Jon Kyl

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Nebraska (Mr. Johanns) and the Senator from Alabama (Mr. Sessions).

Mr. KYL

Mr. KYL. Mr. President, will you please state the pending business?

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

Mr. KYL. The following Senators are necessarily absent: the Senator from Nebraska (Mr. Johanns) and the Senator from Alabama (Mr. Sessions). Further, if present and voting, the Senator from Alabama (Mr. Sessions) would have voted ``yea.''

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Nebraska (Mr. Johanns) and the Senator from Alabama (Mr. Sessions).

Mr. KYL. The following Senators are necessarily absent: the Senator from Nebraska (Mr. Johanns) and the Senator from Alabama (Mr. Sessions).

Mr. KYL

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 Madam President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. KYL. Madam President, I would like to speak to the fiscal year 2009 appropriations bill, or what we call the Omnibus appropriations bill, that is before us right now, beginning with a general discussion and then some of the concerns that many of us on the Republican side have with this legislation. As I think most folks know, this is the second half of funding for the fiscal year we are in right now. The first half went through March--or basically through the end of this coming week--and then the second half of the year we said we would do late, and that is this legislation. I will discuss more of the process later, but the reason this was done in two pieces, I think, is twofold. First of all, the majority was not able to get the entire bill done last year, either intentionally or because it represented a lot of work--although that is the way we do it every other year--and second, I think there was a feeling there was a good likelihood they would add to their numbers on the majority side and potentially have a Democratic President, and so there may be some policy changes and other changes they would want to make in the legislation that they would have an easier chance to get passed than if they had done that when there were more Republicans in this body, for example, and a Republican President who could veto the bill. I say that because some of the things that are in this bill clearly represent changes from what was going to be the funding for this fiscal year until this special process was indulged. I do think and hope my colleagues on the Democratic side appreciate one of the reasons Republicans have concerns about this are these changes that have been made. In general terms, the $410 billion funding level is $32 billion or 8 percent higher than the fiscal year 2008 enacted level. At a time when we are suffering from pretty tough economic times, this is a pretty healthy increase in spending over last year. According to the House Republican appropriators, if you exempt the 9/11 funding in the bill, it is the largest increase in annual discretionary spending since the Carter administration. The bill is long--it is 1,124 pages long--and in addition to that there is a 1,000-page joint explanatory statement. I confess I have not gotten through all of those things. But staff have tried to read through it and have identified some of the things I want to discuss this afternoon. If you add the bills we did pass to fund the Government for the entire year--the Defense bill, Homeland Security and Military Construction--then the total of the discretionary funding for the year will exceed $1 trillion for the first time in the history of the United States. So it is a big spending bill. The total, as I said, is about $21 billion above President Bush's fiscal year 2009 request. Some of the spending concerns specifically are the following: Probably the biggest is the fact that when we did the so-called stimulus bill, we spent almost $1 trillion. Much of that was spent on programs that are actually imbedded in this Omnibus appropriations bill. Constituents may be a little bit confused on that point. We know they know we have an appropriations bill that got us started on the year 2009. They know we had this $1 trillion-plus so-called stimulus bill. So why are we doing an Omnibus appropriations bill on top of that? It is a good question, especially in those areas where there is duplicative funding, which there is a lot of. There are 122 programs that already received hundreds of billions of dollars in the stimulus bill. You would think they would not be included in this bill, so that you had duplicate spending. But, no, they were both in the stimulus bill and also in this bill. According to, again, the House Appropriations Committee Republicans, the omnibus and stimulus together include $680 billion for new programs. There are also program expansions, there is one-time spending. If you add all these things together, you have an 80-percent increase in the funds for those accounts over the 2008 level. Think of that, an 80-percent increase. Now, you can even rationalize maybe a 6- or 8-percent increase over the previous year. But an 80-percent increase? That is obviously way too much. Just a couple of examples of things that got into this bill. There is $15 million for beginning of a study for a new House office building. I served time in the House of Representatives, and actually worked in two different office buildings in the House. Working in the Rayburn House Office Building, a beautiful new building, there is plenty of room. I think we would all like bigger space, but is that something we want to be spending money on this year, given our current economic environment and the fact that we just got through funding the new Congressional Visitor Center, which was massively over budget? But more important than some of these spending items are the policy concerns. These are the areas of the bill that certainly Republicans would not have agreed to as part of the process: School Choice for the District of Columbia. This bill effectively eliminates the School Choice Program by prohibiting any student from participating in the program after the 2009-2010 school year unless Congress reauthorizes the program and the DC Council approves the bill. So you are setting up two big roadblocks to the continuation of what has been a very popular program for folks in the District of Columbia. A provision on greenhouse gas emissions. This bill, with this provision, taxes a large step toward allowing the Endangered Species Act to literally be used to regulate greenhouse gas emissions, although it was obviously never intended for that purpose. Specifically, it allows the Interior Department to withdraw two specific Endangered Species Act rules within 60 days of enactment without any public notice or comment. The practical effect of this rule withdrawal is that any acts that increase carbon dioxide or greenhouse gas emissions, which means almost anything we do, since, of course, we breathe carbon dioxide, would be subject to a lawsuit if it did not first consult the U.S. Fish and Wildlife Service on mitigation against potential impacts of climate change and harm to polar bears. That is the specific rule we are talking about. Examples of actions subject would include construction projects, energy production, agricultural practices, to name a few. This is a radical departure from anything we have done in the past. It is a policy change that most Republicans simply cannot agree with. There is something called nominal drug pricing, which would allow Planned Parenthood and other organizations to buy certain drugs for nominal prices and then resell those drugs at a profit. This is not what they are in business to do. There is a very controversial section on family travel to Cuba. Section 620 and 621 of the Financial Services Division weakens the existing travel restrictions to Cuba. Now, that is the kind of serious policy which we need to have a serious policy debate about in this Congress. Is that the kind of thing we want to include in this appropriations bill? I think not. The so-called Kemp-Kasten: Section 7079(b). This is a section we have had in the law forever. This particular section includes language which would undermine this longstanding Kemp-Kasten language. I said ``forever.'' It has been since 1984. It is a provision that denies Federal funding for organizations that are involved with coercive abortions. While the Kemp-Kasten provisions are still intact in the omnibus, an exemption is created for a very important organization, the U.S. Population Fund or the UNFPA, which is a controversial program that the United States has not funded in the past due to its past involvement with China's one-child policy. Again, it is a very important change in policy. If we are going to do things such as that, we should debate it on the floor of the House and Senate and make a decision, not just fold them into an appropriations bill. Finally, we hear a lot on the earmarks these days. I was surprised to learn this bill includes earmarks totalling about $7.7 billion, 8,750 earmarks, allegedly. Nobody argues that every single expenditure Congress directs is inappropriate, especially if they have already been authorized. But I suspect that in these 8,750 earmarks, there is an awful lot that does not represent authorized spending by the Congress. I would note that the three security-related appropriations bills enacted last fall added another $6.6 billion in earmarks, which would bring the total in this bill to $14.3 billion in disclosed earmarks. That is not acceptable. The President supported an amendment to the budget resolution for 2009, the so-called DeMint amendment, with Senator McCain and Senator Clinton, to establish an earmark moratorium for fiscal year 2009. The vote on that failed 29 to 71. But I would hope the President, as a result of his position on this, would weigh in. Finally, I mentioned in the very beginning the process, how we got to this point. Why are we considering, after a recordbreaking stimulus bill of over $1 trillion, why are we passing another appropriations bill now, before we have done a budget for this year and before we do the appropriations bills for the coming year? Well, it is because last year the Congress did not fund the entire year of Federal agency funding. Congress only funded the first 6 months. Some people like to blame President Bush for this. President Bush had nothing to do with it. He was the President. He does not write the appropriations bills. He does not pass the appropriations bills in the Congress. I really think, as I said, it was a combination of factors. For one thing, some bills, at least one that I know--well, two--the Interior bill and the legislative branch bill--were never passed out of committee. President Bush had nothing to do with that. It is a failure of Congress to get these bills passed out of the committee. Remember that the Interior bill never got out of Committee in either the House or Senate because the majority was worried about taking the offshore drilling, the so-called oil shale and OCS oil exploration and drilling votes. That bill got out of neither committee. It had nothing to do with the President. Given the delay in bringing the omnibus bill to the floor; in other words, waiting until the very week in which the resolution that funded the first half of the Government expires, we are clearly taking a chance that either we are going to rush through this and not give it appropriate time or we are going to have a continuing resolution of at least some length of time. I presume it should not have to be for very long, but I would find it very doubtful that we could pass this bill, especially with the other things we have to do tomorrow, before the end of Thursday evening of this week. So there will be a lot of amendments, obviously, proposed to it. I think we should expect right now we will have to at least extend for a few days the funding for the second half of the year. My own thought would be we should actually have something like a continuing resolution for the remainder of the year, especially if the price for not doing that is to adopt these many policy changes which are serious, significant, and require a lot more debate on the Senate floor than simply having been included in an appropriations bill, that would not enable them to get the kind of debate that I think ordinarily would attend to them. This is the outline of the bill we have before us. Obviously, we are going to have a lot of amendments to it. Some will deal with the amounts of money in the bill, others will deal with the policy that is embedded in the bill. I hope my colleagues on both sides of the aisle would be willing to allow this debate, a fulsome debate, with the amendments that need to be offered, in order to conclude the bill in a responsible fashion.

Mr. KYL

Mr. KYL. Madam President, I ask for the yeas and nays.

Mr. KYL. The following Senator is necessarily absent: the Senator from Tennessee (Mr. Corker). Further, if present and voting, the Senator from Tennessee (Mr. Corker) would have voted ``yea.''

Mr. KYL. Mr. President, if the Senator from Maryland has a moment, I would be very happy to respond to some of the concerns he raised. They are all legitimate questions, I acknowledge up front. No State should have territory foisted upon it. That is absolutely true. And the questions raised here were good questions. First of all, the amendment before us is an amendment that has frequently been offered in the House of Representatives. It has been vetted over there for a long time. So this is not something new. Secondly, it is absolutely clear from section 6 of the amendment that nothing happens with regard to retrocession unless the State of Maryland agrees. The effectiveness provision reads as follows: Not later than 30 days after the State of Maryland enacts legislation accepting the retrocession described in section 1(a), the President shall issue a proclamation announcing such acceptance. Unless the State of Maryland affirmatively, through an act of the people's representatives of that State, vote to do this, there is no retrocession to the State of Maryland. That answers the question of States rights.

Mr. KYL. Of course.

Mr. KYL. I say to my colleague, the first point he made was that the State of Maryland should have a say in this, and it should be a definitive say. If the State of Maryland doesn't want the residents of the District of Columbia to be part of the State, that informs our decision about what the people of the State of Maryland want. I wouldn't force that decision upon them any more than the Senator suggests should be the case. The State of Maryland should have that say. If the Senator is saying: I can tell you right now Marylanders don't want these folks from the District as part of their State, we ought to know that by a definitive process rather than assuming it to be the case going into the debate. That would be my response.

Mr. KYL. I am happy to engage in a colloquy.

Mr. KYL. Mr. President, my colleague makes a good point. I will respond in two ways. First, I appreciate the sentiment and would hope that when western land issues are dealt with in this body, our eastern colleagues would apply that same principle. Frequently, there is a sense that folks in the east know best about what we should be doing with Federal lands in the west. I certainly respect that sentiment. Obviously, in some respects, that is not as important as the fundamental political jurisdictional issue we are facing here. The question of retrocession is a fundamental issue, and it has to do with a fundamental right the District of Columbia residents would have to participate in State government. I recognize there are some differences, but I offer that first response. Second, I am not presupposing anything with the amendment. The question will always be before the Maryland electorate whether they want to do this. I don't know whether the Maryland electorate wants to do this. I presume there would be a debate. The result of that debate, decided by the people of Maryland or their elected representatives, would be dispositive on the question. Nobody is foisting anything on anyone. I would be the first to say: If the people of Maryland don't want the residents of the District to be part of the State of Maryland, then the Congress would have to be informed by that decision. I would think it would be dispositive. Could I respond to a couple other points first and then I will be happy to engage in a further colloquy. On the matter of the way the lines were drawn, the history of this is that the so-called national areas, the areas where the Federal buildings, various Government departments are located, the Mall, the monuments and those sorts of things, would not be part of the retrocession. The bulk of the bill draws those lines. I can't tell my colleague exactly what the philosophy was with respect to each of those areas. Any question about what should or should not be in, be it the Kennedy Center or anything else, is a legitimate subject of discussion. It could be the subject of amendment. This has been a matter that has been not frequently but not infrequently debated in the House of Representatives. So there is some history of the rationale behind the line drawing. But with respect to where any of these particular lines are drawn, obviously, the Senators from Maryland should be key in helping us to decide where those lines would be. There is nothing locked in stone here that could not be considered the subject of an amendment. Finally, with respect to the unfunded mandate part, I am not sure it wouldn't work the other way around. I cited a couple days ago the statistics about the money that the Government provides for the District of Columbia. Some of that money has to do with the running of these Government departments, the construction of buildings, maintenance of the buildings, and so on, but much of it does not. Much of it has to do with what the Constitution provides as to the general welfare of the people within the District. I suspect that under any scenario, the money that has been provided to the District of Columbia would still be far in excess of the money returned to any of the several States. And because of the unique nature of the District and the history and traditions, much of that funding would naturally carry over to future years. There is no way the Federal Government is not going to fund all of the national areas that are retained in this legislation. As the District's Delegate Norton said in a press release recently, much of the money in the stimulus bill that is going to refurbish or construct office buildings that are Federal Government buildings provides employment opportunities for the residents of the District. While we should obviously be sensitive to any issues of transfer, if the State of Maryland were to accept the residents of the District of Columbia, it is a very legitimate point, and all of those things are appropriate for discussion. On the matter of the unfunded mandate, it would probably work the other way around, that Maryland would receive a lot of money from the Federal Government. In any event, the Federal national areas that would be receiving the amount of money that they naturally do would certainly help the residents who work here in what is now the District of Columbia. There is nothing in this amendment that is intended to jam anything down the throats of the people of Maryland. They have the final and ultimate say of what is done. I wouldn't propose anything different from that.

Mr. KYL. Absolutely.

Mr. KYL. If I may make one other point, we will have an up-or-down vote on this amendment at 10:30 and on the bill, of course. I want to conclude my comments to the Senator, because he, obviously, has a good sense of what the people of Maryland want. I concede that. Again, I concede the premise of his point which is that the people of Maryland should have a say before this is done. The reason for the amendment is simply this: We believe it is unconstitutional for the Congress to simply provide a congressional district without an amendment to the Constitution. I personally think the residents of the District should be represented in the House. The only other way to do that, for those of us who believe it is unconstitutional to pass the legislation pending before us, and a court will in relatively short order make a determination on whether that is true, and let's assume that the court says, you can't do it, Congress, by simple legislation, then short of a constitutional amendment, this is the only other way to achieve the objective. It is presented in good faith. It is presented as the only other logical alternative for the residents of the District of Columbia to have their own congressional district. Because of the number of people who live in the District, something over 600,000, and because the representation from House congressional districts today is approximately a shade over 600,000, the fact is that the residents of the District could have a district of their own or essentially exactly as the District is configured today without presumably modifying the lines of other Maryland districts. Of course, that would be up to the State of Maryland in the way that it sets its congressional district lines.

Mr. KYL. I am happy to.

Mr. KYL. I said that is why it would be ``almost.'' You might have to include a few residents of what are now Maryland within the District, and I acknowledge that to be the case. In any event, I accept the fundamental premise of the Senator. Our amendment addresses that specifically. My hope would be that if the courts should declare that we cannot by legislation do what this bill attempts, then the people of Maryland would strongly consider whether the next best alternative is to provide for the retrocession we have in this amendment as the next best way to provide a vote for the residents of the District of Columbia. I yield the floor.

Mr. KYL. Mr. President, let me respond to two points my colleague made, and they are both legitimate questions. The first is some of the technical problems. I am sure there are a lot of technical problems we have not even thought about that would attend. This is a big change. Whether you adopt the underlying legislation or you go through a process such as retrocession, there will have to be a lot of adjustments and accommodations, to be sure. But on questions such as, for example, policing the Mall and so on, those things are already well understood and resolved. For example, I have spoken recently with Capitol Police and asked them about the overlapping jurisdiction: Where, for example, does the Capitol Police jurisdiction end and where does the DC Police jurisdiction begin, and so on? They have all these things worked out. I do not think there is any difficulty with those kinds of technical issues. But there will be, undoubtedly, others that will have to be addressed as well. Secondly, my colleague is correct, in order to avoid the anomalous situation where a few people who might be technically residents downtown and not have other residence downtown--being in the Federal areas or national areas as described in this legislation--we would have to eliminate the twenty-third amendment to make sure those people would not have three electoral votes for the Presidency. I cannot imagine that if retrocession did occur the citizens of the country would not follow through on that essentially technical issue and approve the recession of the twenty-third amendment. But it is one of the things that will have to be done. That is absolutely true. Again, I will conclude by saying, for those of us who believe it would be preferable for the residents of the District to have their own representative in the House of Representatives and, in fact, to be able to vote for Senators, and have that representation as well, if they are part of a State--if, in fact, the underlying legislation is unconstitutional, as many of us believe it is--then this amendment offers a constructive way to achieve the same result, I would suggest, with very little in the way of adjustment, but with some adjustment that would have to occur--again, subject solely to the approval of the people of the State of Maryland. I say to our colleagues, this vote is scheduled for 10:30, so if there are people who want to discuss other amendments or other matters, or to further debate this amendment, this would be a good time to do so.

Mr. KYL. Mr. President, the last amendment is going to be debated soon. Senator Ensign is here to begin that debate. Both Senator McConnell and I would like to make some brief remarks. (The remarks of Mr. Kyl and Mr. McConnell are printed in today's Record under ``Morning Business.'')

Mr. KYL. Mr. President, I ask unanimous consent the testimony by Professor Jonathan Turley before the House Judiciary Committee September 14, 2006, be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I wish to take a few minutes to say farewell to the head of my whip office staff, Manny Rossman. By some standards, Manny has had a relatively brief career in Congress. But anyone who knows Manny knows that he has been an indispensable staff member from the very beginning. Manny started his career on the Hill as an intern, like so many others. He was lucky his internship was with then-Congressman Bill Archer, chairman of the House Ways and Means Committee. Manny was not any ordinary intern, however. He quickly moved from opening mail and answering phones to working on substantive legislative issues. Clearly, Bill Archer saw the promise of this very special intern. Following his internship, Manny went off to law school at the University of Pennsylvania. Manny was president of the Penn Law Republicans and a member of the Federalist Society. He graduated in 1999. His time in law school was very successful, and he could have easily made his way to Wall Street for a career there or elsewhere. But the pull of public policy and public service brought him to Washington, DC. After he graduated from law school, Manny accepted a job with then- Congressman Phil Crane. Congressman Crane was a senior member of the Ways and Means Committee, which gave Manny the opportunity to work on the leading tax and trade issues of the day. These issues are central to our economic health as a nation, and Manny made them a top priority. Manny quickly became a trusted adviser to Congressman Crane, working on such landmark issues as the law that repealed the FSC/ETI tax benefit and replaced it with a deduction designed to encourage domestic manufacturing activity. He also worked on enactment of trade promotion authority and multiple free trade agreements. After Phil Crane left the House, Manny made his way across Capitol Hill to the Senate, where he became Senator Trent Lott's key staff person on the Finance Committee. That is where I first met Manny and, more importantly, where Manny met his future bride. At that time, Jennifer Vesey was handling health care issues on the Finance Committee for our then-colleague Senator Rick Santorum of Pennsylvania. Who knew that the Deficit Reduction Act could be so romantic? While working on Finance Committee issues, Manny helped the Senate enact a landmark pension reform bill, the Central American Free Trade Agreement, and the extension of the 15-percent tax rate for capital gains and dividends through the end of 2010. Following the devastation of Hurricane Katrina, Manny worked night and day to help Mississippi and the entire gulf coast region begin the long road to recovery through the establishment of the Gulf Opportunity Zone, or so-called GO Zone. Trent Lott was elected the Republican whip in late 2006, and to no one's surprise, he asked Manny to become his whip office chief of staff. Working with Trent Lott, Manny built a highly effective whip organization. At the same time, he developed countless relationships with other Senate leadership offices, with House leadership offices, and with the administration that to this day facilitate the smooth operation of the entire legislative process. When Trent Lott retired at the end of 2007 and I was elected whip by my colleagues, I knew the key to an effortless transition was Manny Rossman. I am grateful that Manny agreed to stay with the whip operation through my first year. I very much appreciate the advice and the counsel he has given me during this time. I agree with Trent Lott that there is something about ``the magic of Manny'' that makes him such an effective and delightful addition to our whip team. We will all miss him very much. We thank him for his service to the Senate, to the Congress, and to the country, and we wish him farewell and Godspeed.

Mr. KYL

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