Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, in a few moments I am going to propose an amendment. I thought to conserve time that I would simply describe the amendment now, and then as soon as it is copied, I will distribute it and ask unanimous consent that the pending business be laid aside so that I can offer that amendment. This is the retrocession amendment. It is an amendment that has been frequently offered in the House of Representatives over the years, and it is the alternative to the constitutional mechanism for providing the District of Columbia with representation in the House and Senate. Rather than going the constitutional amendment route, there is one thing we know we can constitutionally do legislatively. Congress has the ability to retrocede to the State of Maryland all of the non- Federal areas within the District of Columbia that adjoin Maryland. The effect of that, obviously, is to give the residents of the District of Columbia today the same rights as other citizens of Maryland, if this procedure were to be followed. Under this amendment, it would require an affirmative action of the Legislature of the State of Maryland, so that if the Legislature of Maryland did not wish to proceed with this, then it would not occur. It also would require the repeal of the 23rd amendment to the Constitution, as I will describe in just a moment. But the effect of it is, as I said, to allow the residents of the District to enjoy representation in both the House of Representatives and the Senate. It would do so without violating the Constitution's requirements that only States be represented in Congress and it would do so without creating a city state that would have disproportionate leverage in Congress and over the Federal budget. The amendment provides quite simply that after certain conditions are satisfied: The territory ceded to Congress by the State of Maryland to serve as the District constituting the permanent seat of the Government of the United States is ceded and relinquished to the State of Maryland. Retrocession, as I said, includes a minor exception for the so-called national areas--the White House, the Capitol building, the Supreme Court building, and the other Federal buildings and monuments around the National Mall. The length of the amendment is simply due to the fact that there is a full description in section 3 of the amendment of the area that would remain under the exclusive jurisdiction and control of the Congress. There is an important transition provision that would allow lawsuits begun in the District of Columbia to be continued in Maryland courts. The amendment also provides that until the next reapportionment, the DC Delegate will serve as a full Member of the House of Representatives from Maryland. As I said, there are two conditions that would have to be satisfied before it takes effect. First, the State of Maryland would have to enact accepting the retrocession of the District to Maryland; and second, amendment XXIII, which currently gives the District three electoral votes in Presidential elections, would need to be repealed. The reason for this is that in the absence of such a repeal, amendment XXIII might be construed not to be mooted and might be construed to give the very few residents living around the National Mall three electoral votes. The intent here is not to capture anyone who actually has an abode in that area, but there are some people who might be living there nonetheless. We believe the amendment is the most reasonable means of providing representation in Congress to the residents of the District. It is a solution that is based on precedent. Obviously, as we all know, in 1846 the part of the District south of the Potomac River was retroceded to the Commonwealth of Virginia and became Arlington County and old Alexandria. We have done this before. We know how it works. If we adopt the amendment, the residents of Maryland could have a vote in the House and in the Senate within a year or two. If we continue down our current unconstitutional path, the legislation will be tied up in litigation for several years and, at least in the view of many of us, then struck down and we will be back at the drawing board. Unlike proposals to grant statehood to the District of Columbia, retrocession provides representation to the District residents in the national legislature but without creating a city state that would further skew representation in the Senate. In that regard, I would note that the number of people represented in most of the congressional districts of the United States exceeds the number of people who are residents of the District of Columbia. As State population continues to grow, there is every reason to believe that ratio would continue to exist. I urge my colleagues to support this sensible constitutional means of providing representation in Congress to the residents of the District of Columbia. At this point I ask unanimous consent that pending business be laid aside for the purpose of offering an amendment.

Mr. KYL. Mr. President, I appreciate the comments of the Senator from Connecticut--in particular, his comments at the conclusion of his remarks about the appropriateness of an expedited appeal. We are both very certain of our constitutional judgment on this. We are both lawyers. We each come to a totally different conclusion about what is constitutional or not. Fortunately, we have the courts to resolve the issues. As with previous legislation, we had the good sense to include an expedited appeal to the courts so that the issue can be resolved one way or the other. I would note there is one thing that is needed to effectuate this--to be sure that, as it was in the McCain-Feingold legislation, an appeal can be facilitated by ensuring pro bono counsel can represent plaintiff in the case. Let me also reference a fact that my colleague from Arizona is usually quick to point out. He likes to say he is unburdened by a law degree. That certainly can be a burden for those of us who have the degree, but what he has argued illustrates not only the sensibility of our Constitution but also his extensive knowledge of it. I always appreciate his point of view on these issues because of his wide- reaching experience which helps us understand the reasons for the constitutional provision. I support the constitutional point of order he has raised because I do deeply believe the action the Senate is being asked to take here is unconstitutional. The creation of a House seat for the District by legislation rather than constitutional amendment is what is before us here, and we believe that only by constitutional amendment can the additional representation be appropriately granted. I would like to respond briefly to the comments of my colleague from Connecticut. They are all well stated. They are the arguments in opposition to the proposition. I referred to a couple of them yesterday, but let me refresh those and then discuss one other matter. The primary argument of the proponents of the bill is to rely on the so- called District clause, which is article I, section 8, clause 17. The District of Columbia Circuit Court actually interpreted this clause in a case called Neild v. District of Columbia in 1940. What the court noted in that case was that the District clause does indeed allow Congress to legislate within the District for ``every proper purpose of government'' and gives Congress ``full and unlimited jurisdiction to provide for the general welfare of citizens within the District of Columbia by any and every act of legislation which it may deem conducive to that end,'' subject, of course, to the negative prohibitions of the Constitution. But proponents argue that because the District clause allows Congress to do things in the District of Columbia that States themselves cannot do, then it must also follow that Congress, with regard--that it must also allow Congress to do things with regard to the District that only States can do. For example, article I, section 10, of the Constitution bars States from doing things such as coining money, entering into treaties, and keeping troops. But none of these restrictions apply to Congress in the exercise of its power to govern the District. Proponents of this bill argue that it follows from this sweeping power that Congress may also grant District residents the rights of citizenship in a State, including the right to congressional representation. But this argument does not follow. Congress has some powers in the District that are broader than the powers of a State, but this does not mean that every power of a State must also extend to the District. States and the District of Columbia are different under the Constitution, and each has some rights and powers that the other lacks. I note in this regard that the Senator from Connecticut quoted from an opinion of Justice Marshall in a very early case in which Justice Marshall saw a problem with the commerce clause and, because of his view that the District of Columbia was not equivalent to a State, invited Congress to solve the problem, which, many years later, as the Senator noted, Congress did do. But, of course, what this case stands for is the proposition that Justice Marshall, who was there at the time and well understood the intent of the Framers, appreciated that he could not do it from the bench. He could not say that the District was the same as a State and therefore he had the ability to fix the problem. That had to be done in another way. There is a big difference between those kinds of problems dealing with adversity jurisdiction or the commerce clause, and so on, and the fundamental status as a political entity, which would change the representation of the House of Representatives. Moreover, it would make no sense, in the same document where the Framers specifically composed the House of Members of the several States and then specifically designated the District of Columbia as something other than a State, that the Framers then forgot to give the District representation in the House. The Framers had the opportunity to provide the District with a Representative in the House but, of course, declined to do so. The text of the Constitution on this matter is clear. It says Congress shall be composed of Representatives from States and States alone. Here is the exact wording: The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. No person shall be a Representative who shall not have attained to the age of twenty five years . . . and who shall not . . . be an inhabitant of that state in which he shall be chosen. And finally: [E]ach state shall have at least one Representative. When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. So any act by Congress purporting to grant a seat in the House of Representatives would contradict this plain text and would be unconstitutional. My colleague from Connecticut also noted that we have, for Americans residing abroad, enabled them to vote. But, of course, it is tied to their last domestic residence to a State. It is the State to which these votes go. So, even in those situations where there has been a need to accommodate the fact that Americans are not all residing at that moment in a State, we have tied their vote to the State from which they have come. I mentioned one case, but I would also like to briefly discuss some other cases because judicial precedent has accumulated over the years and strongly supports the point my colleague from Arizona makes with regard to the constitutionality of this legislation. In Bolling v. Sharpe, the companion case to Brown v. Board of Education, the U.S. Supreme Court expressly recognized that when it came to the application of the fundamental constitutional principles, the District could not be considered to be the same thing as a State. The Bolling petitioners had challenged the constitutionality of racial segregation in the DC public schools. The Court held that such segregation was unconstitutional in the District, but the Bolling Court was very careful to make clear that the District was not equivalent to the States and not subject to the same legal strictures. Brown v. Board of Education was based on the 14th amendment, which by its own terms applied only to the States. Because the District is not a State, the Bolling Court reasoned different rules had to apply to this case. Here is how the Court explained it: We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable to the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. So the Court obviously had a dilemma. It went on to reach the same result as in Brown v. Board of Education and strike down racial segregation, but on different grounds. It was careful to emphasize that the law that applies to the District is different because the District is not a State. Other courts have also emphasized that the District is not a State. My colleague mentioned Adams v. Clinton. DC residents there argued that they had a constitutional right to elect a Representative to Congress but the three-judge district court, examining the text and the history, determined that the District is not a State under article I, section 1, and therefore the plaintiffs did not have a judicially cognizable right to congressional representation. In another case from the DC Circuit Court, Michel v. Anderson, the court affirmed the constitutional principle that Congress cannot grant voting rights to citizens of the District. The court considered congressional rule changes that will allow Delegates from the District and U.S. territories the right to vote in committees and even the committee of the whole in the House. Some Members of Congress sued, claiming these rules went too far. Although the District of Columbia Circuit Court upheld the new rules, it noted that the rules passed constitutional muster only because they did not give the essential qualities of representation to the Delegates; namely, according to the court, it was acceptable to allow the Delegates to participate in deliberations and secondary votes--for example, in committees and the committee of the whole--as long as their votes would not be decisive in the final vote on final passage of the bill. There was a reason for that. The bottom line: The District has a voting Representative in the House to the full extent that it can be granted by the Congress short of a constitutional amendment. At that point, for full representation there would need to be a constitutional amendment. In a similar vein, in United States v. Cohen, then-Judge Scalia explained, again in a DC Circuit Court decision, that the District clause ``enables Congress to do many things in the District of Columbia which it has no authority to do in the 50 States.'' But Judge Scalia went on to emphasize ``[t]hat there has never been any rule law that Congress must treat people in the District of Columbia exactly as people are treated in the various States.'' Finally, in Banner v. United States, the DC Circuit, in a panel that included now-Chief Justice Roberts, rejected a constitutional challenge to congressional legislation that prevents the DC government from imposing a ``commuter tax'' on people who work in the District but reside in Virginia or Maryland. The Court stated that Congress had broad authority to legislate under the District clause but also noted: None of this is to say that Congress can legislate for the District without regard to other constitutional constraints. And of particular relevance to the present debate, the DC Circuit panel stated: [T]he Constitution denies District residents voting representation in Congress. These cases are all clear, and they all reach either the same result or are all based upon the same reasoning. The final constitutional argument was also addressed by the Senator from Connecticut. This has to do with the 23rd amendment. Let me discuss that. When Congress in the past has addressed the District's special status, it has acknowledged that status is dictated by the Constitution, and it recognized that a constitutional amendment was necessary to change the status, as we have just seen. So when Congress sought to give the District a vote in Presidential elections, it passed the 23rd amendment to the Constitution. When Congress dealt with this issue before, it dealt with it correctly. Congress does have the power to grant the District representation in the House if it deems that it is necessary and desirable. But the proper way to do this is through the mechanism that the Framers provided in the Constitution: the amendment process in article V. Prior to the ratification of the 23rd amendment in 1961, District residents could not choose electors for purposes of choosing the President and Vice President; but because of this amendment, District residents are now able to select electors ``equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State.'' Congress thus recognized in the 1960s that it did have the authority under the District clause and without amending the Constitution to allow District residents to choose Presidential electors. The 23rd amendment to the Constitution itself recognizes that the District is not a State and cannot be treated as one. First, it ensures that the District, even if otherwise entitled by population, may not appoint a number of electors greater than that of the least populous State. As a consequence, even if the District grew enough in population that as a State it would be entitled to three Representatives and two Senators, let's say if a smaller State than was not entitled to three Representatives existed, the District's electors would be limited to a number equal to those of the smaller State. Even under the 23rd amendment, for the purpose of selecting Presidential electors, the Constitution recognizes that the District is not the same as a State and is not entitled to be represented in the National Government in the same way. So where does that leave us? What is next were we to pass this constitutional amendment? There has been an argument made, I think, that the proponents of this legislation would perhaps try, for example, to extend this to representation in the Senate as well. My colleague from Connecticut has said: No, there are totally different historical reasons that would not be so. I accept that there are, in fact, historical reasons that would preclude us from doing that. But I would also suggest the very reasons which caused Congress, the political reasons which caused some in Congress to change from the previous position--which has also been a constitutional amendment is required-- to a legislative proposal here, would be very likely to occur in the future on this particular issue as well. I think the same thing could occur with respect to representation in territories, such as the Territory of Puerto Rico, for example. So if, in fact, today we say, no, that could not possibly be because of tradition and the historical understanding, that is not necessarily the case given the fact that we have now at least some in this body who have thrown over the historical tradition and case law and understanding that only by constitutional amendment could the Constitution--could there be an amendment to allow the District representation. So I am going to urge my colleagues to vote against the resolution. I am going to urge them to vote to sustain the point of order that my colleague from Arizona has made. There is a constitutional issue, and we need to be on record as to what we believe to be the correct decision. If we believe it is constitutional, then there will be an opportunity to express that in this amendment. If we believe it is unconstitutional, we will have the opportunity to express that. Many of us want to express that proposition. At the end of the day, however, as my friend from Connecticut has pointed out, the ultimate resolution is not going to be what we believe but, rather, what the courts say with respect to the issue. Again, for that reason, it is important to have a workable, expedited procedure for resolution of this issue in the courts. And I am hopeful we can achieve that in the legislation, even should the legislation pass over the objections of those of us who disagree with it. I yield the floor. The PRESIDING OFFICER (Mr. Casey.) The Senator from Vermont is recognized.

Mr. KYL. Mr. President, I ask unanimous consent that it be in order to consider an amendment at the desk and that the reading of the amendment be dispensed with.

Mr. KYL. Mr. President, I understand this amendment has been cleared on both sides.

Mr. KYL. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. KYL. Mr. President, I note for the benefit of colleagues that we now have, I think, two pending amendments. I urge my Republican colleagues, if they wish to speak to either of these two amendments or to lay down further amendments--we have good cooperation here on both sides of the aisle to move forward with this legislation, and if Members who have an interest can be here and express their views or offer their amendments, we can move through the bill more quickly. I will suggest the absence of a quorum here, but in the event Members on the Republican side wish to speak, certainly this would be a good time for them to come down and speak to the bill and offer amendments. I suggest the absence of a quorum.

Mr. KYL. Mr. President, I would like to ask my colleague from Connecticut a question or two about this. First of all, I think it is correct that all of us would like to see a way, a proper way--and we disagree about what that way is--for the residents of the District of Columbia to have a full franchise in terms of congressional representation. Failing that, I think Senator Coburn was simply saying they should not have to pay taxes. I was wondering myself about potentially a second-degree amendment that might give that option to other States or congressional districts on the theory that maybe this would be a two-fer for their constituents: they could vote to get rid of their Congressman and the income tax. I wonder if my colleague would have an idea about such an amendment.

Mr. KYL. I think the Senator from Connecticut is probably right about that. His point is to draw an important distinction, and that is that there are two elements to this, one being the taxation and the other the representation. The Senator from Connecticut rightly points to a very important episode in our history where the Founding Fathers tied those two together. There are other factors as well. I urge support for the amendment.

Mr. KYL

Mr. KYL. Madam President, I ask unanimous consent that Kim McIntier of my staff have floor privileges for the duration of the debate on S. 160.

Mr. KYL

Mr. KYL. Madam President, obviously, the principal argument that must be made against this bill is its blatant unconstitutionality. Article I of the Constitution clearly and expressly provides that representation in the House of Representatives shall be apportioned among the several States. The meaning of this language is not ambiguous. Only States may be represented in the House of Representatives--not territories, not districts, or other Federal possessions. It is hard to craft a colorable argument that this bill is constitutional, especially in view of court decisions confirming what I just said. But let me set aside for a moment the constitutional argument and talk about the idea behind the bill, which is that it is wrong for residents of the District not to have some representation in the House of Representatives. The argument is that everyone is entitled to representation in Congress and that the District currently lacks such a representative--in other words, that the District runs afoul of the principle of ``no taxation without representation'' as the jurisdiction's current license plates complain. Of course, there is a representative, but that representative is a nonvoting representative. The argument, however, is wrong. The District does not lack representation in the Congress or need a voting representative to, for example, provide funding for the District of Columbia. It actually already has representatives in Congress: 100 Senators and 435 House Members, all of whom, under the Constitution itself, have the jurisdiction and, indeed, the obligation to provide for the general welfare of the residents of the District of Columbia. All of these Members work in the District. Most of them live close to, if not in, the District. Their presence here and the oversight that Congress provides and the funding Congress provides effectively ensures that the District is adequately cared for by the Congress. If anyone here today doubts that Congress has been anything less than generous toward the District, I would ask them to consider the latest data from the Tax Foundation on the amount of tax dollars each State and the District pay to the Federal Government and the amount each receives in Federal spending in return. Let's start with those States for whom the redistribution of America's wealth via the Federal Government is not such a good deal. Going down the rankings to No. 47 of per capita dollars received to dollars taxed, we have the State of New Hampshire. Its residents paid an average of $8,162 of taxes to the Federal Government but received a per capita average of only $6,386 in Federal spending. This earned New Hampshire a return of only 71 cents for each dollar paid in Federal taxes. Next on the list is the State of Connecticut. Its residents paid an average of $11,522 in Federal taxes but saw only $8,795 per capita in Federal spending in return, which means every dollar in Federal taxes saw a return of only 69 cents in Federal spending. At No. 49 on the scale of returns is the State of Nevada. Its residents saw only a 65-cent return on every dollar paid in Federal taxes. On average, every Nevadan paid $8,417 in Federal taxes, but the State received only $5,889 per capita in Federal spending. Finally, rock bottom on the list of beneficiaries of Federal largess is the State of New Jersey. Its residents paid a total of $86 billion in taxes to the Federal Government. That comes to $9,902 paid to the United States by every man, woman, and child in the State. Yet the State saw only $6,740 in Federal spending--a return of only 61 cents of Federal return for every dollar New Jersey residents send to Washington. Neither New Jersey nor any of these other States pay the most in total taxes to the Federal Government. That honor goes to California, whose citizens paid a total of $289 billion in taxes to the Federal Government. That comes out to $8,028 for every man, woman, and child in California. But in return, the State only received $6,709 per capita in Federal spending--a return of only 78 cents for each dollar in Federal taxes paid. There is also the other end of the scale--the States that received more in Federal spending than they pay in Federal taxes. Which are they? Let's start with West Virginia, which ranked fifth. Its residents paid an average of $4,861 in taxes and received $8,872 per capita in Federal spending--a return of $1.76 for every dollar in taxes. No. 2 on the list is Mississippi, which saw a return of $2.03 for every $1 paid in Federal taxes. At the very top is New Mexico, whose residents paid an average of $5,153 in Federal taxes but saw a per capita return of $10,733 in Federal spending or $2.03 for every dollar paid in Federal taxes. Mississippi and New Mexico, with two Senators each, and with four and three Congressmen respectively, made out better than all other States in terms of per capita Federal spending that Congress delivered to these States, as compared to the amounts they pay in taxes. No State got a better deal than Mississippi and New Mexico, which saw a per capita return of over $2 for every dollar paid. So they did very well by any measurement. There is one jurisdiction that does better than even these States and that is--as you might guess--the District of Columbia. It far exceeded the $2 return seen by even the No. 1 and 2 States on the list of Federal beneficiaries. For the last year for which data is available, District residents paid an average of $11,582 in Federal taxes. But in return, the District of Columbia received over $65,109 in per capita Federal spending. This represents a return that is more than twice as high as that received by the No. 1 and 2 States, a return of 55 cents for every $1 that its residents paid in Federal taxes. The District did over six times better than even first-ranked New Mexico, at $65,109. This represents a 555-percent return on the District's investment in Federal taxes--generous by any standard, even accounting for the fact that much of the money is for the Federal area for buildings and other projects within the District. The numbers I have been citing have not abated in recent times. Most recently, on February 14, in the Federal stimulus bill, the District's nonvoting Delegate, Holmes-Norton, issued a press release bragging about the District's recent take. She gave a press briefing in which, according to news accounts: . . . gave a detailed account of the $620 million of benefits for the District of Columbia in the American Recovery and Reinvestment Plan of 2009 at a press conference this morning. The funds in the stimulus package are expected to generate 12,000 jobs and an even larger number of jobs at the Department of Homeland Security headquarters in Ward 8, which will receive $650 million, even more than expected, to build the first of five buildings at the DHS compound, a project expected to generate 38,000 jobs in the area. The Congresswoman's work to make sure that in every category DC was treated as a State paid off handsomely for the District, which did better in funds received than seven States. Funds to repair federal structures will be spent disproportionately in DC because so many Federal buildings are located here. One would expect DC would receive more Federal money because of the Federal enclave that exists in the District. But the point of the representative is to note that all of that benefits the residents of the District as well, unlike that money that goes to the States. So straight from the nonvoting District's representative, you have the fact that the Congress has clearly been very generous toward the District. It is in no way underrepresented and certainly doesn't deserve to have an additional Member of Congress, whose goal it would be to expand the District's share of Federal spending. Even if giving the District a dedicated representative in the House were sound policy, let me return to the argument about the constitutionality. This, the proponents appreciate, is the soft underbelly of this legislation. There are arguments they adduce to support its constitutionality. I submit they are weak and will not succeed in court. I appreciate the fact that the sponsors of the bill support the necessity of an expedited hearing to get the legislation heard and a decision made by the courts as to its constitutionality. That is the least we would owe the representatives of the District, as well as the other citizens of the country. Congress has long recognized we can only grant District residents the ability to participate in Federal elections through constitutional amendment. Prior to 1961, for example, District residents were not permitted to vote in Presidential elections. Article II, section 1 of the Constitution provides that the electors from each State should be comprised of the number equal to the State's combined congressional delegation. In the face of this express constitutional language, Congress recognized that a change to the law would require a change to the Constitution itself. That is why, when we granted DC residents the right to participate in Presidential elections, we went about it the right way--by passing the 23rd amendment to the Constitution. Just as article II of the Constitution, which deals with the Presidency, limited the right to appoint Presidential electors to the State, article I, which deals with Congress, clearly and repeatedly limits representation in the House and Senate to the State. Article I says the House ``shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.'' Obviously, that doesn't apply to the District of Columbia. It requires that each representative, ``when elected, be an inhabitant of that state in which he was chosen.'' It mandates that ``each state . . . have at least one Representative,'' and it provides that ``when vacancies happen in the Representation for any state, the executive authority thereof shall issue writs of election to fill such vacancies.'' Again, it could not have application to the DC. The import of these provisions was recognized by the legal scholar, Jonathan Turley, in a law review article published last year. In it he concludes: It would be ridiculous to suggest that the delegates to the Constitutional Convention or ratification conventions would have worked out such specific and exacting rules for the composition of Congress, only to give the majority of Congress the right to create a new form of voting members from federal enclaves like the District. It would have constituted the realization of the worst fears for many delegates, particularly Anti-Federalists, to have an open- ended ability of the majority to manipulate the rolls of Congress and to use areas under the exclusive control of the Federal Government as the source for new voting members. Indeed, congressional Democrats, in 1978--and Republicans as well-- recognized that giving the District of Columbia a dedicated House Member would require amending the Constitution. That year, Congress passed an amendment giving District residents a voting seat in the House. When the House Judiciary Committee, under the leadership of Chairman Peter Rodino, reported out the amendment, the accompanying report recognized that ``if the citizens of the District are to have voting representation in the Congress, a constitutional amendment is essential; statutory action alone will not suffice.'' I am certainly not alone in concluding that this bill, though well- intentioned, violates the plain language of the Constitution. The very court that will hear challenges to this bill under its expedited judicial review provision has already ruled that District residents do not have a constitutional right to congressional representation. In Adams v. Clinton, decided in 2000, a three-judge panel of the Federal District Court for the District of Columbia had concluded that the Constitution plainly limited congressional representation to the States. Here is what the court said: The overlapping and interconnected use of the term ``state'' in the relevant provisions of article I, the historical evidence of contemporary understandings, and the opinions of our judicial forebears, all reinforce how deeply Congressional representation is tied to the structure of statehood. . . . There is simply no evidence that the Framers intended that not only citizens of the States, but unspecified others as well, would share in the congressional franchise. The District residents who brought suit in Adams v. Clinton appealed their case all the way to the U.S. Supreme Court, and the Supreme Court allowed the trial court's ruling to stand. The Senate should not be passing legislation that we believe is unconstitutional. We should not pass the buck to the Federal courts because we feel good about a particular case to be made and want to express our feelings about it, in the firm judgment that the court will save us from ourselves and declare our action unconstitutional. When we neglect our duty to the Constitution, we fail to uphold the oath that we take as Senators to support and defend our great founding documents. My friends in the Senate who support this legislation rely essentially on two arguments, neither of which, I submit, outweighs the clear mandate in article II. First, they claim that another provision in the Constitution, the so-called District clause, allows Congress to essentially grant any sort of legislation relating to the District of Columbia, including even legislation to give DC residents a voting House Member. This clause doesn't do that. What it does is permit Congress to pass laws to provide for the general welfare of District residents. The bill, however, does not propose to provide for the welfare of District residents; it seeks to alter the fundamental composition of the House of Representatives. This clause not only does not allow the Congress to change the law without a constitutional amendment; it is, in effect, a logical extension of the fact that the District requires some separate entity to make the laws and provide for its needs, and that, of course, as identified in the Constitution, is the Congress. So, far from supporting the case, it actually confirms the argument that the District, not being a State, is not entitled to representation as a State. Second, proponents of the bill correctly point out that there are certain instances in the Constitution where references to citizens of the States has been interpreted to include residents of the District of Columbia. Many of these cases, though, involve individual rights, and it is obvious that DC residents do not lose their rights as citizens of the United States by choosing to live in the District. For example, they retain the right to trial by jury, and they may bring civil suits in Federal court against citizens of other States and so on. The bill is not a bill about individual rights, such as free speech, the right to own firearms or to due process of law. It is a bill about the makeup of House of Representatives. It is about the delicate balance our constitutional Framers struck in affording representation to the States in the House and the Senate, and it is about the fundamental structure of our Government. Finally, there is actually nothing standing in the way of full representation in the Congress for residents of the District. In fact, there have been previous offers, and there will be another offer in the context of the debate on this bill to allow the residents of the District of Columbia to vote as a congressional district of the State of Maryland. The retrocession amendment would also allow representation in the Senate as well. This is essentially what residents of Virginia had when the land was retroceded to the State of Virginia that had originally been carved out as part of the 10-mile square of the District of Columbia. Up to now, the residents of the District have not seen fit to take advantage of this offer to have full representation in the Congress as residents of the State of Maryland. But they will have that opportunity again when an amendment is proposed in the context of this legislation. The bottom line is this: The District of Columbia residents do not suffer from a lack of representation in terms of the general welfare of the District. The Congress has been enormously generous and has ceded jurisdiction to the city of the District of Columbia and provided funding and other legislation to govern the District as called for under article I. Secondly, the Constitution of the United States could not be clearer about the fact that representation is limited to the States of the Union. The District of Columbia being a Federal enclave, not being a State, therefore, is not entitled to congressional representation, so the Federal District Court of the District of Columbia has held. The Supreme Court has declined to review that ruling, allowing it to stand. It is my firm belief when this legislation, if it is passed, is challenged, it will, in fact, be declared unconstitutional. Because of that, it seems to me those of us in the Congress who respect the Constitution and this argument should oppose the legislation on the grounds that we should never pass legislation that we believe to be unconstitutional in the hopes that the Congress will be overruled by the Court and the Court will save us from the action we take. I reserve the remainder of the time on my side and see if anybody else on the other side wishes to speak. (At the request of Mr. Reid, the following statement was ordered to be printed in the Record.)

Mr. KYL. Mr. President, I understand the time on the Democratic side has expired, but when Senator Durbin arrives, I will yield him Republican time to make his statement, if he would like to do that.

Mr. KYL. In the meantime, I suggest the absence of a quorum.

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

Mr. KYL

Mr. KYL. Mr. President, the bill we are considering now was made available to us at 11 p.m. last night, long after the Senate was out of session. This is it. Now, I daresay that I doubt any of my colleagues have read this bill. I have not, I confess. Yet we are going to be voting on it in about 3 hours. We have relied on our staff to tell us what is in this bill, and we found some very interesting things. There are changes from when the bill passed the Senate. My colleagues need to know what some of these changes are. I would note, by the way, that the middle-of-the-night, behind-closed-doors way this legislation was created is a far cry from what the President requested of us and promised on his Web site. He talks about ending the practice of writing legislation behind closed doors. He says: By making these practices public, the American people will be able to hold their leaders accountable for wasteful spending, and lawmakers won't be able to slip favors for lobbyists into bills at the last minute. Well, would that it were. So, unfortunately, it looks as though a lot of favors were inserted for a lot of folks. I don't know whether it was because lobbyists requested it, but there are sure a lot of things that relate to specific Members and specific States. And, as I said, many of these items were not even included in the Senate-passed bill. Let me mention a couple because they are matters that have been in the media a great deal. I think we have all heard discussed the fact that when Republicans raised the fact that ACORN could receive money from the neighborhood stabilization fund, this was a provision that the other side, the Democrats, said: Well, we will take that out. And, indeed, they removed the words ``neighborhood stabilization fund'' as a subheading. Then they just lumped that funding under the community development fund. Bottom line is, they took out three words. The money can still be spent, including for ACORN; same thing for the billion dollars for a new prevention and wellness fund. This was in earlier committee reports that indicated it could be spent for things such as STD testing and prevention and smoking cessation. There was a lot of commentary about that in the media, and folks made fun of it. So the assumption was that has come out. No, it turns out there is still very clearly flexibility to use the funds for these kinds of things. Let me mention two or three others: $50 million for the National Endowment of the Arts, $500 million for Social Security Administration disability backlog, $60 million for Student Aid Administration, $50 million for the Compassion Capital Fund. There is $450 million for Amtrak security grants, which was not in either the House bill or the Senate bill. They simply put it in this legislation. All of these items were new from when the Senate passed the bill. There is also $53.6 billion for a fund labeled ``Fiscal Stabilization Fund.'' In looking to figure out what the Fiscal Stabilization Fund is, we find it is really nothing more than a discretionary slush fund for States to use. Now, the Senate has cut the fund from $79 billion. They cut that down to $39 billion. Some of our Members were proud that was accomplished. All of the Democrats voted for that. But it turns out in the conference--of course not the public conference; that was merely for show. But when the Members went behind closed doors, they tucked all of the money back in--added about $14 billion, I should say, back into the slush fund. But what is $14 billion when we are talking about $1 trillion? There is an article today in the Washington Post that includes a story titled, ``Despite Pledges, the Package Has Some Pork.'' It begins: The compromise stimulus bill adopted by the House and Senate negotiators this week is not free of spending that benefits specific communities, industries or groups, despite vows by President Obama that the legislation would be kept clear of pet projects, according to lawmakers, legislative aides and anti-tax groups. Included in the pork called out by the Washington Post is $8 billion, $8 billion for high-speed rail projects, for a MagLev rail line between Los Angeles and Las Vegas, and other things. I mean, I had mentioned this before, the money for Filipino veterans, I think a very worthy cause except they are from the Philippines, and it does not create jobs in America. There is money for the Nation's small shipyards. I wonder why the big shipyards were not adequately represented? And I mentioned before the $1 billion for a powerplant in Mattoon, IL. These are what we call earmarks. These are especially for a specific Member's congressional district or State. They may be good spending, some of them may even create jobs, but they violate what the President talked about when he talked about special projects put in these bills. The bottom line is, this legislation continues to spend money in a wasteful way that our constituents strongly oppose. Now, the Coburn amendment was adopted to reflect our constituents' concerns. We voted for that amendment, 73 to 24. We are in favor of ending wasteful Washington spending, we said. Specifically, the amendment prohibited funds from being used for a casino or other gambling establishment, aquarium, zoo, golf course, swimming pool, stadium, community park, museum, theater, art center, and highway beautification project. And that is where we thought it ended. But not so. In this group of negotiators who met behind closed doors for at least a couple of nights, it turns out that a lot of these things have crept back into the bill. So now section 1604 of the conference report includes part of the funding limitation from the Coburn amendment but drops its applications to museums, stadiums, art centers, theaters, parks, or highway beautification projects. So a lot of the good that we thought we had accomplished, it turns out, does not carry at the end of the day. The end result of this is, the CBO scores the long-term consequences of the spending in this bill not to be $800 billion, as has been discussed, or even $1 trillion when you add in the interest. But, as you know, the Congressional Budget Office, nonpartisan, scores for 10 years what is the cost the real cost, over a 10-year period. They say the cost will jump to $3.27 trillion. So when we are talking about the $800 billion stimulus bill, let's understand it is really a $3.27 trillion bill. Now, there are a couple of other interesting things about this. It is not temporary. There are 31 new programs totaling $97 billion, in fact, 31 percent of all of the appropriations. It expands 73 programs by $92 billion. These should be part of the regular appropriations process. It is interesting that while the Congressional Budget Office confirmed the bill might provide a short-term boost to the gross domestic product in the next few years, the added debt burden and crowding out of private investment will actually become a net drag on economic growth and wages by 2014. That means a lower standard of living for all of us. This is fascinating to me. The Congressional Budget Office forecasts that the time period where economic growth is boosted, 2009 and 2010, is the same timeframe when 98 percent of the tax cuts are disbursed. But between 2011 and 2019, when only 2 percent of the tax cuts are left, you have over half of the spending in the bill, and yet the bill actually reduces economic growth. Let me repeat that. This is from the Congressional Budget Office. Their forecast is that economic growth will be boosted in the years 2009 and 2010. I talked about it like a sugar high for kids. That is when 98 percent of the tax cuts are disbursed. We like to say tax cuts can do a lot of good here. Our Democratic friends say: All you want to do is talk about tax cuts. We think tax cuts would really help. So the period where 98 percent of the tax cuts are disbursed, but less than half of the spending is where you have the economic growth. Then in 2011 to 2019, when there is only 2 percent of the tax cuts and over half of the spending, you actually have reduced economic growth. That is why Republicans have been emphasizing tax cuts. It is interesting the actual incremental tax cuts represent only 20 percent of the overall size of the bill, and we do not know all of the exact totals in the bill. But an analysis of the earlier passed House version would result in 22 million families getting a check back from the IRS that is bigger than what they paid in both payroll and income taxes combined. So when we say, well, this goes to folks who do not pay income taxes, our friends on the other side said: Yes, but they pay payroll taxes. Yes. Combine the two. The check they get back, in 22 million cases, is still more than the combination combined. There are so many other concerns that we have expressed with this package. We talked about the fact that small businesses create 80 percent of the jobs in the country. So you would think this bill would contain all kinds of things to help small businesses create more jobs. Well, we looked in vain. It turns out that about one-half of 1 percent of this package is dedicated to helping small businesses produce jobs, one-half of one percent. In fact, only $7 billion total is provided for all business incentives combined, and one of the key features relating to net operating losses that passed the Senate was taken out of the conference report. There are other provisions that will expand the cost dearly. If you look closely in this package you will find a $17 billion tax, in effect, on Government spending because we included a requirement that the Davis-Bacon prevailing wage rules must apply to most of the spending in the bill. That adds a cost of $17 billion because of the requirements of Davis-Bacon. There are provisions that expand welfare dependents. It reduces or eliminates current work requirements for welfare and will obviously or ultimately lead to less work and more poverty. There is even a provision relating to unemployment benefits that allow people to leave a job to care for a family member and then collect employment insurance compensation. Now, States, interestingly, have to amend their State laws in order to take advantage of this provision. We really missed an opportunity to create private sector jobs through trade. Yet that is the area where the----

Mr. KYL. I ask unanimous consent for 30 additional seconds.

Mr. KYL. The United States has actually only had a positive growth in our gross domestic product by virtue of our exports. This is another area, sadly, that has been missing from this legislation. At the end of the day, this is not the right way to spend $1 trillion, gambling on our future and certainly not providing that we will stimulate economic growth.

Mr. KYL

Mr. KYL. Mr. President, we do not know yet. I received an e-mail that said the Speaker of the House would be holding a press conference sometime in about an hour. I assume that, therefore, by then they will actually have produced the bill, that there will actually be a bill she can then share with her colleagues in the House and then would come over here and we could begin to read as well. The answer to the first question is, despite all the discussion, we don't know yet exactly what is in it, how much it is, and what the long-term consequences will be. We do know from news media that certain things in the bill that passed the Senate have been changed. We are also told the basic amount is somewhere in the neighborhood of $20 or $30 billion less than the House-passed bill. If that is true, we can make some rough guesses. I will be happy to share what the Congressional Budget Office says about those guesses about future amounts of money. If I may indulge by setting one bit of background first, when the Congressional Budget Office, the nonpartisan staff for the Congress, develops their cost estimates, they base it on what the language of the bill is and how the bill needs to work in the future. They always provide us with a 10-year cost. That is particularly important because we hear about the cost of the bill, and we assume that is all there is. The truth is, there is a lot of cost that isn't calculated into the bill. When we hear about a bill that is $790 billion or $820 billion, that is not the true cost. I will give an example. One of the programs in the bill expands Medicaid. It is called the FMAP increase in Medicaid. That went through the Finance Committee. For about 25 years, they calculate the cost of expanding the eligibility for Medicaid. Then they simply assume, because the cost was getting to be too big, that it stops at that point. For the rest of the 5 years for the 10-year total, in effect, the program goes away. Everybody knows the program is not going away. One program that is not going away is Medicaid. The eligible people on Medicaid are not going to suddenly be wiped off the program. Obviously, Congress will continue the program. What CBO had to do is calculate not only the first-year cost or the 5-year cost but what will it cost over 10 years. They have done the same thing with Head Start, Early Head Start, title I education--incidentally, there is something about all these programs; they do not in any way create jobs or stimulate economic growth, as they are social programs deemed to be a good thing but having nothing to do with stimulus--the LIHEAP program, the National Institutes of Health, COBRA insurance coverage, Medicaid, and other programs. What CBO did was to take the House bill and calculate the true cost over the 10-year period. When one does that, it jumps from $820 billion to over $2.5 trillion. Then add in the interest payments on that amount which are about $744 billion. The total deficit impact, then, over the 10-year period would be $3.27 trillion. Assume that the bill might be slightly less expensive than what CBO is estimating, it is still, obviously, going to be in the neighborhood of $3 trillion over 10 years. It is important to look at expenses over an extended period because, as the Senator noted, this is borrowed money. This is not money we have today. We are borrowing it. Therefore, the long-term consequences of that borrowing are important. What the CBO also said was that by the 10th year, we are actually going to be creating negative economic growth. The GDP will grow by between .1 and .3 of a percent less in the year 2019 than it would if we hadn't even passed this bill. I compare it to kids eating sugar. They get a sugar high. They have all kinds of energy for a while. But when they crash, we have seen what that can be. While some of this might be stimulative early on, once the sugar high is gone, we are going to be left with the longer term consequences. Over this 10-year period the CBO has to calculate, we are talking about getting into negative economic growth, over $3 trillion in cost. The question is, At that point, what is that going to do to our economy? I don't think anybody can say it is good news. But it is the kind of thing we have been talking about, to think about the long-term consequences of what we are doing. If one is gambling with a couple hundred million, that is one thing. Start gambling with $3 trillion, one better be right. I don't think anybody can say, with any degree of certainty, that what is in this legislation we can doggone guarantee is going to work and be worth the expenditure.

Mr. KYL. Mr. President, I say to my colleague, obviously, we don't know because we haven't read it. But what my staff believes, from contact they have had with other staff, is that in order to make room for a bunch of other spending, that incentive program has been slashed. The amount of money has at least been cut in half. The people eligible to take advantage of it have been narrowed to first-time home buyers. There would be an income cap. I think now that CBO would score that somewhere in the neighborhood of about $2 billion, meaning that the impact of it on the economy could not be particularly significant. May I mention one other thing, because it reminded me of another idea that we had. We had a lot of good ideas because we wanted to make sure this would work. We mentioned, several of us, the fact that 80 percent of the jobs are created by small business. So we looked in the bill to see where the relief would be targeted to small businesses to encourage them to hire more folks. When we finally found what was in there, it amounted to .8 of 1 percent of all of tax provisions in here that could be utilized by small business, hiring 80 percent of the jobs. Only .8 of 1 percent of the bill is dedicated to those kind of businesses as tax relief. So when we talk about targeted, well, our idea of targeting relief obviously does not comport with the authors of the bill, and that is another one of the real questions and concerns we have about this legislation.

Mr. KYL. Mr. President, I say to the Senator from Tennessee, a friend of mine has a saying that probably applies here: You broke the code. That is one of the big problems. We know we are going to need a massive amount of money to deal with the housing problem and to deal with the credit problem so when you go to the bank, they will have money to lend to you. Because this so-called stimulus bill is taking so much borrowed money--well over a trillion dollars just in the first 2 years; $3 trillion over 10 years--there is a real question about how much money we can afford to spend on these other things that, as you note, are absolutely critical. There will come a point in time when the people who buy U.S. debt--primarily foreign governments and foreign entities now--are going to believe we are so heavily in debt they are not going to trust our debt or be willing to give us as good a rate on that debt, the result of which there will come a tipping point when we cannot afford to borrow anymore. By, in effect, wasting a lot of it on this stimulus bill, I think the Senator's question is exactly on point: Will we have what is necessary when the real time comes? If I could finish with an analogy. Some of my friends on the other side have said: Well, when the house is on fire, you just go put it out. You don't worry about how much water it takes or whatever. Well, that is fine, unless the fire is going to spread to the second house and the third house and the fourth house. You better not waste all your water on the first house. That is the essence of the question from the Senator from Tennessee, and I think it is a very good point. I thank him.

Mr. KYL. Right.

Mr. KYL

Mr. KYL. Mr. President, yesterday I was pleased to join with Senator McCain to introduce the Southeast Arizona Land Exchange and Conservation Act, which has been introduced in previous Congresses and has been modified only slightly from the version introduced last year. This bill is a culmination of several years of negotiation with local and State stakeholders and other interested parties. Let me briefly explain the new provisions in this bill. First, a previous version of this bill would have placed 822 acres of Federal land, including the Apache Leap, in a conservation easement to ensure that these sensitive lands were protected. This modified bill goes a step further by keeping the Apache Leap under the control of the Forest Service, thereby providing Federal protection in perpetuity. In addition, I am pleased to announce that representatives from Resolution Copper have agreed to add an additional 110 acres of privately owned land adjacent to the federally owned portion of the Leap in this version of the land exchange. Besides addressing concerns with Apache Leap, this modified bill also would provide for continued acorn gathering by the Apache tribes at the Oak Flat campground, and transfer additional private lands that will also serve this purpose. In summary, this land exchange would preserve highly sought after land that is important for wildlife habitat, cultural resources, watershed and land-management objectives; promote outdoor recreation and tourism; and generate economic opportunities for state and local residents in the copper triangle region in Arizona. It is good for our environment and our economy. At a time when our economy is in desperate need of new jobs, this land exchange could create more than a thousand jobs at its peak, and generate more than $10 billion in total Federal, State, county and local tax revenues. The mine could also meet as much as a quarter of the U.S. demand for copper in the future. I urge my colleagues to approve the legislation at the earliest possible date.

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from New Hampshire (Mr. Gregg).

Mr. KYL

Mr. KYL. Mr. President, I call this body's attention to the recent developments in Iraq. Last month, Iraqis went to the polls to vote in the second provincial election since the hand-over of power in 2004. Elections were conducted peacefully under the watchful eyes of Iraqi security forces, and the results were quickly certified by the United Nations. This peaceful expression of political will is yet another demonstration of political progress in Iraq. Less than 2 years after some were declaring the war lost and the surge a failure, violence has declined, and the world--most importantly the Arab world--saw Iraqis peacefully voting, their security ensured by an increasingly competent Iraqi army and police. Not only was the election process successful, the results also merit attention. The Iraqi people voted in favor of secular parties competing with the Iranian-backed religious parties. These results in many ways represent a remarkable change from the 2005 provincial elections that strengthened many extremist and foreign-backed parties opposed to the central government. Sunnis, who largely boycotted the 2005 elections, participated broadly in January's election. Their involvement should enhance national reconciliation and bolster a more moderate and diverse government representative of the Iraqi people. This progress is reversible. A lot rests on whether the President listens to his generals in the coming weeks and months or whether he bows to liberal interest groups and his campaign rhetoric and initiates a premature retreat. But this is an important sign of what our soldiers and the Iraqi people have worked so hard to achieve. Again, in 2 years since the surge began, and now that it has been over for 6 months, we have seen a constant decrease in violence, increased capabilities by the Iraqi government and military, and now an election where the Iraqi people largely chose moderate parties over extremist ones. Unfortunately, the media devoted little attention to the success of these peaceful elections, just as they have neglected many of the noble efforts of our men and women in uniform. I recently received an email from a constituent whose brother-in-law is currently serving in the 10th Combat Support Hospital at Ibn Sina Hospital, Baghdad. In the building that used to provide health care to Saddam's family and the Baathist elite, these servicemen and women provide some of the best care in the country to all types of patients, from Iraqi children burned by household kerosene lamps to American soldiers with traumatic injuries. Their hard work and the self-sacrifice of all who serve in Iraq has contributed to the dramatic progress made in Iraq.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.