Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I suggest the absence of a quorum.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY. Mr. President, I am soon going to offer an amendment to the substitute. I am going to offer it on behalf of myself and Senator Cornyn. I hear Senators saying that with the public's opinion of Congress at a low point, we need to take action to restore public confidence. I think our amendment does that by closing loopholes in the laws that have allowed corruption to escape accountability. I believe we have to provide investigators and prosecutors the tools they need to hold officials at all levels of government accountable when they act corruptly. 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. I should note, the Senate Judiciary Committee has reported this bill with bipartisan support in three successive Congresses, and I would note that the House Judiciary Committee, under a Republican chairman, recently reported a companion bill and did so unanimously. Every Republican and every Democrat voted for it. So I believe it is time for Congress to pass serious anticorruption legislation. We have demonstrated that this is something that could bring both Republicans and Democrats together, and we ought to pass it. Public corruption erodes the trust the American people have in those who are given the privilege--and it is a privilege--of public service. Too often, loopholes in existing laws have meant corrupt conduct can go unchecked. The stain of corruption has spread to all levels of government, and that victimizes every American by chipping away at the foundation of our democracy. The amendment, I believe, will help to restore confidence in government by rooting out criminal corruption. It includes a fix to reverse a major step backward in the fight against crime 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 actually been used for decades in both Republican and Democratic administrations as a crucial weapon to combat public corruption and self-dealing. Unfortunately, whether intended, 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. The amendment Senator Cornyn and I have put together would close this gaping hole in our anticorruption laws. It includes several other provisions designed to tighten existing law. It fixes the gratuities statute to make clear that while the vast majority of public officials are honest, those who are not cannot 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 positions. It also appropriately clarifies the definition of what it means for a public official to perform an official act under the bribery statute. It will increase sentences for serious corruption offenses. It will provide investigators and prosecutors more time to pursue these challenging and complex cases. It amends several key statutes to clarify their application in corruption cases to prevent corrupt public officials and their accomplices from evading prosecution based on legal ambiguities. If we are serious about addressing the kinds of egregious misconduct we have seen in some of these high-profile corruption cases, then let's enact meaningful legislation. Let's give investigators and prosecutors the tools they need to enforce our laws. It is one thing to have a law on the books; it is another to have the tools to enforce it. So I hope this bipartisan amendment will be adopted. I suggest the absence of a quorum.

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

Mr. LEAHY. Mr. President, I send to the desk an amendment to the substitute proposed by myself and Senator Cornyn.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to take a moment to commend the University of Vermont for its close relationship with the Peace Corps. This year, UVM ranked fifth in the Nation among midsized colleges and universities that are the top producers of Peace Corps volunteers. I am proud of the 42 UVM alumni currently serving in the Peace Corps around the world. UVM has highlighted Eric Smith as one of its current alumni volunteers. Eric, who is stationed in Costa Rica, is applying his business degree by teaching microfinance and helping young women develop small businesses. He says that such efforts ``would not have been possible without my education at UVM.'' Like Eric, all of the UVM volunteers have devoted 2 years to promoting cultural understanding and improving the lives of people in countries such as Cambodia, El Salvador, Tanzania, and Uganda. Some are employing innovative teaching methods to inspire young people. Some work on small farms, increasing food production in rural villages. Others help provide safe drinking water or combat the HIV/AIDS pandemic. Yet all of the UVM volunteers display an admirable commitment to civic engagement with the dream of building a better world. This dream is emblematic of the Vermont spirit. For the second year in a row, in 2011 our State produced the most Peace Corps volunteers per capita in the Nation. The Upper Valley region of Vermont ranks eighth in the Nation among metropolitan areas whose citizens are serving in the Peace Corps. In 2010, the Burlington area ranked second in the same category. As the Peace Corps continues its 50th year of building understanding between Americans and the citizens of other countries, I want to applaud the contributions of Vermonters and the University of Vermont. These volunteers deserve our appreciation and support. I ask unanimous consent that a January 25, 2012, Burlington Free Press article entitled ``UVM ranks 5th in producing Peace Corps vols.'' be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, two years ago, with the stroke of a pen, five Supreme Court justices acted in a case known as Citizens United to overturn a century of law designed to protect our elections from corporate spending. They ran roughshod over longstanding precedent to strike down key provisions of our bipartisan campaign finance laws, and ruled that corporations are no longer prohibited from direct spending in political campaigns. I was troubled at the time and remain troubled today that in that case, the Supreme Court extended to corporations the same First Amendment rights in the political process that are guaranteed by the Constitution to individual Americans. Now, 2 years later, the American people have seen the sudden and dramatic effects of the Citizens United decision. The flood of corporate money flowing into campaigns from undisclosed and unaccountable sources has had an enormous influence in the Republican primary elections this year, just as it did in the 2010 mid-term elections. Instead of hearing the voices of voters, we see a barrage of negative advertisements from so-called Super PACs. This comes as no surprise to the many of us in Congress and around the country who worried at the time of the Citizens United decision that it turns the idea of government of, by and for the people on its head. We worried that the decision created new rights for Wall Street at the expense of the people on Main Street. We worried that powerful corporate megaphones would drown out the voices and interests of individual Americans. Two years later, it is clear those concerns were justified. We held a hearing in the Senate Judiciary Committee last year to explore how the Citizens United decision affects the lives of hardworking Americans. I began that hearing by talking about how our Constitution starts with the words, ``We the People of the United States.'' In designing the Constitution, ratifying it, adopting the Bill of Rights and creating our democracy, we spoke of, thought of, and guaranteed, fundamental rights to the American people, not corporations. There are reasons for that. Corporations are not the same as individual Americans. Corporations do not have the same rights, the same morals or the same interests. Corporations cannot vote in our democracy. They are artificial legal constructs to facilitate business. The Founders understood this. Americans across the country have long understood this. Corporations are not people. That is common sense rooted in core American values. Nowhere does our Constitution mention corporations. The great Chief Justice John Marshall understood this distinction when he wrote in 1819 that, ``A corporation is an artificial being . . . the mere creature of law, it possesses only those properties which the charter of its creation confers upon it. . . .'' The distinction between corporations and people is one that was at the heart of the campaign finance reforms proposed by Teddy Roosevelt more than a century ago limiting the role of corporations in the political process. Those reforms were preserved and extended through another century of legal developments that followed. Nine years ago, it was these same values that informed bipartisan efforts in Congress, on behalf of the American people, to enact the landmark McCain-Feingold Act. That legislation strengthened the laws protecting the interests of all Americans by ensuring a fair electoral process where individual Americans could have a role in the political process, regardless of wealth. As I pointed out at our hearing last year, when the Supreme Court first reviewed the constitutionality of the McCain-Feingold Act in 2003, in McConnell v. Federal Election Commission, it upheld the key provisions of the Act against a First Amendment challenge. Six years later, a thin majority of the Supreme Court, made possible by President Bush's appointment of Justice Samuel Alito, reversed course on the very same question. In so doing, the conservative activist majority discarded not only the McConnell decision, but ignored longstanding precedent to effectively redraft our campaign finance laws. As Justice Stevens noted in dissent: ``The only relevant thing that has changed since . . . McConnell is the composition of the Court.'' The Constitution had not changed, but five Justices rewrote it. The reason so many Americans continue to recoil from the Citizens United decision 2 years later is that the brand of conservative judicial activism on display in that decision is a threat to the rule of law and an effective representative democracy. At the core of the First Amendment is the right of individual Americans to participate in the political process to speak and, crucially, to be heard. That is what the campaign finance laws were designed to ensure--that Americans can be heard and fairly participate in elections. Rather than abiding by the limitations that Congress has developed to ensure a multitude of voices in the marketplace of election contests, five justices on the Supreme Court decided that the biggest corporations should be unleashed, and can be the loudest and most dominant, and drown out individual Americans. They showed no deference to Congress, and little deference to the precedents of the Supreme Court. The risks we feared at the time of the Citizens United decision, the risks that drove Congress to pass bipartisan laws based on longstanding precedent, have been apparent in the elections since that decision. Citizens United has opened the floodgates of corporate influence in American elections. In these tough economic times, I believe individual Americans should not have their voices stifled by unfettered corporate interests. I remain concerned that this decision will invite foreign corporate influence into our elections. Recently, Justice Scalia responded to the criticism of the Citizens United decision and the advent of Super PACs and their overwhelming influence by saying that if people do not like it, they should turn off their televisions. That response misses the point. Americans should not be told to tune out from democracy or from considering a fair exchange of ideas. American voters should be able to speak, be heard and to hear competing voices, not be overwhelmed by corporate influence and driven out of the governing process. Even some whose response to the Citizens United decision was more muted have turned a corner, and recently, Senator McCain, a lead co-author of the McCain-Feingold Act, conceded that Super PACs are ``disgraceful.'' They allow nothing more than to have corporations or wealthy individuals dominate and control local elections. We have tried to curtail some of the worst abuses allowed by the Supreme Court's decision, but Senate Republicans have blocked those efforts. In 2010, Senate Republicans filibustered the DISCLOSE Act, preventing the Senate from even debating the measure, let alone having an up-or-down vote in the Senate. The DISCLOSE Act would have added transparency to the campaign finance laws to help prevent corporations from abusing their newfound constitutional rights. It would have preserved the voices of hardworking Americans in the political process by limiting the ability of foreign corporations to influence American elections, prohibiting corporations receiving taxpayer money from contributing to elections, and increasing disclosure requirements on corporate contributors, among other things. By preventing us from even debating the DISCLOSE Act, Senate Republicans ensured the ability of wealthy corporations to dominate all mediums of advertising and out the voices of individuals, as we have seen and will continue to see in our elections. We continue to try to fight the effects of corporate influence unleashed by Citizens United. We have introduced the Fair Elections Now Act, to establish a voluntary program for viable congressional candidates to accept Federal grants, matching funds, and vouchers to supplement money from small dollar donors. Rather than fundraising, this legislation will enable incumbent candidates more time to better represent their constituents, and it will level the playing field to give challengers the chance to better compete with established candidates without relying on wealthy donors to fund their entire campaign. The Fair Elections Now Act represents one important step toward minimizing corporate influence in the electoral process, and ensuring that candidates for Congress are neither beholden to corporate influence, nor so consumed with fundraising that they do not have the time necessary to legislate. I hope that Senators on both sides of the aisle will work to enact this important measure. We continue to work to protect shareholders of publicly held corporations from having their money spent on political activity without their consent, another consequence of the Citizens United decision. I am a cosponsor of the Shareholder Protection Act, which would require shareholder authorization and full disclosure of any political spending by publicly held corporations. Last week, I joined with 14 other Democratic Senators in sending a letter to the Securities and Exchange Commission, SEC, urging it to consider using its authority to immediately implement part of this legislation requiring full disclosure of corporate political spending. Such an action is within the SEC's power to do today. This information is not only material to shareholders, but it is something shareholders continue to request from corporations. As we wrote last week, a corporation's money belongs to the shareholders, not the executives, and they deserve a voice in how it is spent. Vermont is a small State. It is easy to imagine the wave of corporate money we are seeing spent on elections around the country lead to corporate interests flooding the airwaves with election ads, and transforming even local elections there or in other small States. It would not take more than a tiny fraction of corporate money to outspend all of our local candidates combined. If a local city council or zoning board is considering an issue of corporate interest, why would the corporate interests not try to drown out the view of Vermont's hardworking citizens? I know that the people of Vermont, like all Americans, take seriously their civic duty to choose wisely on Election Day. Vermonters cherish their critical role in the democratic process and are staunch believers in the First Amendment. Vermont refused to ratify the Constitution until the adoption of the Bill of Rights in 1791. The rights of Vermonters and all Americans to speak to each other and to be heard should not be undercut by corporate spending. When the Citizens United decision was handed down, I said that it was the most partisan decision since Bush v. Gore. As in Bush v. Gore, the conservative activists on the Supreme Court unnecessarily went beyond the proper judicial role to substitute their preferences for the law. But Citizens United is broader and more damaging, because rather than intervening to decide a single election, we have seen the Court's intervention affecting all elections. On the 2 year anniversary of Citizens United, I call on all Senators, Republican or Democratic, to come together to restore the ability of every American to be heard and participate in free and fair elections. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to take a moment to pay tribute to Major General Michael Dubie, the Adjutant General of the Vermont National Guard. Throughout his career, General Dubie has demonstrated selfless dedication and service to our State and our country. I was very pleased to learn that Vermont's largest newspaper, the Burlington Free Press, recently named General Dubie the Vermonter of the Year. He certainly deserves the honor. Earlier this year, when Tropical Storm Irene devastated much of Vermont, General Dubie led the Vermont National Guard in confronting one of the most serious crises our State has ever faced. The Guard acted immediately to deliver emergency supplies to victims cut off by the storm's destruction. Helicopters airdropped food and water. When it became apparent that Vermont needed more airlift because some of the Vermont Guard's helicopters were in Iraq, General Dubie coordinated with other State Guards to get the help Vermont needed. The Guard's intensive rescue and aid mission eventually evolved into a longer-term recovery and rebuilding mission. Skillfully and tirelessly, Vermont citizen-soldiers set to work removing debris and rebuilding roads and infrastructure. General Dubie commanded some 500 activated Guard members in the wake of Irene. But that does not account for other ongoing missions in 2011, or the substantial contribution the Vermont Guard has made to the wars in Afghanistan and Iraq--including a major activation to Afghanistan in 2010. In honoring General Dubie as Vermonter of the Year, we pay tribute to the tremendous sacrifice made both in State and overseas by Vermont National Guard members and their families. True to form, General Dubie, despite his extensive experience with dangerous overseas missions, has called the Irene deployment the proudest mission of his career because he was able to directly help so many of his fellow Vermonters. MG Michael Dubie is a proven leader and he embodies the best of Vermont. I am proud to recognize his hard work and I wish him continued success in his career. I ask unanimous consent that the Burlington Free Press article entitled ``Maj. Gen. Dubie is Vermonter of the Year'' be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I have worked to expedite the Senate's passage of Congresswoman Giffords' legislation. This action today shows what we can do when we work together. The Ultralight Aircraft Smuggling Prevention Act, H.R. 3801, is intended to help ensure that smugglers who use ultralight aircraft along the United States border are held accountable for their actions. Its passage today is an appropriate tribute to the courage and outstanding work of Congresswoman Giffords. Congresswoman Giffords has long been committed to securing the border against drug smugglers. This legislation is intended to keep Americans who live and work along the border safe. I was part of the tribute to Congresswoman Giffords at the joint session of Congress to hear the President's State of the Union address earlier this week. I was saddened to learn of Gabrielle Giffords' decision to resign from Congress. I know that her commitment to the citizens of Arizona is unwavering. I look forward to working with her in the future, and wish her a continued speedy recovery. She is an inspiration to all.

Mr. LEAHY

Mr. LEAHY. Mr. President, on January 28, 2012, privacy advocates, industry leaders, and government officials from across our Nation will celebrate Data Privacy Day 2012. I am pleased to join these stakeholders in calling attention to the need to better secure our privacy and security in cyberspace. In the digital age, our Nation faces the challenge of securing our computer networks from cyber threats and cyber crime, while at the same time, encouraging innovation and protecting Americans' right to privacy. Even as the Internet and other rapidly advancing technologies spur economic growth and expand opportunity, there is growing uncertainty and unease about how Americans' sensitive personal information is collected, shared, and stored. Data Privacy Day provides an important reminder about the importance of data privacy. After a record year of high-profile data breaches in the private sector and throughout government, it is more important than ever that Congress step forward and enact meaningful data privacy legislation. As the chairman of the Senate Judiciary Committee, I continue to work toward that goal. Last year, I reintroduced comprehensive data privacy legislation that will better protect Americans' sensitive personal data and reduce the risk of data security breaches. The Personal Data Privacy and Security Act would establish a single nationwide standard for data breach notification and require that companies that have databases with sensitive personal information establish and implement data privacy and security programs. This bill would also help law enforcement better combat cyber crime by strengthening and clarifying the penalties for violations of the Computer Fraud and Abuse Act and creating a new criminal offense for cyber attacks involving government computers that manage critical infrastructure information. The Senate Judiciary Committee favorably reported this bill in September 2011. The committee has previously reported similar legislation three times. I urge the 112th Congress to finally enact this much needed legislation. In the coming weeks, the Senate is expected to consider comprehensive cyber security legislation. Protecting our Nation's data from breaches is at the very core of a comprehensive strategy for improving cyber security. That is why President Obama included a data breach proposal that closely mirrors the Personal Data Privacy and Security Act in his cyber security proposal to Congress. That is why consumer and privacy advocates, business leaders, and Members of Congress on both sides of the aisle continue to call for the enactment of data privacy legislation. And that is why I will continue work to ensure that meaningful data privacy legislation is included in any cyber security legislation the Senate considers this year. I will also continue the important work that the Judiciary Committee began last year to update the Electronic Communications Privacy Act, ECPA, so that our digital privacy laws keep pace with changes in technology. Updating this law to reflect the realities of our time is essential to keeping us safe from cyber threats. Again, I thank and commend the many stakeholders and leaders from across the Nation who are holding events to commemorate Data Privacy Day. I look forward to working with these stakeholders and with Members of Congress on both sides of the aisle and in both Chambers to ensure that the right to privacy is ensured in the digital age.

Mr. LEAHY

Mr. LEAHY. Mr. President, Chris Bohjalian is one of the treasures of Vermont, as well as being a gifted writer. We Vermonters are fortunate to be able to read his weekly column. They almost always deal with some aspect of life in the State he and I share. Marcelle and I were especially touched by his column on Christmas Day about Pastor David Wood, of the United Church of Lincoln, VT. So many of us go to church on Christmas Day, shake hands with those officiating at the service and thank them for what they have done, and then go home to be with our families. What Chris has done is talk about the Herculean tasks of Pastor David Wood. It reminds us that those who give us spiritual guidance and consolation do far more than what we see on holidays and holy days. I would ask unanimous consent that Chris Bohjalian's column about the extraordinary David Wood be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Few issues unite the United States Chamber of Commerce and the AFL-CIO; the National Association of Manufacturers and the Teamsters; the cable industry and the broadcast industry. By targeting the worst-of-the-worst and protecting the integrity of the Internet, we have been able to create a broad ranging coalition of support of the PROTECT IP Act. Along with law enforcement groups, more than 400 companies, associations, and unions have come together to support this targeted, bipartisan legislation to combat foreign rogue websites. Protecting American intellectual property and the American jobs that depend on it is important. Last year we were able to reform our patent laws to unleash American innovators and help boost our economic recovery. Now we need to confront the threat to our economic recovery posed by Internet piracy. As I have demonstrated throughout my service in the Senate and again during the last two years, I have remained flexible in terms of the legislative language in order to best meet our goals of stemming the criminality when protecting legitimate activities and guarding against doing anything to undercut innovation or fetter free discussion. I have urged those with concerns to come forward and to work with us. We adjusted the very definitions in the bill to narrow them as Senator Wyden had suggested. I announced two weeks ago that I took seriously the concerns about the domain name system provisions and would fix it as part of a manager's amendment when the bill was considered by the Senate. I regret that the Senate will not be proceeding this week to debate the legislation, and any proposed amendments. I thank the Majority Leader for seeking to schedule that debate on this serious economic threat. I understand that when the Republican leader recently objected and Republican Senators who had cosponsored and long supported this effort jumped ship, he was faced with a difficult decision. My hope is that after a brief delay, we will, together, confront this problem. Everyone says they want to stop the Internet piracy. Everyone says that they recognize that stealing and counterfeiting are criminal and serious matters. This is the opportunity for those who want changes in the bill to come forward, join with us and work with us. This is the time to suggest improvements that will better achieve our goals. The PROTECT IP Act is a measure that has been years in the making, and which has been twice reported unanimously by the Senate Judiciary Committee to better enforce American intellectual property rights and protect American consumers. It has been awaiting Senate action since last May. Today the rogue foreign websites based in Russia that are stealing Americans' property are delighted to continue their operations and counterfeiting sweatshops in China are the beneficiaries of Senate delay. People need to understand that the PROTECT IP Act would only affect websites that have been judged by a federal court to have no significant use other than engaging in theft whether through stolen content or the selling of counterfeits. It is narrowly targeted at the worst-of-the-worst. Websites that have some infringing content on their sites but have uses other than profiting from infringement are not covered by the legislation. Websites like Wikipedia and YouTube that have obvious and significant uses are among those that would not be subject to the provisions of the bill. That Wikipedia and some other websites decided to ``go dark'' on January 18 was their choice, self imposed and was not caused by the legislation and could not be. It was disappointing that sites linked to descriptions of this legislation that were misleading and one-sided. The Internet should be a place for discussion, for all to be heard and for different points of view to be expressed. That is how truth emerges and democracy is served. Last week, however, many were subjected to false and incendiary charges and sloganeering designed to inflame emotions. I am concerned that while critics of this legislation engage in hyperbole about what the bill plainly does not do, organized crime elements in Russia, in China, and elsewhere who do nothing but peddle in counterfeit products and stolen American content are laughing at their good fortune that congressional action is being delayed. Nothing in PROTECT IP can be used to cut off access to a blog. Nothing in PROTECT IP can be used to shut off access to sites like YouTube, Twitter, Facebook or eBay. Nothing in PROTECT IP requires anyone to monitor their networks. Nothing in PROTECT IP criminalizes links to other websites. Nothing in PROTECT IP imposes liability on anyone. Nothing in PROTECT IP can be required without a court order, first, and without providing the full due process of our Federal court system to the defendants before a final judgment is rendered. I also note that the guarantees of due process provided in the PROTECT IP Act are those likewise provided every defendant in every Federal court proceeding in the United States, no less. The PROTECT IP Act requires notice to the defendant. If the plaintiff seeks an injunction, the court must apply Federal Rule of Civil Procedure 65, which is the standard for all courts in determining whether to issue an injunction, including whether to issue the injunction as a temporary restraining order for a limited period of time. When stealing of copyrights are involved, such court orders can be made if, upon a factual showing, a court finds that serious harm would otherwise occur and it is in the public interest to do so while the case is more fully considered. The PROTECT IP Act is directed at the foreign websites that are the worst-of-the-worst thieves of American intellectual property and operate from outside the United States and the jurisdiction of our courts. These website operators prey on American consumers, steal from our creators and economy, but are currently beyond the jurisdiction of U.S. courts. The Obama administrative officials were right in a recent post saying ``existing tools are not strong enough to root out the worst online pirates beyond our borders.'' They called on Congress ``to pass sound legislation this year that provides prosecutors and rights-holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined. . . . We should never let criminals hide behind a hollow embrace of legitimate American values.'' That is what we are trying to do with the PROTECT IP Act. What the PROTECT IP Act does is provide tools to prevent websites operated overseas that do nothing but traffic in infringing material or counterfeits from continuing to profit from piracy with impunity. The Internet needs to be free, but not a lawless marketplace for stolen commerce and not a haven for criminal activities. In the flash of interest surrounding this bill last week, those who were forgotten were the millions of individual artists, the creators and the companies in Vermont and elsewhere who work hard every day only to find their works available online for free, without their consent. There are factory workers whose wages are cut or jobs are lost when low-quality counterfeit goods are sold in place of the real thing they worked so diligently to produce. There are men and women of our National Guard and military who put their lives on the line for all of us every day, and for whom a counterfeit part can literally be a matter of life and death. There are the seniors who are struggling to be able to afford medications and order from what appears to them to be a reputable site, only to find that a foreign website has sent them an untested counterfeit drug that will not control their blood pressure or diabetes or heart problem. At the end of the day, this debate boils down to a simple question. Should Americans and American companies profit from what they produce and be able to provide American jobs, or do we want to continue to let thieves operating overseas steal that property and sell it to unsuspecting American consumers? I hope that in the coming days the Senate will focus on stopping that theft that is undercutting our economic recovery. I remain committed to confronting this problem. And I appreciate the efforts of Senator Kyl, Senator Alexander and others who want to continue to work in a thoughtful manner with all interested parties to find an effective solution to eliminate online theft by foreign rogue websites. I thank those Senators who called me in Vermont and back here this past week when I got back to Washington to offer their help--Senators on both sides of the aisle. It means a lot. I know the senior Senator from Nebraska is waiting to speak about the judicial nominee from his State. I will say what I said to him privately because I know this is his last year in the Senate. I have always enjoyed working with him. He has worked hard. He has represented the people of his State well. He has been very honest in his dealings with me. He has been diligent with respect to judicial nominations for vacancies in Nebraska. He has tirelessly pressed to fill vacancies there to ensure cases before the Federal court are not needlessly delayed. He did that to protect everybody in Nebraska, Republicans and Democrats, to make sure the courts are open for them. I am sorry the confirmation of Justice Gerrard, one he so strongly supported, has been so needlessly delayed for more than 3 months, but I say to the people of Nebraska they are very fortunate to have been represented by the senior Senator from Nebraska, my friend Ben Nelson, who has been there fighting for them. He fought for the people of Nebraska every day from the day he took the oath of office. This may be his last year here, but based on past performance I think it is safe to say he will fight for Nebraska right up until the moment that adjournment bell sounds. Mr. President, I ask unanimous consent a January 19 article from the Wall Street Journal and a January 22 article from the Washington Post be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, we are close to voting on a payroll tax extension bill that includes a House provision designed to force the President to approve the Keystone XL tar sands oil pipeline. Proponents of this tar sands project argue that it belongs on this bill for one reason: building the pipeline would create jobs. Any construction project creates jobs, and it is no surprise that this debate has come down to this. Unable to sell the pipeline as necessary to meet the country's energy needs, which it is not, or to refute charges that tar sands strip mining and the refining and burning of high carbon oil cause egregious harm to the environment and health, which it does, the Canadian energy company TransCanada has flooded the media with dire warnings about the American jobs that will be lost if the pipeline is rejected. Not surprisingly, our Republican friends, always ready to fight for the oil companies, have echoed these scare tactics. What they don't tell you is that the 5,000 or 6,000 temporary construction jobs will disappear once the pipeline is built. Only a few hundred permanent jobs are needed to operate and maintain the pipeline. And they also don't mention that the choice is not between jobs or no jobs. They ignore the tens of thousands of permanent, safe American jobs that could be created by investing in clean, renewable sources of energy, which, unlike tar sands oil, don't pollute and will not be used up in a few short decades. People can disagree about building the Keystone Pipeline, but there is more to this than the short-term jobs it would create. Jamming it through Congress on this bill in the waning hours of the session has a lot more to do with politics than jobs. The Keystone provision in this payroll tax extension would force the President to approve or disapprove the pipeline within 60 days. Any decision to grant a permit would be ``deemed,'' by Congress, to satisfy all the environmental requirements, even if it does not, and any modification to the construction mitigation and reclamation plan ``shall not'' require supplementation of the final environmental impact statement. In other words, don't study the consequences or give the public a chance to comment on the revised plan. This is from Members of Congress who in the last election ran on a platform of ``open'' government. Yet when it comes to helping Big Oil, it is a different story. They cut the time for making a decision from a year to 60 days and short circuit the environmental review process. Forget the science. Forget the public. Preempt the law. Ignore the risk. The only thing that matters is pumping more oil. Tar sands are a particularly dirty source of petroleum, from extraction to refinement. Anyone who is interested, regardless of which side of this debate they are on, should look at the photographs of the tar sands mines in the boreal forests of Alberta. What was once an extraordinarily beautiful landscape has been ravaged by heavy machinery, vast ponds filled with polluted water and sludge, and a ruined wasteland where the forests used to be. We all know that the extraction of oil, minerals, and other natural resources harms the environment, but there are degrees of harm. Extracting heavy oil from tar sands is among the most energy-intensive and destructive. Under the law, the State Department has the responsibility to approve or disapprove the pipeline because it crosses an international boundary. More than a year ago, I and 10 other Senators--Republicans and Democrats--sent the first of a series of letters to the State Department raising concerns about the proposed pipeline and the impact of tar sands oil on global warming. Since then, concern about the pipeline has evolved into a heated controversy over the impact the pipeline will have on our Nation's energy policy, our continuing dependence on fossil fuels, and the environment. From the beginning, I had misgivings about the State Department's ability to conduct a thorough, credible assessment of a project of this complexity that they were approaching with an attitude of inevitability. The State Department did not anticipate the strong reaction of Members of Congress of both parties, including several from Midwestern States that have been coping with multiple oilspills from the original Keystone Pipeline--oilspills that have caused damage costing hundreds of millions of dollars that company officials have treated as inconsequential. Concerns about the risks of this project have united not only those living along the proposed route but people across the Nation, including in Vermont, as well as in Canada, who care about the environment and who understand the need to wean our Nation from oil and other fossil fuels. Every President since the 1970s has spoken of the need to reduce our dependence on oil and coal, but despite all the speeches, year after year we are more dependent on these finite, polluting sources of energy than ever before. Today, energy companies are spending staggering amounts of money in search of new sources of oil in some of the most inhospitable places on Earth, where its extraction involves great risks to the workers involved, to the environment, and to precious sources of water for drinking and irrigation. No matter what we do today, later this week, or later this month, this country will be dependent on fossil fuels for many years to come. But while TransCanada and its supporters extol the virtues of the Keystone XL Pipeline, as the minority leader and others have done, simply by reducing waste we could eliminate entirely the need for the energy from the oil that would flow through the pipeline. It is one of those inconvenient facts they would prefer to ignore. I come from a State that shares a border with Canada. My wife's family is Canadian. I have a great fondness for that ``giant to the north.'' But this issue is not about U.S. relations with Canada. We are inseparable neighbors, friends, and allies. There are strong views about this pipeline, pro and con, in both countries. As Americans, we have to do what is right for our country's energy future, for the environment, for our citizens. Some have argued that if this pipeline is not built, TransCanada will simply build another pipeline to the coast of British Columbia and export the oil to China. But there are significant obstacles and no indication that such an alternative route is a viable option. Others maintain that the carbon emissions from extracting and refining this oil would not appreciably exceed those from oil shipped by tanker from the Middle East, but they do not address the environmental harm and pollution caused by the strip mining and separation process. Then there is the jobs issue, which has been shamelessly exaggerated in a last-ditch attempt to win votes in a time of economic hardship. Last month, in response to concerns about the crucial aquifer that the pipeline would traverse in the Midwest, the White House announced that the State Department would consider alternative routes through Nebraska and that the President would make a decision in 2013. Now, Republican defenders of the oil industry want to short circuit this process, whatever the risks. Fossil fuels are finite, inefficient, and dirty. The cost we pay at the gas pump bears no resemblance to the long-term environmental and health costs borne by society as a whole. We cannot lessen our reliance on fossil fuels by continually ignoring it, nor can we do it by spending huge amounts of money, energy, and American ingenuity to search the farthest reaches of the globe for every last drop of oil, regardless of how dangerous or harmful to the environment. This pipeline would perpetuate a costly dependence that has gotten worse year after year, for which we are all to blame. Keystone XL would once again do nothing to address the problems associated with fossil fuels. It would virtually assure more oilspills, it would do nothing to promote conservation and reduce waste, and it would do nothing to spur investment in clean energy alternatives. Most important, it would provide yet another excuse to once again postpone for another day the urgent, national security imperative of developing a sustainable energy policy for this country. That is what the decision about the Keystone XL tar sands oil pipeline has come to represent regardless of what route it takes. Mr. President, sometimes a bad situation can be the beginning of something better. Once this bill is passed, President Obama will have 60 days to decide if building the pipeline is in the national interest. He should reject these strong-arm tactics by the other party. He should use this blatantly political maneuver as an opportunity to inaugurate a new energy policy that will finally end our dependency on foreign oil. It is time to finally put the environment, and the health and energy security of the American people, above the interests of the fossil fuel industry.

Mr. LEAHY

Mr. LEAHY. Mr. chairman, as Chairman of the Department of State and Foreign Operations Subcommittee, I want to speak briefly about the agreement that I and the ranking member, Senator Lindsey Graham, have reached with the House and that is reflected in division I of this Omnibus bill. I want to thank Senator Graham, along with House Subcommittee chair Kay Granger and ranking member Nita Lowey and their staffs, for working in such a bipartisan way to resolve our many differences. It is a good example of how a divided Congress can deal with controversial issues and produce an outcome that protects a broad range of interests. The Department of State and Foreign Operations conference agreement is a compromise. It is neither a Democratic nor Republican bill. It will not make anyone completely happy. But while it does not include everything that I or Senator Graham wanted, it does a good job of addressing the key national security needs of the country. This is a must-pass bill. The alternative is another year of a continuing resolution, which would force drastic cuts in funding for programs about which Republicans and Democrats feel strongly. This conference agreement does many things. It supports the Nation's counterterrorism efforts in South Asia, the Horn of Africa, and East Asia; responds to turbulent events in the Middle East and north Africa and threats on the Mexican border; combats transnational crime, piracy of intellectual property, and the denial of fundamental freedoms; promotes access for U.S. companies to foreign markets; operates and secures our embassies and consulates that serve millions of Americans traveling, working, and studying overseas; preserves U.S. influence in key international organizations and alliances; supports economic development, governance, and the rule of law in Africa, Latin America, and Asia; and responds to a massive famine in Somalia, floods in El Salvador, and other humanitarian disasters. We do this and much more with a base budget allocation that is $8.7 billion below the President's request and a combined base and overseas contingency operations total that is $6.1 billion below the President's request. These are not Democratic or Republican issues. The funds in this conference agreement will determine whether the United States remains the global leader it has been since the Second World War. Just as past generations rallied to meet the formidable challenges of the Great Depression, the Nazis, and the Cold War, we will bear responsibility if we fail to meet the challenges of today. It is no wonder that other countries--our allies and our competitors--are spending more each year to project their influence around the world and to compete in the global marketplace. Our leadership is being challenged unlike at any time since the Cold War. In Latin America, which is a larger market for U.S. exports than any other region except the European Union, our share is shrinking while China's is growing. It is the same story everywhere. There is simply no substitute for U.S. global leadership. The world is changing profoundly, and we cannot afford to retrench or succumb to isolationism. The funding in this conference agreement enables us to engage with our allies and deter our adversaries and competitors. It is similar to what was reported by the Appropriations Committee on a bipartisan vote of 28 to 2. For those who are focused on reducing Federal spending, it cuts base spending by $6 billion below the fiscal year 2011 continuing resolution. It freezes spending or scales back many Department of State and U.S. Agency for International Development operations and programs and will force reductions in planned expenditures. To the extent that there are funding increases in this bill, they are primarily due to the transition from military to civilian operations in Iraq which will mean billions of dollars in savings to American taxpayers, and to meet pledges to the international financial institutions. I doubt there is a single Member of Congress who does not care if the United States becomes a second-or third-rate power. As a Vermonter, I know the people of my State want the United States to live up to its ideals, to set an example for the rest of the world. We expect the United States to lead, to build alliances, to help American companies compete successfully, and to protect the interests and security of its citizens. Yet there are unmistakable signs that our global influence is already waning. It is not preordained that the United States will remain the world's dominant power. As former Secretary of State Condoleezza Rice said, ``If we don't lead, somebody else will.'' We need to stop acting like these investments do not matter; that the State Department is not important; that we do not need the United Nations; that what happens in Brazil, Russia, the Philippines, Somalia, or other countries does not matter; and that global threats to the environment, public health, and safety will somehow be solved by others. This conference agreement balances our priorities. Again, funding for these programs was requested by Republicans and Democrats. This country is at a crossroads. We can retreat from the world, as some in the other body seem to want while China and our other competitors continue to expand their influence, or we can remain a leader. The conference agreement adopts the latter course, and Members on both sides of the aisle deserve credit for that. Mr. President, the funding in this bill is strongly supported by the Department of Defense. Along with the U.S. military, it is the best form of insurance the American people have. Finally, I want to thank Chairman Inouye and Vice Chairman Cochran, as well as the majority and minority leaders for their support in completing this omnibus bill.

Mr. LEAHY

Mr. LEAHY. Mr. President, with the conclusion of the first session of the 112th Congress, the Senate Republican leadership has cost us the opportunity to take long overdue steps to address the serious vacancies crisis on Federal courts throughout the country. With one out of every ten Federal judgeships vacant we can and should be doing all that we can to consider and confirm judicial nominations without unnecessary delays. Regrettably, Senate Republicans have chosen instead to continue their tactics of unexplained delay and obstruction and to repeat their damaging decision at the end of last year to refuse to consent to votes on even consensus judicial nominations. Such delaying tactics are a disservice to the American people. The Senate should fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country. There are 21 judicial nominees awaiting final Senate action, all but two of them reported with significant bipartisan support, 16 of them unanimously. That means nearly every judicial nomination can and should be confirmed before the Senate adjourns. Yet, the Senate's Republican leadership is repeating the terrible practice at the end of last year in which 19 judicial nominees were blocked by Republicans and stalled at the end of the year. It then took until June to take action on 17 of those nominees. The recent filibuster of the D.C. Circuit nomination of Caitlin Halligan, a highly-regarded appellate advocate with the kind of impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the D.C. Circuit, set a new and damaging standard. By refusing to consent to votes on consensus nominees before the end of the session, Senate Republicans are setting another damaging standard that will make it difficult for future Presidents of either party to fill judicial vacancies. I am speaking about the kinds of qualified, consensus nominees who in past years would have been considered and confirmed by the Senate within days of being reported with the support of every Democrat and every Republican on the Judiciary Committee. Yet, due to Republican refusal to give consent, it will take many months for the Senate to confirm them to start serving on the Federal bench. Meanwhile, millions of Americans who are served by the Federal courts in those districts and circuits are left with overburdened courts and unneceesary delays in having their cases determined. All of these consensus nominees have been through an extensive evaluation process before being reported to the Senate for final approval. Senator Grassley and I have ensured all of these nominees were fully considered by the Judiciary Committee after a thorough, fair process, including completing our extensive questionnaire and questioning at a hearing. Before each of these nominees was selected by the President, the White House worked with the nominees' home state Senators who support them, the FBI completed an extensive background review, and each nominee was reviewed by the American Bar Association's Standing Committee on the Federal Judiciary. When the nominations have been approved by the Judiciary Committee after this thorough process, there is no reason for the Senate failing to vote on them before the end of the session. It is wrong to dismiss the delays resulting from the Senate Republicans' obstruction as merely political tit for tat. This is a new and damaging tactic Senate Republicans have devised. They are stalling action on noncontroversial nominees. Meanwhile, millions of Americans across the country who are harmed by delays in overburdened courts bear the cost of this obstruction. Nearly half of all Americans 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 now pending on the Senate Executive Calendar. It is wrong to delay votes on these qualified, consensus judicial nominees. The Senate should be helping to fill these multiple, extended judicial vacancies before adjourning. 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 are seeking their day in court to suffer unnecessary delays. When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait for three 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 almost one in nine Federal judgeships currently vacant, the Senate should have come together to address the serious judicial vacancies crisis on Federal courts around the country. Bill Robinson, the president of the American Bar Association, warned recently in a letter to Senate leaders that excessive vacancies and high caseloads ``deprive . . . our federal courts of the capacity to deliver timely justice in civil matters and has real consequences for the financial well-being of businesses and for individual litigants whose lives are put on hold pending resolution of their disputes.'' Justice Scalia, Justice Kennedy and Chief Justice Roberts have also warned of the serious problems created by persistent judicial vacancies. This is an issue affecting hardworking Americans who are denied justice when their cases are delayed by overburdened courts. If caseloads were really a concern of Republican Senators, as they contended when they filibustered the nomination last week of Caitlin Halligan to the D.C. Circuit, they would not have blocked us from voting to confirm consensus nominees to fill judicial emergency vacancies. They would have consented to consider the nomination of Judge Adalberto Jordan of Florida which was reported unanimously on October to fill a judicial emergency vacancy on the Eleventh Circuit. He is a well-respected Federal judge and his nomination is strongly supported by Florida's Republican Senator, Mr. Rubio. Yet, despite the judicial emergency Republicans continue to delay consideration of that nomination. If they were really concerned with caseloads, they would have consented to move forward to confirm Judge Jacqueline Nguyen of California, a well-qualified nominee to fill a judicial emergency vacancy on the Ninth Circuit, the busiest Federal appeals court in the country, with judges called upon to handle double the caseload of the other Federal circuit courts. Her nomination was reported unanimously by the Judiciary Committee and needs only a final vote by the Senate. Judge Nguyen is nominated to fill the judicial emergency vacancy that remains after the Republican filibuster of Goodwin Liu. If they cared about caseloads, they should also have consented to votes on the nominations of David Nuffer to the District of Utah, Michael Fitzgerald to the Central District of California, Gregg Costa to the Southern District of Texas, and David Guaderrama to the Western District of Texas, all nominations to fill judicial emergency vacancies. Instead, those vacancies will not be filled for several more months. If Republican Senators were concerned about ensuring that our courts have the judges they need to administer justice for the American people, they would not have refused consent for the Senate to consider these consensus judicial nominees. The secret holds and obstructive blocks remind me of the Republican pocket filibusters that blocked more than 60 of President Clinton's judicial nominations from Senate consideration. When I became Chairman in 2001 and made the Committee blue slip process public for the first time and worked to confirm 100 judicial nominees of a conservative Republican President in 17 months, I hoped we had gotten past these partisan tactics. I am disappointed after working for more than a decade to restore transparency and fairness to the process of considering judicial nominations that we see the Senate Republicans again using anonymous holds to block progress at filling judicial vacancies. The actions of the Senate Republican leadership today to block action on 18 qualified, consensus judicial nominations mirrors their action last year when they stalled consideration of 19 judicial nominations that had been reported by the Judiciary Committee and were ready for final Senate action at the end of last year. That was an abusive exercise in unnecessary delay that I believe was without precedent with respect to such consensus nominees. In contrast, Democratic Senators proceeded to up or down votes on all 100 of President Bush's judicial nominations reported by the Judiciary Committee during his first two years in office, and all 100 were confirmed before the end of the 107th Congress. I had hoped and urged that such damaging obstruction not be repeated. I had urged that before we adjourned the Senate at least consider the 18 judicial nominees voted on by the Judiciary Committee who are by any measure consensus nominees. With vacancies continuing at harmfully high levels, the American people and our Federal courts cannot afford these unnecessary and damaging delays. It took until June of this year, halfway into 2011, to consider and confirm 17 of the nominations that could and should have been considered before the end of 2010. Yet Senate Republicans are employing the same destructive tactics. For the second year in a row, Republicans have rejected the Senate's traditional longstanding practice of considering all of the consensus nominations before the end of the Senate session, setting a standard that before they did it last year was without precedent. We consented to consider all of the consensus nominations at the end of President Reagan's third year in office and President George H.W. Bush's third year in office, when no judicial nominations were left pending on the Senate Calendar. That is what we did at the end of the 1995 session, President Clinton's third year in office, when only a single nomination was left pending on the Senate calendar. That is also what we did at the end of President George W. Bush's third year. Although some judicial nominations were left pending, they were among the most controversial, extreme and ideological of President Bush's nominees. They had previously been debated extensively by the Senate. The standard then was that noncontroversial judicial nominees reported by the Judiciary Committee were confirmed by the Senate before the end of the year. That is the standard we should have followed this year. Had we done so, another 18 judges would have been confirmed. The Senate remains far behind where we should be in considering President Obama's judicial nominations. Nearly 3 years into his 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. In stark contrast, the Senate confirmed nearly 87 percent of President George W. Bush's nominees, nearly 9 out of every 10 nominees he sent to the Senate over two terms. That was a higher percentage of judicial nominees confirmed than President Clinton achieved and is far higher than President Obama's nominees. Despite Senate Democrats joining Senate Republicans in confirming a high percentage of President Bush's judicial nominees, Republican Senators continue to point to the handful of President Bush's nominees who were not confirmed to justify their across the board delays and obstruction of President Obama's nominees. During their filibuster last week of Caitlin Halligan, President Obama's first nominee to fill the 9th seat on the D.C. Circuit, we heard several Republicans seek to justify the misguided filibuster by pointing to the fact that Peter Keisler was not confirmed to fill the 11th seat on that same court. Their selective recollection omits that the Senate did confirm four of President Bush's D.C. Circuit nominees, twice filling the 10th seat and once the 11th. In her recent column on the New York Times website, Linda Greenhouse wrote about how low the judicial confirmation process has sunk with the Caitlin Halligan filibuster and the disparate treatment of President Obama's nominees. She wrote: But it seems to me that this tit-for-tat goes only so far. President Bush succeeded in putting four decidedly conservative nominees on the D.C. Circuit. Three remain there today: Janice Rogers Brown, Thomas B. Griffith, and Brett M. Kavanaugh. The fourth was John G. Roberts Jr. It was his seat, which Chief Justice Roberts vacated on Sept. 29, 2005, to which Ms. Halligan was nominated. True, the Republicans didn't get everything they wanted. But they seem determined to make sure that President Obama gets nothing. I ask unanimous consent that a copy of Ms. Greenhouse's column be printed in the Record at the conclusion of my remarks.

Mr. LEAHY. Mr. President, we remain well behind the pace set by the Senate during President Bush's first term. By the end of his first term, the Senate had confirmed 205 district and circuit nominees, had already confirmed 168 by this point in his third year, and had lowered judicial vacancies to 46. In contrast, the Senate has confirmed only 124 of President Obama's district and circuit nominees, leaving judicial vacancies at more than 80. The vacancy rate remains nearly double what it had been reduced to by this point in the Bush administration. Senate action on the 18 consensus judicial nominations pending before the Senate as it ends it session would have gone a long way to helping resolve the longstanding judicial vacancies that are delaying justice for so many Americans in our Federal courts across the country. When the Senate returns in January, I hope that Senate Republicans will abandon these destructive practices and join with us to confirm the qualified, consensus judicial nominations they have stalled. This cycle of unnecessary delays must end. Exhibit 1 [From the New York Times, Dec. 14, 2011] Rock Bottom (By Linda Greenhouse) Now that another highly qualified judicial nominee has been left as road kill, the question is how much lower can the confirmation process sink. I'm referring to the defeat, by filibuster, last week of Caitlin J. Halligan, President Obama's nominee to the United States Court of Appeals for the District of Columbia Circuit. I last wrote about Ms. Halligan back in April, at which point her nomination had been pending for more than six months. Now it's dead, on a nearly party-line vote, the Democratic leadership having fallen six votes short of the 60 needed to invoke cloture. The only Republican to break ranks was Senator Lisa Murkowski of Alaska, who won reelection as a write-in candidate and so owes nothing to her Republican bosses. No such independence was shown by the two Republican senators from Maine, Olympia J. Snowe and Susan Collins, so-called moderates whose efforts to explain their votes against permitting Ms. Caitlin's nomination to come to a vote (a simple majority would have approved it) were so contorted as to be barely comprehensible. (Senator Collins mumbled something about needing to shrink the appeals court, failing to note that the Republicans invoked no such workload-related compunctions when they filled not only the ninth seat, to which Ms. Halligan was nominated, but the tenth as well. There are now three vacancies on the 11-member court.) Back in May, Senator Murkowski was also the only Republican to vote to end the filibuster against Goodwin Liu, whom President Obama had nominated to the United States Court of Appeals for the Ninth Circuit, in San Francisco. (Now Justice Liu, the former Berkeley law professor may have the last laugh; Gov. Jerry Brown promptly named him to the California Supreme Court.) At 41, Mr. Liu, a Rhodes scholar and former Supreme Court law clerk, is a leading progressive legal scholar of his generation. Although the Republicans came up with other rationales for opposing him, including his Senate Judiciary Committee testimony six years ago against the Supreme Court confirmation of Samuel A. Alito Jr., the actual reason was that they couldn't stand the thought of a young, super smart, energetic liberal sitting on the appeals court, in the launch position to become the first Asian-American on the Supreme Court. Mr. Liu is a friend of mine. I applauded his nomination and was distressed at its fate. But since I don't believe that judges are simply umpires who call balls and strikes, I get the role of ideology in evaluating judicial nominees. What I don't get is what happened to Ms.Halligan, whom I've met only once or twice. She has no ideological markings other than those that identify her with the mainstream of the New York legal establishment, within which, following a clerkship with Justice Stephen G. Breyer, she has made a spectacularly successful career in both the public and private sectors. She was solicitor general of New York State; head of the appellate practice at a major law firm; and is now general counsel to the Manhattan district attorney. She has argued before the Supreme Court five times. Her 45th birthday was Dec. 14. This was not a fight over ideology. It was an effort to keep the president from filling a seat on what is not just another appeals court. The D.C. Circuit is not just a federal court but a national one, with jurisdiction over federal regulatory initiatives and habeas corpus appeals by Guantanamo detainees. Next month, it will hear a potential landmark case on the constitutionality of the Voting Rights Act. Its caseload may not be huge, but its cases tend to be dense, tough and vitally important. When pressed on their treatment of Ms. Halligan, Republicans typically invoke President George W. Bush's two nominees whom the Democrats blocked from the D.C. Circuit, Peter D. Keisler and Miguel A. Estrada, both highly qualified and both prominent conservatives. (The classy Mr. Estrada wrote to the Judiciary Committee in support of Ms. Halligan, as did two dozen other members of leading law firms.) But it seems to me that this tit-for-tat goes only so far. President Bush succeeded in putting four decidedly conservative nominees on the D.C. Circuit. Three remain there today: Janice Rogers Brown, Thomas B. Griffith, and Brett M. Kavanaugh. the fourth was John G. Roberts Jr. It was his seat, which Chief Justice Roberts vacated on Sept. 29, 2005, to which Ms. Halligan was nominated. True, the Republicans didn't get everything they wanted. But they seem determined to make sure that President Obama gets nothing. Across the federal judiciary, confirmation has been proceeding at a slow crawl. This week, the Judiciary Committee held a scheduled confirmation hearing that could have accommodated five nominees. But because Republican senators claimed not to be finished reading the F.B.I. files of four of the nominees, only one, Paul J. Watford, nominated for the Ninth Circuit, was able to appear for his hearing. Nominees who clear the committee without opposition have to wait months for a floor vote because the Republicans won't agree to a speedier schedule. Of 21 nominees now awaiting floor votes, 18 had no committee opposition, but only a handful, at most, will get a vote before the Senate recesses for the year. Just when news on the judicial front could not get more discouraging, I came across something truly bizarre, a position paper by the new front-runner among Republican presidential candidates, Newt Gingrich. Under the title ``Bringing the Courts Back Under the Constitution,'' Mr. Gingrich launches a 28-page attack on ``lawless judges'' who need to be reined in ``if we are going to retain American freedoms and American identity.'' The document, he writes, ``serves as political notice to the public and to the legislative and judicial branches that a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress.'' By rejecting passivity, Mr. Gingrich means impeaching judges for ``unconstitutional'' rulings or, failing to muster the two-thirds majority necessary for impeachment, simply abolishing their positions. Much of the document is a grab bag of long familiar right- wing talking points (Judges who acknowledge foreign law? A threat to ``American sovereignty!'') It is also just plain sloppy, misspelling Justice Ruth Bader Ginsburg's name throughout. But truly head-spinning is the tenuous hold that this screed, from a onetime history professor, has on American history. Mr. Gingrich writes that the contemporary ``power grab by the Supreme Court'' is a ``modern phenomenon and a dramatic break from all previous American history.'' (Anyone remember the court's response to the New Deal?) Rebuking the court for substituting its will for that of Congress is downright strange, given that it is the Republicans who have run to the federal courts, imploring judges to strike down the Congressionally enacted Affordable Care Act. Perhaps strangest of all is Mr. Gingrich's attack on Cooper v. Aaron, the court's celebrated response to the Little Rock school crisis of 1958. The unanimous opinion, signed individually by all nine justices for emphasis, held that Arkansas and all other states were bound by the court's interpretation of the equal protection guarantee four years earlier in Brown v. Board of Education. Cooper v. Aaron was, as Justice Breyer writes in his recent book, ``Making Our Democracy Work,'' essential in its time and part of the ``hard-earned victory for the rule of law'' that the Little Rock story became. Newt Gingrich is unmoved. Cooper v. Aaron's assertion of the Supreme Court's authority, he writes, was ``factually and historically false.'' Thinking back to Ms. Halligan's failed nomination, I actually don't disagree with everything in Mr. Gingrich's manifesto. Four words in boldface type on page 20 caught my attention: ``Electing the right Senators.''

Mr. LEAHY

Mr. LEAHY. Mr. President, Vermont and other the other States still reeling in the aftermath of Hurricane Irene have a huge stake in the misguided offset resolution sent to us by the House of Representatives. In fact, all Americans have a stake in this. On the heels of unprecedented flooding this spring, the State of Vermont bore the full brunt of Irene in August. Our small State is stretched to the limit right now. Our people need the helping hand of Federal disaster recovery programs just as Vermonters, decade after decade, have always supported this safety net when other States have needed it. These programs were already running on fumes before Irene and now the need is even greater in this tough year in which 48 States have had Federal disasters declared within their borders. The Senate promptly started the effort to replenish the depleted disaster funds with a strong and responsible stand-alone bill in September. Our legislation is within the bounds of the budget agreement reached this summer, and after overcoming a partisan filibuster, we got that bill through the Senate in a bipartisan vote. Now all these months later the House of Representatives sends us a smaller disaster aid bill along with a resolution that calls for the new disaster spending to be offset. In other words, undo the bipartisan budget agreement that we all agreed to back in August; change the long practice of Americans promptly helping fellow Americans in a disaster's aftermath; and pit disaster victims against those trying to get a loan to start their small business, those needing student loans, those needing nutrition and housing assistance, those developing alternative energy sources, or those performing cutting-edge research against disease. The House resolution calling for disaster funding to be offset with across-the-board cuts is a weak and cynical response, and it should be rejected. It is disappointing and incomprehensible that some in Congress continue to insist that assistance can only come at the cost of other programs relied upon by the American people. Some of these same voices had no problem with spending hundreds of billions of borrowed dollars on wars waged overseas, on rebuilding communities in Iraq and Afghanistan, and on giving tax breaks to the wealthiest among us. But now they insist on a different standard, different rules, for emergency recovery efforts desperately needed by Americans here at home. That is just wrong. We need to come together as a country, as we always have in the past, to pass an emergency disaster bill that is adequate to the devastation faced by Vermonters and millions of other Americans. We are bound together as one nation, the United States. Americans help each other in time of need. I know there are bipartisan majorities for passing a straightforward disaster relief package as we have for every other disaster in the past, but political point-scoring and my-way-or-no-way factionalism stand in the way. That is unconscionable. Vermonters and countless others who are trying to get back on their feet after Irene and other calamities across our Nation do not have the luxury of time to waste on the temper tantrums of ideological factions in Congress. It is winter now; a harsh season in our part of the country. Some parts of Vermont already have seen over a foot of snow and more is on the way. Statesmanship should never be out of season least of all, when our fellow Americans' livelihoods are at stake. In the spirit of the holiday season, I continue to hope that reason and goodwill will prevail in the Senate on this ridiculous call to offset disaster relief, and on so many other issues before us that are critical to the American people.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senate today will pass the National Defense Authorization Act for the coming fiscal year. This vote is historic as Congress has enacted a national defense authorization act every year for the past half century. I commend the Senate for maintaining this steadfast support for our armed services, but this legislation will be remembered for reasons both bad and good. I regret the decision of the House and Senate conferees to include unnecessary and potentially harmful provisions related to the detention of terrorist suspects. However, I strongly support measures in the conference report that will empower the National Guard within the Department of Defense, enhance protections for military victims of sexual violence, increase transparency by limiting unnecessary exclusions from the Freedom of Information Act, improve mental health outreach to members of the National Guard and Reserves, and make many other changes to strengthen our national defense and take care of our men and women in uniform. I continue to strongly oppose the detention related provisions in this conference report, which I believe are unwise and unnecessary. These provisions undermine our Nation's fundamental principles of due process and civil liberties and inject operational uncertainty into our counterterrorism efforts in a way that I believe harms our national security. I strongly oppose section 1021 of this conference report, which statutorily authorizes indefinite detention. I am fundamentally opposed to indefinite detention and certainly when the detainee is a U.S. citizen held without charge. Indefinite detention contradicts the most basic principles of law that I subscribed to when I was a prosecutor, and it severely weakens our credibility when we criticize other governments for engaging in similar conduct. Supporters of this measure will argue that this language simply codifies the status quo. That is not good enough. I am not satisfied with the status quo. Under no circumstances should the United States of America have a policy of indefinite detention. I fought against Bush administration policies that left us in the situation we face now, with indefinite detention being the de facto administration policy. And I strongly opposed President Obama's executive Order on detention when it was announced last March because it contemplated, if not outright endorsed, indefinite detention. This is not a partisan issue for me. I have opposed indefinite detention no matter which party holds the keys to the jailhouse. I fought to preserve habeas corpus review for those detained at Guantanamo Bay because I believe that the United States must uphold the principles of due process and should only deprive a person of their liberty subject to judicial review. Today, I joined Senator Feinstein, Senator Lee, and others to introduce a bill titled the Due Process Guarantee Act. This bill will make clear that neither an authorization to use military force nor a declaration of war confer unfettered authority to the executive branch to hold Americans in indefinite detention. In the 2004 Supreme Court opinion in Hamdi v. Rumsfeld, Justice Sandra Day O'Connor stated unequivocally: ``We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.'' It is stunning to me that sponsors of the underlying Senate bill argued for the indefinite detention of U.S. citizens at Guantanamo Bay. We must make clear that our laws do not stand for such a proposition. We are a nation of laws, and we must adhere vigilantly to the principles of our Constitution. I urge all Senators to support this bipartisan effort to protect American values and cosponsor the Due Process Guarantee Act. I am also deeply troubled by the mandatory military detention requirements included in section 1022 of this conference report. In the fight against al-Qaida and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need, not limit those tools. But limiting them is exactly what this conference report does. Secretary Panetta has stated unequivocally that ``[t]his provision restrains the Executive Branch's options to utilize, in a swift and flexible fashion, all the counterterrorism tools that are now legally available.'' Requiring terrorism suspects to be held only in military custody and limiting the available options in the field is unwise and unnecessary. Supporters of the conference report claim that concerns about the mandatory military detention section are ``red herrings.'' They claim that they have modified the legislation in ways that give the President the flexibility he needs to apply the provisions without impeding investigations or undermining operations in the field. The changes are totally inadequate. The Statement of Administration Position, SAP, calls the mandatory military detention section ``unnecessary, untested, and legally controversial.'' The SAP goes on to state that ``applying this military custody requirement to individuals inside the United States . . . would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.'' Some supporters of the conference report also claim that the national security waiver provision is ``a mile wide'' and provides the administration with sufficient flexibility. The intelligence professionals who work every day to keep our Nation safe disagree. The Director of National Intelligence, James R. Clapper, wrote to Senator Feinstein that the ``detention provisions, even with the proposed waivers, would introduce unnecessary rigidity at a time when our intelligence, military, and law enforcement professionals are working more closely than ever to defend our nation effectively and quickly from terrorist attacks.'' As chairman of the Judiciary Committee, I am particularly concerned that this provision fails to acknowledge or appreciate the vital role that law enforcement and the courts play in our counterterrorism efforts. In light of the hundreds of successful prosecutions of terrorism defendants in Federal courts, why would we want to remove this option from the table? As Jeh Johnson, the Pentagon's top lawyer, said recently, the Federal courts are ``well equipped to handle the prosecution of dangerous domestic and international terrorists,'' and ``the military is not the only answer.'' I could not agree more. The implementation procedures required in the legislation are simply not enough to alleviate the potential for problems in the field. As Secretary Panetta stated in his recent letter to Senator Levin, this provision may ``needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the United States.'' No one in the military, intelligence community, or law enforcement has asked for this provision, and rather than strengthening our national security, it makes us less safe. During floor debate over the Senate bill, FBI Director Mueller wrote that the mandatory military provision would adversely affect the Bureau's ability to conduct counterterrorism investigations and inject ``a substantial element of uncertainty'' into its operations. He argued that the provision fails to take into account ``the reality of a counterterrorism investigation.'' The conference report modified the mandatory military detention section to preserve the existing law enforcement and national security authorities of the FBI, but the effect of that new language remains unclear. At our Judiciary Committee hearing on December 14, the FBI Director stated that the modified text ``does not give me a clear path to certainty as to what is going to happen when arrests are made in a particular case.'' The FBI Director is particularly concerned with how the legislation will affect the Bureau's ability to gain the cooperation of suspects. The FBI has a long and successful track record in the cultivation and use of cooperating witnesses. But as Director Muller stated, ``The possibility looms that we will lose opportunities to obtain cooperation from the persons in the past that we've been fairly successful in gaining.'' I cannot understand why the authors of this conference continue to insist upon language that will undermine the FBI in its use of this critical counterterrorism authority. The language in the detention subtitle of this conference report is the product of a process that has lacked transparency from the start. These measures directly affect law enforcement, detention, and terrorism matters that have traditionally been subject to the jurisdiction of the Senate Judiciary Committee and the Senate Select Committee on Intelligence, but neither committee was consulted about these provisions in July when the legislation was first considered by the Armed Services Committee, nor was either committee consulted earlier this month when it was modified. I also can see no reason why these provisions were rushed through the committee without the input of the Defense Department and Federal intelligence and law enforcement agencies that will be directly affected if this language is enacted. On issues of such national significance, the American people deserve an open and transparent process. Supporters of the detention provisions in the conference report continue to argue that such measures are needed because, they claim, ``we are a nation at war.'' That does not mean that we should be a nation without laws or a nation that does not adhere to the principles of our Constitution. We should prosecute those who commit crimes and terrorist acts and sentence them to long terms in prison. The Department of Justice has prosecuted more than 440 terrorists since September 11, 2001. We have a very strong record and nothing to fear from choosing a course that upholds American values and the rule of law. That is why I also oppose some of onerous funding and certification restrictions that make it virtually impossible to transfer individuals out of Guantanamo or to prosecute individuals detained there in Federal courts. I also strongly oppose section 1029 of the conference report, which requires the Attorney General to consult with the Director of National Intelligence and Secretary of Defense before seeking an indictment of certain terrorism suspects. This provision was not considered or debated by the Senate and certainly not by the Senate Judiciary Committee, which I chair. I oppose this provision because it needlessly undermines the authority of the Attorney General and is an unprecedented infringement on the prosecutorial independence of the Department of Justice. Regrettably, the detention language in this conference report remains fundamentally flawed. The detainee provisions will codify a practice of indefinite detention that has no place in the justice system of any democracy. They will cause further damage to our reputation as a nation that respects the fundamental right of due process, harm the efforts of intelligence and law enforcement officials in the field, and may limit their ability to track down terrorists and bring them to justice. My support for the Defense bill should not be construed as support for its detention provisions, which I oppose in the strongest possible terms. Instead, my support for the bill reflects the inclusion of the National Guard Empowerment Act, a bill I drafted with Senator Lindsey Graham, as an amendment to its underlying text. The Guard empowerment provisions have been understandably overshadowed by the debate on other, more contentious provisions in the bill, but I nevertheless believe that these provisions will set the stage for dramatic changes to our military force structure in the years to come. Beginning in May, a new national security consensus quietly formed in Congress around an issue at the core of our national security. Seventy- one senators from both parties steadily added their support to S. 1025, the bill that Senator Graham and I called Guard Empowerment II. The provisions of our bill built upon the first Guard empowerment bill that I introduced with Senator Kit Bond of Missouri. That measure became law in 2008 and elevated the Chief of the National Guard Bureau to the rank of four-star general. This year's bill had as its headlining provision an effort to make the Chief a statutory member of the Joint Chiefs of Staff. Despite the vociferous opposition of Active component generals in the Pentagon--including all six sitting Joint Chiefs of Staff--a bipartisan congressional consensus formed around S. 1025 and Guard empowerment. I was pleased that the Senate included its provisions in our version of the National Defense Authorization Act late last month and that the conferees retained a majority of those provisions in the conference report. The new consensus on the National Guard comes as the budget debates of this Congress have fractured the Cold War national security consensus of the last half century. While those fractures were an inevitable outcome of the end of the Soviet empire, what will replace the Cold War consensus remains unclear. Some Members of Congress argue for diplomatic and military retrenchment from every corner of the globe back to Fortress America. Others believe that we must expand, not shrink, our international footprint. Yet nearly everyone agrees that budgetary factors must mean a change in the way the Pentagon does business--and that change cannot wait. The seeds of that change were sown a decade ago. In the days and weeks following 9/11, the former ``strategic reserve'' became, of necessity, fully operational. The National Guard and Reserve components, once a Cold War failsafe, were called into regular rotation in the wars in Iraq and Afghanistan. Our country simply could not field the forces we needed without calling on the Guard and Reserve. Simultaneously, America experienced domestic disasters on an unprecedented scale. In each situation, the President called on the National Guard as the military first responders to help citizens in need. Today, the metamorphosis from a strategic reserve to an operational reserve is complete. Yet entrenched bureaucratic interests still resist what most Americans now accept as an accomplished fact. The Joint Chiefs fought our efforts to bring the Chief of the Guard Bureau into the ``Tank'' not because they misunderstand the value of the Guard and Reserve, but precisely because they fear that value proposition may threaten the size and budget of their Active components in the years to come. Nevertheless the Active component must shrink, both as a consequence of our current budgetary reality and to reflect the constitutional vision the Framers had of a small standing Army augmented by a larger cadre of citizen soldiers. Simultaneously, the Guard and Reserve must grow so that those cuts to the Active force can be quickly and easily reversed if the circumstances demand it. Just a year ago, no one predicted our operations to oust Muammar Qadhafi. In a world where military needs change day by day, we must not hollow out the force. To avoid that outcome in a period of austere budgets, we must depend more and more on the National Guard and Reserve. To that end, the conferees included section 512 in this Defense bill which adds the Chief of the National Guard Bureau to the Joint Chiefs of Staff. It also reinforces the duties and responsibilities of the Chief as listed in 10 U.S.C. Sec. 10502 in accordance with the listing of responsibilities of the Chief already in that section. This provision is historic and will dramatically improve the advice that the President and Secretary of Defense receive on matters of national security and the defense budget. Section 511, ``Leadership of the National Guard Bureau,'' reestablishes the Vice Chief of the National Guard Bureau as a lieutenant general and excludes the positions of the Chief and the Vice Chief of the National Guard Bureau from limitations on the number of general and flag officers in the Department of Defense. Reinstating the Deputy position at the National Guard Bureau will give the Chief flexibility at a time when he sorely needs it and providing a third star for the position will give it more institutional clout. Section 515 implements the outcomes of a negotiation between the Council of Governors and the Department of Defense by authorizing the President to order the Federal Reserve component to Active Duty to provide assistance in response to a major disaster or emergency. In addition to authorizing a Reserve forces callup for domestic disasters and emergencies, it codifies the dual-status title 10 and title 32 commander as the usual and customary command relationship for military operations inside the United States, a key victory for Federal-State integration of military command and control. Section 518, ``Consideration of Reserve Component Officers for Appointment to Certain Command Positions,'' is a modified version of a provision of S. 1025 which would have reserved the positions of commander, Army North, and commander, Air Force North, for National Guard officers with an emphasis on the consideration of current and former adjutants general. Instead, the section requires that Guard and Reserve officers be considered for these positions whenever they are vacant. Section 1085, ``Use of State Partnership Program Funds for Certain Purposes,'' includes a limited authorization of the State Partnership Program which is the major vehicle for the National Guard of the States to participate in international security assistance and capacity building missions at the request of the State Department chief of mission and geographic combatant commander. Last but certainly not least, section 1080A, ``Report on Costs of Units of the Reserve Components and the Active Components of the Armed Forces,'' institutes the ``similar unit'' cost report proposed by S. 1025 with some added detail and while retaining the Comptroller General evaluation of the Department's report. That last requirement is important to keep the Department of Defense honest in its assumptions and analysis leading to conclusions about the relative cost of Active and Reserve units. The Reserve component cost report will undergird efforts by the Senate National Guard Caucus in the years to come. While it has long been common knowledge that the National Guard and Reserves are cheaper to maintain in dwell than Active-Duty Forces, the report will prove that colloquial wisdom and bolster the arguments of the Congress in a future push to reduce the size of the Active component as we draw down from Iraq and Afghanistan while growing the size of the Reserve components. I am also pleased that the conferees included my language to narrow the Freedom of Information Act, FOIA, exemption in the bill for Department of Defense critical infrastructure security information. This improvement adds a public interest balancing test requiring that the Secretary of Defense consider whether the public interest in the disclosure of this information outweighs the government's need to withhold the information when evaluating FOIA requests. The addition of this measure to the National Defense Authorization Act will help ensure that FOIA remains a viable tool for access to Department of Defense information that impacts the health and safety of the American public. As I said at the outset, this National Defense Authorization Act will be remembered both for changing our process of detaining and prosecuting suspected terrorists and for empowering the National Guard. I continue to oppose the changes the act will make to our counterterrorism legal regime. But I nevertheless support how the act will improve the sourcing and fielding of military forces in the years to come. I will look to fix the former and further improve the latter in future legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, again, with the indulgence of my colleagues, if I might, just for a moment, call to the attention of my colleagues the several provisions of the Defense authorization bill we are going to consider for final passage today. These provisions will have a major impact on our defense structure and performance in the years to come. These reforms were previously included in a bill I introduced with Senator Lindsey Graham in May, S. 1025, which Senator Graham and I nicknamed ``Guard Empowerment II.'' As cochair with Senator Graham of the Senate National Guard Caucus, I am pleased to report that the most important of these Guard empowerment reforms are included in the final version of the Defense authorization bill. They include a provision that will make the Chief of the National Guard Bureau a statutory member of the Joint Chiefs of Staff. The Joint Chiefs--our highest military policy council--has not added a member since 1978--and I remember that because I voted for it--when the Commandant of the Marine Corps was finally added as a full participant. This is truly a historic day for the National Guard and for all the Guard does for our Nation. One might ask: Why now? Why is this change so important? Our Guard has been bravely serving in near constant rotation with Active-Duty Forces overseas for the last decade. Each of us has gone to Afghanistan or Iraq and seen our Guard serving. At the same time, these Guard troops have been the military's first responders at home. The Pentagon hasn't caught up with the institutional changes that have to accompany this. It is a whole different world for the National Guard today than what it was 20 years ago. In fact, after all the National Guard has done over the past 10 years, we are hearing rumors the Air Force is already planning serious cuts to its Guard and Reserve components. General Schwartz, Air Force Chief of Staff, announced: We're going to get smaller. Active duty, Guard, and Reserve--we're going to get smaller together. I question the logic of an across-the-board cut. I hope most of us would. That is why we have to have a Guard Chief on the Joint Chiefs of Staff to provide a vital voice, perhaps a dissenting voice, when it is needed most. When I look at the Vermont Guard, it demonstrates why these kinds of cuts don't make sense. The Vermont Guard deployed nearly 1,500 troops to Afghanistan last year. Before that, the Vermont Guard deployed to Iraq during one of its most violent periods and made unspeakable sacrifices for this country. I know because I went to the funerals of Vermont Guard members and because we are such a small State, many times everybody knew the person who had died. The Vermont Air Guard flew more than 100 consecutive days of air missions over New York City and Washington after the attacks of September 11 around the clock. If we properly man, train, and equip our State Guards, our military leaders will find them the peer of any Active-Duty unit. In fact, the Vermont Air Guard is one of the first three units to be considered to receive the F-35 Joint Strike Fighter. And not only will the service Chiefs find their reserve components ready to serve when called, they will find them a lot less expensive. The Defense bill also includes several other provisions of our Guard empowerment bill. It reinstates the three-star Vice Chief of the Guard Bureau, it institutes the recommendations on Federal-State military integration offered by the Council of Governors, it includes a limited authorization of the State Partnership Program, it mandates the consideration of Guard generals for certain vacant positions at U.S. Northern Command, and on and on. I think it is going to lay the groundwork for further collaboration between the Armed Services Committee, the Appropriations Committee, and the Senate National Guard Caucus. Our National Guard is a superb 21st- century military organization, but it has been trapped in a 20th- century Pentagon bureaucracy. These reforms will help clear away the cobwebs. It shows what happens when Democrats and Republicans work together. Sometimes it is not noted in the press, but a lot gets done around here when Democrats and Republicans work together. Senator Graham and I introduced a bill in May that has more than 70 cosponsors from both parties. We have accomplished a lot for our Guard with this bill, again, by having Democrats and Republicans work together. There is more to be done, but what a great start. As I have said about Democrats and Republicans working together, I have to applaud the two Senators from Alaska. Because of their hard work, we have this nominee before us, and that is something every one of us should take pride in, the way the two have worked together. Mr. President, I yield the floor.

Mr. LEAHY. Mr. President, how much time is remaining on the judgeship?

Mr. LEAHY. Mr. President, I want to reiterate what I said before about Senator Murkowski and Senator Begich for their support of this woman for the Ninth Circuit. I appreciate the work they have done on this nomination. I also appreciate the personal comments the senior Senator from Alaska made, going back to her law school days. I think sometimes we forget that these judicial nominees are real people and they have a real life and are a real part of the community. So I appreciate that. I yield back the remainder of the time on our side.

Mr. LEAHY

Mr. LEAHY. Madam President, I have actually voted for a balanced budget. Democrats in this Chamber and in the other Chamber voted for one and it passed. Not a single Republican voted for it. During the Clinton administration, we were able to balance the budget and start paying down the debt. A huge surplus was left to his successor and it was squandered by that administration. We should not enshrine the extreme provisions in the current proposal in our Constitution. We should not make it more difficult for Congress to respond to economic and natural disasters. Proponents of this amendment say: Let's let the courts make these decisions. Let us not transform our courts into budget-cutting bodies. They are not equipped to perform that role. Even Justice Scalia, testifying before our committee, laughed at the idea that they could do that. The Hatch-McConnell proposal will do nothing to spur economic growth or ease the partisan gridlock in the Congress. It will do the opposite. It will enshrine bad fiscal policy in the Constitution. A vote for this proposal is a vote for dramatic cuts in Social Security, Medicare, and veterans' benefits. Partisan efforts like this may be good bumper-sticker politics, but they are bad solutions. I wish those who say they revere the Constitution would show it the respect it deserves rather than treating it like a blog entry. I urge Senators to oppose this radical and ill-considered proposal to amend our Constitution.

Mr. LEAHY

Mr. LEAHY. Mr. President, the House Republicans have sent us a payroll tax bill that is more of a political campaign commercial than a piece of serious legislation. Extending this tax break for ordinary Americans evidently has been a tough sell in the other body, unlike the eagerness found there for even more tax relief for the very wealthy. Among the many unrelated, controversial provisions they have attached as sweeteners is one that would force the President to approve the Keystone XL tar sands oil pipeline. Proponents of this tar sands project provision argue that it belongs on this bill because building the pipeline would create jobs. Any construction project creates jobs. We could create thousands of jobs by investing in clean solar and wind energy, as the Chinese have done. And people can disagree about building the Keystone Pipeline, but there is a lot more to it than the short-term jobs it would create, and trying to jam it through Congress on this bill in the waning hours of the session is little more than a political stunt. It was about 15 months ago that I first learned about the plan to build a pipeline to transport crude oil from tar sand strip mines in Alberta across the U.S.-Canada border and down through the Midwestern United States to refineries and ports in Texas. Tar sands are a particularly dirty source of petroleum, from extraction to refinement. As I looked into this issue I saw some of the photographs of the boreal forest area where it is extracted, and I was shocked. Anyone who is interested in this issue, whether or not you think building the pipeline is a good idea, should look at the photographs. They depict an extraordinarily beautiful landscape that has been ravaged by heavy machinery, vast ponds filled with polluted water and sludge, and a scared wasteland where forests used to be. It is one of the more graphic examples of how our collective, insatiable thirst for oil has pillaged the fragile environment of this planet. Our demand for fossil fuels will continue to grow exponentially unless we come up with a comprehensive, national energy plan and have the will to implement it. We all know that the extraction of oil, minerals, timber, and other natural resources often harms the environment. But there are degrees of harm. Removing the tops of mountains and dumping the refuse in rivers and ravines or extracting heavy oil from tar sands are among the most energy intensive and destructive. Under the law, the State Department has the responsibility to approve or disapprove the pipeline because it crosses an international boundary. More than a year ago, I and 10 other Senators sent a letter to the State Department raising concerns about the proposed pipeline and the impact of tar sands oil on global warming and asking a number of questions about the Department's decisionmaking process. Eight months later we received a response, which answered some of our questions and raised others. I and other Senators sent two additional letters to the Department about the pipeline, most recently about reports of a possible conflict of interest between the contractor that performed the environmental review, Cardno/Entrix, and the energy company, TransCanada. There have also been e-mails indicating a less-than-arm's-length relationship between a State Department official at the U.S. Embassy in Ottawa and a lobbyist for TransCanada. And a month ago the State Department's inspector general announced the beginning of an investigation into whether conflicts of interest tainted the environmental review process. What began as basic questions and fundamental concerns about the pipeline has evolved into a significant controversy regarding the impact the pipeline will have upon our Nation's energy policy and continuing dependence on fossil fuels, the irreversible harm to the environment and the acceleration of climate change, and the potential for oilspills that could contaminate a key aquifer underlying an area of critical agricultural importance that hundreds of thousands of midwesterners depend on for irrigation and drinking water. From the beginning, I have expressed misgivings about the State Department's ability to conduct a thorough, credible investigation of a project of this complexity that involves issues about which it has limited expertise. There are reports of inexperienced staff handling the lion's share of the work, and it is not surprising that the Environmental Protection Agency and the Department of Energy have raised concerns and identified flaws in the State Department's analysis. It is my impression that the State Department, from the outset, approached this with a sense of inevitability. What they did not anticipate was the strong reaction of Members of Congress of both parties, including several from Midwestern States that have been coping with multiple oilspills from the original Keystone Pipeline that company officials have treated as inconsequential. They also did not anticipate the strong opposition from ordinary Americans who pay close attention to environmental and energy policy issues, for whom tar sands oil is particularly repugnant. Concerns about the consequences of this project have united not only those living along the proposed route but people across the Nation, including in Vermont, as well as in Canada, who care about the environment, both in this country and in Canada, and who understand the need to wean our Nation from oil and other fossil fuels and to invest in renewables and energy efficiency. Every President since the 1970s has spoken of the need to reduce our dependence on fossil fuels and particularly foreign oil. But despite all the speeches, year after year we are more dependent on these finite, polluting sources of energy than ever before. Today, energy companies are spending staggering amounts of money in search of new sources of oil and gas in some of the most inhospitable places on Earth, where its extraction involves great risks to the people involved, the environment, and endangered species. We even send our young service men and women halfway around the world to fight wars, in part to ensure our continued access to a ready supply of oil. It has become a national security priority. We have lost valuable time, and there are no quick fixes. No matter what we do today, later this week, or later this month, this country will be dependent on fossil fuels for many years to come. But simply replacing Middle Eastern oil with Canadian oil without creating new, dependable sources of renewable energy and improving efficiency in the energy we use does not alleviate the national security and economic risks associated with a global oil market that is vulnerable to manipulation and disruption. There is also much more we could do to make use of what we have by wasting less, improving end-use efficiency, and increasing our use of renewable sources of energy. While TransCanada and its supporters extol the virtues of the Keystone XL Pipeline, as the minority leader and others have done, simply by reducing waste we could eliminate entirely the need for the energy produced from the oil that would flow through the pipeline. I come from a State that shares a border with Canada. My wife's family is Canadian. I have a great fondness for that ``giant to the north.'' But this issue is not about U.S. relations with Canada. We are inseparable neighbors, friends, and allies. There are strong views about this pipeline, pro and con, in both countries. As Americans, we have to do what is right for our country's energy future, for the environment, for our citizens. Some have argued that if this pipeline is not built, TransCanada will simply build a pipeline to the coast of British Columbia and export the oil to China. But there are significant obstacles and no indication that such an alternative route is a viable option. Others maintain that the carbon emissions from extracting and refining this oil would not appreciably exceed those from oil shipped by tanker from the Middle East, but they do not address the environmental harm and pollution caused by the strip mining and separation process. TransCanada has flooded the media with dire warnings about the American jobs that will be lost if the pipeline is rejected, which our Republican friends have echoed, trying to turn this into a campaign issue. But most of these are construction jobs that will disappear once the pipeline is built. And the choice is not between jobs or no jobs. They do not mention the tens or hundreds of thousands of American jobs that could be created by investing in other cleaner, renewable sources of energy, which, unlike tar sands oil, will not be used up in a few short decades. Last month, in response to concerns about the sensitive and crucial aquifer that the pipeline would traverse in the Midwest, the White House announced that the State Department will consider alternative routes through Nebraska and that this would delay a decision on the pipeline until 2013. This is positive, but it ignores the many other reasons to reject this project altogether. It is my hope that on further reflection, the President will treat the debate over the Keystone XL Pipeline as an opportunity to draw a line between our past and future energy policies. Fossil fuels are finite, inefficient, and dirty. The cost we pay at the gas pump bears no resemblance to the long-term environmental and health costs borne by society as a whole. We cannot lessen our reliance on fossil fuels by simply talking about it. We cannot do it by putting our goals for a better future under the pillow and leaving any real action to future generations. We cannot do it by hoping that a scientific genius will suddenly discover an unlimited source of energy that costs pennies and does not pollute, nor should we do it by spending huge amounts of money, time, talent and American ingenuity to search the farthest reaches of the globe for every last drop of oil, regardless of how dangerous or harmful to the environment. Will the Keystone XL tar sands oil pipeline have the cataclysmic consequences that some of its opponents predict? No one can say for sure. If anyone had asked officials at British Petroleum on April 9, 2010, about the probability of a disaster like the one that occurred the next day when the Deepwater Horizon exploded in the Gulf of Mexico, they likely would have dismissed it as farfetched. It turns out they were violating multiple safety regulations. Are we going to change the pipeline's route to avoid the aquifer, only to continue to act as if global warming is nothing to worry about, that we can continue to burn more and more fossil fuels, emitting more and more carbon into the atmosphere, and destroying the landscape while we are at it? This pipeline would perpetuate a costly dependence that has gone on for a century, for which we all share in the blame. Keystone XL would once again do nothing to address the problems associated with fossil fuels. It would virtually assure more oilspills, it would do nothing to promote conservation and reduce waste, and it would do nothing to spur investment in clean energy alternatives. Most important, it would provide yet another excuse for once again punting the urgent, national security imperative of developing a sustainable energy policy for this country. That is what the decision about the Keystone XL tar sands oil pipeline has come to represent regardless of what route it takes.

Mr. LEAHY

Mr. LEAHY. Mr. President, it occurs to me that all Senators swear an oath to support and defend the Constitution of the United States. I carry a copy around with me. It is our duty. It is our responsibility. But the pending amendments to the Constitution that are on the floor of the Senate threaten the constitutional principles that have sustained our democracy for more than 200 years. In addressing the Nation's debt and deficit, what is lacking are not phrases in our Constitution. What is lacking is the seriousness within today's Congress to act, and the willingness in Congress to cooperate in forgoing solutions that meet the real needs of our country and its people. These are human failures, not the failure of our constitutional framework. Nor are these failures insoluble or inherent. We balanced the budget and even created budget surpluses less than two decades ago. Now we are being asked to put the problem once again under the pillow for another day--this radical partisan proposal would be out of place in our national charter. Never in our history have we amended the Constitution--the work of our Founders--to impose budgetary restrictions that require supermajorities for passing legislation. Yet now it seems every Member on the other side of the aisle has joined to put forth a radical proposal to burden our Constitution with both of these kinds of strictures. The Hatch-McConnell proposal is different in kind than any other amendment to our Constitution. It is not consistent with the design of our founding document or the stance taken by our Founding Fathers. It is a bad idea to write fiscal policy into our Nation's most fundamental charter. It is simply unnecessary. We do not need a balanced budget amendment to balance a budget. A vote for this amendment does absolutely nothing to get our fiscal house in order. Congress can work to continue our economic recovery. We can pass the appropriate legislation that leads to a Federal balanced budget, just as we did in the early 1990s. I remember that very well because I was here. I remember, in this body, not a single Republican voted to balance the budget. It took the Democrats in the Senate and the Vice President of the United States to pass that balanced budget. Not a single Republican voted for a balanced budget in the House. They gave a lot of speeches on the floor that if we passed that balanced budget amendment, everything would come to a screeching halt. Actually, what happened was we passed it, and President Clinton was able to leave his successor a huge surplus. With a growing economy, with what we did by votes in the House and the Senate--not by a constitutional amendment--we were able to create significant budget surpluses and pay down the debt until those surpluses were squandered. We have done it before. We can do it again. We need only work together to make the tough decisions, not to pass something that is a feel-good, bumper-sticker kind of item which kicks the can down the road and binds future Congresses to a fiscal proposal that is fundamentally unsound and the consequences of which are not understood. The Republican proposal in the Senate is significantly more radical than the version the House of Representatives rejected in a bipartisan vote last month. In fact, the Hatch-McConnell constitutional amendment is the most extreme of all the pending proposals. The proposal, by its terms, will neither balance the budget nor pay down the Nation's debt, something everybody says they want. Instead, at a time of partisan brinksmanship that has led to the first-ever downgrading of our country's credit rating this summer and when ideological gridlock is the Republicans' operating principle, it would require supermajorities to pass legislation for the first time in our Nation's history. It would require a supermajority to raise the debt ceiling in times of economic crisis. Did we learn nothing from the disaster we went through last summer, which should have been a routine lifting of the debt ceiling and became a political free-for-all for weeks and months, cost the American taxpayers billions of dollars and caused people to lose their retirement money in the stock market? Do we want to do that again? I hope the Senate rejects this proposal. Two weeks ago, the Judiciary Committee's Subcommittee on the Constitution held a hearing to examine the Hatch-McConnell proposal. All those witnesses, including those who were invited by the measure's cosponsors, presented thoughtful critiques of this extreme proposal and voiced serious concerns about its wording. Even Republican cosponsors discussed possible changes to the language in order to better achieve their goals. This is not the proposal that Senator Hatch previously favored. This is one of more than two dozen pending versions. In fact, we were not told which of the many versions of the proposal would be pending until yesterday. This proposal has not been considered by the Constitution Subcommittee or the Judiciary Committee. The House of Representatives has already voted down a less-extreme version of this proposal by a bipartisan majority. Yet here is the Senate of the United States, being forced to vote on some proposal for a constitutional amendment without doing any of the hard work or the votes that are expected to accompany an amendment to America's Constitution. This is no way for the Senate to proceed on a proposed constitutional amendment. This is not some feel-good resolution. We are talking about amending America's charter. The Hatch-McConnell proposal contains many problematic provisions and it leaves many significant questions unanswered. Section 10 of this proposal relies on estimates for outlays and receipts. We know that economists' estimates and recommendations do not always agree. So what do these proposed constitutional provisions really mean? We know that estimates are not static but ever changing. What if during the course of a fiscal year, there was a natural disaster, a terrorist attack, or a shift in the economy? What then? What if estimates were recalculated or revised, as employment statistics are every month? Would that make every penny expended by the Government over a revised estimate unconstitutional? Would that mean we could not help disaster victims or could not respond to a terrorist attack? Another provision would limit total outlays for each fiscal year to 18 percent not 16, not 20, not 17.9 of the previous year's Gross Domestic Product (GDP). But who is to decide what the ``GDP'' was for a particular time period? What is to be included and what is not? How often do those estimates and artificial constructs get revised? Since when do economic surveys and shifting estimates belong in the Constitution? And what policy decision justifies the constitutional permanence of the number 18? I note that not even the budget proposed this year by Representative Ryan and the House Republicans, with all its draconian cuts and the end of Medicare as we know it, would satisfy this arbitrary 18 percent of GDP limit. None of the budgets proposed by or passed under President Reagan, not one, would have satisfied this proposal. At the end of the Bush administration we survived the worst economic downturn since the Great Depression and are now in economic recovery. This is not the time to enact such a measure which would take us in the wrong direction. We cannot ``cut'' our way to a balanced budget without imposing great suffering. It would tank the economy rather than aid our continuing recovery. Besides its arbitrary nature, limiting outlays to 18 percent of the previous year's GDP would leave Congress unable to respond swiftly and effectively to economic downturns and natural disasters. The Hatch- McConnell proposal would require a two-thirds supermajority to spend in excess of 18 percent of the previous year's GDP for a specific purpose. Filibusters and requirements for supermajorities have become routine to the detriment of the American people. They have stymied congressional action on behalf of the American people. This proposal would give a minority in Congress even more power to hold the country and our economy hostage. Have we not seen what that can mean? Have the lessons of the last year been lost on the Senate? The Hatch-McConnell proposal would make permanent bad policy choices. Section 4 is a transparent attempt to enshrine tax breaks for millionaires and wealthy corporations by requiring a two-thirds supermajority to impose any new tax or even to close existing tax loopholes. We need a balanced approach to fix the deficit problem. And the wealthiest among us are those who least need a heavy hand on the scales in favor of their interests. Let's look at what has happened. We have fought two unfunded wars. It is the first time in our history that we not only did not pass a tax to pay for a war we are in but actually passed a tax cut and borrowed money to pay for these wars. We squandered the surpluses the last administration inherited, ran up deficits and the national debt. I would remind everybody, we can achieve a balanced budget. We have done it before. Working with President Clinton, Democrats in Congress voted for a balanced budget. But I don't want to hear lectures from the other side, when every single Republican voted no the last time we had a successful balanced budget. Our strong economy in the Clinton years led to budget surpluses. If we are serious about reducing the deficit and paying down our debt, we need to get to work improving our economy, getting Americans back to work, and continuing to recover from the worst economic conditions since the Great Depression. One of the most glaring problems with this proposal is it provides no clear enforcement mechanism or standards for enforcement. Section 8 of the Hatch-McConnell proposal expressly prohibits courts from increasing revenues to enforce the amendment, but remains silent on judicial enforcement of the amendment by cutting spending. This proposal assumes our Federal courts are equipped to enforce this amendment. Do we want to say we will simply relinquish Congress's constitutional power of the purse to an unelected judiciary with no budget experience--something no Congress, Republican or Democratically controlled--has ever done before? Do we want judges deciding fiscal policy? Do we want judges to decide whether we cut Social Security or Medicare? I recently asked Justice Scalia at a hearing before the Senate Judiciary Committee whether the Federal judiciary was equipped to handle such a task--the same task my friends on the other side of the aisle want the Federal judiciary to do. Do you know how he answered? He laughed. He indicated that budget issues and determining the allocation of resources is not the judiciary's proper role. Of course he is right, and I expect this is one area where all nine members of the Supreme Court would have answered the same. The proponents of this effort to transform courts into budget-cutting bodies are wrong. The Republican proposal does not even make clear who, if anyone, has standing to bring such challenges in court. None of these questions has been adequately debated or considered. Such a drastic change to the time-honored role of the judicial branch of our government should not be written into our Constitution presumptuously. In addition to all these concerns, the American people need to understand what the real-world effect of such an amendment would be on their daily lives. In the Senate Judiciary Committee, we received alarming testimony from the president-elect of AARP, warning of the damaging effects such a constitutional amendment would have on Social Security, Medicare, and Medicaid. He testified that if such a constitutional amendment were in place today, the average Social Security benefit would be cut by 27 percent. Maybe that is what Members of this body want to do, cut Social Security by 27 percent. I do not. Do they want to balance the budget on the backs of hard-working, lower income, and elderly Americans by drastically cutting the safety net? I would say that is not the answer to our economic challenges, especially as we continue to give tax breaks to millionaires and continue to fight unfunded wars. The notion of amending the Constitution to require a balanced budget is not new. The Senate rejected balanced budget amendments in 1995, 1996, and 1997. We proved after the Reagan and Bush administrations had tripled the national debt that we could through hard work and legislation, balance the budget. That is what Congress did in the late 1990s. We helped create hundreds of millions of dollars in surpluses that were paying down the national debt. Those surpluses were squandered by tax cuts for the wealthy and two unfunded wars. That is the cause of our budget imbalance. We should not, for the first time in American history, amend the Constitution to set fiscal policy. It is a bad idea. It is even more irresponsible to consider doing so when we do not yet understand the full weight of the consequences of who is going to bear the burden. I have never seen the solemn duty of protecting the Constitution treated in such a cavalier manner as it is today. I have heard many say they revere the Constitution. Let us show it the respect it deserves rather than treating it like a blog entry or a bumper-sticker slogan. Let us not be so vain in this body to think we know better than our Founders and better than the constitutional Framers who preserved our liberties for more than 200 years. Our constitutional principles have served the test of time. They deserve protection. I will stand with the Constitution. I will stand with the Constitution of this country, and I will oppose this ill- conceived proposal to amend it. I ask unanimous consent to have printed in the Record my full statement, and I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition, and Forestry be authorized to meet during the session of the Senate on December 6, 2011, at 2:15 p.m. in S-115.