Jon Kyl

Mr. KYL

Mr. KYL. Actually, Mr. President, the amendment is about as long as it took me to say that, but I will describe it nonetheless. I hope this amendment will receive very strong bipartisan support because the entire essence of it is to ensure that nothing we have done so far here will allow health care in the United States to be rationed by the Federal Government. There is a reason for the concern, and I would like to discuss it. First, of course, I would note that protecting the doctor-patient relationship and ensuring access to the highest quality medical care is fundamental to any health care reform effort. Comparative effectiveness research can be used to provide patients and doctors with information so that they may make informed health care decisions. For example, a study might compare a drug versus a surgery and determine that the drug is just as effective or even better at improving a patient's quality of life. But without appropriate safeguards, the Government may misuse comparative effectiveness research as a tool to ration or deny health care, and since private insurers tend to follow the Federal Government's lead, this has significant implications for all patients. The American Recovery and Reinvestment Act of 2009--more commonly known as the stimulus bill--included $1.1 billion for comparative effectiveness research, and it created a national board called the Federal Coordinating Council to oversee that research. We all know the stimulus bill was written quickly and passed quickly and unfortunately, because of the phrasing there, we believe, could lead to unintended consequences. For example, nothing in the stimulus bill prevents the Government from using the $1.1 billion to compare the cost of health care treatments, even though the chairman of the Finance Committee tried to prevent that, nor would it prevent the Secretary of Health and Human Services from using the research to deny coverage of a health care treatment, or reject a one-size-fits-all approach to medicine, or protect advancements in genomics and personalized medicine, or require the Government to consider differences in patient treatment response or preferences, or account for the unique needs of health disparity populations--frequently minority populations. Some may say: Oh, we will never ration health care in America. Well, don't take my word; take the word of our former colleague, Tom Daschle, who wrote a book. In his book, ``Critical: What We Can Do About the Health Care Crisis,'' he recommends that the United States follow the lead of other countries and use this cost-based research--the very research funded by the stimulus bill--to limit patients' access to care. And here is what he acknowledges in his book: Doctors and patients might resent any encroachment on their ability to choose certain treatments, even if they are expensive or ineffective compared to alternatives. Well, you are darned right they might resent it. Think about this a moment: Do you want Washington bureaucrats, such as those who brought you the AIG mess, making your health care decisions for you and your family? The answer, of course, is no, no rationing of health care. Well, what is the real issue here? In February, the Wall Street Journal ran a story that chronicled patients' experiences with Canadian health care, which is a good comparison of what happens when government makes these kinds of decisions I am talking about. Let me share one of those stories: In March 2005, Shona Holmes began losing her vision and experiencing headaches, anxiety attacks, extreme fatigue, and weight gain. An MRI showed that she had a brain tumor. The government told her that she would need to wait months before she could see a specialist about the brain tumor. By June, her vision had deteriorated so severely that she traveled to the Mayo Clinic in Arizona. The doctors told her that she needed immediate surgery to prevent permanent vision loss and potentially death. But the Canadian Government's solution was more doctors' appointments, more tests, more waiting time. Left with very few options, Ms. Holmes traveled back to Arizona and paid for her surgery out of her own pocket and had the necessary surgery. In the British health care system, we have heard similar stories. They have an entity called NICE, which actually does the rationing, but it is not so nice. Take the word of the British Government Web site that describes the rationale for their rationing of health care: With the rapid advancements in modern medicine, most people accept that no publicly funded health care system can possibly pay for every new medical treatment which becomes available. The enormous costs involved mean that choices have to be made. It makes sense to focus on treatments that improve the quality and/or length of someone's life and,-- And I stress this part, Mr. President---- at the same time, are an effective use of NHS resources. That is the national health care service resources. They go on: Each drug is considered on a case-by-case basis. Generally, however, if a treatment costs more than 20,000 to 30,000 pounds-- And that is an equivalent of 28,000 to 43,000 in U.S. dollars---- per quality adjusted life year, then it would not be considered cost effective. So in other words, the British Government, not physicians and patients, sets the rules and makes health care decisions. And the British formula, in U.S. dollars, is that an extra year of your life is estimated to be worth no more than $28,000 to $43,000. So if the treatment exceeds that, you are out of luck. The Government decides whether your treatment is an effective use of its resources and puts a price tag on what an extra year of your life is worth. This budget lays the foundation for doing precisely the same thing in the United States. Our view and the public's view is that the Government should not make these decisions. Only patients, in consultation with their physicians, should make these kinds of health care decisions about their lives. Those decisions should not be dictated by a formula based upon Government research. I would also just add this point. Cost-based research applied this way can be very shortsighted. It leads to a one-size-fits-all approach to medicine that standardizes care for diverse patients who may have the same medical condition, which is completely contradictory to the efforts of today's leading scientists. Scientists--for example those at TGen in my home State of Arizona--are exploring exciting advancements in genomics and personalized medicine; in other words, the right drug for the right patient at the right time. Personalized medicine will offer an entirely new approach to medicine, including more accurate assessments of disease risk, better predictions of response to treatment, and safe, more effective treatments. This research will lead to better health care for all patients and long-term savings in the cost of health care. Unfortunately, the stimulus bill was written in such a way that it does not incorporate targeting therapies, and it could stall innovation. I believe this is our opportunity to act to ensure that no Washington bureaucrat makes health care decisions for patients or undermines the sacred doctor-patient relationship. Already our own U.S. Government is taking steps toward this result. Last Thursday, the acting National Institutes of Health Director announced that the NIH may use the stimulus money to compare the cost of health care treatments. In fact, NIH released a list of research topic areas, many of which include a cost component. One of the topics is entitled ``Integrating Cost-Effectiveness Analysis into Clinical Research.'' Here is how the description reads. This should be chilling. [T]his initiative calls for the inclusion of rigorous cost- effectiveness analysis in the design and testing of new and innovative interventions. . . . Cost-effectiveness research will provide accurate and objective information to guide future policies that support the allocation of health resources for the treatment of acute and chronic diseases. The allocation of health resources is, of course, a euphemism for rationing. So this is not hypothetical. This is what our own Government proposes to do with this research. For some of the sickest patients suffering from chronic diseases, the Government wants to decide if their treatment is a good allocation of resources. It is clear that if Congress fails to protect patients, then comparative research will be used as a tool to ration care. For this reason I have offered this pro-patient amendment that would send a clear message to the administration and clarify the Senate's intent regarding the stimulus funding. My amendment States two principles: No. 1, the Federal Government shall not use the data obtained from comparative effectiveness research to deny coverage of a health care treatment under a Federal health care program--very simple--and, No. 2, the Federal Government shall ensure that such research accounts for advancements in genomics and personalized medicine, the unique needs of health disparity populations, and differences in the treatment response and treatment preferences of patients. We all agree with that. My amendment puts patients first. It is a nonpartisan issue. I do not know of anyone in this body who wants the Government to ration care or stifle innovation. I believe in the right of every American to choose the doctor, hospital, or health plan of their choice. No Washington bureaucrat should interfere with that right or substitute the Government's judgment for that of a physician. I hope my colleagues will join me in standing for patients--all of us in America.

Mr. KYL. The chairman of the Finance Committee raised two points. I wish to make very clear that nothing in this amendment deals with the question of patient safety. For example, if FDA says a drug is not efficacious, then obviously you do not prescribe the drug. The doctor makes that decision. As the chairman said, it is the doctor's choice. That is precisely where we want to leave it. The other question was, though: It is not necessary, it will just get in the way, nobody is intending to do that. There are two responses to that. First of all, if nobody is intending to do it, then there is no problem in saying you cannot do it. But, secondly, they are intending to do it. Here is a direct quotation from the Acting Director of the NIH less than 1 week ago. Cost effectiveness research will provide accurate and objective information to guide future policies that support the allocation of health resources for the treatment of acute and chronic diseases. That is the purpose of it. It is not merely to decide what works, which is the good side of cost-effectiveness research, but to allocate health care resources. Allocating health care resources is another way of saying rationing of health care. If we all agree we do not want that, and we do not think anybody is going to try to do it, then what is the harm in having an amendment that says we are not going to do it?

Mr. KYL. Madam President, my amendment prohibits Federal rationing of health care. A provision of the stimulus bill has raised a lot of concern. Madam President, $1.1 billion has been allocated for comparative effectiveness research. Here is the exact effective language from my amendment: The Secretary of Health and Human Services shall not use data obtained from the conduct of comparative effectiveness research to deny coverage of an item or service under a Federal health care program. That is all it does. Some say: Why do you need that? We are never going to do that. Well, then, we might as well say we are not going to do that. But when it came to Medicare Part D, we wanted to be sure we did not withhold coverage of a prescription drug, and as a result we provided that kind of language. Just last Thursday, the Acting Director of the NIH talked about research in terms of guiding future policies that support the allocation of health resources for the treatment of acute and chronic diseases. That is deciding what to cover and not cover. My amendment does not prevent the Secretary from protecting patients from unsafe or ineffective drugs. It is simply about using this kind of research to ration health care.

Mr. KYL. I ask for the yeas and nays.

Mr. KYL

Mr. KYL. Mr. President, I am appreciative and chagrined at the same time. I appreciate very much the courtesy. The only point I wished to briefly make--and I don't know whether it was made before with specificity--is that there is a reason why the debt and the deficits matter. It is because so much of it is held by other countries. Those other countries are becoming very concerned about the debt they hold in America. We don't have an unlimited ability to continue to sell this debt to other countries. I just got these statistics. The Chinese specifically hold $727 billion or about 23.6 percent of all foreign holdings of U.S. debt. The Japanese hold $626 billion or 20 percent. Others are held by Persian Gulf countries. When they hold this debt, they both have a very large indirect stake in the kinds of policies we can pursue as a nation, and they also, obviously, would affect our future ability to borrow by their assessment of the quality of the debt and of the value of the dollar. To this point, the Chinese Premier, in response to a question at a news conference, said: We have lent huge amounts of money to the United States. Of course we are concerned about the safety of our assets. My only point is, it is not just a matter that there is more debt in this budget than the entire history of the United States combined-- there is a reason to be concerned about that debt beyond the fact that our kids and grandkids are going to have to pay it back--but today and tomorrow how that debt is viewed by the holders of the debt in other countries. Therefore, I think we ignore that at our peril. I appreciate the willingness of the chairman to lend me a couple minutes to make that point.

Mr. KYL

Mr. KYL. Mr. President, first, let me say the job the chairman of the Budget Committee has is very difficult. I think I can speak for virtually everybody on our side of the aisle when I say there is a lot of respect for the way he has approached this job, especially this year. I, for one, appreciate the comments about the difficulty with the deficits and with the application of reconciliation. I think the chairman is exactly right. There are a lot of issues with reconciliation, and if it is to be used for the purpose as he identified it, if what Republicans did was wrong, then as lawyers say: a fortiori, this would be wrong, meaning it is even more the case because this would be policy that doesn't even relate specifically to taxes, except indirectly. So I certainly hope the chairman can be successful in his efforts to remove or to ensure that reconciliation instructions are not included as a part of this budget. From my standpoint, primarily because that would effectively take Republicans out of the ball game in terms of helping to write new health care and environmental and energy and education policy, that should better be done on a bipartisan basis, or at least to the extent possible on a bipartisan basis. That would be very difficult to do if reconciliation got involved. So I appreciate his efforts in that regard. I wish to begin by quoting a statement that President Obama made at a recent press conference: The best way to bring our deficit down in the long run is . . . with a budget that leads to economic growth by moving from an era of borrow and spend to one where we save and invest. That is true. I think it is too bad that the President's budget doesn't meet the test he laid out. It borrows and spends more than any previous budget, and its new taxes will retard economic growth, especially at a time when the stock markets are unsteady, consumers are wary, and unemployment continues to rise, the President's budget should not propose unprecedented spending increases, huge tax increases on individuals, businesses, and families, and deficits as far as the eye can see. This is not an era of new responsibility. Simply put, the budget spends too much, it taxes too much, and it borrows too much. First, with regard to spending, we need to remember that middle-class families and small businesses are making sacrifices and tradeoffs in their own budgets every day. But not in Washington. The Federal Government continues to spend trillions of taxpayer dollars on bailouts and new Government programs. This $3.9 trillion budget continues business as usual, making no hard choices about how to rein in out-of- control Government spending. It also marks a nearly 20-percent growth in nondefense Federal spending since the end of 2008. This budget is so big that, according to the Heritage Foundation estimates, 250,000 new Federal bureaucrats may be required to spend it all. Nor is there any intention of cutting back. This budget does not contemplate one-time investments followed by years of reduced spending. Instead, billions in new outlays will continue indefinitely. So it is not just about massive spending but about the permanent accruement of power in Washington. As the Wall Street Journal recently editorialized: With [his] fiscal 2010 budget proposal, President Obama is attempting not merely to expand the role of the Federal Government, but to put it in such a dominant position that its power can never be rolled back. Don't be fooled by the word ``investments.'' The lion's share of this new spending is not what a well-run business or IRS would count as an ``investment,'' such as equipment or other tangible assets. Most of the new spending would be for services where long-term value is difficult to measure. Going to the item of taxes, President Obama said he will cut taxes for 95 percent of Americans. But his budget would raise taxes by $1.4 trillion over 10 years. It not only lets some of the existing tax cuts expire--thus raising taxes--but it implements a new $646 billion energy tax that will impact every American household, regardless of income, and is estimated to increase energy costs for every family by $3,168 annually. It is described as a ``downpayment,'' meaning there is more to come. This tax is touted as a way to curb greenhouse gas emissions, but there is no way around the fact that it will be a tax on virtually all economic activity, since almost every aspect of our daily lives requires energy from fossil fuels. I recall candidate Obama telling the San Francisco Chronicle that ``under my plan of a cap and trade system, electricity rates would necessarily skyrocket.'' Is this what we need or want--especially in a time of recession? It is also important to understand that existing expiring income tax relief for individuals is not a new tax cut. When an Arizona family thinks of a tax cut, it assumes it will pay less in taxes from one year to the next. The administration claims that if you don't pay more in taxes, you are receiving a tax cut. This difference, to borrow a phrase from Mark Twain, is like the difference between lightning and a lightning bug. The budget also increases taxes on half of small businesses with 20 or more employees. So far, during this recession, small businesses have created all of the net new jobs. Why is this tax a good idea? We are straying too far from the principle that the purpose of taxes is to pay for the costs of Government in a way that does the least damage to the economy. Hippocrates' oath for his medical students to ``first, do no harm'' should also apply to fiscal policy. This budget will not lead to economic recovery. What, in these times, could be more important? Finally, as to borrowing, there is the deficit. Last year, the deficit was $459 billion. The Congressional Budget Office now projects a $1.669 trillion deficit in 2009. In 5 years, this budget will double the public debt. In 10 years, it will triple the public debt. After bottoming out at $658 billion in 2012--a level still more than 40 percent above the highest deficit during George W. Bush's Presidency-- the Congressional Budget Office projects the deficit to increase to $9.2 trillion in 2019, an astounding 82.4 percent of GDP. It also creates more debt than the combined debt under every President since George Washington. Think of that. That is not sustainable, as even the President's OMB Director, Peter Orszag, has said. Let's not forget the finance charges. Beginning in 2012, and every year thereafter, the Government will spend more than $1 billion per day on finance charges to holders of U.S. debt. How will this impact the average American family? Federal spending on finance charges for our Government's debt will be about $1,500 per household for 2009. Under President Obama's budget, this number soars to nearly $5,700 per household by 2019. What happened to his plan to ``spend wisely''? This excessive borrowing increases our dependence on creditors in countries such as China and Japan. These two countries now hold more than a third of our foreign debt. Other countries hold more than half of America's total publicly held debt. When other countries hold a large amount of our debt, they also have leverage to influence our currency, trade, and even our national security policies. The final point I want to make relates to what I regard as class warfare. I am struck by the language of the budget, starting this class warfare in America. Page 5 of the budget reads: While middle-class families have been playing by the rules, living up to their responsibilities as neighbors and citizens, those at the commanding heights of our economy have not. Is this true? Is it true that everyone in the upper brackets has not lived up to their responsibilities or played by the rules? Many of your family physicians, for example, fall into the category of top earners-- after years of training and mountains of debt from student loans and round-the-clock work hours, on call for you and me. Are they guilty of not living up to their responsibilities or playing by the rules? That is what the President's budget says. Most high-income people work pretty hard. They contribute to the economy, give to charity, and pay a lot in taxes. The budget complains that the top 1 percent of earners now holds 22 percent of the Nation's income. But it fails to recognize that they also pay 40 percent of all Federal income taxes. As Daniel Heninger recently wrote in the Wall Street Journal: What is becoming clearer as [President Obama's] presidency unfolds is that something deeper is underway here than merely using higher taxes to fund his policy goals in health, education, and energy . . . . The rancorous language used to describe these taxpayers makes it clear that they will be made to ``pay for'' the fact of their wealth--no matter how many of them have worked honestly and honorably to produce it. No Democratic President in 60 years has been this explicit. Republicans want to work with the President to get the economy back on track. But the massive amounts of spending, taxing, and borrowing in this budget will hinder an economic recovery. In times such as these, we have to focus on growing our economy, not growing the Government.

Mr. KYL

Mr. KYL. Mr. President, I compliment my colleague from Texas for those remarks, but my reaction is, would that it were so, because I have in mind what is happening now in the Budget Committee--which we will all be focused on tomorrow--namely, the passage of a budget out of the committee that we will be taking up in this body next week. I know it is usual for us to rotate between Republican and Democrat. If my colleague from New York was waiting to speak, I can advise here I will just be about 3 minutes. Let me just make this point. There are a lot of Democratic colleagues who have said they oppose using the reconciliation process to enact an energy tax or nationalized health care because they rightly want to reach bipartisan agreement on big issues. They emphasize that the Senate version of the budget does not include reconciliation instructions--and that is correct. But all of those Senators and the American people need to know that the House version of the budget does include reconciliation and even includes a placeholder for Senate reconciliation instructions to be inserted in conference. The House has only one reason to do this. It does not need reconciliation to pass its legislation because, of course, the House operates on a purely majority-rule principle. The only reason to include it is so that the House Speaker and the Senate Democratic leader can force a national energy tax through the Senate, a tax that could cost every household more than $3,000 a year. Unlike the House, the Senate operates with a supermajority principle. That means anything controversial requires 60 votes. But reconciliation is a special rule, never intended to create new energy or health care policy for our country--issues that are so significant that our regular order should prevail. Indeed, that is the only way to have a bipartisan resolution of these issues. Reconciliation would turn these issues into purely partisan exercises. If any kind of reconciliation instruction is given to either the Finance Committee or the Environment and Public Works Committee, we can be sure that a new national energy tax, a tax that will hit all American families, is the goal. Reconciliation instructions are, in effect, the Trojan horse for a national energy tax. You don't have to take my word for it. Senator Reid said yesterday, in a conference call with reporters, that he would be willing to move a national energy tax through the Senate to pay for sweeping Government health care via reconciliation. It is easy to say these are just arcane budget rules and technicalities, but we should all be crystal clear about the consequences of reconciliation. If the final budget includes reconciliation instructions for the Senate, Senate Republicans will have no recourse for stopping Democrats from enacting this national energy tax or nationalized health care system. We will be forced to deal with the Democratic majority in a partisan way that I thought the President wanted to avoid. The Senate Parliamentarian has confirmed that if the final budget includes the special budget reconciliation provision, it could be used for any tax increase, regardless of what Democratic leadership promises. Senate Democrats who have expressed concerns about reconciliation should not take any comfort from statements that there is not reconciliation in the Senate budget. Now, after Senator Reid's statement, they are on notice that the special rule will be used for a national energy tax. I hope they would indicate that they would not support a conference report that included reconciliation.

Mr. KYL. Mr. President, we will yield back the time on the Republican side.

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Wyoming (Mr. Enzi).

Mr. KYL. Mr. President, President Obama has said he wants to encourage ``a renewed spirit of national service for this and future generations.'' I submit that we can all agree on the value of promoting voluntarism. Volunteers are essential to the survival of many charitable organizations in America. But I believe S. 277 diminishes the true spirit of volunteering, first, by providing taxpayer-funded benefits such as monthly stipends and housing to participants--this financial support for volunteers will cost over $5 billion, which is a lot of money for volunteering--and secondly, by redefining volunteering as a taxpayer-funded political exercise in which Government bureaucrats can steer funding to organizations they select. In the past, service organizations mandated by the Government have not been constrained from providing funds to organizations with political agendas, and this bill is no different. While the Mikulski substitute amendment to the bill adds a limited constraint, the political direction of the bill is still apparent. It attempts to direct resources to five newly created corps--three that aim to influence health care, energy and the environment, and education; that is, groups that reflect the key aspects of President Obama's domestic agenda. For instance, the bill would allocate funds to a newly created Clean Energy Corps in which participants would improve energy efficiency in low-income households. All well and good, but the bill would also require the Clean Energy Corps to consult with energy and labor and the Environmental Protection Agency. Among the activities of the new Clean Energy Corps would be reducing carbon emissions. How reducing carbon emissions can be achieved by volunteers has not been made clear. Is this, in fact, an attempt to create federally subsidized ``green jobs'' in areas already served by other Government programs or traditionally served by State, local, and private community service organizations? Another problem with the bill is its failure to eliminate programs that are not working. Current national service programs being funded, such as Learn and Serve and the AmeriCorps National Civilian Community Corps, have not been successful. On its Web site, expectmore.gov, which provides a database of Federal program performance results, the Office of Management and Budget has categorized both of these programs as not performing and ineffective. Finally, there are the costs associated with the programs. The Congressional Budget Office estimates that the costs this year will top $1 billion and will cost another $5.7 billion from 2010 to 2014 to expand the program from the current 75,000 participants to 200,000 participants by 2014. There is ample reason to conclude that these programs are not worth another $5.7 billion. I realize we have gotten to the point where $1 billion does not mean what it once did. But S. 277 would saddle taxpayers with another multimillion dollar bill at a time when we should be cutting back, not finding new ways to spend. The spirit of voluntarism is alive and well in America. I see it in my own State of Arizona. Could we agree that maybe there is one area of our society in which we do not have to add more Government? I think volunteering to help our neighbors might be a good place to start. Mr. President, I suggest the absence of a quorum.

Mr. KYL. The following Senator is necessarily absent: the Senator from Wyoming (Mr. Enzi).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Wyoming (Mr. Enzi).

Mr. KYL

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

Mr. KYL

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

Mr. KYL

Mr. KYL. Mr. President, I wish to speak briefly to the issue that has been very much on the minds of the American public over the last several days, and that is the bonuses paid to folks who work with AIG, the insurance company that has been the recipient of taxpayer money under the so-called TARP legislation. A lot of times when Congress acts in haste, it makes mistakes, and one of the concerns I have about the bill we will be taking up is the question of whether we have adequately thought through the exact remedy we want to impose here in order to get the bonus money back. The House of Representatives acted very quickly and passed a very onerous tax bill that would claw this money back. The Senate has a bill that has been written by the chairman and ranking member of the Finance Committee that would be even broader in the sense that it would both tax the company itself as well as the individuals who receive the bonuses. There are a lot of concerns that have been raised over the weekend about both of these approaches. I have urged a little bit of caution here so we don't do the wrong thing again. One of the reasons we are in the position we are in is because Congress acted in haste. In fact, when the bill was passed that allowed these bonuses, I don't think very many--if any--of our colleagues knew it was in the legislation. After the fact, we learned that the authorization for the bonuses was in the legislation. But when we act quickly and we don't really know what we are doing, we can make mistakes. I have suggested there be a hearing in the Senate to answer a lot of the questions the public has been asking. Now, the first question is, Exactly who are these bonuses paid to and why? Is it necessary that these people receive the bonuses in order for the Government to protect its interests in the company it now owns a substantial part of--AIG? Has some of the money been given back? Will more of the money be given back? Is it fair to impose a tax retroactively? In other words, after people have earned the money based upon an expectation that the money will be taxed at regular rates, is there now going to be an extra tax imposed on top of that simply because we don't like what was done? Will it withstand constitutional muster? And perhaps most importantly, how about the Secretary of the Treasury engaging in the authority, which I understand he possesses under the stimulus bill that we passed earlier, to act in the public interest to claw that money back? In other words, is it even necessary for Congress to amend the IRS Code in order for the Secretary of the Treasury to be able to get that money back? Clearly, this could have all been avoided had the Government asked AIG to renegotiate the contracts when it gave AIG about $30 billion 3 weeks ago. The Government was in a position to say: One of the conditions for receiving this so-called TARP money is that you will renegotiate the contracts that provide bonuses for your employees. We could have done that at that time. But it wasn't done, so now we have to figure out the right way to deal with this. The other reason I am urging caution was expressed by the President in a ``60 Minutes'' interview that was on television last night. Here is how he answered a question about the constitutionality of this proposed tax law. I am now quoting the President: Well, I think that as a general proposition you don't want to be passing laws that are just targeting a handful of individuals. You want to pass laws that have some broad applicability. And as a general proposition, I think you certainly don't want to use the Tax Code to punish people. I think the President is right about exactly what he said there, and that is one of the reasons there is some doubt about whether this law's constitutionality would be upheld and another reason I think we would be wise to hold hearings. But there is yet another reason, and that has to do with whether the private businesses that have been helped by the so-called TARP legislation will want to continue to receive this money or continue to participate in the public-private partnerships that have been established by the Government if there is a possibility there is going to be retroactive punitive legislation imposed upon them or their employees. So one of the things I would like to do is to make sure that in expressing our outrage--and every one of us is outraged about this--we do it in a way that is constructive and not destructive to the very program the President has created to try to help these struggling companies get back on their feet so that they can lend credit to everybody else who needs credit in our country. There is a significant view that if the folks participating in this program come to believe that the Government--Congress--can at any time come in and impose a new tax on them, they are going to want to get out of these programs rather than participate in them. In fact, there have been strongly expressed views that these banks will try to repay the TARP funds quickly--prematurely, in effect--in order to get out from underneath the Government's potential further involvement in their businesses. Of course, by paying the money back, they reduce their ability to loan money to the rest of us. Obviously, the whole point in giving them the TARP funds in the first place was to give them more liquidity so that they would have the money to lend to businesses, to families, and others throughout America. Mr. President, I ask unanimous consent to have printed in the Record following my remarks a couple of statements that make this point very clearly. One is an editorial that was in the Washington Post on Friday, March 20, and the other is a very interesting article by Ian Bremmer and Sean West that was printed in the Friday Wall Street Journal.

Mr. KYL. Mr. President, the ``Washington Gone Wild'' editorial in the Washington Post makes the argument I just made. They use the words ``shortsighted,'' ``opportunistic,'' and ``irresponsible,'' and liken this to the actions of a mob to get even with people rather than stopping to think about what it is going to do to the President's TARP program. And that is what I wish to talk about. I voted for both the first and second TARP. There were only six Republicans in the Senate who supported that second program, and I did it because I believed it was important for the President and the Secretary of the Treasury to have the necessary funding to help these institutions. We are going to destroy that program if the participants in the program come to believe that, out of spite, Congress, reacting to an angry electorate, will simply come down and pass new tax obligations on the employees of these companies in the future. They are going to be very weary of participating. As the Washington Post editorial notes: Elected officials have a responsibility to lead, not just to pander; to weigh what makes sense for the country, not just what feels good. The point is, we now own a big share of this company and parts of some of these other companies, and we want to do what is in their best interest for our best interest and not simply punish them because we are angry that some folks got bonuses. So I am going to urge my colleagues to take a deep breath here and talk to the administration, to hold a hearing and answer the questions that have been asked here and see whether there isn't a better way to achieve the same result. I just happen to believe that if the Secretary of the Treasury called these folks down to his office and said: You know, for the good of the country, you ought to give half or two-thirds of whatever it is back, and if we can save your company, you will be able to make that money back in no time with a healthy company, and if we don't, it is going to be bad for America--I would appeal to their patriotism. He could also talk to the executives at AIG and ask them to sit down with the same people to renegotiate the contracts. There are other ways, in other words, to accomplish the same result without doing violence to our Tax Code, to the concept of contracts, and that do not raise the question about the constitutionality of this action. Mr. President, I urge my colleagues to hold a hearing on the bill. Do not bring this bill up before the Senate for a vote this week but discuss it with the administration and see if we can come up with a better solution and resolve this problem in a sensible way that will be good for America. Exhibit 1 [From the Washington Post, Mar. 20, 2009] Washington Gone Wild ``Shortsighted,'' ``opportunistic'' and ``irresponsible'' aptly describe the actions of those who fueled the debacle on Wall Street. They are also apt descriptors for lawmakers more focused on currying favor with a public outraged at the bonuses handed out by bailed-out companies than on fixing the fundamental and still potentially disastrous cracks in the financial system. By changing the terms of a deal months after it was entered into, Congress will show the government to be an unreliable partner, further draining confidence from the financial system and endangering long-term recovery. Yesterday, the House had the feel of a mob scene, with lawmaker after furious lawmaker vying for floor time to rail against the $165 million in taxpayer-funded bonuses lavished on employees of American International Group's disgraced Financial Products division. House members rushed through a bill to impose an effective tax rate of 90 percent on bonuses paid to AIG employees and employees of other firms that accepted at least $5 billion from the Troubled Assets Relief Program--though when then-Treasury Secretary Henry M. Paulson Jr. pressed many of those firms to take the funds last fall, government interference in their compensation systems was not part of the deal. The legislation, approved by a vote of 328 to 93, would affect employees who received bonuses on or after Jan. 1 and whose household incomes exceed $250,000. Late yesterday afternoon, lawmakers on the Senate Finance Committee introduced their own, broader version of the bonus clawback that would affect firms that accepted as little as $100 million of government funds. We understand that legislators are hearing from furious constituents, and we understand why those voters are angry. It is unquestionably galling that some of the employees who crafted and pushed risky derivatives that wreaked financial havoc worldwide should line their pockets with some of the $173 billion in public funds meant to prop up the too-big-to- fail insurance behemoth and its global business partners. The bonus anger resonates, too, because of a larger sense many voters have that the people who helped trigger this whole economic mess are not the people paying the greatest price. But elected officials have a responsibility to lead, not just to pander; to weigh what makes sense for the country, not just what feels good. The effective confiscation of legally earned and contractually promised payments may well be unconstitutional. It is almost certain to be unhelpful. The bonuses paid at AIG represent less than one-tenth of 1 percent of the bailout provided so far; recouping those funds will have no discernible fiscal effect. But it will help drive away the best talent at the firm, and despite all the glib messages of ``good riddance,'' that is a strange action for an owner--and the American public now owns AIG--to take. But the real damage goes well beyond any effect on AIG. The economy continues to suffer from a shortage of credit. The government needs financial institutions--including relatively healthy ones--to take public funds that will then be lent to responsible businesses and consumers. The Obama administration reportedly intends in the next week or two to announce the details of a ``private-public partnership'' to buy troubled assets from ailing banks. The participation of private hedge funds, investment banks and other firms will be key to the plan's success. But what executive in his right mind will enter into a deal if he or she believes the rules can be changed six months or one year down the road purely on the basis of polls and politicians' fears? Rather than bringing reason to the debate, President Obama has stoked the anger, and last night, the White House commented favorably on the House action. Perhaps Mr. Obama believes that only by lining up with an angry public now can he persuade it, and Congress, to approve the hundreds of billions more he will need to right the credit system. But he might have expressed his sympathy with public anger over irresponsible behavior in the financial sector while also steering the government in a more constructive direction. The absence of backbone on either end of Pennsylvania Avenue this week could carry a steep price. Exhibit 2 [From the Wall Street Journal, Mar. 20, 2009] AIG and ``Political Risk'' (By Ian Bremmer and Sean West) After quietly tolerating $170 billion in bailout money for AIG, why have the public, Congress and the administration suddenly blown up about a tiny fraction of that amount that is being paid out in retention payments and bonuses? After all, the AIG bailout channels U.S. taxpayer dollars to foreign banks and even potentially covers hedge-fund profits. The reason is one of political expediency: The bonuses represent greed in the face of dire circumstances, which resonates with Joe the TARP-funder. The public now has an Enron-like target on which to unload its collective frustration about the financial meltdown. While public outrage is understandable, pandering to it jeopardizes the administration's credentials in a sloppy attempt to score populist points. This raises the political risk for all investors in the U.S. (both domestic and foreign) significantly. The financial-sector rescue necessitates unpopular actions that will only be politically worth it if the administration actually solves the crisis. Until recently, the Obama administration had taken pragmatic is slow actions that it deemed necessary to fend off disaster, as opposed to pursuing an ideological agenda in how it implements the bailout. But this week, under pressure to show a strong hand and positive results, the administration latched onto the AIG bonus flap as an angle for curring populist favor. When it became clear that the bonuses were going to be big news, President Obama led the anti-AIG charge with instructions to ``pursue every legal avenue'' to get the money back. Never mind that the administration was responsible for the TARP provision that (sensibly, from a legal standpoint) exempted pre-existing legal agreements from the bill's limits on compensation. Mr. Obama now says he'd like to create a new ``resolution authority'' to deal with ``contracts that may be inappropriate.'' Meanwhile, Congress seems poised to undo the bonuses through special taxes--a move that in other circumstances would clearly be labeled retroactive and unfair. It was not long ago that Mr. Obama assailed the Bush administration for its dangerous expansion of executive power during a complex crisis. The Obama administration's antics around the AIG bonuses suggest a similar effort to use political power to contort the law. But rather than doing so for reasons of national security, this administration is doing so to pander to an angry public. When the Obama administration and Congress flex this kind of muscle, they attach a new political-risk component to all contracts negotiated in the shadow of the bailout. That risk may scare potential investors away from bailout recipients because they cannot trust our government's will in the face of public outrage. It destroys our moral high ground the next time Mr. Obama wants to criticize a foreign country for ignoring the rule of law by nationalizing private assets or repudiating international debt. It will certainly make Mr. Obama's task much more difficult when he tries to sell the public on his administration's ability to manage the rest of the bailout, and when he tries to sell private firms on the public-private partnership that will be needed to make the recovery work. The administration could have let Congress have its week of grandstanding over bonuses, while issuing a public statement acknowledging the bonuses as deplorable, but not important enough to detract from the real work that lies ahead. The tragedy here is the extraordinary amount of time that is being wasted on this issue when the Treasury Department remains understaffed, a detailed toxic-asset plan remains perpetually forthcoming, and the economy continues to shed jobs. It's predictable that the administration and Congress would rather abuse an easy target over something every voter can get mad about than actually confront the hard issues of managing the financial crisis, including progress on the ``stress test'' of banks and the restoration of normal credit operations, establishing genuine oversight of the use of bailout funds, and coordinating international efforts on global economic stimulus and changes to financial-industry regulations. That type of governing is far more troublesome, as it involves making difficult decisions on complex topics and communicating unpopular news to constituents. This is a hallmark moment for the administration. Congressional anger over AIG's bonuses foreshadows the battle looming if and when the administration asks for more financial-sector rescue funds. The administration may rightly sense that failing to join hands with Congress and the public in outrage over the bonuses would complicate release of those funds. But Mr. Obama does not need to show solidarity by diminishing confidence in the rule of law. That bit of populism will cost the president far more in future credibility than he stands to gain in present popularity.

Mr. KYL. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Nevada (Mr. Ensign), the Senator from South Carolina (Mr. Graham), and the Senator from Mississippi (Mr. Cochran).

Mr. KYL

Mr. KYL. Madam President, I rise in support of the Coburn amendment because it would eliminate the authorizations for a number of questionable projects. Given the exploding Federal budget deficits, we ought to forgo the millions of taxpayer dollars for such things as the 450th birthday celebration for St. Augustine, FL; a study to determine whether Alexander Hamilton's boyhood estate in St. Croix, Virgin Islands, should be designated as a new part of the National Park System; the maintenance of tropical botanical gardens in Hawaii and Florida; and a shipwreck exploration program. These authorizations are not urgent, have a tenuous Federal nexus, and could divert scarce Federal funds from more important safety and health programs. Because the amendment eliminates authorizations for such programs, I am compelled to support it even though it would also eliminate a relatively more credible provision in the bill relating to the San Joaquin River Restoration Settlement Act.

Mr. KYL

Mr. KYL. The nomination of Elena Kagan to be Solicitor General of the United States is not without controversy. She has a stellar academic record which has been discussed. Following law school, Ms. Kagan served as a judicial clerk for Judge Abner Mikva on the U.S. Court of Appeals and for Supreme Court Justice Thurgood Marshall. After her clerkships, Ms. Kagan joined the DC law firm Williams and Connolly. Ms. Kagan left private practice to join the faculty of the University of Chicago Law School. In 1995, Ms. Kagan began her service in the Clinton administration as associate counsel to the President and later as deputy assistant to the President for Domestic Policy. In 1999, she left the White House and returned to legal academia, joining the faculty at Harvard Law School. In 2003, Ms. Kagan was named Dean of Harvard Law School, a role in which she was charged with overseeing every aspect of the institution, academic and non-academic alike. She is well regarded by those who have followed her career. I am particularly troubled, however, by two matters. First, Dean Kagan's nomination has rightfully received criticism because of her stance on the Solomon amendment. Dean Kagan joined two briefs concerning the legality of the Solomon amendment, one on an amicus brief to the Third Circuit in support of the appellants, FAIR, in the case FAIR v. Rumsfeld, and the other an amicus brief in support of FAIR when the case reached the Supreme Court. By a vote of 9 to 0, the Supreme Court upheld the Solomon Amendment and rejected the argument presented in the brief that Dean Kagan signed. See Rumsfeld v. FAIR, 547 U.S. 47, 55-57, 2006. Also, I would like to make one comment about Dean Kagan's actions as dean in this case. As Senator Sessions pointed out earlier today, because the case was appealed to the Supreme Court, the Third Circuit stayed enforcement of its decision. Therefore, the Solomon amendment stayed in effect. Dean Kagan acknowledged this in a September 20, 2005, email to the Harvard Law School community, where she admitted that she had barred the military from campus even though no injunction was in place: ``Although the Supreme Court's action [granting review] meant that no injunction applied against the Department of Defense, I reinstated the application of our anti- discrimination policy to the military . . . . as a result, the military did not receive [Office of Career Services] assistance during our spring 2005 recruiting season.'' Thus, Ms. Kagan barred the military from recruiting on campus even though the Solomon amendment remained the law of the land. Second, I am troubled by Dean Kagan's lack of appellate experience. She has not argued even a single case before the Supreme Court or before any federal or state appellate court. I am quite concerned about her complete lack of appellate advocacy. I am, nevertheless, willing to give her the benefit of the doubt, primarily because of the views of seasoned advocates who know her well and who know the Court well. All three Solicitors General appointed by President Bush--Ted Olson, Paul Clement, and Greg Garre--signed a letter, January 27, 2009, stating that they ``are confident that Dean Kagan will bring distinction to the office, continue its highest traditions and be a forceful advocate for the United States before the Supreme Court.'' They added, ``[h]er brilliant intellect will be respected by the Justices, and her directness, candor and frank analysis will make her an especially effective advocate.'' Additionally, among her other supporters are two highly respected conservative lawyers who have known Dean Kagan since the beginning of her legal career. The first is Peter Keisler, who served as Acting Attorney General under President Bush and held a number of other top positions in the Bush Justice Department. He clerked on the U.S. Supreme Court with Elena Kagan, and wrote the following in support of her nomination, January 30, 2009: ``[her] combination of strong intellectual capabilities, thoughtful judgment, and her way of dealing respectfully with everybody . . . are . . . among the many reasons she will be a superb Solicitor General, and will represent the government so well before the Court.'' Second, Miguel Estrada has known Elena Kagan since law school. He wrote in support of her nomination, January 23, 2009: ``Having worked as an attorney in the Solicitor General's Office under Solicitors General of both parties, I am also confident that Elena possesses every talent needed to equal the very best among her predecessors.'' I expect a Solicitor General nominated by a President of a different political party to hold views that diverge from my own; but I also expect that nominee to be qualified for the position, able to faithfully execute the responsibilities of the office, and be forthright and honest with members of Congress. She has assured us that her ideology will not interfere with her decisions as Solicitor General. I will closely follow Dean Kagan's tenure as Solicitor General. I will hold her to her commitments. I would like to make clear that my vote for Dean Kagan is only for the position of Solicitor General, and my vote does not indicate how I would vote for her if she were nominated for any other position, especially a position that is a lifetime appointment. Specifically, according to numerous news accounts, Dean Kagan is expected to be considered for nomination to the Supreme Court if an opening were to occur during the Obama administration. If she were nominated, her performance as Solicitor General would be critical in my evaluation of her suitability for the Supreme Court. My decision whether to support or oppose her would be strongly influenced by the decisions made by her as Solicitor General, such as the cases for which she does and does not seek review, the positions she argues, and the bases for her arguments. If she approaches her job as Solicitor General ideologically or argues inappropriate positions, I will not hesitate to oppose her nomination.

Mr. KYL

Mr. KYL. Mr. President, reserving the right to object, I don't believe Congress should rush to pass yet another piece of hastily crafted legislation in this very toxic atmosphere, at least without understanding the facts and the potential unintended consequences. Frankly, I think that is how we got into the current mess. As the chairman of the Finance Committee said last week: Frankly it was such a rush--we're talking about the stimulus bill now--to get it passed, I didn't have time and other conferees didn't have time to address the provisions that were modified significantly. I don't know what is in this legislation. Nobody else knows what is in this legislation. There have been no hearings. It seems to me the Banking Committee should have a hearing. The Finance Committee should have a hearing. Obviously, any tax legislation should be vetted through the Finance Committee. I am a member of that committee. We haven't had any meetings to talk about this. Other Senators need time to consider the bill and offer amendments through the regular order through the committee process. More importantly, because of the public interest, the public ought to have the right to review this legislation to make sure it doesn't have any additional loopholes or unintended consequences. The Baucus bill, as I understand it, is retroactive, not something we ordinarily do with tax policy. It seems to me we ought to have these hearings before we let this legislation come to the body. Therefore, I object.

Mr. KYL

Mr. KYL. Mr. President, I would ask for my colleagues' attention for just a moment. This is a very good amendment. The staff has informed me all the land acquisition under this bill has been accomplished through the cooperation of all parties--willing sellers, willing buyers--and there is no need for condemnation of any property, no need for eminent domain. Believing that to be true, my colleague has simply said, therefore, there will be no eminent domain used to purchase land under this bill; in other words, no acquisitions contrary to the wishes of the landowner. Believing the staff is correct, and, therefore, that it is not necessary, it seems to me it establishes a good principle to say that where there is no need for it, we should not authorize eminent domain to acquire land against a landowner's wishes. Therefore, I urge my colleagues to vote in support of this amendment.

Mr. KYL

Mr. KYL. Mr. President, in a recent column for the Washington Post, ``Obama's `Science' Fiction,'' Charles Krauthammer exposes President Obama's efforts to destabilize the delicate balance between moral concerns over destroying embryonic stem cells and advancing medical research that can be universally accepted. President Obama's recent decision to authorize expanded and seemingly unlimited Federal funding for stem cell research eviscerates the delicate balance forged by President Bush by forcing taxpayers to support embryonic creation and destruction. Mr. Krauthammer observed that some may ``favor moving that moral line to additionally permit the use of spare fertility clinic embryos,'' but ``President Obama replaced it with no line at all. He pointedly left open the creation of cloned and noncloned sperm-and-egg derived--human embryos solely for the purpose of dismemberment and use for parts.'' What is most concerning to me, and what Mr. Krauthammer succinctly exposes, is that President Obama's new embryonic stem cell policy is devoid of any ethical standards or guidelines. President Obama's decision makes the federal government the final arbiter in a moral argument that defies many Americans' core beliefs about the creation of life. I ask unanimous consent that his column be printed in the Record and I urge my colleagues to consider his thoughtful views.

Mr. KYL

Mr. KYL. Madam President, I would like to discuss the legislation before us, the so-called public lands bill and, in particular, four of the amendments that have been offered by Senator Coburn. I think four of these amendments are--I have not concluded my study of the other two, but four of these amendments I would commend to our colleagues and suggest that at least a couple of these amendments should not deter passage of the bill. If they are adopted by my colleagues--and I think they should be--they are in no way a poison pill. They should not cause the House of Representatives to reject the bill in any way. The bill should go on to the President. So for those who are supportive of the legislation, I think these amendments simply improve the bill, and they are offered, I know, by Senator Coburn for that purpose. If I could discuss each of these amendments--I am sorry I do not have the numbers for them, but I will describe them briefly. One is an amendment that would specifically strike out spending in four or five specific areas that are earmarked in the bill. It would save about $25 million. This is symbolic, but $25 million is still a lot of money to some of us anyway. They are five specific areas: to celebrate St. Augustine's birthday, a party for that purpose; botanical gardens in Hawaii and Florida; salmon restoration in California; Alexander Hamilton's boyhood estate in the Virgin Islands; and something called the Shipwreck Exploration Program. I am sure the authors of those provisions will come to the floor and describe in detail why these are such important programs and should be included in the legislation, and I will look forward to those explanations. Perhaps they will be persuasive. At this point, without further explanation, they look like the kind of thing that should not be a part of an omnibus bill such as this and could be stricken, as a result of which I am inclined to support my colleague's amendment to save $25 million by striking those particular items. The next deals with the subject of eminent domain. The Federal Government acquires a great deal of land under this legislation for different purposes, including wilderness areas. There are other provisions to protect other kinds of property short of wilderness areas. The point of Senator Coburn's amendment on the use of eminent domain is to just ensure that in no case is private property being taken against the wishes of the private landowner. I think we would all agree that if the Government is acquiring a piece of property for a public purpose--let's say for a military base-- the use of eminent domain is appropriate in that case. The Government has to establish that there is no reasonable alternative to the taking of the particular private property, and then if it can establish that, it can take possession of the property and then a trial ensues as to what amount of money is the proper compensation to the owner for the land. That is the usual and appropriate use of eminent domain. However, we are told that with respect to this legislation, it is not necessary to use eminent domain to acquire land in that way. The reason is because in every case--at least my staff advises me--the land that is owned by private landowners that would become publicly owned under this legislation has the approval of the private landowner. Specifically, a staff report says that: None of the component parts of the omnibus land bill anticipate the use of eminent domain, and all land exchanges and conveyance provisions include willing seller-buyer provisions, or were advocated by the private landowners in each specific provision of the bill in which they are involved. It is further noted by the staff of the committee that: Great attention was given to private property rights issues. They were addressed on a case-by-case basis. This omnibus bill is comprised of tens or scores of individual bills that were then added together into this one giant omnibus bill. So we are told that: On a case-by-case basis as to each particular bill, private property rights were protected and respected. In many instances, the land designations only affect land that is already publicly owned so it is not even an issue, and for those bills that may affect privately owned land, some of the purchases were actually authorized at the request of the landowner and some contain language that allows land to be purchased only from a willing seller. My point is that apparently, at least according to the minority staff, great attention was taken to ensure that the Government in no case in this bill is taking land against the wishes of the landowner. The point of Senator Coburn's amendment is to ensure that that is the case, that he would prohibit the use of eminent domain for the acquisition of land under the bill. So if it is true, as the staff suggests, that none of this land needs to be acquired by eminent domain, there is absolutely no harm in including the language that prohibits the use of eminent domain. The language in the bill is very brief. I think it is one or two sentences long. In fact, let me read it. It simply says: Notwithstanding any other provision of this Act or amendment made by this Act, no land or interest in land other than access easements shall be acquired under this Act by eminent domain. That is it, short and sweet. The reason I think it is important is that it establishes an important principle: that the Congress will not allow land to be taken against a landowner's wishes for purposes other than the usual purposes for which eminent domain is used, where the Government has to have the property. There is no other alternative, as in a military base, as I said, where you are simply acquiring property because it is a good idea. You want to protect a particular riparian area of a river, for example. What we do there is we acquire that land either by purchasing it from a willing seller or engaging in a land exchange. Those are the two typical ways of accomplishing this--both very appropriate. But it is not a case where the Federal Government has to have the land in the public's interest, as with the military base. So we don't use eminent domain ordinarily in a case such as this. All Senator Coburn is trying to establish here is that we are not going to change that principle and that the Senate adheres to the principle we have had in the past. We want to establish this precedent and continue to live by it--that eminent domain isn't used in circumstances such as this. I think that is a worthy amendment, and I think, frankly, if we reject it, it raises a question of why. Why would we want to preserve the right to use eminent domain if apparently there is no reason for us to do so? It, as I said, leaves hanging the question of whether we might use eminent domain in a situation where otherwise it wouldn't be called for. There is another amendment that I think clearly ought to be approved by my colleagues. I don't know why this hasn't been done--I know it was done a long time ago and it needs to be done again--and that is to simply require a report that details the amount of Federal land we have. This would be a public report that would be done--it would be updated each year, and it would detail Federal land ownership and the cost to maintain that land and the relative percentage of that land to the total, which would be very helpful information. I understand Senator Coburn has added one other amendment to this because there was a question raised about the fact that some Federal land serves a military purpose or an intelligence purpose which cannot always be disclosed publicly. So, correctly, he provides for a classified annex that would provide the ownership of the lands used for classified purposes. Members who are entitled to see that would be able to see it, but it wouldn't be available to the public generally, and that is frequently the way that classified material is handled. So I think that is a good amendment. There is no reason to oppose this. It is important for us to know how much land the Government owns. Let me put it this way: You are a landowner. Somebody says, How much land do you own? You know exactly how much land you own. You know where it is, what it does, how much it costs to own it, what the taxes on it are, and so on. It is important, if the Federal Government is going to be a good steward of both the land and taxpayer money, that it know what it owns--what we own. Do we need it all, would be one of the questions. Are there pieces of land that could be sold? The Government could use the money. Maybe we could dispose of some of this. In fact, there has always been a list of disposable lands owned by the U.S. Government, and frequently we acquire land in trades and so on, and there is a lot of buying and selling going on, and that is perfectly appropriate. So let's have an inventory of what we own and we can make decisions better as to whether some of that land could be sold or whether we need to retain it all, but at least we will know how much it costs to retain it and how much we have. I think that is a very good amendment. I can't imagine anyone voting against it. And, if it is adopted, it in no way should affect the legislation being passed by the House of Representatives. I know there is an intention that when the bill passes here in the Senate--assuming it does--it would immediately be taken up in the House and would be passed in the House in the form passed by the Senate and then would go to the President for his signature. There is nothing in here requiring a report of Federal lands that would upset that issue. The final amendment is technical and it may be considered to be a minor matter, but it is an improvement in the law we have. Again, I think it does no damage to the overall piece of legislation--the omnibus lands bill. It corrects a little piece that needs correcting, and here is what it does. We all know that if you take fossils or other valuable artifacts or rocks from a national park, for example, and you collect that or you try to sell it, you are guilty of a very serious crime, and we intend to prosecute people who do that. We have had far too many thefts of valuable things, including fossils, petrified wood, Indian artifacts, and that sort of thing from our Federal lands, and it is important to have legislation that continues to criminalize that. However, if I take my grandkids on a vacation and one of them picks up a rock and brings it home to show his buddies and it may or may not contain--maybe it is a little teeny piece of petrified wood, for example, should he be prosecuted in the same way that a person who is deliberately doing this to sell would be prosecuted? The law is sufficiently unclear on this. The underlying bill attempts to correct that problem and it comes within one word of correcting it properly. What it says is that the Secretary ``may'' write rules that allow for the casual collection of these items; and that is a good thing, for the Secretary to write rules that provide some exception if a little child happens to pick up a rock and it has theoretically some value to it. In order to ensure that this is done, Senator Coburn simply changes the word ``may'' to ``shall,'' that the Secretary ``shall'' write rules that allow for the casual collection of these kinds of rocks. That makes sure it gets done. It doesn't tell the Secretary what he has to do, how he has to do it, or anything else. The Secretary could theoretically write a rule that says the only time this ever happens is if it is exactly midnight on a Tuesday or something such as that. So we are not telling him he has to make this a widespread thing; we are not saying he should not protect our precious assets--and indeed we want him to--but we do want him to write these rules so that a casual collector would not be penalized under the relatively harsh penalties that exist in the law today, and as I said earlier, appropriately so. It is a technical change. It is a minor chink. It should not cause anyone to not vote for the larger bill if, in fact, the amendment is adopted. So those are the four amendments. As I say, my colleague has two other amendments and I need to study them more carefully to know whether I will support them, but I urge my colleagues to support these four amendments of Senator Coburn. I think they all make an important contribution to the bill. I am delighted he has been able to offer the amendments. I appreciate the cooperation of the majority leader in agreeing for him to be able to do that. My understanding is we will continue to debate these amendments this afternoon and this evening and then tomorrow there will be votes on all of these amendments prior to the vote on final passage of the bill, which I think is supposed to occur tomorrow evening, but in any event, in the not too distant future. So I urge my colleagues to consider these amendments. If you have questions about them, I urge you to talk to Senator Coburn so he can explain in detail what they are and are not intended to do. If you think in any way that they are deficient or need to be modified in some way, approach him with regard to that. I did that last night and he responded to some of my suggestions about, for example, adding the provision in the report that would allow a classified annex for those portions of the land that need to be protected. I am sure he will be willing to listen to folks if they have any concerns about his amendments, but don't vote against them on the theory that you don't care to know what is in them or if there is any change to this bill, it won't pass the House. That is not true. These are important amendments and, in some cases, benign amendments and I think they deserve our attention. I hope my colleagues would be willing to give these their serious consideration when the amendments are voted. I note the absence of a quorum.

Mr. KYL

Mr. KYL. Mr. President, before my colleague leaves the floor, I wonder if he might answer a question, and that is whether some of us on this side of the aisle could also celebrate our colleague, Ted's, appreciation for St. Paddy's Day, if there are any more of those cookies and punch left in the Democratic cloakroom.