liddy, and Margaret, for supporting him in these years of public service. I appreciate Joe's hard work and patriotic service and wish him the best in his new position.

Mr. KYL

Mr. KYL. Mr. President, all of us recognize the need to strengthen our cyber security defense to protect our defense industrial base, financial sector, and government networks from nation states and independent hackers. GEN Keith Alexander, commander of the U.S. Cyber Command, said that he rates U.S. preparedness at 3 on a scale of 1 to 10. So it is important that Congress act responsibly to get this right. I voted against invoking cloture on the cyber security bill because I believe cloture was filed too early. This is vast, far-reaching legislation that requires ample consideration time. Two days isn't enough. Moreover, Senators weren't even given a chance to offer amendments to improve the legislation, and the legislation wasn't marked up by a relevant committee. I believe we can ultimately come together to find enough common ground so that we can pass a bill that can get through a House-Senate conference committee. We have come a long way since talks began, and the negotiators have spent an enormous amount of time working on two key issues: critical infrastructure and information sharing between the government and the private sector. I am confident the good will exists to work out these differences. To that end, it is my hope that we who are involved in the bipartisan negotiations can use the month of August to continue. Cyber security isn't a Republican or a Democratic issue. Let's work together to pass a bipartisan bill that the President can sign into law.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Florida (Mr. Rubio).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Florida (Mr. Rubio).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk), the Senator from Kansas (Mr. Moran), the Senator from Florida (Mr. Rubio), and the Senator from Louisiana (Mr. Vitter).

Mr. KYL

Mr. KYL. Mr. President, Governor Romney suggested on a recent trip to Israel that the culture of a society plays a role in its prosperity. Some took offense to these remarks, and others disagreed with his premise. During the last few days, a debate has ensued about how culture promotes prosperity. I believe Governor Romney made an important point. In a National Review piece entitled, ``Culture Does Matter,'' he asks, ``What exactly accounts for prosperity if not culture?'' After all, U.S. culture emphasizes freedom, equality, hard work, meritocratic excellence, upward mobility, the rule of law, and a devotion to family, education, and a purpose higher than oneself. These cultural values, and others, have made America the world's leading superpower--a beacon of prosperity, freedom, and strength. Millions of people have left their homes over the centuries to come to America and be part of our way of life. As Governor Romney writes, Israel is also a telling example of the role of culture and prosperity. Like the United States, Israel's culture is based on freedom and the rule of law. He writes that Israel's embrace of political and economic freedom: . . . has created conditions that have enabled innovators and entrepreneurs to make the desert bloom. . . . In the face of improbable odds, Israel today is a world leader in fields ranging from medicine to information technology. Of course other factors, such as economic policies, contribute to a country's prosperity. But the evidence shows that the role of culture shouldn't be marginalized or dismissed. I ask unanimous consent that Governor Romney's entire article, ``Culture Does Matter,'' be printed in the Record. I urge my colleagues to read it.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce the Free Press Act. The FPA would create a Federal anti-SLAPP statute for journalists, bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought against them that arise out of their speech on public issues. Once the special motion to dismiss is brought, the nonmoving party must present a prima facie case supporting the lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and fees and costs are awarded to the movant. Anti-SLAPP laws effectively make it impossible for frivolous or marginal libel lawsuits arising out of protected speech to advance beyond an initial stage of litigation. Such laws thereby protect journalists and bloggers from the financial impact of defending against such suits. Approximately 30 States have anti-SLAPP laws, though their coverage varies. There is no federal law. The FPA would create a federal anti-SLAPP law, and allow parties to remove some state SLAPP claims to Federal court. At the conclusion of my remarks today, I will submit for the record a section-by-section summary of the FPA. I will first, however, comment on several features of the bill, including the meaning of some of the language that is used, and Congress' authority to enact such legislation. The FPA's special motion to dismiss requires the plaintiff to present ``prima facie evidence'' supporting his cause of action. The standard definition of ``prima facie evidence,'' which is employed by the FPA, is that given by Justice Story in his opinion for the court in Kelly v. Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish a fact; and, if not rebutted, remains sufficient for that purpose.'' For similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 978, D.C. Cir. 1945, which notes ``Justice Story's often quoted definition of prima facie evidence.'' This definition is also employed by Black's Law Dictionary, which defines ``prima facie evidence'' as: Such evidence as, in the judgment of the law, is sufficient to establish a given fact and which if not rebutted or contradicted, will remain sufficient. [Prima facie evidence], if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but [it] may be contradicted by other evidence. In a recent concurring and dissenting opinion, Justice Scalia went so far as to describe this definition of ``prima facie evidence'' as ``canonical.'' He also stated: The established meaning in Virginia, then, of the term ``prima facie evidence'' appears to be perfectly orthodox: It is evidence that suffices, on its own, to establish a particular fact. But it is hornbook law that this is true only to the extent that the evidence goes unrebutted. ``Prima facie evidence of a fact is such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.'' 7B Michie's Jurisprudence of Virginia and West Virginia Sec. 32, 1998, (emphasis added). Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part. Other Federal courts continue to use this definition of ``prima facie evidence:'' ``A prima facie showing simply means evidence of such nature as is sufficient to establish a fact and which, if unrebutted, remains sufficient for that purpose.'' Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d 1167, 1176 n.13, 11th Cir. 2002. ``Under [the prima facie evidence] standard, it is plaintiff's burden to demonstrate the existence of every fact required to satisfy both the forum's long-arm statute and the Due Process Clause of the Constitution. The prima facie showing must be based upon evidence of specific facts set forth in the record. To meet this requirement, the plaintiff must go beyond the pleadings and make affirmative proof. However, in evaluating whether the prima facie standard has been satisfied, the district court is not acting as a factfinder; rather, it accepts properly supported proffers of evidence by a plaintiff as true and makes its ruling as a matter of law. When the district court employs the prima facie standard appellate review is de novo.'' United States v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir. 2001, citations and quotations omitted. ``Prima facie evidence consists of specific factual information which, in the absence of rebuttal, is sufficient to show that a fairness doctrine violation exists. * * * * In general terms, prima facie evidence is evidence which is sufficient in law to sustain a finding in favor of a claim, but which may be contradicted.'' American Security Council Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24, D.C. Cir. 1979. ``A prima facie case is established by evidence adduced by the plaintiff in support of his case up to the time such evidence stands unexplained and uncontradicted. The words `prima facie,' when used to describe evidence, ex vi termini imply that such evidence may be rebutted by competent testimony. The term prima facie evidence' implies evidence which may be rebutted and overcome, and simply means that in the absence of explanatory or contradictory evidence the finding shall be in accordance with the proof establishing the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282, 289-90, 7th Cir. 1949, citations and quotations omitted. ``The term prima facie evidence means * * * * [e]vidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient. Prima facie evidence is evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence.''' Gibson v. Zant, 547 F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law Dictionary, 5th Edition. `Prima facie evidence' is evidence which, if unrebutted or unexplained, is sufficient to establish the fact to which it is related. It proves the fact until other proof contradicts or overcomes the factual hypothesis initially set up by the presumption.'' DAL Int'l Trading Co. v. The SS Milton J. Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959. The FPA makes its special motion to dismiss available in cases arising out of speech on matters of public concern. It bears emphasis that ``matters of public concern'' include commentary on consumer products. As the Pennsylvania intermediate court of appeals recently noted, in American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a ``statement regarding the effectiveness of a consumer product addresses a matter of public concern.'' Similarly, the U.S. Court of Appeals for the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th Cir. 1990, concluded that ``statements about product effectiveness'' address matters of public concern. And the Second Circuit, in Flamm v. American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, has held that a negative evaluation of an attorney's services, directed to potential customers, addresses a matter of public concern. The following quotation from a New Jersey Supreme Court opinion, citing other courts' decisions, illustrates the breadth of support for the proposition that commentary on products or services offered to consumers is a matter of public concern. That court noted, in Dairy Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 516 A.2d 220, 230, 1986, that: Some courts have developed criteria for determining whether the activities and products of corporations constitute matters of public interest. As previously indicated, matters of public interest include such essentials of life as food and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623 F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc., supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863. Widespread effects of a product are yet another indicator that statements about the product are in the public interest. Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th Cir.1971) (possible causes of cancer are a matter of public concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp. at 156, article on an arthritis cure is in public interest because significant portion of population is afflicted with arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90, 1974, flammability of 25,000 baby cribs held to be matter of public interest; Krebiozen Research Found. v. Beacon Press, Inc., 334 Mass. 86, ----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct. 65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter of public concern. Still another criterion is substantial government regulation of business activities and products. The FPA thus protects speech consisting of consumer commentary that focuses solely on the quality, reliability, or effectiveness of a consumer product, regardless of whether such commentary addresses broader social issues. The quality of goods and services offered to the public is itself a matter of public concern. The FPA protects the dissemination of any information about a product that would be of interest to potential consumers. Finally, the FPA allows removal to Federal court to be sought by a defendant. Although current law only allows removal when the Federal question appears on the face of a well-pleaded complaint, this rule is only statutory. Congress is well within its power to allow removal of cases that raise a colorable Federal defense. Two current Federal statutes clearly allow removal by defendants based only on the assertion of a Federal defense. One is 28 U.S.C. Sec. 1442(a), which allows Federal officers, among others, to remove a state civil action or prosecution to federal court. The other is 9 U.S.C. Sec. 205, which allows removal of disputes that appear to be covered by an international arbitration agreement. Although such a limitation is not stated on the face of section 1442, the Supreme Court has long held that ``federal officer removal must be predicated on the allegation of a colorable federal defense.'' Mesa v. California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which notes that ``an unbroken line of this Court's decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense.'' The most recent Supreme Court pronouncements confirm that `Article III `arising under' jurisdiction is broader than federal question jurisdiction under Sec. 1331,'' Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal- question jurisdiction ``has been construed as permitting Congress to extend federal jurisdiction to any case of which federal law potentially forms an ingredient,'' Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of the United States, 9 What. 738, 823 (1824)). In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme Court also noted that ``[t]he judicial power * * * * was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their privileges, in the same forum,'' and further noting that ``we are referred to the power which it is admitted congress possess to remove suits from state courts to the national courts.'' The Federal-defense-based removal authorized by the FPA is thus well within Congress's constitutional authority. Mr. President, I ask unanimous consent that the text of the bill and a section-by-section summary be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I rise today to introduce the Free Press Act. The FPA would create a Federal anti-SLAPP statute for journalists, bloggers, and other news media, authorizing them to bring a special motion to dismiss lawsuits brought against them that arise out of their speech on public issues. Once the special motion to dismiss is brought, the nonmoving party must present a prima facie case supporting the lawsuit; if the nonmovant fails to do so, the lawsuit is dismissed and fees and costs are awarded to the movant. Anti-SLAPP laws effectively make it impossible for frivolous or marginal libel lawsuits arising out of protected speech to advance beyond an initial stage of litigation. Such laws thereby protect journalists and bloggers from the financial impact of defending against such suits. Approximately 30 States have anti-SLAPP laws, though their coverage varies. There is no federal law. The FPA would create a federal anti-SLAPP law, and allow parties to remove some state SLAPP claims to Federal court. At the conclusion of my remarks today, I will submit for the record a section-by-section summary of the FPA. I will first, however, comment on several features of the bill, including the meaning of some of the language that is used, and Congress' authority to enact such legislation. The FPA's special motion to dismiss requires the plaintiff to present ``prima facie evidence'' supporting his cause of action. The standard definition of ``prima facie evidence,'' which is employed by the FPA, is that given by Justice Story in his opinion for the court in Kelly v. Jackson, 31 U.S. 622, 632, 1832: ``What is prima facie evidence of a fact? It is such as, in judgment of law, is sufficient to establish a fact; and, if not rebutted, remains sufficient for that purpose.'' For similar statements, see Bailey v. Alabama, 219 S.Ct. 219, 234, 1911, quoting Kelly v. Jackson; and Neely v. United States, 150 F.2d 977, 978, D.C. Cir. 1945, which notes ``Justice Story's often quoted definition of prima facie evidence.'' This definition is also employed by Black's Law Dictionary, which defines ``prima facie evidence'' as: Such evidence as, in the judgment of the law, is sufficient to establish a given fact and which if not rebutted or contradicted, will remain sufficient. [Prima facie evidence], if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but [it] may be contradicted by other evidence. In a recent concurring and dissenting opinion, Justice Scalia went so far as to describe this definition of ``prima facie evidence'' as ``canonical.'' He also stated: The established meaning in Virginia, then, of the term ``prima facie evidence'' appears to be perfectly orthodox: It is evidence that suffices, on its own, to establish a particular fact. But it is hornbook law that this is true only to the extent that the evidence goes unrebutted. ``Prima facie evidence of a fact is such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.'' 7B Michie's Jurisprudence of Virginia and West Virginia Sec. 32, 1998, (emphasis added). Virginia v. Black, 538 U.S. 343, 369-70, 2003, Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part. Other Federal courts continue to use this definition of ``prima facie evidence:'' ``A prima facie showing simply means evidence of such nature as is sufficient to establish a fact and which, if unrebutted, remains sufficient for that purpose.'' Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d 1167, 1176 n.13, 11th Cir. 2002. ``Under [the prima facie evidence] standard, it is plaintiff's burden to demonstrate the existence of every fact required to satisfy both the forum's long-arm statute and the Due Process Clause of the Constitution. The prima facie showing must be based upon evidence of specific facts set forth in the record. To meet this requirement, the plaintiff must go beyond the pleadings and make affirmative proof. However, in evaluating whether the prima facie standard has been satisfied, the district court is not acting as a factfinder; rather, it accepts properly supported proffers of evidence by a plaintiff as true and makes its ruling as a matter of law. When the district court employs the prima facie standard appellate review is de novo.'' United States v. Swiss American Bank, Ltd., 274 F.3d 610, 618-19, 1st Cir. 2001, citations and quotations omitted. ``Prima facie evidence consists of specific factual information which, in the absence of rebuttal, is sufficient to show that a fairness doctrine violation exists. * * * * In general terms, prima facie evidence is evidence which is sufficient in law to sustain a finding in favor of a claim, but which may be contradicted.'' American Security Council Education Foundation v. F.C.C., 607 F.2d 438, 445-46 & n.24, D.C. Cir. 1979. ``A prima facie case is established by evidence adduced by the plaintiff in support of his case up to the time such evidence stands unexplained and uncontradicted. The words `prima facie,' when used to describe evidence, ex vi termini imply that such evidence may be rebutted by competent testimony. The term prima facie evidence' implies evidence which may be rebutted and overcome, and simply means that in the absence of explanatory or contradictory evidence the finding shall be in accordance with the proof establishing the prima facie case.'' In re Chicago Rys. Co, 175 F.2d 282, 289-90, 7th Cir. 1949, citations and quotations omitted. ``The term prima facie evidence means * * * * [e]vidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient. Prima facie evidence is evidence which, if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but which may be contradicted by other evidence.''' Gibson v. Zant, 547 F.Supp. 1270, 1276, M.D. Ga. 1982, quoting Black's Law Dictionary, 5th Edition. `Prima facie evidence' is evidence which, if unrebutted or unexplained, is sufficient to establish the fact to which it is related. It proves the fact until other proof contradicts or overcomes the factual hypothesis initially set up by the presumption.'' DAL Int'l Trading Co. v. The SS Milton J. Foreman, 171 F.Supp. 794, 798, E.D.N.Y. 1959. The FPA makes its special motion to dismiss available in cases arising out of speech on matters of public concern. It bears emphasis that ``matters of public concern'' include commentary on consumer products. As the Pennsylvania intermediate court of appeals recently noted, in American Future Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 872 A.2d 1202, 1211, Pa. Super. 2005, a ``statement regarding the effectiveness of a consumer product addresses a matter of public concern.'' Similarly, the U.S. Court of Appeals for the Ninth Circuit, in Unelko Corp. v. Rooney, 912 F.2d 1049, 1056, 9th Cir. 1990, concluded that ``statements about product effectiveness'' address matters of public concern. And the Second Circuit, in Flamm v. American Assoc. of University Women, 201 F.3d 144, 150, 2d Cir. 2000, has held that a negative evaluation of an attorney's services, directed to potential customers, addresses a matter of public concern. The following quotation from a New Jersey Supreme Court opinion, citing other courts' decisions, illustrates the breadth of support for the proposition that commentary on products or services offered to consumers is a matter of public concern. That court noted, in Dairy Stores, Inc. v. Sentinel Publishing Co., Inc., 104 N.J. 125, 144-45, 516 A.2d 220, 230, 1986, that: Some courts have developed criteria for determining whether the activities and products of corporations constitute matters of public interest. As previously indicated, matters of public interest include such essentials of life as food and water. See Steaks Unlimited, Inc. v. Deaner, supra, 623 F.2d 264; All Diet Foods Distribs., Inc. v. Time, Inc., supra, 56 Misc.2d 821, 290 N.Y.S.2d 445; Exner v. American Medical Ass'n, supra, 12 Wash.App. 215, 529 P.2d 863. Widespread effects of a product are yet another indicator that statements about the product are in the public interest. Robinson v. American Broadcasting Cos., 441 F.2d 1396 (6th Cir.1971) (possible causes of cancer are a matter of public concern); Lewis v. Reader's Digest Ass'n, supra, 366 F.Supp. at 156, article on an arthritis cure is in public interest because significant portion of population is afflicted with arthritis; American Broadcasting Cos., Inc. v. Smith Cabinet Mfg. Co., Inc., 160 Ind.App. 367,----, 312 N.E.2d 85, 90, 1974, flammability of 25,000 baby cribs held to be matter of public interest; Krebiozen Research Found. v. Beacon Press, Inc., 334 Mass. 86, ----, 134 N.E.2d 1, 6-9, cert. denied, 352 U.S. 848, 77 S.Ct. 65, 1 L.Ed.2d 58, 1956, possible cures for cancer are matter of public concern. Still another criterion is substantial government regulation of business activities and products. The FPA thus protects speech consisting of consumer commentary that focuses solely on the quality, reliability, or effectiveness of a consumer product, regardless of whether such commentary addresses broader social issues. The quality of goods and services offered to the public is itself a matter of public concern. The FPA protects the dissemination of any information about a product that would be of interest to potential consumers. Finally, the FPA allows removal to Federal court to be sought by a defendant. Although current law only allows removal when the Federal question appears on the face of a well-pleaded complaint, this rule is only statutory. Congress is well within its power to allow removal of cases that raise a colorable Federal defense. Two current Federal statutes clearly allow removal by defendants based only on the assertion of a Federal defense. One is 28 U.S.C. Sec. 1442(a), which allows Federal officers, among others, to remove a state civil action or prosecution to federal court. The other is 9 U.S.C. Sec. 205, which allows removal of disputes that appear to be covered by an international arbitration agreement. Although such a limitation is not stated on the face of section 1442, the Supreme Court has long held that ``federal officer removal must be predicated on the allegation of a colorable federal defense.'' Mesa v. California, 489 U.S. 121, 129, 1989. See also id. at 133-34, which notes that ``an unbroken line of this Court's decisions extending back nearly a century and a quarter have understood all the various incarnations of the federal officer removal statute to require the averment of a federal defense.'' The most recent Supreme Court pronouncements confirm that `Article III `arising under' jurisdiction is broader than federal question jurisdiction under Sec. 1331,'' Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 495 (1983), and note that Article III federal- question jurisdiction ``has been construed as permitting Congress to extend federal jurisdiction to any case of which federal law potentially forms an ingredient,'' Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8 n.8 (quoting Osborn v. Bank of the United States, 9 What. 738, 823 (1824)). In Martin v. Hunter's Lessee, 1 Wheat. 304, 348-49, 1816, the Supreme Court also noted that ``[t]he judicial power * * * * was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their privileges, in the same forum,'' and further noting that ``we are referred to the power which it is admitted congress possess to remove suits from state courts to the national courts.'' The Federal-defense-based removal authorized by the FPA is thus well within Congress's constitutional authority. Mr. President, I ask unanimous consent that the text of the bill and a section-by-section summary be printed in the Record.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from New Hampshire (Ms. Ayotte), the Senator from South Carolina (Mr. DeMint), the Senator from South Carolina (Mr. Graham), the Senator from Illinois (Mr. Kirk), the Senator from Utah (Mr. Lee), the Senator from Arizona (Mr. McCain), and the Senator from Alaska (Ms. Murkowski).

Mr. KYL

Mr. KYL. Madam President, I just want to make a very brief comment primarily for the benefit of our Republican colleagues who have been inquiring about whether we would have, and when we would have, a vote to invoke cloture to proceed to the cybersecurity legislation. I am hopeful we can do that very soon. From my perspective, it would be wise for us to move forward, to go to the bill, and see if we can work things out. There have been discussions between various groups who are interested in the subject. They are now all talking to each other, which is a very good sign because it is amazing how, when Senators get together and talk to each other, sometimes we can actually accomplish things in a bipartisan way. So my hope is that we can do that. If it turns out it does not work out, we can always vote no at the end of the day. But I believe we should go forward, that we should get on the bill, and, therefore, I intend to support cloture on the motion to proceed to the cybersecurity legislation. I thank my colleagues for yielding.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. DeMint), the Senator from Oklahoma (Mr. Inhofe), the Senator from Illinois (Mr. Kirk), and the Senator from Utah (Mr. Lee). Further, if present and voting, the Senator from South Carolina (Mr. DeMint) would have voted ``nay.''

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Mr. KYL. The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Mr. KYL

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

Mr. KYL. Mr. President, I wanted to say a few words today about the current debate over ``class,'' a term that has been ubiquitous in this election year. Its usage in political rhetoric is, I believe, misguided and wrong and even dangerous. Most prominently, we have a President who talks incessantly about class, particularly the middle class. Maybe you have noticed that. He defines class strictly by your income. In the President's narrative, someone who makes $199,000 a year is a member of one class, and someone who makes $200,000 belongs to another class. Does that make sense? Indeed, each day the President is out on the campaign trial championing himself as the great protector of what he calls the middle class, and pitting those Americans against their fellow citizens by arguing that the wealthiest class is victimizing them through the Tax Code. If wealthy people are not made to pay more, he argues, the middle class will be stuck in their current stations. What one class wins, he implies, the other class loses. In this, I believe he is wrong. Moreover, I believe such a formulation is contrary to four centuries of American history. First, I think ``class'' is a loaded term that is not appropriate for our debates about income, mobility, and tax policy. Implying there is a rigid class structure in America suggests some people were born innately superior to others, and that where you were born is where you stay. That is not what we believe in America. A true class-based society is one in which one ruling class employs another class that labors but cannot own property or move out of their class. This is not who we are in America. We do not have an ingrained class system. There are no noble bloodlines. We do not have an aristocracy or commoners or people who are legally unable to own land, for example, because of their class. Spreading economic resentment weakens American values and ideals, and it ignores the uniquely meritocratic basis of our society where you can succeed if you work hard, and you can do well. Generations arrived here in America to get away from class societies in Europe. They believed in that meritocracy. They wanted the opportunity to make it in the land of self-government and equal rights and opportunity, to work and compete and to build something of their own, something they could perhaps one day pass on to their children. In America we believe everyone can achieve the American dream regardless of background. And how many rags-to-riches stories are there out there? There are countless. How many from one generation to the next, and by the third generation you had an incredibly more successful generation than the first. Think of all the people who had a big dream and built something or made something that changed lives; maybe a company that employs a lot of people or a product that makes life easier or maybe even just more fun. We have different talents to offer and different ideas of success and what we want to do with our lives, and that is all part of the American story. As columnist Robert Samuelson noted recently, four modern-day Presidents--Obama, Clinton, Johnson, and Eisenhower--all came from very modest backgrounds. So we don't need the current President touring the country and defining every American's values and status based upon a class system he has made up. If we want to talk about income and mobility, which is the basis of the class debate, let's do that. And that leads to my second point. Income in America is fluid; that is, there is ample evidence that people can and do move among income groups. Our economists study this. They divide our country into quintiles and they talk about how people move from one quintile into another quintile, and they do this throughout their life. You know, younger people start in the lower quintiles and as they get education and get work and then get improved work and more experience, they move into higher quintiles. Take one statistic here. The Tax Foundation found from 1997 to 2007-- the 10-year period they studied--only 50 percent of the taxpayers who reached millionaire status did so more than one time. In other words, high income status is often the result of 1 or 2 years of financial success, frequently based on the sale of an asset or some other temporary event. Here is another notable factoid: A Kauffman Foundation survey of more than 500 successful entrepreneurs found that 93 percent came from middle-income or lower income backgrounds. The survey notes that entrepreneurship did not run in the family for these people. Quoting from the survey: The majority were the first in their families to launch a business. A Treasury Department study on income and mobility in America found during the 10-year period starting in 1996, roughly half of the taxpayers who started in the bottom 20 percent had moved up to a higher income group by 2005. Similarly, people in the top income group dropped to lower groups, thus making way for others to move up. The point is there is no such thing as a permanent middle class or any other class in America. There are other measures of income mobility. As columnist Robert Samuelson noted, one litmus test for mobility in America is whether people rise above their parents economically, and this happens frequently. Citing a new report from the Pew Mobility Project, he notes that 84 percent of Americans exceed their parents' income at a similar stage in life. Income gains were ``sizable across the economic spectrum,'' he writes. Indeed, in the bottom fifth of income earners, median income grew by 74 percent over just this decade. While income mobility has slowed during this economic downturn, the overarching point is that nobody in America is stuck where they are because of a ruling class of greedy wealthy people. Here is my third point: To borrow a phrase from Congressman Paul Ryan, the real class threat is a class of bureaucrats and crony capitalists using their government connections to try to rig the rules and rise above everyone else. One example is ObamaCare. Recently released documents show that industry lobbyists and Democrats worked very closely in drafting ObamaCare. After it became law, the Department of Health and Human Services granted approximately 1,700 temporary waivers from the new annual limit requirements of the law. When the Federal Government is handing out lucrative favors, it is easy to predict what will happen. Companies hire armies of lobbyists and politically connected organizations--in this case, primarily, labor unions--will get special treatment. And that is exactly what happened here. It is not just ObamaCare. Cap-and-trade would have enriched politically connected energy firms. Even without cap-and-trade, many of Obama's political supporters have reaped huge benefits from the administration's green energy industrial policy. The Solyndra scandal demonstrates what can happen when government tramples free markets in a misguided attempt to pick economic winners and losers. As University of Chicago economist Luigi Zingales reminds us in his new book, ``A Capitalism for the People,'' being ``probusiness'' is not the same as being ``promarket.'' All too often, the Obama administration has embraced spending policies and regulations that favor certain businesses but are fundamentally antimarket. If a Federal policy is probusiness but antimarket, it is most likely an example of crony capitalism. The irony here is remarkable. Even though President Obama tours the country advertising himself as the defender of the little guy and a guardian of the middle class, he has consistently embraced policies that promote crony capitalism. That is not the type of capitalism that made this country so prosperous, and it is not the type of capitalism the American people support. Citizens across this country are eager for policies that promote free markets and equal opportunities for all businesses, all industries, all entrepreneurs, all people. Those are the principles upon which our country was founded. Americans firmly reject the idea that certain companies and industries should receive preferential treatment for political or ideological reasons. Centuries of evidence from around the world demonstrates crony capitalism leads to corruption, a decline of social trust, and economic stagnation. That is certainly not the future Americans want. Instead of policies that favor politically connected entities and take even more money from successful Americans, let's clear the way for more opportunity and mobility in a true free market system. Higher taxes and more government are not the answers. We should not make it more difficult for Americans to get ahead. We should certainly not believe Americans are to be distinguished by their income in any given year or be presumed to have different values or value because of that. To say America has a middle class presumes we have a lower class or an upper class. Think about it. You can't have a middle without something on either side. Is it true we have a lower class and a middle class and an upper class? Some Americans are better off financially than others. That is certainly true. But that is no basis for dividing us into arbitrary classes to favor one over another. My guess is that all this talk about class, while it has a tendency to divide Americans, is more about trying to identify with the common man, and that is something all politicians try to do. ``I am just like you. I am just like the average guy.'' Abraham Lincoln talked about identifying with the common man. He said he thought God made a lot of them, and I think that is true. Most people in this country like to think of themselves as basic, common citizens, and they do not particularly like somebody identifying them as a class in order to suggest they are better or worse than somebody else. That is why I think, even though this divides America, the discussion about class is probably simply an effort to say ``I am for you.'' And some politicians don't like to say ``I am for everybody'' because that would imply they are for people who are very successful. Well, why shouldn't we be for people who are very successful? They are probably people who have accumulated wealth because of something they have accomplished in life--usually by studying hard, working hard, sometimes by creating some special kind of product. Take Bill Gates or Steve Jobs. They were smart people who created something people wanted and were willing to buy, and they got very wealthy because of that. Is that bad? Bill Gates has created a foundation, and he and his wife have contributed more to charity than probably any other thousand people you can name. That is a good thing. They have created more jobs than many other people in this country have. They have created products that have enabled us to lead much better lives. The same thing is true of Steve Jobs and thousands and thousands of other entrepreneurs. So there is nothing wrong with being successful, being rewarded for that, because most likely it has given many other people an opportunity. There was a recent editorial in the Wall Street Journal that talked about the Chicago Bulls and Michael Jordan. The article noted they weren't a very impressive team before Michael Jordan came and the team wasn't making very much money and neither were any of the players. When Michael Jordan came, after he established how great he would be, he was given an enormous, almost unheard-of salary. Did the other players say: That is not fair? No. Actually, all the other players got big salary increases too--nothing like Michael Jordan, but they got huge salary increases. Why? Because he made the team better and it began to succeed and, eventually--you all know the story--the world championships, the whole franchise did well--the people selling popcorn in the stands, the people parking the cars, and certainly every one of the members of the team made much more money than they ever would have had Michael Jordan not come to the team. But Michael Jordan still made many times more than any of them did. This is a point President John Kennedy made when he talked about reducing the tax rates in the country on business--on capital gains--so that businesses could create more wealth so they could do what? They could grow and hire more people. He said a rising tide lifts all boats. If the economy is doing well, if we have wealthy people who are doing well, we have less wealthy who will also do better. That is what America has always been about. We don't take it away from the person who makes a lot of money. Maybe it is because they are lucky with a God-given talent they have or their good looks and their acting ability. Whatever it is, those people generally participate in activities that create wealth for others as well. They also create products or services or even entertainment we enjoy. So Americans don't look askance at these people. We celebrate them. We are happy for their success. Frequently it helps us too, besides which they pay a lot of taxes. Likewise, for those people who are less fortunate, I don't know of any politician who wants to talk about the lower class. That almost is a pejorative term. It is as though these are lesser people. Well, the reality is maybe it is somebody down on his or her luck. Maybe it is somebody just starting out so they are not making as much money as somebody who has been in business a lot longer. Maybe it is a student, for example, or somebody who suffered misfortune, somebody who doesn't have a good education, or maybe a recent immigrant to the country. There is nothing lesser about those people. We are all Americans. They may be in a lower income group, at least temporarily, but there is no reason to distinguish between the people in that income group and however the President defines the middle class. Why is the middle class more deserving or special than people who don't make as much money as those in the middle class? The point is, people are deserving all up and down the economic ladder. It isn't just about money, anyway. The person who makes an average income--who provides for his family, provides them a good home, good tutelage as a parent, strong values, maybe sends them off to college and helps them to prepare for their life as a productive citizen--is just as important as the wealthy person in this country. A teacher may not make much money but influences the lives of thousands of young people to be better citizens in this country--more educated--and that influence goes far beyond the salary the individual teacher makes. So you can't judge value by how much money someone makes, and you certainly can't identify with one class and say: That is the class I am for. The President, in particular, represents all Americans. He should be for all Americans. And I don't think there is anything called middle class values that are different from the values of other people in this country. Tell me what is different about the values of someone who the President identifies as middle class? Does that mean middle income? If so, what income and what year? Because a person will be in a lower income group one year, in a middle income group the next year, and maybe 10 years later in a higher income group. Has that individual's values changed? No. Americans are Americans, and it doesn't matter how much money we make in a given year. What matters is that as a country we have found a degree of success that others can only dream of because we create opportunity for everyone to succeed, and we teach that to our kids. I think it is destructive for the leader of the country, the President, to be suggesting something else--that you should consider what class you are in in this country: If you are middle class, that is great, I am for you. Well, what about the other classes, and what about the person who is middle class today under the President's definition but wasn't yesterday and might not be tomorrow? I just think the whole discussion of class is wrong. It is not what we do here in America. You can divide people for statistical purposes into income levels, into wealth levels, into levels of education. We divide ourselves for statistical reasons into all kinds of categories, but at the end of the day, we don't suggest that one group has different values than the other or that one is better than the other one. And I think that is the pernicious effect of the President's rhetoric--constantly talking about the middle class. I don't even know if I am in that group or not. Am I in the middle class? I make less money than the President suggests identifies the wealthy, that is for sure, but I don't think my values are any different or any better than those who make less money or more money than I do. In my view, money isn't even the measure of what this should be all about anyway. I hope that as the campaign goes on, maybe we can focus a little bit more on what unites us rather than what divides us, on the values that I think we all subscribe to, and on the things that would make us a better country not just in economic terms but in other terms as well. And if we are focused on economic terms, then let's focus on those that will make us better off economically: a better education, a better home environment, strong communities, a government that is willing to help when that is necessary, and certainly governmental policies that reward what? That reward education; that reward hard work; that reward savings and investment; that reward entrepreneurship, people working to create something, to create a business; that reward job creation so that you don't have a law like ObamaCare that says: You are OK if you have 49 employees, but as soon as you have 50 employees, then here are a whole bunch of expensive burdens you are going to have to take on--tax burdens, penalties, and regulations. That is not something that favors building a business beyond 49 employees. It doesn't favor job creation beyond 49 employees. These are the kinds of issues we should be debating. What will make our country better both in economic terms and in all of the other terms that define us as a society? I hope that as the campaign goes on, we will focus a lot more on what we hold in common, that we share, and that we can do better with, rather than those that divide us and especially that divide us in political terms. Mr. President, I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from South Carolina (Mr. DeMint), the Senator from Utah (Mr. Hatch), and the Senator from Illinois (Mr. Kirk). Further, if present and voting, the Senator from Utah (Mr. Hatch) would have voted ``yea.''

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Alabama (Mr. Shelby). Further, if present and voting, the Senator from Alabama (Mr. Shelby) would have voted ``no.''

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent to speak in morning business for 15 minutes.

Mr. KYL. Mr. President, today I wish to speak about two related subjects. Both are very much in the news, and both relate to the fiscal condition in the United States and what happens on January 1 if the U.S. Congress and the President allow a tax increase to be imposed upon the American people that will amount to the largest tax increase in the history of our country--about $4.5 trillion over 10 years. That tax increase is slated to go into effect unless we stop it. The effect of that tax increase on economic growth, on job creation, and on our small businesses and families will be devastating unless we act. The other subject, which is also pertinent to tax policy, is a subject that has been raised by many in the Obama Presidential campaign relating to outsourcing of jobs. Let me speak to that first because it has a direct relationship to this question of taxation. In today's Wall Street Journal, there is an op-ed piece by Arthur Laffer and Ford Scudder called ``The Tax Cliff is a Growth Killer.'' Let me quote just two sentences from it: The United States faces economic collapse thanks to massive tax increases on Jan. 1, and continued deficit spending for years on end. They go on to say: The blunt reality is that we cannot have a prosperous economy when government is overspending, raising tax rates, printing too much money, overregulating and restricting the free flow of goods and services across national boundaries. Now, what does this have to do with outsourcing? There has been criticism of companies that send jobs to another country or that hire people in other countries to do work for them. The same thing can be said when a business no longer expands in the State in which it is headquartered or operating and moves part of its business to another State. We have seen our States actually compete for business. The reason they do this, in many cases, is because the business conditions under which they operate in the first State are no longer conducive to competition, for them to be able to make products or provide services that are competitive with those who are working to compete against them. So they have to go where labor is cheaper, where the costs are less, where the regulation is not as onerous, and where taxes are lower, perhaps--in other words, where the conditions for doing business are more favorable so they can continue to compete. The same thing is true when jobs are sent overseas. The reality is American businessmen are not sitting around wondering how they can be evil, how they can fire American workers, how they can go overseas to do business. It is much easier to stay right here in the good old USA. For a whole lot of reasons, they make a lot of sacrifices to keep their businesses here. But there comes a point in time when American tax policy, regulatory policy, and the uncertainty of doing business here finally gets to the point where--in order to stay in business, in order to remain competitive--they have to find places elsewhere where they can do their work that enables them to remain competitive. When we go to the store, and we are looking at the goods on the shelf, and we see the very same thing, where in one case it costs $5 and in the next case it costs $10, chances are we are going to buy the $5 product. If a company has to make that product overseas in order to stay competitive, that is exactly what they are going to do. It ends up helping the American consumer. It is not good for American workers who cannot work in that particular industry. But what is the cause for it? Is it because there are entrepreneurs out there, business folks--your neighbors and mine--who want to somehow hurt American workers, who are not patriotic or who are evil people? Think about it. The answers, of course, are no. The only reason they are hiring work to be done in foreign countries is because that is how they can stay competitive, how they can offer that same product for $5, as their competitor does. What causes them to have to do that? Well, the first thing is American tax policy. We have the highest corporate tax rate in the world. Of all industrialized countries, we are No. 1. In this case, No. 1 makes it more difficult to do business. We have the most progressive tax system; that is, the people at the highest end pay the highest amount of taxes of anyone in any country in the industrialized world. When you take the corporate tax rate and add to it the capital gains and dividends, we have the highest tax rate--the integrated tax rate is what they call it--in the industrialized world for dividends and the second highest for capital gains. What about regulations? We impose far more in the way of regulatory burdens on our businesses--ranging from environmental regulations to labor regulations, you name it--than most of the other industrialized countries do. What about uncertainty? Well, we have this new law called ObamaCare that has put a tremendous amount of burden on American businesses. They are either going to have to continue to provide insurance for their employees or pay a fine. They have to pay new taxes. There are some $800 billion in taxes under ObamaCare--some 21 different taxes. The problem here is not that there are evil businessmen who hate American workers. They bend over backwards to keep their business here; it is a lot easier. But the reason sometimes they have to go abroad is because their government treats them unfairly compared to their competitors overseas. We tax them too much. We regulate them too much. And there is too much uncertainty. So when we are debating this subject about outsourcing, about people abroad making products that are then sold in the United States, ask yourself the question: Why would an American company do that? The answer is, they do it when they have to, when their own government's policies make it impossible for them to compete effectively here in the United States. That leads to the second. Why would the President be proposing to add more taxes, both on American businesses and American families, at a time when we are in the middle of a very severe economic downturn, and when the President himself a year and a half ago said: To raise taxes under these circumstances would be a blow to the economy? Again, he said: You don't raise taxes in a recession. When he said those things, our gross domestic product growth was about 3 percent. We were growing at a rate of about 3 percent. Today, it is under 2 percent, and we still have 8.2 percent unemployment. So the circumstances today are, if anything, worse than they were a year and a half ago when the President said: We should not raise taxes because it will be a blow to the economy. You don't raise taxes in a recession. So why would the President be proposing it now? And what is he proposing? He says we should raise taxes on any individual who makes over $200,000 a year and a family who makes over $250,000. We should raise capital gains taxes to the rate of 23.8 percent; dividends the same; the death tax to 45 percent. So your dad created a business, built it up; he passed away, you and your sister are the heirs, and the day he dies, Uncle Sam says: That will be 45 percent of the value of the business, please, minus whatever the exemption is. It is unconscionable we would do that in this country. When the President was asked by Charlie Gibson in one of the Presidential debates, when he was campaigning the first time: Senator Obama, would you raise taxes on capital gains even if it did not bring in any more revenue--because economists all agree that frequently raising the rate actually results in less tax collection because people do not sell the property that would be subject to the tax under those circumstances--what did he answer? He said, yes, he would still raise it, even if it did not bring in more revenue. And the reason is because he wanted to redistribute the wealth from people who made money to other people to whom it would be given, presumably. So this is not about deficit reduction as much as it is about a theology that we need to raise taxes, and we need to raise it on people who are the productive, successful people in our society who make money. If you take the top quintile of taxpayers--the top 20 percent, high income earners--they already pay 90 percent of the taxes in the country. Is it fair that top 20 percent should pay 90 percent of the taxes? Well, you can argue whether it is fair, but I think for the President to say that is unfair, they should pay even more, raises the question: Well, how much more? Should they pay all of it? Should 20 percent of our citizens pay all of the taxes for everybody else? Nobody else has to pay anything? As it is, the rest of us only pay 10 percent. So what is fair? Why is it fair to take away from people what they have earned and what they want to save in order to give it to somebody else or to have the government spend the money as if the government was wiser in spending money than the citizens are? The reality is the people who are successful, who make money, create capital, which is then invested in businesses, and that investment promotes job creation and economic growth, raising the gross domestic product for all of us. That is the economics of success and it is the opportunistic society this country has held sacred for over two centuries. Give people an opportunity to succeed, and when they do, do they put their money--the money they earn--do they put it in a mattress? Well, not anymore. You either put it in a bank or you invest it with a mutual fund or in some other kind of investment. What happens when that money is put in the bank or in the mutual fund? It creates capital for somebody else to use, to create a job, to invent a new product, whatever it might be. It helps business expand. So why would you change your mind, a year and a half after you said it would be a blow to the economy, to now suggest raising taxes? And who are these people who make $200,000? Well, it turns out about a million of these people--940,000, to be exact--are business owners. These are the small business folks who create the jobs--most of the jobs coming out of the recession. In fact, they account for 25 percent of all jobs in America. A quarter of all of the jobs are by these very folks on whom you are going to raise the taxes. I know some people said: Well, that is only a small percentage of the business owners, it is only 3 percent. Yes, and that 3 percent accounts for 53 percent of the income taxes paid. In other words, these are the businesses that are creating the jobs. They employ a quarter of all of the people in country. They are paying 53 percent of the taxes in this tax bracket. The reality is, when raising taxes on that group, you are going to make it more difficult for them to grow their businesses, to add more people. Here is an example. A woman by the name of Karen Madonia, who is the CFO of a family business in Aurora, IL--it is called Illco, and it supplies ventilation and heating and air conditioning and refrigeration equipment--testified before the House Small Business Committee in May. Among the things she said was--and I am quoting her now: We don't have money sitting in the bank to pay more taxes-- all our profit is invested in the business. If we have to pay more taxes, that means we can't hire workers or buy trucks and inventory. That is typical of small businesses. The money is plowed back into the business. And when the owner passes away, it goes to his heirs--and then subject to the kind of tax we are talking about here? That would be devastating to this kind of business. One of the objections from those who support the President's idea of raising taxes is that: Well, the Bush tax cuts benefited the wealthy more than anybody else. Bear in mind that the Bush tax cuts applied to everybody. That is the tax rate that has been in existence now for a decade, and everybody's taxes were reduced to some extent. They say: Well, that contributed to the deficit. How much did it contribute to the deficit? The Congressional Budget Office, nonpartisan, recently issued a report, and in that report they calculated the difference between the projections of a surplus and then the resulting deficit and what was the reason for that. Do you know what they found? That the amount of tax relief to this top 20 percent of taxpayers--the high income earners--accounted for all of 4 percent of the deficit. And how much did the new spending and the interest cost on that spending account? Over 12 times as much. So the reality is the Bush tax cuts, which helped everyone, did not help the wealthy more than everybody else, did not contribute to the deficit, and, in fact, those taxpayers are now paying 94 percent of income taxes, up from 81 percent before the Bush tax cuts went into effect. So that high income group is paying more now in taxes than it did before the Bush tax cuts went into effect. My point here is, when the President demagogs this issue, suggesting that somehow it was only the rich who got the benefit of the Bush tax cuts and we have to take that money away from them, they are paying more than they did before, and it only accounted for 4 percent of the deficit. And these are the very people who are creating the jobs in America today. So why would we want to raise taxes at this point on anybody, including on this group of people? My final point: Again, the nonpartisan Congressional Budget Office has issued a report in which they say that this fiscal cliff--the combination of across-the-board sequestration and the expiration of the existing Tax Code on January 1--will result in a new recession; that we will have growth next year of only one-half of 1 percent if we allow that to happen. Why would the President be willing to raise taxes on America and take a chance that we are going to drive ourselves even deeper into economic trouble than we already are? I urge my colleagues to work together to forestall these new tax increases on all Americans and to forestall the sequestration--a combination of which will drive us back into recession.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Nevada (Mr. Heller), the Senator from Illinois (Mr. Kirk), the Senator from Arkansas (Mrs. Murkowski), and the Senator from Mississippi (Mr. Wicker).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Nevada (Mr. Heller), the Senator from Illinois (Mr. Kirk), the Senator from Alaska (Ms. Murkowski), and the Senator from Mississippi (Mr. Wicker).

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Kansas (Mr. Moran).

Mr. KYL. The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Kansas (Mr. Moran).

Mr. KYL. The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Kansas (Mr. Moran).