Jon Kyl

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from North Carolina (Mr. Burr), the Senator from Arizona (Mr. McCain), the Senator from Alaska (Ms. Murkowski), and the Senator from Mississippi (Mr. Wicker).

Mr. KYL. Mr. President, the Republican side certainly intends to use the full debate time and, therefore, I object.

Mr. KYL. Mr. President, we, too, look forward to the debate. I won't list all of the Members on our side who have asked to be recognized to speak on this bill, but obviously both sides have a lot of Members who wish to speak to the bill before we even get to the amendment process. That is the reason we want to utilize the full time that is available under the rules for that purpose, not intending to filibuster the bill. But I think it is also going to be important that we do proceed to amendments when that 30 hours is used. You will find the Republicans most anxious to go to amendments which can be offered and then debated and considered. So we will hold the other side to the proposition of getting votes on lots of amendments on this legislation.

Mr. KYL. Mr. President, might I just make one other comment in response to the Senator from California?

Mr. KYL. This is one of the most dramatic--or would be, if passed-- one of the most dramatic changes in law, as one publication pointed out, since the 1930s in terms of increasing the scope of Government. Surely we can spend 30 hours debating this important legislation. It is massive in its intent, in its goals, in its scope, and in its effect on the American people. According to the Congressional Budget Office, it would result in a tax increase on the American people of over $900 billion and a gas tax increase of 53 cents per gallon. Surely, the Senate, the greatest deliberative body in the world, can take 30 hours to debate something of this magnitude before we begin the amending process. I thank my colleagues for appreciating that point.

Mr. KYL

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

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

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

Mr. KYL. Mr. President, I absolutely agree with the Senator from Texas that we have to get to a point where we can debate and vote on alternatives to assist our veterans. It is very distressing to me to hear there are TV ads running against the Senator from Texas and against my colleague from Arizona that call into question your commitment and his commitment to the veterans of our country. I am informed that one of the ads says: Senator Cornyn is fighting tooth and nail against giving adequate benefits to our troops and veterans, using it as a wedge in partisan politics. Is the Senator aware that language is being used in an ad against the Senator from Texas.

Mr. KYL. Mr. President, I wonder if the Senator from Texas will yield for two questions I have.

Mr. KYL. Mr. President, if I may just say, the Senator from Texas, as you just heard and as we all know, has been speaking on the floor of the Senate and in meetings we have been having about this issue. He has been working very hard to find the best way to support our veterans with their educational benefits. I want that crystal clear on the record. Secondly, is the Senator aware that there is also an ad--my understanding is it says that ``Senator McCain, as the leader of the Republican Party, must send a signal to his colleagues in the Senate that now is not the time to play politics by forcing Senators to choose between his bill and the Webb-Hagel measure.'' It seems to me that statement is exactly right, that we should not be forced to choose between one or the other, but procedurally, the way the bill comes before us, we have two choices: to vote for or against Webb; whereas if the President were to veto this bill, there is an opportunity to negotiate between the two different approaches, both of which have some merit, and get the best of all worlds. Will the Senator from Texas comment about the process by which we might actually get the best bill to assist our veterans with GI educational benefits?

Mr. KYL

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

Mr. KYL

Mr. KYL. Mr. President, I say to Senator Conrad, I would say no more than 10 to 15 minutes. I will say 15, but probably I will not take that much time.

Mr. KYL. No. Mr. President, I am happy to ask unanimous consent to speak for 15 minutes, and then whatever time Senator Conrad would urge after that, subject to Senator Gregg's intercession as well.

Mr. KYL. Thank you, Mr. President. Mr. President, let me engage in a little bit more of the sparring between the distinguished chairman of the Budget Committee and the distinguished ranking member, both of whom have had a good debate here. But I would like to add to that debate. There is a lot of discussion here that must cause Americans watching this to wonder what on Earth is going on here when we pass a budget and that budget assumes various things, and then there are charges back and forth that you have passed a tax cut, you have not passed a tax cut, you have passed a tax increase, you have not, and so on. Let me see if I can clarify that with what are, in fact, the real assumptions in the budget and what the Senate has and has not done. The ranking member of the Budget Committee is correct that the budget that has passed the Senate already, and that the Senate is about to enact again, in fact, assumes tax increases which will amount to the largest tax increase in the history of the world--$1.2 trillion. Those are assumed in this budget. Now, the chairman of the committee correctly says: Well, we have not actually passed those tax cuts. That, of course, is true. The budget is not a law, a bill that is sent to the President for his signature so he can sign it and then it becomes law. That is not what a budget is. The budget is the document we use to frame our deliberations in the Congress for this coming year. We are supposed to stick to it. It sets an upper limit on spending. It sets the revenues that we assume will come in, and part of the revenue is based on taxes. So what this budget does is to say we assume we are going to have taxes of $1.2 trillion more than we have today. That is what this budget assumes, and that is the largest tax increase in the history of the world. Now, the chairman responded first by saying: Well, actually we have also included something else in this budget so you cannot say it is necessarily the biggest tax increase in the history of the world because we passed what is called the Baucus amendment, and the Baucus amendment is supposed to provide an extension of certain current tax rates that would otherwise expire in the year 2010, and if we do that, then we will not actually have that tax increase. The answer is, that is true, were we to do that, that tax increase would not occur--at least it would not occur to that amount. Well, we did the same thing last year. We had the Baucus amendment last year. But Congress never passed any tax relief based on the Baucus amendment. So while the Baucus amendment was in the budget, it was never implemented. The truth is, it is not going to be implemented this year either. I think everyone will acknowledge that. So it is no answer to say the tax increases that are assumed in the budget are actually wiped off because the Baucus amendment is also a part of the amendment. The Baucus amendment is not going to be implemented this year, just as it wasn't implemented last year. The third response the chairman of the Budget Committee made was: Well, that is true, but we actually don't have to pass the Baucus amendment until these current tax rates expire because they currently exist until the end of 2010. So we can still say we passed a tax cut, even though we haven't enacted anything, because we are going to assume existing law continues until the end of 2010. Well, that is an odd way to argue that you have actually cut taxes. You haven't cut any taxes at all. You have done nothing but allow current rates to continue for next year and the year 2010. It is a good thing those rates are continuing; we wouldn't want them to increase. They are the Bush tax cuts that many Democrats have been very critical of. But here now Democrats are bragging about keeping them in effect for another 2 years. Well, I am glad. I am happy they are being kept in effect for another 2 years. I am worried about what is going to happen after that. The problem is this budget assumes they are going away. That is the $1.2 trillion we are speaking of. Now, what happens to average Americans if this tax cut fails to materialize and, in fact, the tax increase actually occurs? Well, this budget conference agreement we will be voting on assumes that single people earning as little as $31,000 a year, couples making $63,000, will see their taxes go up. That is because it assumes the 25-percent bracket which kicks in around $32,000 next year for single filers, $63,000 for married couples, will go to 28 percent. Well, is this 3 percentage points a lot? Is that a big deal? Well, it is a marginal tax rate increase of 12 percent. When you add percentage points onto 25 and go to 28, that is a 12-percent increase. That means people in the 25- percent bracket--and that is people earning as little as $32,000 a year--will give the Federal Government 12 percent more of every dollar they earn over $32,000 more than they do today. What does that mean? Well, let's look at some high school teachers in Phoenix and Tucson, AZ, my home State. In Phoenix, they make between $42,000 and $63,000 on average. So they would see a significant tax increase. How big? Well, according to calculations run by the Budget Committee, the average tax increase for this middle-income family will be more than $2,000. That may not be much to some, but it is a lot of money to the average school teacher in Phoenix. The average school teacher in Tucson makes between $38,000 and $56,000, on average. Most people think of that as middle class, not wealthy. But under this budget, they would see their taxes go up almost the same amount-- $2,000. Small businesses, which are the backbone of our economy--that is where most of our employment is occurring today. Yet this budget conference agreement raises taxes on small businesses because all income tax brackets above the 15-percent bracket will increase, and small businesses pay on those upper tax brackets. Most small businesses--in fact, the owners of small businesses report their business income on their individual income tax returns and, in fact, over 80 percent of filers in the top bracket report small business income. So you think you are going to soak the rich by increasing the top tax bracket? Well, you are increasing taxes for the small businesses of America. That is who ends up paying the increased taxes. According to the Small Business Administration, small businesses represent 99.7 percent of all employer firms. They employ about half of all private sector employees. They generate between 60 to 80 percent of the net new jobs annually. Increasing small business taxes will hurt our economy. How about investors? This is becoming an investor Nation, people saving for their retirement, American seniors living off their savings. In fact, every American who saves and invests rather than spending their extra earnings will see their taxes go up under this budget. The budget allows the 15-percent capital gains rate to go to 20 percent. That is a 33-percent increase in the tax rate. The dividends tax rate will go up a whopping 164 percent. We talked about a little bit of an increase--164 percent is not little. That is on dividends. That is what seniors get when they invest their retirement savings and get a dividend from the corporation they have invested in. That goes from 15 percent to 39.6 percent. Why are these rates important? Because keeping tax rates low on investment income gives people the incentive to put their money to work by investing it; by investing in businesses, small and large, and it gives the businesses the resources they need to grow: to hire more employees, to buy more equipment, produce more goods and services. All this, of course, helps the economy grow; it helps produce more wealth and, by the way, it helps produce more revenue for the Federal Treasury as well. I said we have become an investor Nation. Capital gains. Now, 45 percent of all elderly taxpayers reporting capital gains had an adjusted gross income of $50,000 or less. Rich? We are going to tax the rich here? No. We may be aiming at the rich, but we are hitting the middle class. A $50,000 income is not rich. These are our senior citizens' dividends. Mr. President, 67.6 percent of all elderly taxpayers reporting dividend income had an adjusted gross income of $50,000 or less. The same thing; these are not wealthy people. They are receiving dividends based on retirement income, and they are going to receive a whopping tax increase under the assumptions of this budget. In fact, if you look at the data for all filers under $50,000, capital gains that are $50,000 of income, 35.8 percent of the filers reported capital gains income. Forty-one percent of the filers with incomes of less than $50,000 reported qualified dividend income. So we are talking about folks who are not wealthy, who are reporting not only income but dividend income and capital gains income, getting a huge increase in their taxes because the rates on dividends and capital gains are increased under the assumptions of this budget. As I said before, there has also been talk of not only taxes going up, but the budget chairman actually said we have actually cut taxes by about $187 billion. Now, this is--well, let's say it bears examination. The tax cut the chairman is counting is simply the existence of the law today. It is existing law. It is continuing that law. As he said before, we don't have to take any action because it is already law, and it continues for 2 more years. That is right. But it is not as if we passed a law to cut taxes. We haven't. We have left them alone. That is not cutting taxes. This year we are going to enact a 1-year fix for the AMT because we don't want people to have to pay for that. We are going to extend the so-called tax extenders for businesses, such as the R&D tax credit. We will do those things, but it is not as if the people should be grateful to us for cutting their taxes. That is simply taking action to make sure their taxes don't go up. It is to keep them exactly where they are. That is not a tax cut; that is protecting people to retain the existing level of taxation. Then, the stimulus checks which make up the rest of this, they are not a tax cut either. Remember, that is what the President did when he negotiated with the House of Representatives and said: Let's stimulate the economy by giving people $300 or $600 to spend, and that money is starting to be received by Americans today. So I don't think the Congress should be bragging about a big tax cut when, in fact, all we have done is to retain existing rates, and all we are going to do is retain existing rates. When I say all we are going to do, believe me, that is important. It is important that we not let taxes increase, but that is what this budget assumes. As the ranking member of the committee pointed out, the biggest tax increase in the history of the world is assumed in this budget, and here is the problem: Right now, Congress does not have to do anything, as the chairman of the Budget Committee said. That is true. But in 2 years, we do have to do something or else taxes are going to go up. This is not a matter of stopping a big tax increase; this is a matter of all these tax rates--the marginal income tax rates, the death tax, capital gains rates, dividend rates--all these rates that are currently in law expire, and they are all increased unless we act. That is the assumption of this budget. That is why it would be irresponsible for us to support this budget and assume Congress is not going to do the responsible thing and stop those tax rates from increasing. That would be devastating to our economy. It is the last thing you would want to do in a time of economic downturn, and it would be the last straw for American families who are already seeing too much of their income having to go to buy gasoline, to buy a quart of milk or to buy whatever else it is they need for their families with the prices having gone up. To have a tax increase on top of that would, as I said, not only be devastating for the economy, but it would be critical to American families. Ironically, if we are concerned about revenues to the Federal Government, it is also the best way to make sure the Government doesn't collect very much revenue either, because in an economic downturn, the people don't make as much, and therefore they don't pay the Government as much in taxes. The bottom line is this is a budget that assumes a huge tax increase. It doesn't do a thing to cut taxes. It is not something we should be supportive of. I appreciate the comments of my colleague from New Hampshire earlier in pointing out the fact it is a budget Congress should reject on behalf of the American people. Go back, do this work over again, abide by the instructions to conferees that we passed on the floor of the Senate last week, and ensure that these things can occur without raising taxes, which would be the last straw for the economy we are in right now. Mr. President, I yield the floor to the Senator from Michigan.

Mr. KYL

Mr. KYL. Mr. President, every now and then there is an article or an op-ed in the newspaper that you find compelling by its clear logic and you want to share it with your colleagues. I wish to do that today and at the conclusion of my remarks put the full text of this op-ed in the record. Today's Wall Street Journal carried an op-ed by David Ranson called ``You Can't Soak the Rich.'' I find it compelling because of the proposals by some that we should raise the marginal income tax rates and thereby theoretically increase revenues to the Treasury. What Ranson points out is it is essentially a law of economics that raising tax rates not only does not bring in more revenue to the Treasury based on the historic record, but it can have precisely the opposite effect because it can harm the economy and, in fact, it is the growth in the economy that produces more revenue to the Federal Treasury. Let me quote a couple of comments from his op-ed. He said: No matter what the tax rates have been, in postwar America tax revenues have remained at about 19.5 percent of GDP. Now, there is another measure. If you go back somewhat less distance, the measure is about 1 percent less than that as a percentage of GDP, but the ratio remains the same and the point he is making remains the same, which is that raising tax rates does not raise revenue. In fact, raising tax rates can hurt the economy, which then reduces tax revenue. There is a chart in this op-ed that makes the point. The Federal tax yield, which is revenues divided by the gross domestic product, has remained close to 19.5 percent, even as the top tax bracket was brought down from 91 percent to the present 35 percent. One would think that the difference between a 91-percent top marginal rate and 35 percent would represent a dramatic difference in revenues collected. In point of fact, it has not been. He points out why a little bit later in his op-ed. He says: The data show that the tax yield has been independent of marginal tax rates over this period, but tax revenue is directly proportional to GDP. In other words, the strength of the economy. He goes on: So if we want to increase tax revenue, we need to increase

Mr. KYL. Mr. President, I urge my colleagues to review the op-ed and apply it to the lessons we have today. In fact, the legislation we will be taking up today increases taxes--increases the tax rate--by applying a 0.5-cent surcharge or surtax on the top marginal rate. This is going to be very destructive. Over 80 percent of the people who report that top marginal rate, report small business income. So we are going to be hurting the small businesses of this country, not the big businesses or the wealthy that the surcharge is intended to hit, and we will end up not increasing Federal revenues but actually decreasing them and hurting the economy in the process. I yield the floor.

Mr. KYL

Mr. KYL. Mr. President, I rise to say a few words about final passage of the KIDS Act, S. 431. This bill authorizes procedures for social networking Web sites to check whether a particular email address is registered to a sex offender. The bill also includes provisions that would make it an offense to use the Internet to lure a victim and then sexually assault her, that expand the jurisdictional predicates for the child-porn possession offenses, and that make it an offense to knowingly access child pornography on the Internet with the intent to view child pornography. Section 7 of the bill, which expands the jurisdictional predicates for offenses relating to child pornography, is of particular interest to me. I offered this proposal as an amendment in the Judiciary Committee after it was informally proposed to me by the Justice Department. The proposal addresses a problem highlighted by United States v. Schaefer, 501 F.3d 1197, 10th Circuit 2007, which dismissed a conviction for receipt and possession of child pornography because the court found that proof that an image traveled over the Internet is not sufficient to prove that the image in question moved in interstate commerce. I understand that this ruling has had a substantial impact on prosecutions pertaining to sexually abusive images of children, particularly in the Tenth Circuit. In Schaefer, the Tenth Circuit found that evidence that an image had traveled through servers in another State could prove that the image moved across State lines. Unfortunately, this conclusion provides little help for Federal prosecutions in the State of Colorado because the largest Internet service provider in Colorado maintains all of it servers in that State. Therefore, in Colorado it is extremely difficult to get the kind of evidence required by the Tenth Circuit's decision. It is an irony of the Internet that the more that it grows, the harder that it is to prove that an image of child pornography crossed State lines. As in Colorado, many Internet service providers are setting up server farms across the United States, so it is harder to get the requisite evidence that the images moved through out-of-State servers. Additionally, with the advent of different ways of connecting to the Internet, such as wireless, broadband, and DSL, it can be harder to trace the route that an image took across the Internet. And with certain Internet-based technologies, such as instant messaging and peer-to-peer file sharing, it can be impossible to find out to whom or from where a defendant sent or received an image. The child pornography statutes were enacted, for the most part, before Internet and cell phone technology existed. At the time the statutes were originally written, there were really only two ways to transport this contraband: by mailing it or by physically carrying it on one's person. The statutes were drafted accordingly. Now, however, because of technological developments, Federal laws pertaining to sexually abusive images of children simply do not reach all of the crimes they could under the Constitution. Section 7 of the KIDS Act adds the words ``affecting interstate or foreign commerce'' and ``using a facility or means of interstate or foreign commerce'' to the child pornography laws, thereby employing maximum Federal power to proscribe child pornography. The primary advantage of the ``facility or means'' language is that it accurately reflects how sexually abusive images of children are traded today, which is to say, over the Internet and phone lines. The Supreme Court and courts of appeals have long recognized that the Internet and phones are facilities of interstate commerce, regardless of whether the actual transmission goes across State lines. Finally, the ``facility or means'' language tracks that in 18 U.S.C. Sec. Sec. 1470 and 2422(b). Thus there is already a body of case law to guide the drafting of jury instructions and statutory interpretation. My second favorite provision in S. 431 is section 6, which makes it a crime to knowingly access child pornography with the intent to view child pornography. This proposal was brought to my attention by my colleague Senator Vitter, who persuaded me to offer it as an amendment in the Judiciary Committee. Like section 7, section 6 adapts our laws to address a new obstacle to child-pornography prosecutions that was created by changes in technology and that is exemplified by a recent court of appeals decision. The Vitter staff also provided me with the following Justice Department testimony, which explains the need for this provision and is worth quoting in full. It is the testimony of Larry Rothenberg, a Deputy Assistant Attorney General in the Justice Department's Office of Legal Policy, before the House Judiciary Committee on October 17 of last year: 18 U.S.C. Sec. Sec. 2252 and 2252A currently criminalize various activities related to child pornography including transportation, trafficking, and possession. Some courts have narrowly interpreted (incorrectly, in our view) the definition of possession so that a person would not have violated the statute if he, for example, viewed images of child pornography on his computer but did not save them onto his disk drive. Even if, in his computer's ``temporary Internet cache,'' we have a record of his viewing the images, and thus proof that he accessed them on a website, under this narrow interpretation, he would not be guilty of violating the statute if he did not know that his temporary Internet cache automatically saved the images on his computer. Two recent cases demonstrate the need for these changes. In United States v. Teal, No. 1:04-CR-00042-CCB-1 (D. Md., motion to dismiss granted Aug. 13, 2004), the Maryland U.S. Attorney's Office prosecuted Marvin Teal, a former administrative law judge who had prior convictions for sexually abusing children, for possession and attempted possession of child pornography based on his viewing child pornography at a public library in Baltimore, Maryland. Library police officers saw child pornography on the computer Teal was using, arrested him, and printed out the images that could be seen on the computer screen. Because there was no evidence that the defendant had himself downloaded or saved anything, the District Court dismissed the case. We chose not to appeal, given the state of the law and the facts of the case. In United States v. Kuchinski, 469 F.3d 853 (9th Cir. 2006), the Ninth Circuit vacated and remanded the sentence of an offender found with between 15,120 and 19,000 separate images of child pornography on his computer on the basis that he did not know that they were in his Internet cache. The court stated, ``There is no question that the child pornography images were found on the computer's hard drive and that Kuchinski possessed the computer itself. Also, there is no doubt that he had accessed the web page that had those images somewhere upon it, whether he actually saw the images or not. What is in question is whether it makes a difference that, as far as this record shows, Kuchinski had no knowledge of the images that were simply in the cache files. It does.'' Of course we acknowledge the Ninth Circuit's authority to interpret the law this way. However, we think the court's distinction should not make a difference under the law. Our proposal [which is identical to Section 6 of the KIDS Act] would correct these anomalies while protecting unsuspecting persons who unintentionally access child pornography from prosecution. Specifically, the bill would amend 18 U.S.C. Sec. 2252(a)(4) and 18 U.S.C. Sec. 2252A(a)(5) to criminalize not only possession of child pornography, but also ``knowingly accessing child pornography with the intent to view it.'' That is, a person would be liable to prosecution if he purposefully clicked on a link with the intent that when the link opened, he would view child pornography. It would therefore be a two- step test that the prosecution would have to satisfy--first, that he purposefully (that is, not accidentally) clicked the link, and, second, he did so with the intent that by clicking on the link child pornography would appear on his computer screen. This test would not be difficult to satisfy in the case of people who really did want to view child pornography. Extrinsic evidence--such as the name of the link, which would probably have terms indicating that it displayed child pornography, and payment for the images--would be used to prove the violation. But in the case of an ``innocent viewer'' who accidentally came across child pornography, the two-step proof would be his protection. I would also like to express my appreciation to the sponsors of this bill for their willingness to work with the Justice Department to address technical concerns with the bill. It is particularly important that the bill has been modified to minimize conflict with the Justice Department's forthcoming guidelines for implementation of SORNA, which serve many of the same ends as the bill. Earlier versions of the KIDS Act used terminology inconsistent with that used in SORNA, unnecessarily required that sex offenders appear in person to report their e-mail addresses, did not clearly provide the Attorney General with discretion to screen out ill-intentioned users of the checking system, limited access to the checking system to only commercial websites, and unnecessarily restricted to only the SORNA database the sources on which the checking system may rely for Internet addresses. I am pleased to report that all of these problems will be corrected in the floor amendment for the bill. While these issues may seem like technicalities, had they not been addressed they would have degraded the utility of the checking system. The committee-reported bill also appeared to limit existing programs for helping law enforcement and parents to determine whether the individual using a particular address is a sex offender. The final Senate bill includes a rule of construction that makes clear that the bill does not limit the Attorney General's preexisting authority to allow such searches. The final bill also includes a compromise on how the Attorney General and social networking Web sites may disseminate sex-offender e-mail addresses. The compromise is somewhat complicated and merits explanation. The bill still does bar the wholesale distribution to the general public of sex offenders' e-mail information contained in the system, and further requires that the AG limit how the social networking sites disseminate the information about individual offenders that such sites receive. I understand that some Senators expressed concern that such bulk distribution of offenders' e-mail addresses would make it possible for malicious individuals to identify individual offenders' e-mail addresses and use those addresses to harass an offender. Preventing the publication of lists of offenders' e-mail addresses also will prevent offenders from using the checking system to identify each other's e-mail addresses and communicate with each other. We should not allow the system's information about sex offenders' e-mail addresses to be used in this way. The bill creates a two-tiered limit on distribution of these e-mail addresses in proposed SORNA section 121(d)(4)(A) and (B). Subparagraph (A) bars bulk distribution of offenders' addresses contained in the system to the public at large, and subparagraph (B) further requires the AG to limit how social networking sites disseminate the information that they receive. Subparagraph (A) bars both the AG and the participating social-networking sites from disseminating lists of sex-offender e-mail information that are generated through the operation of the checking system unless the information is only given to a limited set of sources with a particular need for the information, as opposed to the public at large. It does not limit dissemination of information generated from other sources, but should substantially prevent the creation of bulk public lists of sex-offender e-mail information as a result of the operation of the checking system. Subparagraph (B) complements this provision by requiring the AG to regulate how participating social networking sites use the information that they receive. It is likely that some social-networking sites will come into possession of large amounts of sex-offender e-mail information as a result of their participation in this system. It is thus important that the AG see to it that those sites do not liberally disseminate such information in a way that would allow others to create bulk public lists of sex offenders' e-mail information. Although subparagraph (B) contains no specific mandate to the AG, I trust that he will apply this provision with this purpose in mind. In addition, I would like to address two urgently-needed reforms to our Nation's child pornography laws that are not included in this bill, but that I hope to amend onto future legislation. We need tougher, mandatory penalties for possession of child pornography, and Congress needs to act to stiffen and expand penalties for electronic- communication service providers who fail to report the presence of child pornography on their systems. The case for both of these provisions is made in the Rothenberg testimony noted above, and I quote it in full: [W]e urge Congress to establish a mandatory minimum sentence for possession of child pornography. This is crucial because too many people believe that child pornography is ``just pictures'' and is not ``a big deal.'' That is wrong. Each pornographic image of a child is the visual record of the sexual exploitation of that child. It is not just a picture. Every time that image is viewed, the child is violated once again. Moreover, the demand for such images is what fuels the physical violation of the children in these images in the first place. Possession of child pornography is victimization of a child and should be punished accordingly. Unfortunately, since the Federal Sentencing Guidelines became advisory under the Supreme Court's decision in United States v. Booker the number of downward departures by judges in federal child pornography possession cases has increased. After enactment of the PROTECT Act of 2003, which restricted in various ways the authority of courts to make non- government-sponsored downward departures in sentences, the rate of non-government-sponsored below-range sentences for all offense types was about 5 percent. See United States Sentencing Commission, Final Report on the Impact of United States v. Booker on Federal Sentencing (March 2006), at p. 54, available at http://www.ussc.gov/booker_report/ Booker_Report .pdf. Following Booker, that rate jumped up to 12.5 percent. Id. at p. 47. For child pornography possession offenses, however, the rate of non-government-sponsored below-range sentences leapt to 26.3 percent, more than twice the average rate. Id. at p. 122. By way of comparison, for drug trafficking and firearms violations, the rate has increased to 12.8 percent and 15.2 percent, respectively, much closer to the average. Id. at table on page D-5. The increase in non-government-sponsored, below-range sentences for possession offenses after Booker demonstrates the need for a mandatory minimum sentence for possession offenses. Establishing a two-year minimum sentence will be a warning to potential consumers of child pornography, prevent unwarranted downward departures, and forcefully express our revulsion at this type of material. This change is contained in section 201 of the Department's Violent Crime and Anti- Terrorism Act of 2007 and is included as section 201 of H.R. 3156, the Violent Crime Control Act of 2007. Our second proposal would amend an existing law that requires certain providers of electronic communications services to report violations of the child pornography laws. Currently the law provides that a provider who knowingly and willfully fails to report the presence of child pornography images on its computer servers shall be subject to a criminal fine of up to $50,000 for the initial failure to report and $100,000 for each subsequent failure to report. Prosecutors and law enforcement sources report that this criminal provision has been virtually impossible to enforce because of the particular mens rea requirement and the low amount of the potential penalty. These impediments severely hinder the needed crackdown on the presence of child pornography on the Internet. Our legislation would triple the criminal fines available for knowing and willful failures to report, making the available fines $150,000 for the initial violation and $300,000 for each subsequent violation. Even more importantly, the legislation would add civil fines for negligent failure to report a child pornography offense. The civil penalty is set at $50,000 for the initial violation and $100,000 for each subsequent violation. The Federal Communications Commission would be provided with the authority to levy the civil fines under this section and to promulgate the necessary regulations, in consultation with the Attorney General, for imposing the fines and for providing an appropriate administrative review process. These proposals would make it much more likely that service providers will exercise sound practices for weeding out child pornography. The images are out there, too often on commercial computer servers, and law enforcement needs to know about them to investigate and to prosecute the sexual predators who consume them. This amendment is contained in section 202 of the Department's Violent Crime and Anti- Terrorism Act of 2007 and in section 202 of H.R. 3156. Finally, I would like to thank Preet Bharara and Lee Dunn, staffers to Senators Schumer and McCain, respectively, who have worked tirelessly to see this bill through the Senate. S. 431 is a good bill, and I hope to see it enacted into law.

Mr. KYL

Mr. KYL. Madam President, the current newspaper-broadcast cross- ownership rule prohibits the coownership of a newspaper and a broadcast station in the same market. This rule is the only local ownership rule that has not been modified by the Federal Communications Commission, FCC, since the ownership rules went into place over 30 years ago. Despite massive innovation in the media marketplace, the advocates of S.J. Res. 28, the Dorgan resolution, want to preserve an archaic rule that is no longer relevant or useful in today's media world. On December 18, 2007, the FCC issued an order to provide a modest relaxation of the newspaper-broadcast cross-ownership prohibition in the top 20 markets. To ensure that one company doesn't control the local media, the prohibition is only relaxed if there are eight independent television stations in the market. The rule change only applies to the acquisition of a television station not ranking in the top four in any market, which essentially excludes network affiliated stations. The FCC's order further mandates that all proposed newspaper- broadcast combinations be reviewed by the Commission on a case-by-case basis with the opportunity for public comment. Simply put, the new FCC rule provides a modest relief in a limited number of markets and ensures that any changes are carefully scrutinized. After 18 months of review and more than 150,000 filed comments, 10 empirical studies, and 6 field hearings, the FCC fully vetted its decision to relax the newspaper-broadcast cross-ownership rule. It determined that the ``harm'' envisioned by cross-ownership is directly contradicted by simple facts. Currently, there are a number of newspaper-broadcast station ownership combinations that are exempt from the ban through grandfathers and waivers. These combinations have served the needs of the local communities well. The FCC also found that the ban on newspaper-broadcast combinations was established at a time when communications in any town consisted of a newspaper and, at best, a handful of local television and radio stations. The rule is antiquated in today's media world where there are multiple sources of news and viewpoints, such as the Internet, satellite radio, blogs, cable, and other forms of communication. Finally, upholding the ban would also largely ignore the dire financial condition of the newspaper industry. Due to the multiple news and information outlets available to consumers, local newspapers are finding it harder to make a profit. What is at stake here is the long- term health of newspapers and their ability to provide the kind of journalism that has served our democratic society well for more than 200 years. Permitting cross-ownership with broadcast stations allows greater financial efficiency in the market, allowing some newspapers to survive. For all of these reasons, I will not support the Dorgan resolution. The FCC's narrow rule will not lead to mass consolidation, and I would encourage my colleagues to consider the ramifications of reversing the FCC's order.

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 Senator is necessarily absent: the Senator from Arizona (Mr. McCain).

Mr. KYL

Mr. KYL. Thank you, Madam President. I am going to take a couple of minutes to lay this motion down and then leave the floor. I will come back. Senator Grassley will be here in about a half an hour. I know he wants to speak to this motion. So the total time consumed should not be more than that, but exactly when we will do the time I am not precisely sure.

Mr. KYL. Madam President, I have a motion at the desk.

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

Mr. KYL. Madam President, I had earlier filed and Senator Grassley had spoken on a motion to instruct conferees. An alternative has been presented by Senator Conrad. I wish to discuss both of them, this motion to instruct conferees on the alternative minimum tax, and the so-called tax extenders. Each year Congress is required to fix the AMT because without such a fix--around here it is called a patch--but without such a fix, it would apply to, last year 22 million people, this year 26 million people. It was never intended to apply to those people. It was originated about 20 years ago because there were a couple hundred millionaires who were not paying taxes because of all of their credits, deductions, offsets, and so on. People in Congress thought that was not right, so we said: Well, no matter what, even if you have enough other tax shelters to eliminate your tax liability, we are going to make you pay an alternative minimum tax, no matter what. But it was not indexed for inflation, so now everyone is going to have to be paying it. Each year Congress says: Well, we did not intend that, so we will fix it so you do not have to pay it this year. The question is not whether we are going to relieve taxpayers from that--we will--but whether the rules of the Democratic majority that it has to be paid for will, in fact, be implemented so that we have to raise taxes in order to save taxes, save people from having to pay taxes. Obviously it does not make any sense to say to taxpayers: You should have not to pay the alternative minimum tax, but under the Democratic rules we have to raise your taxes so that the Government does not lose any money from us relieving you of that tax liability. That does not make any sense. So each year we waive that requirement. All we are saying here is we need to do that again this year. I understand the pay-go requirement is part of the Democratic rule around here. It has not been applied in the past for a very good reason: It makes no sense, and it should not be applied here either. We never intended that this tax apply to 26 million taxpayers, we never intended to collect the revenue, we are not going to collect the revenue. So why do we have to make the Government whole for revenue that we never intended to give it in the first place, especially since it means raising taxes on people in order to ``pay for the reduction in revenues to the Treasury''? That is what this resolution is about. The other half of it is to instruct the conferees that we need to also extend the so-called extenders. Now, that is shorthand around here for a variety of tax provisions which provide various credits and other relief to taxpayers such as the research and development tax credit. But we only do that a year at a time, so every year about this time we have to start talking about passing the extenders package. We are going to do it; there is not going to be any debate about it. The distinguished chairman of the Budget Committee made the point earlier that agrees with us that this needs to be done; it is a question of how we do it. What we are doing is saying here, today, we need to do it in the following way: Pass it as we did last year. You do not have to raise taxes somewhere else in order to ``pay for it.'' This is not a case that make any sense for us. If you are going to give tax relief, why would you raise taxes to have to pay for it? We are not counting on any revenue. Every year we do it this way. So why the charade that somehow we have to raise taxes to pay for something we never intended to collect revenue from in the first place? That is what this resolution does. Let's strip away the pretense here that somehow or other we are going to pay for it. ``Pay for'' are not the right words anyway. That starts from the presumption that the Government owns all of this money, and that if we ever decide to give the taxpayers a break so they do not have to pay for it all, the Government gets to make up the revenue some other way. How does the Government make up revenue? It taxes people. That is the only way the Government makes revenue. So the assumption is, well, the Government deserves all of this money, and if we ever say we are not going to collect some of it because we want people to keep more of it, then we have to make that up some other way, obviously by raising taxes. I would rather start from the other premise, which is that the money belongs to the people and especially in times of economic downturn it is important that they be able to use, in the way that they deem most beneficial, the income they have earned, and that when we say we are going to relieve them of the alternative minimum tax liability, for example, we are doing that for a reason, and we do not need to start from the premise that it is the Government's money and somehow we have to keep the Government whole and give the Government money by raising taxes even though they were never going to collect this AMT revenue in the first place. This must sound like a strange debate to the American people. But that is what the rule the Democratic majority has in place would require. That is what the budget would require. All we are saying is, since we are going to be passing a budget, let's instruct the conferees on the budget here that is not what we are going to do here. We are going to do it as we have in the past, as we did last year. We are going to pass the AMT relief, we are going to pass the extenders, and, no, we are not going to raise taxes on someone in order to pay for them. Now, what is the alternative that the distinguished chairman of the Committee comes up with? It is the identical motion I have, with one other provision. It is this addition: And that we should insist that every effort should be made-- That is a sure sign for: We are not really going to do anything about this, but we at least want to make it sound good-- to offset the cost of these policies by closing the tax gap, shutting down abusive tax shelters, addressing offshore tax havens without raising taxes. Well, I am glad we have the ``without raising taxes'' in there, because none of us wants to raise taxes. But this reminds me of the candidates, and we have all seen them out on the stump: Yes, we have a huge Federal budget deficit, but I want to spend more money. The way we are going to pay for it is we are going to end waste, fraud, and abuse in Government. That is a sure sign for a politician who has not figured out how to get the money in any other way. Everyone is going to end waste, fraud, and abuse. You know, I used that phrase in a sort of facetious way, but actually I think it is in here. Shutting down abusive tax shelters. There we are. Abuse. Waste, fraud, and abuse. Addressing offshore tax havens. The reality is, the Finance Committee on which we sit comes up with offsets to offset true tax policy whenever we can, and we have wrung out our Tax Code for every last dollar we can find that involves waste, fraud, and abuse. There are not any abusive tax shelters out there. If they are out there, we have not found them or we would sure enough have gotten the money from them. The same thing about offshore tax havens. We have gotten about $60 or $70 billion from these, and there is no more to get. If there is, we would have gotten it by now. Then there is the tax gap. The tax gap is this: Not everyone pays all of the income taxes the IRS thinks they owe, and the problem is we do not know exactly who has not paid. But the estimates are that if most businesses in an industry pay $100, and some only pay $80, the assumption is that maybe those that only pay $80 probably ought to be paying more. We cannot figure it out, but we think the money would be there if we had a better way to account for it. We have held hearings, and the experts basically say: There is not much more you can get. You probably would have to pay more to find it than it is worth to collect. We did do one thing, though. We actually subcontracted out to some tax collectors. If they can go out and find some and they can bring it back, they get a little piece of the action. It would help us because they would collect some of these revenues. The only thing from the other side is, well, let's eliminate that policy. We are not going to send these guys out to try find where these taxes are. So if they intended to collect the revenue or to end or minimize the tax gap, they would not be sponsoring the legislation to fire all of the people we hired to go out there and find the revenue. The bottom line is, this is a nice sounding phrase, but it is like the person that goes out and says: I am going to end waste, fraud, and abuse. That is how I am going to pay for all of the new spending I am recommending. I urge my colleagues to support the motion I have filed, the motion that Senator Grassley spoke to, and to reject the motion of the chairman of the Budget Committee which, at the end of the day, recognizes the reality. We are going to do the AMT patch. We are going to do the tax extenders. We are not going to pay for them. So let's don't pretend like we have to find revenue from someplace else in order to make this happen. I reserve the remainder of my time and inquire how much remains?