Patrick Leahy

Mr. LEAHY

Mr. LEAHY. In fact, Senator Graham and I introduced a successful amendment in last year's Defense authorization bill that required the Pentagon and the GAO perform studies that should produce more conclusive analysis of the relative cost of similar units in the Active components and the Reserve components. We are also aware of at least two other third-party studies currently underway to address the questions. I think we are going to have three or four such studies that will conclusively answer the questions. Senator Graham and I--and I think most of our colleagues in the Senate--consider these proposed Air Force cuts to be dangerously premature. Once we cut the Reserve components, once we send an aircraft to the boneyard at Davis-Monthan Air Force Base and these airmen and pilots go out to civilian life, we don't get them back. In fact, that is precisely why the Army and Marine Corps have taken a different approach of preserving their Reserve component force structure: They can mobilize Active component troops they place in the Reserve component. But once we cut that, they are gone forever. They are gone forever.

Mr. LEAHY. Madam President, clearly this approach, if we keep the Guard and Reserve, saves our country precious resources at a time we need to tighten our belts. There are a couple of things we agree on. Everybody in the Senate agrees that our military has to be kept strong and vigilant to threats from our enemies. But the source of our military strength has been and always will be our economic might. If we are to protect ourselves militarily while also marshaling our economic power, moving to the kind of constitutional defense model my colleague has discussed should be our first choice. I think these Air Force proposals are ill-advised and premature at the very least. I think they are flat-out wrong, as has already been said here on the floor. When any of us who have visited the areas, especially in the last few years, where our military guard and our Reserves are deployed, you cannot tell the difference between their duties or the risks they put themselves in--between the active-duty and Guard and Reserve components. The National Guard has been given a much greater role in our overall national defense--more missions, greater responsibility, heavier burdens. They perform these missions superbly, with great skill and effectiveness. They have defended our interests, and many have lost their lives doing it, but they carried out the same missions as everybody else. The Senate National Guard Caucus worked closely with all concerned to accommodate and facilitate these changes. But now we are going to take an active role in informing the Senate as these are being made. We are not going to sit by while any of the military services decimate their Reserve components. We will work together, Senator Graham and I, with the Senate Armed Services Committee on which he serves with distinction, and the Senate Appropriations Committee on which we are both privileged to serve, but also the entire membership of the Senate, to produce a thoughtful, well-conceived strategy for military manpower that makes use of a cost-effective and accessible, fully operational, trained, and ready Reserve component.

Mr. LEAHY. I thank my friend from South Carolina. We will from time to time report to the Senate on this issue. It is extremely important. It comes down to the bottom line: Have the best defense at the least cost to the taxpayer. That is what we are both aiming for. I yield the floor and I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, the Senate will finally vote on the nomination of Judge Cathy Bencivengo to fill a vacancy on the the U.S. District Court for the Southern District of California, where she has served as a Magistrate Judge since 2005. An experienced judge and lawyer, with 17 years in private practice before becoming a Magistrate Judge, Judge Bencivengo received the highest possible rating from the ABA's Standing Committee on the Federal Judiciary, unanimously ``well qualified.'' Her nomination, which has the strong support of her home state Senators, Senators Feinstein and Boxer, was reported unanimously by the Judiciary Committee on October 6. Yet, despite the support of every Member of the Judiciary Committee, Democratic and Republican, and despite vacancies across the country in nearly one out of every 10 Federal judgeships, it has taken over 4 months for Senate Republicans to consent to a vote on Judge Bencivengo's nomination. I thank the Majority Leader for securing today's vote. There is no reason or explanation why the Senate Republican leadership will not consent to vote on the other 18 judicial nominations waiting for final Senate action. All but three of them were reported by the Judiciary Committee without opposition, just like Judge Bencivengo's nomination. Earlier this week I urged Senate Republicans to join with Democrats and take long overdue steps to remedy the serious vacancies crisis on Federal courts throughout the country. Consenting to vote on a single judicial nomination, only the third such vote we have had this year, is not much in the way of progress. There is no reason or explanation for why Senate Republicans continue to block a vote on the nomination of Jesse Furman to fill a vacancy on the Southern District of New York. His nomination was voted out of the Judiciary Committee on September 15, nearly 5 months ago, without opposition from a single member of the Committee and a month before the nomination being considered today. Mr. Furman, an experienced Federal prosecutor who served as Counselor to Attorney General Michael Mukasey for 2 years during the Bush administration, is a nominee with an impressive background and bipartisan support. We should have voted on his nomination many months ago, and certainly before the end of the last session. Senate Republicans have now skipped over that nomination and stalled it for almost 5 months. Senate Republicans continue to block even judicial nominations with home State support from Republican Senators. Republican Senator Marco Rubio and Democratic Senator Bill Nelson of Florida both introduced Judge Adalberto Jordan of Florida to the Judiciary Committee when we held his confirmation hearing last September for his nomination to fill a judicial emergency vacancy on the Eleventh Circuit, and both strongly support his nomination. Judge Jordan is an experienced jurist who has served as a judge for the Southern District of Florida since 1999. If confirmed, Judge Jordan will be the first Cuban-born judge to serve on the Eleventh Circuit, which covers Florida, Georgia and Alabama. Born in Havana, Cuba, Judge Jordan immigrated to the United States at age 6, going on to graduate summa cum laude from the University of Miami law school. After law school, he clerked for Judge Thomas A. Clark on the Eleventh Circuit, the court to which he is now nominationed, and for Justice Sandra Day O'Connor, a President Reagan appointee to the United States Supreme Court. Judge Jordan has been a prosecutor in the Southern District of Florida, serving as Deputy Chief and then Chief of the Appellate Division. Judge Jordan has been a professor, since 1990 teaching at his alma mater, the University of Miami School of Law, as well as the Florida International University College of Law. It is no suprrise that the ABA's Standing Committee on the Federal Judiciary unanimously rated Judge Jordan ``well qualified'' to serve on the Eleventh Circuit, the highest possible rating from its non-partisan peer review. It is also no surprise that his nomination was reported unanimously by the Judiciary Committee nearly 4 months ago. The surprise is that Senate Republicans continue to stall action on this nomination for no good reason. Judge Jordan is the kind of consensus judicial nominee that should be welcomed as one of the many examples of President Obama reaching out to work with Republican and Democratic home State senators and the kind of superbly qualified nominee we should all encourage to serve on the distinguished bench of Federal appeals court judges. In the past the Senate would have voted on his nomination within days or weeks of its being reported unanimously by the Judiciary Committee. Yet Republicans refused to consent to a vote on Judge Jordan's nomination before the end of the last session and it has been stalled on the Senate Calenadar for nearly 4 months. When we finally do vote on Judge Jordan's nomination I am certain he will be confirmed with broad bipartisan support, perhaps unanimously. There is no good reason the Senate is not voting to confirm Judge Jordan today. If caseloads were really a concern of Republican Senators, as they contended when they filibustered the nomination last December of Caitlin Halligan to the D.C. Circuit, they would not continue to block us from voting on Judge Jordan's nomination to fill a judicial emergency vacancy on the Eleventh Circuit, one of the busier circuits in the country. They would not continue to block a vote on the nomination of Judge Jacqueline Nguyen, reported last December to fill a judicial emergency vacancy on the Ninth Circuit, the busiest Federal appeals court in the country. They would consent to vote on the nomination of Paul Watford, a well-qualified nominee to fill another judicial emeregency on the Ninth Circuit. They would stop blocking us from voting on the nominations of David Nuffer to fill a judicial emergency vacancy on the District of Utah, Michael Fitzgerald to fill a judicial emergency vacancy on the Central District of California, Miranda Du to fill a judicial emergency vacancy on the District of Nevada, Gregg Costa to fill a judicial emeregency vacancy on the Southern District of Texas, and David Guaderrama to fill a judicial emergency vacancy on the Western District of Texas. Of the 19 judicial nominations now awaiting a final vote by the Senate, 16 were reported by the Judiciary Committee with the support of every Senator on the Committee, Democratic and Republican. Month after month and year after year, Senate Republicans find excuses to delay confirmation of consensus judicial nominees for no good reason. These delays are a disservice to the American people. They prevent the Senate from fulfilling its constitutional duty. And they are damaging to the ability of our Federal courts to provide justice to Americans around the country. The cost of this across-the-board Republican obstruction is borne by the American people. More than half of all Americans, nearly 160 million, live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations that have been reported favorably by the Judiciary Committee. It is wrong to delay votes on these qualified, consensus judicial nominees. The Senate should fill these numerous, extended judicial vacancies, not delay final action for no good reason. By nearly any measure we are well behind where we should be. Three years into President Obama's first term, the Senate has confirmed a lower percentage of President Obama's judicial nominees than those of any President in the last 35 years. The Senate has confirmed just over 70 percent of President Obama's circuit and district nominees, with more than one in four not confirmed. This is in stark contrast to the nearly 87 percent of President George W. Bush's nominees who were confirmed, nearly nine out of every 10 nominees he sent to the Senate. We remain well behind the pace set by the Senate during President Bush's first term. By this date in President Bush's first term, the Senate had confirmed 170 Federal circuit and district court nominations on the way to 205, and had lowered judicial vacancies to 46. By the time Americans went to the polls in November 2004, we had reduced vacancies to 28 nationwide, the lowest level in the last 20 years. In contrast, the Senate has confirmed only 125 of President Obama's district and circuit nominees, and judicial vacancies remain over 85. The vacancy rate is double what it was at this point in the Bush administration. I, again, urge Senate Republicans to abandon their obstructionist tactics and do as Senate Democrats did when we worked to confirm 100 of President Bush's judicial nominees in 17 months. I urge them to work to reduce judicial vacancies as we did by considering and confirming President Bush's judicial nominations late into the Presidential election years of 2004 and 2008, reducing the vacancy rates in those years to their lowest levels in decades. That is the only way we have a chance to make up some of the ground we have lost and to address the serious and extended crisis in judicial vacancies. I congratulate Judge Bencivengo on her confirmation today and hope that we can soon take up the rest of the 18 judicial nominations still awaiting a Senate vote.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask that the order for the quorum call be rescinded.

Mr. LEAHY

Mr. LEAHY. Mr. President, I see the distinguished Senator from Oklahoma and I know he is waiting to go and I appreciate his courtesy that I might go first. Let me speak in my capacity as chair of the Judiciary Committee. Two weeks ago, when the Senate confirmed only 1 of the 19 judicial nominations on which votes were delayed from last year, I urged Senate Republicans to join with Democrats and take long overdue steps to remedy the serious vacancies crisis on Federal courts throughout the country. Nearly 1 out of every 10 Federal judgeships is vacant. Nonetheless, Senate Republicans refuse to consent to votes on consensus nominees who could fill many of those vacancies without further delay. These are well-qualified judicial nominees who were reported unanimously by the Judiciary Committee many months ago; there has been no explanation for the delay in their confirmation. During the last 2 months, Senate Republicans have consented to votes on only 2 of the 23 judicial nominees ready for final Senate action. Of the 19 judicial nominations now awaiting a final vote by the Senate, 16 were reported by the Judiciary Committee with the support of every Senator on the Committee, Democratic and Republican. No Senator can or should have any reason to oppose these nominees in the Senate. But, month after month and year after year, Senate Republicans find new reasons and new tactics to delay confirmation of consensus judicial nominees for no good reason. I have never seen anything like this. These delays are a disservice to the American people. They prevent the Senate from fulfilling its constitutional duty. And they are damaging to the ability of our Federal courts to provide justice to Americans around the country. Regrettably, the last 2 weeks evidences more of the same, a continuation of the delaying tactics we have seen for years, as Senate Republicans continue their across-the-board obstruction of President Obama's judicial nominations. For the second year in a row, Senate Republicans refused to consent to votes on judicial nominations before the end of the Senate's session in December. At the end of 2011, they again refused to follow Senate's traditional, longstanding practice of voting to confirm consensus nominations before the end of the Senate session, a practice followed by Democrats and Republicans with Presidents Reagan, George H.W. Bush, Clinton and George W. Bush. Their tactics have worked, to the detriment of the Federal courts and the American people. By nearly any measure we are well behind where we should be. Three years into President Obama's first term, the Senate has confirmed a lower percentage of President Obama's judicial nominees than those of any President in the last 35 years. The Senate has confirmed just over 70 percent of President Obama's circuit and district nominees, with more than one in four not confirmed. This is in stark contrast to the nearly 87 percent of President George W. Bush's nominees who were confirmed, nearly nine out of every 10 nominees he sent to the Senate. We remain well behind the pace set by the Senate during President Bush's first term. By this date in President Bush's first term, the Senate had confirmed 170 Federal circuit and district court nominations on the way to 205, and had lowered judicial vacancies to 46. By the time Americans went to the polls in November 2004, we had reduced vacancies to 28 nationwide, the lowest level in the last 20 years. In contrast, the Senate has confirmed only 125 of President Obama's district and circuit nominees, and judicial vacancies remain over 85. The vacancy rate is double what it was at this point in the Bush administration. I wonder when I hear some Republican Senators claim credit for progress on nominations and point to what they like to call ``positive action''--how they can ignore the 19 judicial nominations being blocked for no reason. I wonder how they can claim progress for the American people when judicial vacancies remain well above 80 more than 3 years into President Obama's first term. In this setting, after years of delay and lack of real progress, it is troubling to hear Senate Republicans already talking about how they plan to resort to the Thurmond Rule to shut down all judicial confirmations for the rest of the year. Their obstruction has already resulted in the Senate having confirmed 45 fewer judicial nominations after 3 years of the Obama administration than after 3 years of the Bush administration. We still have a long way to go to catch up and to lower judicial vacancies before anyone talks about a confirmation shutdown. I wish Senate Republicans would abandon their rhetoric and do as Senate Democrats did when we worked to confirm 100 of President Bush's judicial nominees in 17 months. In fact, we continued to work to reduce judicial vacancies by considering and confirming President Bush's judicial nominations late into the Presidential election years of 2004 and 2008, reducing the vacancy rates in those years to their lowest levels in decades. The cost of this across the board Republican obstruction is borne by the American people. More than half of all Americans, nearly 160 million, live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations that have been reported favorably by the Judiciary Committee. It is wrong to delay votes on these qualified, consensus judicial nominees. The Senate should fill these numerous, extended judicial vacancies, not delay final action for no good reason. The result of the Senate Republicans' inaction is that the people of New York, California, West Virginia, Florida, Nebraska, Missouri, Washington, Utah, the District of Columbia, Nevada, Louisiana, and Texas are without the judges they need. The result is that judicial emergency vacancies in Florida, Utah, California, Nevada and Texas remain unfilled. Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hardworking Americans who seek their day in Federal court to suffer unnecessary delays. When an injured plaintiff sues to help cover the cost of medical expenses, that plaintiff should not have to wait for 3 years before a judge hears the case. When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute. With one in 10 Federal judgeships currently vacant, the Senate should have come together to remedy the serious judicial vacancies crisis on Federal courts around the country. This Republican obstruction began long before President Obama's recent recess appointment of a handful of Executive branch nominees needed for the Consumer Financial Protection Bureau and the National Labor Relations Board to function. Indeed, despite 3 years of delays and across the board obstruction of his judicial nominations, President Obama has not recess appointed a single judicial nominee. That is something President Bush did, not President Obama. Senate Democrats that year consented to consider noncontroversial judicial nominations, confirming a total of 205 circuit and district court nominations in President Bush's first term and lowering judicial vacancies dramatically. In fact, the Senate proceeded to an up or down vote and confirmed 1 of the judicial nominees President Bush had recess appointed, William Pryor to the Eleventh Circuit. Senate Republicans have been blocking votes on 18 of the President's judicial nominees since last year. Eight of the judicial nominations Republicans are blocking were reported unanimously by the Judiciary Committee in September and October last year. Another 5 nominations were reported in November, and 4 in December. All of these judicial nominations could and should have been considered by the Senate last year. Indeed, when Republicans held up scores of nominees in December, including these judicial nominees, they did so to ``punish'' the administration for not assuring them that the President would not use his recess appointment power. That delay, now of more than 2 months, has already taken a measure of revenge. They continue to hurt the country by engaging in more obstruction and delay now to seek a double measure of retaliation. Instead of exacerbating the conflict, Senate Republicans should reconsider their tactics and moderate their use of filibusters and stalling. This President has reached out to work with Senators from both parties with respect to judicial nominations. Every one of the 19 judicial nominations awaiting final Senate action has the support of his or her home State Senators, Republican as well as Democratic. There is no excuse for continued stalling of President Obama's consensus judicial nominees. The courts and the country cannot afford another year of across the board delays of President Obama's judicial nominations. I urge votes on Jesse Furman for the Southern District of New York, Cathy Bencivengo for the Southern District of California, Gina Groh for the Northern District of West Virginia, Margo Brodie for the Southern District of New York, Adalberto Jordan for the Eleventh Circuit, Beth Phillips for the Western District of Missouri, Thomas Rice for the Eastern District of Washington, David Nuffer for the District of Utah, Stephanie Thacker for the Fourth Circuit, Michael Fitzgerald for the Central District of California, Ronnie Abrams for the Southern District of New York, Rudolph Contreras for the District of Washington DC, Susie Morgan for the Eastern District of Louisiana, Jacqueline Nguyen for the Ninth Circuit, Gregg Costa for the Southern District of Texas, David Guaderrama for the Western District of Texas, and Brian Wimes for the Eastern and Western Districts of Missouri. Mr. President, I yield the floor.

Mr. LEAHY

Mr. LEAHY. Today, nearly a year after the Senate passed the FAA Modernization and Reform Act, the Senate is being asked to adopt the conference report to accompany it. I am pleased that the conference report does retain bipartisan language that I worked on to protect the public's right to know under the Freedom of Information Act. The Freedom of Information Act is one of our Nation's premier open government laws. The language included is intended to allow the Government to protect sensitive aviation information while still ensuring that the American public has access to aviation-related health and safety information. I am very disappointed that the conference report does not contain the amendment that Senator Inhofe and I worked hard to pass when the bill was considered and passed by the Senate. Following passage of our amendment in the Senate, which contained important improvements to the Public Safety Officers Benefits Act--PSOB--and the Volunteer Protection Act, I worked with House Judiciary Committee Chairman Lamar Smith to revise the Senate language into a bipartisan set of PSOB reforms. Among these reforms, and the basis of my Senate amendment, was the Dale Long Emergency Medical Service Providers Protection Act. This measure was prompted by the tragic death of Dale Long, a decorated emergency medical technician from Bennington, VT, who spent his career helping his fellow Vermonters. Following Mr. Long's death, I became aware of a gap in PSOB coverage for emergency medical responders, and this amendment was designed to close that gap so that Mr. Long, and others who serve as medical responders for private, non-profit ambulance services, have the protection of the PSOB program. In addition to the Dale Long measure, the agreement that Chairman Smith and I drafted included provisions to improve the administration and efficiency of the PSOB program. These reforms would have made the claims process faster, easier, and fairer for those disabled in the line of duty, and for the surviving family members of those who lose their lives during service. I regret very much that the Conference Committee decided to remove these improvements from the final version of the bill. Mr. President, I yield the floor, and I note the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Madam President, I would like to bring to the Senate's attention the recent accomplishments of King Arthur Flour of Norwich, VT. Established in 1790, King Arthur Flour has stood the test of time as the oldest flour company in the United States. Over the years King Arthur Flour has continued to raise the bar as an outstanding Vermont company. Most recently the company redesigned its website to allow for easier mobile phone and tablet use, placing it in the Hot 100 feature of Internet Retailer magazine. This continued focus on technology is propelling King Arthur Flour into the future as a cutting-edge company to watch. As the company has continued to grow and succeed, it has managed to stay true to its Vermont roots. King Arthur Flour has flourished as an employee stock ownership company (ESOP), a model of business stewardship that highlights a strong commitment to the company's workforce and the local community. I also appreciate that King Arthur Flour has been a long-time participant in the annual Taste of Vermont event in Washington, where we bring the finest Vermont products to the Nation's capital. I wish King Arthur Flour the best of luck as it continues to grow both its web presence with new technology and its physical presence with a major expansion project set to open this summer. I ask unanimous consent that a December 22, 2011, Burlington Free Press article highlighting the company's achievements be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, am I correct that amendment No. 1483, the Leahy-Cornyn amendment, is next?

Mr. LEAHY. We would be happy to answer the Senator's questions.

Mr. LEAHY. You cannot bribe a former public official, at least not under the terms of this amendment. Section 205 does ensure that when a public official accepts a bribe in return for taking an official act, the official cannot escape liability by leaving public service before the bribe is received or discovered.

Mr. LEAHY. The former public official must accept the bribe or gratuity ``for or because of'' the official act. If the public official does not know that a matter is pending, the public official cannot accept a bribe ``for or because'' of it.

Mr. LEAHY. This phrase is in the current bribery and gratuities statute and has been part of the law for decades. Our amendment does not change its definition or the scope of its use. It appears in section 205 because of the way that the amendment is drafted, and it is interpreted consistent with the extensive body of case law on corruption.

Mr. LEAHY. Without this codification, there is no Federal law prohibiting certain public officials from acting in their own financial interest, at the expense of the public, and in violation of existing State and local law.

Mr. LEAHY. This is an area where there is a particular Federal interest because if the corrupt official is in State or local law enforcement, there may be no other way to ferret out the corruption. In fact, in Skilling v. United States, the Supreme Court invited Congress to criminalize undisclosed self-dealing in the specific and narrowly tailored way we do today.

Mr. LEAHY. No, it does not. Criminal liability only attaches when the public official acts with fraudulent intent and does so in knowing violation of existing rules and regulations.

Mr. LEAHY. A trivial, attenuated financial benefit could not lead to this violation because the public official must still act knowingly and with fraudulent intent to receive the benefit, and they must do so in violation of existing law. For example, if State ethics rules do not require disclosure of financial interests below a certain threshold, then undisclosed self-dealing--even with fraudulent intent--below that threshold could not be charged under this statute. Moreover, the amendment requires the public official to act for the purpose of benefiting a financial interest.

Mr. LEAHY. Mr. President, the Leahy-Cornyn amendment is drawn from our Public Corruption Prosecution Improvements Act. Our bill has been supported by the United States Department of Justice in a March 2009 letter, and this amendment is supported by the National Taxpayers Union, the FBI Agents Association, the National Association of Assistant United States Attorneys, the nonpartisan Campaign Legal Center, the League of Women Voters, Citizens for Responsibility and Ethics in Washington, Common Cause, and Democracy 21. I am working with Senator Cornyn, the lead Republican cosponsor of our bill and this amendment. We thank Senators Casey and Kirk for cosponsoring this amendment. This amendment will provide investigators and prosecutors with the tools they need to hold officials at all levels of government accountable when they act corruptly by closing legal loopholes. This amendment, which reflects a bipartisan, bicameral agreement, will strengthen and clarify key aspects of Federal criminal law and help investigators and prosecutors attack public corruption nationwide. The Senate Judiciary Committee has now reported this bill with bipartisan support in three successive Congresses. The House Judiciary Committee recently reported a companion bill unanimously. It is time for Congress to act to pass serious anti-corruption legislation. Importantly, the amendment includes a fix to reverse a major step backward in the fight against fraud and corruption. In Skilling v. United States, the Supreme Court sided with a former executive from Enron and greatly narrowed the honest services fraud statute, a law that has been used for decades as a crucial weapon to combat public corruption and self-dealing. The Court's decision leaves corrupt conduct unchecked. Most notably, the Court's decision would leave open the opportunity for state and Federal public officials to secretly act in their own financial self-interest, rather than in the interest of the public. This amendment closes this gaping hole in our anti- corruption laws. The amendment includes several other provisions designed to tighten existing law. It fixes the gratuities statute to make clear that public officials must not be bought. It reaffirms that public officials may not accept anything worth more than $1,000, other than what is permitted by existing rules and regulations, given to them because of their official position. It strengthens key sentences and gives prosecutors and investigators time to make complex and difficult cases. As a former State prosecutor, I am sensitive to the dangers of creating too many Federal crimes. In the area of public corruption, however, sometimes it is only the Federal government that can effectively pursue complex corruption matters. Conflicts and relationships can make it difficult for State and local law enforcement, and these matters can require extensive resources that cannot be diverted from hard-pressed local budgets. This Federal law stands as a backstop to help ensure against public corruption. I also know how important it is that our criminal laws be fair and precise, giving sufficient notice to those who may break the law. It is in that spirit that Senator Cornyn and I, working with Congressmen Sensenbrenner and Quigley, have refined this legislation. We have made it careful and precise and built in important safeguards. This amendment will only target corrupt conduct. Right now, a mayor who takes a $1,000 payment to award a contract to a specific company can be prosecuted for corruption, but a mayor who conceals his interest in a company, awards a contract, and secretly makes $1 million out of the deal likely cannot be prosecuted. A contracting officer who accepts thousands of dollars in gifts from a frequent bidder hoping for favorable treatment on some unspecified future contract likely cannot be prosecuted. The Department of Justice has been dismissing counts and cases because of these gaps in the law. It is time to fix them. If we are serious about addressing the kinds of egregious misconduct that we have witnessed in recent years in high-profile public corruption cases, Congress should enact meaningful legislation to give investigators and prosecutors the tools they need to enforce our laws. Public corruption erodes the faith the American people have in those who are given the privilege of public service. This amendment will help us to take real steps to restore confidence in government by rooting out criminal corruption.

Mr. LEAHY. No, the local official has not committed a Federal offense in the hypothetical you describe. Criminal liability under Federal law only exists if the official knowingly fails to disclose the interest and further intentionally acts to benefit that financial interest and does so with the fraudulent intent required of the mail and wire fraud statute. In the hypothetical you describe, there is no fraud and therefore no criminal activity.

Mr. LEAHY. Senator Cornyn and I worked hard to ensure that our amendment addresses the issue of undisclosed self-dealing in a narrow and precise manner. To make sure there are no ambiguities in the updated honest services statute our amendment creates, we carefully defined the term ``material information'' and made sure we did so in such a way that our definition would apply only to the precise section of the Criminal Code where the new undisclosed self-dealing provision will appear.

Mr. LEAHY. Our definition will have no effect on the term ``material information'' as it appears in other parts of the STOCK Act because it is drafted to apply only to the new Criminal Code provision and not to other criminal laws or the Federal securities laws. On page 12, line 11 of amendment 1483, it says ``definitions--as used in this section:'' and then provides a set of definitions which includes ``material information.'' That provision very clearly applies the definition only to that new Criminal Code section, not to the rest of title 18, to the remainder of the STOCK Act, or to Federal securities law. In fact, this language was drawn from S. 401, the Leahy-Cornyn Public Corruption Prosecutions Improvement Act, and it is the legislative history of that bill and not that of the STOCK Act, that will apply when our amendment is interpreted.

Mr. LEAHY

Mr. LEAHY. Madam President, I would like to draw the Senate's attention to recent developments in Egypt, and I begin by referring to the outburst of violence yesterday by rival soccer fans after a match in that country in which 73 people were reportedly killed and hundreds injured. This is a shocking tragedy, and I want to express my condolences to the Egyptian people and the families of the victims. Last week tens of thousands of Egyptians gathered in Tahrir Square in Cairo to celebrate the 1 year anniversary of the popular revolution that overthrew former President Hosni Mubarak. That courageous and largely peaceful expression of popular will was inspirational to people everywhere, including millions of Americans. The United States and Egypt share a long history of friendship and cooperation. Thousands of Americans travel and study in Egypt, and over the years we have provided tens of billions of dollars in economic and military aid to Egypt. Our countries share many interests, and it is critically important that we remain friends and allies in that strategically important part of the world during this period of political, economic, and social transition. During the past 12 months, Egypt has been governed by a group of senior military officers, each of whom held positions of leadership and privilege in the repressive and corrupt Mubarak government. To their credit, for the most part they did not attempt to put down the revolution by force, and they pledged to support the people's demand for a democratically elected civilian government that protects fundamental freedoms. The transition process is a work in progress. On the positive side, two democratic elections have been held and a new Parliament has been seated. On the negative side, civilian protesters have been arrested and prosecuted in military courts that do not protect due process, and in December Egyptian police raided the offices of seven nongovernmental organizations, including four U.S.-based groups whose work for democracy and human rights has for years been hindered by laws and practices that restrict freedom of expression and association. Files and computers were confiscated, and some of their employees have been interrogated. There are also reports that as many as 400 Egyptian nongovernmental organizations are under investigation, allegedly for accepting foreign donations. Apparently, to the thinking of Egypt's military rulers, there is nothing wrong with the Egyptian Government receiving billions of dollars from U.S. taxpayers, but private Egyptian groups that work for a more democratic, free society on behalf of the Egyptian people and that cannot survive without outside help do so at their peril. Despite repeated assurances from Egyptian authorities that the property seized from these organizations would be promptly returned, that has not happened. To the contrary, the situation has gotten worse as several of their American employees have been ordered to remain in Egypt. Some of them have obtained protection at the U.S. Embassy. With each passing day there are growing concerns that these groups could face criminal charges for operating in the country without permission. This is a spurious charge, since registration applications were submitted and deemed complete by the government years ago, because the organizations regularly reported to officials on their activities, and since, while registration was pending, they were permitted to operate. Ironically, while the previous regime did not seek to expel them for their prodemocracy work, Egypt's current authorities, whose responsibility it is to defend and support the democratic tradition, are attempting to do just that. There is abundant misinformation about the work of the American-based organizations, with some Egyptian officials accusing them--without offering any evidence--of trying to subvert Egypt's political process. Without belaboring the point, their work was no secret as they had nothing to hide. They were helping to build the capacity of Egyptian organizations engaged in peaceful work for democracy and human rights, supporting the development of political parties, and working with Egyptian groups to provide nonpartisan voter education. The military argues that since these groups were not registered, they were in violation of Egyptian law, but this is a transparently specious excuse for shutting them down. Their repeated applications for registration were neither granted nor denied. The government simply chose to ignore them. Egyptian officials also insist that this is simply a matter of upholding the rule of law, but the complaint against these organizations was issued by a Minister with no direct authority over legal matters, and a negative propaganda campaign was unleashed in the state-controlled media. The conduct of the raids, seizure of the files and computers, interrogation of the employees, and the no-fly order have not been conducted consistent with legal standards but instead seem to be politically motivated. No warrants have been issued, no charging documents made public, and no inventory of seized property made available. Many suspect that the force behind this crackdown is Minister of International Cooperation Faiza Aboul Naga, who was described in a Washington Post editorial this week as ``a civilian holdover from the Mubarak regime'' and ``an ambitious demagogue [who] is pursuing a well- worn path in Egyptian politics--whipping up nationalist sentiment against the United States as a way of attacking liberal opponents at home.'' Given Minister Aboul Naga's recent statements, I strongly believe that no future U.S. Government funds should be provided to or through that ministry as long as she is in charge. As the chair of the Appropriations Committee's Subcommittee on the State Department and Foreign Operations, I am confident there is strong support in Congress for this position. A related issue is the Egyptian military's continued use of vaguely worded emergency laws to silence dissent. While it is encouraging that the head of the military, General Tantawi, announced plans to lift the 30-year state of emergency, that is only a first step. As I have mentioned, for decades the United States and Egypt have been friends and allies. While we have differed over issues of democracy and human rights, our two countries have worked together in pursuit of common goals. Our partnership needs to be strengthened and broadened to respond to the interests and aspirations of the Egyptian people themselves. Our longstanding legacy of cooperation with the Egyptian Government is now in jeopardy, and it is in the interests of both countries that this crisis is promptly and satisfactorily resolved and that we focus instead on moving forward to build an even stronger and enduring relationship. In December, President Obama signed into law the Consolidated Appropriations Act for 2012. Section 7041(a)(1) of division I of that act provides that prior to the obligation of $1.3 billion in fiscal year 2012 U.S. military aid for Egypt, the Secretary of State shall certify that ``the Government of Egypt is supporting the transition to civilian government including holding free and fair elections; implementing policies to protect freedom of expression, association, and religion, and due process of law.'' These unprecedented requirements, which I wrote, were included for two reasons. First, we want to send a clear message to the Egyptian people that we support their demand for democracy and fundamental freedoms. Second, we want to send a clear message to the Egyptian military that the days of blank checks are over. We value the relationship and will provide substantial amounts of aid, but not unconditionally. They must do their part to support the transition to civilian government. If the assault against international and Egyptian nongovernmental organizations continues, several of the requirements for certification could not be met. Egypt has an extraordinary history dating back thousands of years. Anyone who has stood at the base of the pyramids cannot help but be in awe of what that society accomplished centuries before Columbus arrived in America. It is a destination for thousands of American tourists and students each year. It has the potential to be a strong force for democratic change and moderation in the Middle East and north Africa. I hope the Egyptian authorities fully appreciate the seriousness of this situation and what is at stake. They need to permit these organizations to reopen their offices, return the confiscated property, end investigations of their activities and the activities of Egyptian groups, and register them without conditions so they can continue to support the democratic transition. I ask unanimous consent that the Washington Post editorial be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I ask unanimous consent that further reading of the amendment be dispensed with.

Mr. LEAHY. I yield the floor.

Mr. LEAHY. Mr. President, I will shortly be offering, as an amendment, an amendment to the substitute. It will be on behalf of myself and Senator John Cornyn. I will ask consent in a moment to suggest the absence of a quorum but, upon the rescission of the absence of a quorum, that I be recognized for up to 3 minutes.