Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, just one more point. I also note, when I heard Mr. Howard's testimony demonstrating further the need to fill this seat, he noted that Judge Raymond Randolph of the DC Circuit recently announced he would be taking senior status on November 1 of this year, which means the seat to which Mr. Keisler is nominated is actually the 10th seat on that circuit. Is that not correct?

Mr. KYL. Mr. President, again I say to Senator Specter, just to confirm my understanding here, in addition to Judge Randolph, Judge David Sentelle currently is eligible for senior status. Next year, Judge David Tatel and Judge Judith Ann Rogers will be eligible for senior status. Judge Karen Henderson and Judge Douglas Ginsburg will be eligible in 2009 and 2011, respectively. Am I correct on that?

Mr. KYL. Mr. President, it seems to me, given these facts, it is even more imperative that Peter Keisler be at least voted on, and I would argue confirmed, to the DC Circuit, and it seems to me no other reasons than purely political motivations seem to be blocking his confirmation.

Mr. KYL. Mr. President, the answer to my colleague from Iowa is yes. Mr. Steve Matthews of South Carolina and Judge Robert Conrad of North Carolina, for example, are both impressive nominees who are exactly the kind of judges the severely understaffed Fourth Circuit Court of Appeals needs.

Mr. KYL. That is a very good question. Judge Conrad has been waiting for a hearing for 365 days. Today is the 1-year anniversary of his nomination, even though he was unanimously rated ``well qualified'' by the American Bar Association, and Mr. Matthews has been waiting for a hearing for 315 days.

Mr. KYL. Yes. Both Judge Matthews and Judge Conrad have the support of their home State Senators. In fact, on October 2 of last year, Senators Burr and Dole sent a letter to Senator Leahy asking for a hearing for Judge Conrad, and they spoke on his behalf at a press conference on June 19 that featured numerous friends and colleagues of Judge Conrad's who had traveled all the way up from North Carolina to DC to offer their support for his nomination. On April 15, 2008, Senators Burr, Dole, Graham, and DeMint sent a letter to Senator Leahy asking for a hearing for Judge Conrad and for Mr. Matthews.

Mr. KYL. I absolutely agree with that assessment. Those are the considerations that underscore my great regret that no nominees were on the agenda for the executive business meeting of the Judiciary Committee this morning.

Mr. KYL

Mr. KYL. Mr. President, might I just use this opportunity to also thank Senator Lugar, whom I did not mention but who was also helpful, and his staff, as well as Senator Biden and his staff, and Senator Thune, for all of his work in bringing this issue to the attention of the body, and acknowledge the groundwork that Senator Dorgan and his committee laid in order to make this possible for us to achieve.

Mr. KYL. The following Senators are necessarily absent: the Senator from Arizona (Mr. McCain) and the Senator from Virginia (Mr. Warner).

Mr. KYL. So, Mr. President, if I could, before I thank everyone involved here, by unanimous consent, the second-degree amendment was adopted, and we voice-voted the underlying amendment; is that correct?

Mr. KYL. OK. So, then, we need to have a voice vote on the underlying amendment as well?

Mr. KYL. Mr. President, I ask for that at this time.

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

Mr. KYL. Mr. President, Senator Biden has indicated that one of the pieces of business on this legislation we can take care of right now relates to an amendment Senator Thune and I offered to the bill, and then if Senator Dorgan and others have reached an agreement with us about a way to modify that amendment so that it is acceptable to all, both the second-degree and then the underlying amendment can be adopted without the necessity of a rollcall vote. Let me describe what it is. Some of us had felt that the total price tag at $50 billion, while too high for this particular program, at least was an acknowledgment that we were willing to spend that amount of money on matters that related to needs both here in the United States as well as abroad. Among those needs, as a result of hearings Senator Dorgan has had and Senator Thune and I have identified, as well as others, are needs dealing with Native Americans in the United States, some of which are the same in terms of water projects that we would be dealing with in this underlying PEPFAR bill, but rather than doing that all in countries of a continent such as Africa, for example, some of that would be done for U.S. citizens because of reports that have demonstrated the dire conditions that exist on some of our Indian reservations. So the amendment Senator Thune and I proposed was to take $2 billion of the total $50 billion authorization from PEPFAR and devote it to a combination of law enforcement on Indian reservations and for Native Americans and water-related needs of our Native Americans. Senator Dorgan wanted to further amend that by providing for some Indian health activities that could be funded by part of the amendment as well. So the second-degree amendment provides for funding of $750 million for law enforcement and $250 million for Indian health-related activities. In addition, the underlying Thune-Kyl amendment provides for an additional $1 billion authorization for water development and projects on the Indian reservations. So the bottom line is, the $50 billion for the PEPFAR authorization would be reduced to $48 billion. Two billion dollars in authorization would go to the Indian reservations and Native American needs, and Alaska Natives as well, that I indicated. That is an agreement that has been reached as a result of Senator Thune, myself on the Republican side, Senator Dorgan, and Senator Biden on the Democratic side, but also several other Members--both Democrat and Republican--with whom we have spoken who have asked to be listed as cosponsors on the amendment or second-degree amendment before we pass it. Amendment No. 5084 There is no indication, Mr. President, there is a need for a rollcall vote on this amendment since it has been agreed to by all. Therefore, unless there is anyone else who would wish to speak to this amendment, I ask unanimous consent that the second-degree amendment be called up for a vote.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Arizona (Mr. McCain) and the Senator from Virginia (Mr. Warner).

Mr. KYL. The following Senators are necessarily absent: the Senator from Arizona (Mr. McCain) and the Senator from Virginia (Mr. Warner). Further, if present and voting, the Senator from Virginia (Mr. Warner) would have voted ``yea.''

Mr. KYL. I would like my colleagues' attention so I can briefly explain the amendment. Mr. President, this will take a moment. This is a very simple amendment. We have tried to authorize $50 billion over 5 years. All my amendment says is that in those 5 years, the last year will have $10 billion authorized--in other words, one-fifth of the total. And that if there is an appropriation exceeding that amount, that there would be a point of order against it. The reason for it is very simple. Under the current law, we have exceeded the authorization by about $4 billion, actually close to $5 billion. What that does is to affect the baseline for the following reauthorization. All we are trying to do is to say if this is $50 billion--that is $10 billion a year. The House actually has it designated as such, the Senate does not. All I am saying is, is not even designate each year as 10, just make sure the last year is 10. One reason for doing that is to make sure that is the baseline for the subsequent reauthorization. That is all we are trying to do. This is a very simple, very easy amendment to support. I would think those who are strongly in support of PEPFAR would agree to this amendment because it would grant further assurances about the program not having mission creep and expanding more than it should in future years, that would make some folks feel better about it. Mr. President, I reserve the remainder of my time.

Mr. KYL. Mr. President, that is a reasonable argument. My amendment does not preclude the reasonable ramping up of the money. But what we are hoping to do is to keep the appropriation to $50 billion--actually it is now $48 billion. Under current law, at $15 billion authorized, we are spending just under $20. In other words, the appropriations have exceeded the authorization. All I am trying to do is not prevent the internal adjustment to allow the full expenditure of the amount authorized but to prevent an appropriation above that. That is why the point of order would only apply to appropriations that exceed the authorized amount in the final year.

Mr. KYL. Mr. President, I appreciate the hard work both the chairman and the ranking member have put in. Their arguments have been made. I ask my colleagues to improve the bill a little bit by adopting our amendment. I ask for the yeas and nays.

Mr. KYL. The following Senators are necessarily absent: the Senator from Arizona (Mr. McCain) and the Senator from Virginia (Mr. Warner).

Mr. KYL. The following Senators are necessarily absent: the Senator from Arizona (Mr. McCain) and the Senator from Virginia (Mr. Warner).

Mr. KYL. Madam President, I thank both Senator Lugar for his courtesies, as well as Senator Biden. I appreciate the fact that we have had an opportunity to make some changes in this bill which, while modest, do improve it. Senator Coburn talked about some of the more important ones. I supported PEPFAR. When the President announced in his State of the Union speech that he would request Congress to double the authorization for PEPFAR, I swallowed kind of hard but said, if it has done a good job, which we will find out, maybe that is all right. What we have found is that at the present level of authorization--$15 billion--it has been a successful program. That is the good news. Unfortunately, when the bill was written, many of the policy provisions that made it a success were changed. That has required some amendments to be adopted to get closer to the original purpose. Unfortunately, some policy issues remain. I wish to note that my objections to the bill relate to two primary points. First is a couple of policy issues, and second is the amount of money being authorized. I will just mention three issues. Notwithstanding the positive changes of which Senator Coburn spoke, we still have a significant mission creep. You cannot go from $15 billion--the amount authorized today--to $50 billion without having substantial mission creep. You cannot spend it all on the original purpose of the program. Indeed, we add things such as nutrition, legal aid, and others that are quite far afield from the original mission, which was primarily the treatment of AIDS patients. Secondly, we still have the problem that it deals with far more countries, including wealthy ones, than the poor countries we should be focusing on here. Unfortunately, we were not able to constrain it to a list of more needy countries that would receive this aid. The third policy problem, spoken about before, is the doubling of funding for the U.N. Global AIDS Fund, which has had significant problems. I think they have been well identified. It disregards U.S. policy on matters such as abortion, needle exchange, and others. While many of the policy problems have been resolved, there are still policy problems with this legislation. If the amount of money was much less than it is, this would be less significant. At $50 billion, these policy changes can be magnified. Due to the cooperation of the colleagues I have already mentioned, $2 billion of the authorization has been diverted to some needs in the United States. I am grateful for my colleagues' cooperation on that. There is a lot we could do with money--$10 billion, $15 billion--in the United States that we have not been able to do because of a lack of funding. If we are going to commit to authorize $50 billion to deal with some difficult issues, it seems to me we could have diverted more than $2 billion of that to deal with some of our needs in the United States. But that brings me to the second points of my concern with the bill and that is the pure sticker shock of $50 billion. We are more than tripling the current authorization of $15 billion. As we heard earlier this afternoon, I don't think there is any intention of appropriating less than that amount of money. If anything, we should be appropriating more than that. Because one of my amendments was not adopted, there is no limitation on how much money could be appropriated. So we have gone from $15 billion to $50 billion. That is a lot of money in anybody's budget--especially at a time in the United States when we are facing several crises. I was down at the White House this afternoon with the Secretary of the Treasury. We have a crisis dealing with a couple of the mortgage holders, we have a Fannie and Freddie problem, as well as other potential liabilities that will fall on the shoulders of American taxpayers. We need to take these issues on because they are critical to our economy and indeed have ramifications throughout the world. But they all involve the U.S. taxpayers potentially picking up the tab. We don't have any choice. We need to do it. Gas prices are high. We are going to take up energy on the floor next, I hope. That is a huge problem. People are hurting because they are paying high gas prices and high food prices also. This is not the time for us to be tripling a worthy program to $50 billion when we are facing some huge crises here at home. It seems to me we need to make sure we are in better financial condition to face those crises rather than authorizing another $50 billion in foreign aid. Now, we will hear the argument that this is to do. Nobody denies that. The argument is not is this a good thing. Of course, it is. There is an argument about whether moving from $15 billion to $50 billion more than triples the good that is done. I have heard nobody make that argument. In fact, the only way you can spend that much money is to increase the mission beyond what it is today. The CBO--a nonpartisan office--makes the point that at a $50 billion authorization, no more than $34 billion could be effectively spent. The point is there is only so much you can do on these programs-- especially without good policy to ensure that the money is spent wisely. There could be, and I submit will be, a tremendous amount of waste if we authorize this program at $50 billion. So for all these reasons, but primarily and, frankly, because of the huge unmet needs we have at home and the uncertain future we have here and the things that we are going to have to do to shore up our financial system and make sure our economy can continue to operate strongly, I cannot support a bill that authorizes $50 billion in this foreign aid. Our country needs to be strong, and we need to deal with the crises here at home. We are a wealthy nation; we can afford to be a generous nation. We all want to be generous. We have supported the program in its current form. The only question here is whether we can efficaciously go from $15 billion to $50 billion. I find the answer to that question, at this point, to be no. To be strong, we have to be strong here at home, and then we can help people abroad. Reluctantly--because I realize the President supports this program strongly--I must oppose the program. I express the appreciation of those who helped adopt one of the amendments I proposed. I think it will make a modest difference. On behalf of taxpayers, we should not be committing to spend $50 billion at this time.

Mr. KYL

Mr. KYL. I thank the Senator from New Mexico. Mr. President, are we currently in morning business?

Mr. KYL. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. KYL. I ask unanimous consent the reading of the amendment be dispensed with.