John McCain

Mr. McCAIN

Mr. McCAIN. Forty-one minutes?

Mr. McCAIN. I thank my friend from Tennessee, and I thank you, Madam Chairman. As we know, we are considering the conference agreement for the fiscal year 2010 Interior, Environment and Related Agencies appropriations bill. I was deeply touched and moved by both the manager of the bill and the ranking minority member's lamentations about the budgetary constraints in which we are suffering--deeply moved, almost to tears, until I saw that this bill provides approximately $32.2 billion, a 17-percent increase over last year's levels, and $4.66 billion more. You know, the bill comes after we already gave $10.95 billion in the stimulus bill. It is remarkable, remarkable. When the distinguished manager talked about how the budgetary constraints did not allow for us to have the necessary water infrastructure projects which are so vital, particularly to those of us in the West, we somehow found room for 542 earmarks totaling $341.3 million. I believe we might be able to find some more projects that are very badly needed for water infrastructure and even for firefighting if maybe we shifted those 542 earmarks totaling $341.3 million over to the needed projects. As far as I know, not one of these earmarks was requested by the administration, authorized, or competitively bid in any way. No hearing was held to judge whether these were national priorities worthy of scarce taxpayers' dollars. When I read some of these, I think it would be hard to argue that they would withstand any scrutiny, any competition. For example, $500,000 for a tropical botanical garden in Hawaii. Not in Arizona, not in California--Hawaii--$500,000 for a tropical botanical garden in Hawaii. There is $150,00 to renovate an opera house in Connecticut--renovate an opera house. The real unemployment in my State is now 17 percent. It is listed as less than 10 percent, but including those who have given up looking for work--17 percent of the people in my State are without a job, and we are going to spend $150,000 to renovate an opera house in Connecticut. We are going to spend $500,000 for a native Hawaiian arts program in Hawaii. We are going to spend $1 million for improvements in the Sewall- Belmont House in Washington, DC. That is what I call a cozy relationship. The Sewall-Belmont House is next to the Hart Building--$1 million. Couldn't this museum raise private money for these improvements? There is $2 million for an interpretive center at the California National Historic Trail in Nevada and another $100,000 for the Tahoe Rim Trail in Nevada to build a 15-mile hiking trail from Reno, NV, to the Mount Rose Ski Resort near Lake Tahoe. I get favorites every once in a while, but this is probably one of my favorites recently. If we Twitter the top 10, I guarantee you this will make the top 10: $1.2 million for rat eradication at the Palmyra Atoll National Wildlife Refuge; $1.2 million worth of rat traps. This $1.2 million in rat traps is for a 5-square-mile island, U.S. territory that is not occupied except for a few scientists from the Nature Conserve studying the island's coral reef, according to the Interior Department. There is $750,000 for a conservation training center in West Virginia. I am sure over the years my colleagues have gotten to hear certain States named--Hawaii, West Virginia, Nevada, California. I am sure all of those are strictly coincidental. There is $200,000 for historic preservation of the Richardson- Olmstead Complex in Buffalo, NY. I am not making this up. The Richardson-Olmstead Complex is actually the former Buffalo State Insane Asylum which was decommissioned in the 1970s. According to Richardson Center Corporation, which is a nonprofit managing the complex for historic preservation, this funding would go toward maintaining the former hospital as ``an example of the humane treatment of the mentally ill.'' There is $750,000 for the Hudson Quadricentennial Commission in New York to celebrate the 400th anniversary of the Dutch explorer Henry Hudson sailing the Hudson River; $500,000 to the Vermont Wood Products Collaborative, which provides grants to promote the development and marketing of wood products businesses in the State of Vermont. According to the Office of Management and Budget, Vermont Woods Products Collaborative is a continuing earmark that has received over $780,000 from Congress over the past 4 years. That is for the Vermont Wood Products Collaborative when my State has a 17-percent unemployment rate. Some of these that I just described may have merit. There are 542 of them. Some of them may have merit, but we will not know that. We will not know whether or not they have merit. They have never been authorized, never been subjected to competition, they have never been scrutinized. But what has been done is they have been put in because of the relative power of certain Members of Congress. I had intended today to bring over recent articles concerning the investigations that are being conducted on Members of Congress because of this practice of earmarking and porkbarrel spending. One more example of this is the Environmental Protection Agency State and Tribal Assistance Grants Program, which funds wastewater and drinking water infrastructure projects throughout the country. Local communities that request assistance under this program have to do so under Federal and State systems for prioritizing the most important projects from a health and environmental standpoint. But all it takes to sidestep the entire process is for a Member to slip an earmark into an appropriations bill that benefits a special interest in their home State. Inevitably, communities that are worthy of EPA's help are left empty handed because they were not connected well enough in Washington. The President's 2010 budget calls for terminating all of these earmarks. The President's budget asks that they should be eliminated. The administration says, the President says, these earmarks are ``duplicative'' and ``not subject to the State priority-setting process which typically funds cost-effective and higher priority activities first.'' Moreover, the administration points out these earmarks ``single out projects and communities for a greater subsidy than otherwise available through existing programs,'' and ``that these types of projects require more oversight and assistance than standard grants because many of the recipients are unprepared to spend or manage such funds.'' In other words, some communities are receiving earmarks so large that they do not know how to handle them. Let's look at a few of these infrastructure earmarks. For the town of Moorefield, WY, $2.5 million is earmarked for a wastewater treatment plant. The town of Moorefield has a population of 2,375. That is a subsidy of over $1,000 per person. Six million dollars goes to construct a drinking water reservoir in Fayette County, AL. Estimated population of Fayette County: 18,000. There is $1.2 million for sewer improvements in Plattsmouth, NE; population: 6,900. Finally, $15 million for water infrastructure in remote Alaska Native villages, which exceeds the administration's request by $5 million. In its budget submission, the administration proposed reducing spending for Alaska Native villages to $10 million because: Audits conducted by the EPA Office of the Inspector General identified several financial management problems, including improperly charging labor costs to grants and disbursing funds that were not tied to the actual project costs. I am for helping our neediest and most rural communities. Some of these projects may be truly needed. But it is disregard for the procedure that should be followed that concerns me. Last month the House and the Senate Democratic leadership airdropped a continuing resolution into the legislative branch appropriations bill to keep the government running until this Sunday. It is not the way to do business. There is nothing that prohibits the majority leader from calling up a continuing resolution as a stand-alone piece of legislation. I want to say that I intend to raise a point of order. But, more importantly, if this bill passes the Senate, as it did the House earlier today, the President of the United States, if he is serious about eliminating waste and unnecessary spending, should eliminate a bill that has a 17-percent increase over last year's levels, which is $4.66 billion more, in addition to the $10.95 billion that was appropriated to these accounts in the stimulus bill, and contains 542 earmarks totaling $341.3 million. If that is not enough to earn the President's veto, I do not know what is. I raise a point of order that the conference report violates the provisions of rule XXVIII, and I ask for the yeas and nays.

Mr. McCAIN

Mr. McCAIN. Mr. President, I wish to say that the presentation by the Senator from South Dakota, Mr. Thune, is a strong one and a compelling one. I am also very impressed with his knowledge of the facts and his in-depth analysis of what we are apparently facing. I say ``apparently'' because so far, as has unfortunately been the case, the majority leader has not shared with at least this side of the aisle or anyone I know of on this side of the aisle any of the specifics of the latest proposal. That is very unfortunate. As the Senator from South Dakota mentioned, the President of the United States, when campaigning, stated categorically that there would be C-SPAN cameras, that there would be Republicans, there would be an open process, and he was specifically addressing the issue of health care reform. Americans grow cynical from time to time about the things we say during political campaigns. I can only conclude that the statement made by the President during the campaign contributes mightily to not only the issue of health care reform but also the cynicism about real change in Washington. Change has not taken place; the majority rules. I certainly agree those abuses were committed when Republicans were in the majority in this body, and I saw it, and I fought against it. But it was stated just a little over a year ago that when health care reform came to its period of consideration by the Senate, when the negotiations went on, C-SPAN cameras and Republicans would be present so the American people would be able to see, in the President's words, ``who is there representing the pharmaceutical companies and who is representing the American people.'' Well, if we open it up now, if we opened the doors not far from here, we would see that already a deal has been cut with the pharmaceutical companies. It is an $80 billion deal done in return for $100 million or so in positive ads and in return for punishment to average American citizens because the administration agreed to a prohibition of importation of prescription drugs from Canada that could sometimes save as much as 60 percent on lifesaving pharmaceutical drugs; as well as the elimination of or opposition to competition amongst drug companies to provide prescription drugs to Medicare recipients. So what they have done by buying off the pharmaceutical companies--by the way, according to the latest reports I read this morning, the head of the pharmaceutical lobby makes over $2 million a year--we have now penalized the American people by preventing them from having choice, as well as seeing the influence of special interests in this country and in our deliberations. It is very unfortunate. There is a great deal of cynicism out there amongst the American people. It is manifest through tea parties and in other ways. Polling data shows the great dissatisfaction the American people have about the way we do business. That cynicism has been authenticated by the process we are going through. I would again urge the majority leader to invite us in to sit down. We have some constructive ideas. We have some thoughts as to how we can reform health care in America. We know there needs to be reform. We have people such as my colleagues, two doctors--Dr. Coburn and Dr. Barrasso--on our side of the aisle, who have extensive hands-on experience with these issues. Why can't we at least at some point-- which we should have done a long time ago--be allowed to have input into the behind-closed-doors process that is taking place as we speak? H1N1 Preparedness Mr. President, I wish to also say a few words this morning about an issue that is of great concern to me and is of greater concern throughout the country; that is, the availability of vaccines in order to combat swine flu, known as H1N1. There are long lines around the country. There is scarcity. There is great concern amongst the American people about this problem. Unfortunately, just last week, in a hearing before the Homeland Security Committee, the Secretary of Health and Human Services assured us that it was no problem and that there would be plenty of supplies on hand. The previous administration conducted the initial analysis, as we know, and worked with the World Health Organization to estimate the magnitude of this worldwide pandemic. A plan was put in place and stakeholders began executing their roles in protecting the public health. In the fall of 2005, in response to the government's lessons from combating avian flu, Congress provided $6.1 billion in the 2006 supplemental appropriations for pandemic planning across several Federal departments and agencies. Since then, annual funding has been provided to the Centers for Disease Control and the FDA and activities in Health and Human Services to continue work on vaccine development, stockpiling of countermeasures, and assistance to States. In late April of this year, Margaret Chan, the World Health Organization's Director General, declared ``a public health emergency of international concern'' when the first cases of the H1N1 virus were reported in the United States. National and State plans were in place and orders for vaccines were processed. Among other actions, officials released antiviral drugs from the national stockpile, developed and released diagnostic tests for the H1N1 virus, and developed guidance for the clinical management of patients and the management of community and school outbreaks. The administration requested $9 billion in emergency supplemental appropriations to address the situation. On June 26 the President signed an appropriations bill which provided $1.9 billion immediately and an additional $5.8 billion contingent upon a Presidential request documenting the need for and proposed use of the additional funds. In total, from 2004 through 2009, Health and Human Services alone has received almost $9 billion for pandemic flu preparedness. Again, this doesn't account for the other billions to other agencies. However, for the $9 billion and counting the government has spent on preparing for pandemic outbreaks, Americans have only experienced frustration at vaccine shortages and the long lines for the limited supply of H1N1 vaccines that are available. This should make all Americans extremely nervous about the government possibly taking control of our health care system. Three months ago we were told--this is important. Three months ago we were told the CDC expected 120 million to 160 million doses by the end of October. Two months ago the administration's estimate of vaccine availability dropped to 40 million by mid October, with 20 million additional doses rolling out every week. Last week, the estimate dropped again. Now only about 28 million doses are expected to be available by the end of October. Yet the CDC estimates there are at least 45 million high-risk Americans, including pregnant women and children, in need of the vaccine. So according to my math, we are about 20 million doses short. Unfortunately, the outbreak of the flu is widespread and deaths are accumulating. The Washington Post reported yesterday: As of October 17, 46 States were reporting ``widespread'' influenza activity and many doctors' offices have been swamped with swine flu patients . . . The U.S. Government has ordered enough vaccine to make up to 251 million doses if needed, but production has been slower than originally anticipated. A total of 11.3 million doses of vaccine have been shipped to U.S. doctors and hospitals and clinics as of Wednesday, according to the CDC, out of a total of 14.1 million doses that manufacturers had shipped to warehouses by that time. By Friday, 16.1 million doses of vaccine had been shipped to warehouses. In Arizona, State officials estimated a need of 900,000 to 1 million vaccines for my State's 6.5 million residents.

Mr. McCAIN. I ask unanimous consent for 2 additional minutes.

Mr. McCAIN. However, Arizona has only received 263,000 vaccines as of yesterday. According to the Arizona Republic, the swine flu vaccine was only available at 35 of the 113 planned clinics in Maricopa County. The article quoted the county's director of public health as stating: It's a very frustrating situation where we are just not getting what we need. Right now, it is completely out of everyone's control. On October 24, the Arizona Republic reported: The lines were long, but the desire intense Saturday as hundreds, possibly thousands, of people waited up to three hours to get in one of today's rarest experiences: a swine- flu shot. The doses available represented a little more than 1 percent of Maricopa County's population. People were turned away if they did not fall into the high-risk group. Congress needs to know more information. Obviously, the hearing we had in the Homeland Security Committee last week was, at best, misleading as to the magnitude of this problem. We need more information from the government, and we need to act now and find out how we are going to get enough swine flu vaccine to take care of the citizens of this country. We have already invested $9 billion. I don't think we have a lot to show for it. Mr. President, I yield the floor.

Mr. McCAIN

Mr. McCAIN. Mr. President, today I am pleased to be joined by Senator Michael Bennet in introducing the Post-9/11 Troops to Teachers Enhancement Act. This legislation would allow more veterans and school districts to participate in the Troops to Teachers program. In addition to expanding the program, the proposed bill would create an advisory board that would be charged with improving awareness and participation of the program, ensuring that the program meets the needs of our schools and veterans. I hope that my colleagues in the Senate will also support this important piece of legislation. In 1994, Congress authorized the Department of Defense, DOD, to oversee a new national program, Troops to Teachers, which was designed as a Transition assistance program for retiring or separating members of the military to obtain their teaching credentials and place these teachers in schools throughout the country. The program was reauthorized by Congress in 1999. That reauthorization transferred responsibility for oversight and funding from the DOD to the Department of Education and authorized $10,000 bonuses to participants who agreed to teach in ``high-need'' schools. Troops to Teachers was later incorporated and reauthorized under the No Child Left Behind Act of 2001. Since its inception, over 11,000 teachers have been hired by school districts across the Nation, of which many are nontraditional first-time teachers. Teaching is among the most honorable professions in our society. I believe we should encourage military veterans to enter the teaching profession and that this bipartisan bill would further enhance the Troops-to-Teachers program. Simply put, the proposed legislation would reduce the years of military service requirements from 6 to 4, extend the eligibility to all schools that receive Title I funds, and create an advisory board that would coordinate and make recommendations to Congress in regards to the program. Current eligibility guidelines for the Troops to Teachers require that members of the military have 6 years of service and that members of the guard and reserve have 10 years of service with a commitment to serve an additional 3 years. The requirement of 6 years active duty is leaving many single enlistment contract 4 year veterans and/or Guard members out of consideration. Lowering the required years of service would expand eligibility and create a larger pool of potential teachers for this program. Under the current Troops to Teachers program, participants who agree to teach for 3 years in a ``high need'' schools are eligible to receive a $5000 stipend to offset the cost of teacher certification. The proposed legislation would extend the eligibility for the stipend to any eligible teacher who agrees to teach 3 years in a school that is in a district receiving Title I funds. The proposed bill would retain the optional bonus of $10,000 which is available to individuals who take jobs in low-income schools. This legislation would result in a 49 percent in the number of eligible schools for the program. For my home State of Arizona, over 600 additional schools would become eligible to participate in the program. A recent GAO Report revealed that although Troops to Teachers is a successful program, it suffers from a lack of coordination and oversight. To remedy this concern, the proposed legislation would create an advisory board that consists of a representative from the Department of Defense, the Department of Education, and representatives from state offices and veteran's service organizations to make recommendations on ways to improve and expand the program. Our veterans make excellent candidates to impart the virtues of serving to a cause to the next generation and instill the value of learning as a means to self-improvement and much nobler ends. Their unique experiences bring a more diverse teaching environment to our children and grandchildren.

Mr. McCAIN

Mr. McCAIN. Mr. President, today I am pleased to be joined by Senator Michael Bennet in introducing the Post-9/11 Troops to Teachers Enhancement Act. This legislation would allow more veterans and school districts to participate in the Troops to Teachers program. In addition to expanding the program, the proposed bill would create an advisory board that would be charged with improving awareness and participation of the program, ensuring that the program meets the needs of our schools and veterans. I hope that my colleagues in the Senate will also support this important piece of legislation. In 1994, Congress authorized the Department of Defense, DOD, to oversee a new national program, Troops to Teachers, which was designed as a Transition assistance program for retiring or separating members of the military to obtain their teaching credentials and place these teachers in schools throughout the country. The program was reauthorized by Congress in 1999. That reauthorization transferred responsibility for oversight and funding from the DOD to the Department of Education and authorized $10,000 bonuses to participants who agreed to teach in ``high-need'' schools. Troops to Teachers was later incorporated and reauthorized under the No Child Left Behind Act of 2001. Since its inception, over 11,000 teachers have been hired by school districts across the Nation, of which many are nontraditional first-time teachers. Teaching is among the most honorable professions in our society. I believe we should encourage military veterans to enter the teaching profession and that this bipartisan bill would further enhance the Troops-to-Teachers program. Simply put, the proposed legislation would reduce the years of military service requirements from 6 to 4, extend the eligibility to all schools that receive Title I funds, and create an advisory board that would coordinate and make recommendations to Congress in regards to the program. Current eligibility guidelines for the Troops to Teachers require that members of the military have 6 years of service and that members of the guard and reserve have 10 years of service with a commitment to serve an additional 3 years. The requirement of 6 years active duty is leaving many single enlistment contract 4 year veterans and/or Guard members out of consideration. Lowering the required years of service would expand eligibility and create a larger pool of potential teachers for this program. Under the current Troops to Teachers program, participants who agree to teach for 3 years in a ``high need'' schools are eligible to receive a $5000 stipend to offset the cost of teacher certification. The proposed legislation would extend the eligibility for the stipend to any eligible teacher who agrees to teach 3 years in a school that is in a district receiving Title I funds. The proposed bill would retain the optional bonus of $10,000 which is available to individuals who take jobs in low-income schools. This legislation would result in a 49 percent in the number of eligible schools for the program. For my home State of Arizona, over 600 additional schools would become eligible to participate in the program. A recent GAO Report revealed that although Troops to Teachers is a successful program, it suffers from a lack of coordination and oversight. To remedy this concern, the proposed legislation would create an advisory board that consists of a representative from the Department of Defense, the Department of Education, and representatives from state offices and veteran's service organizations to make recommendations on ways to improve and expand the program. Our veterans make excellent candidates to impart the virtues of serving to a cause to the next generation and instill the value of learning as a means to self-improvement and much nobler ends. Their unique experiences bring a more diverse teaching environment to our children and grandchildren.

Mr. McCAIN

Mr. McCAIN. Mr. President, I want to thank again my colleague from Tennessee for the great work he has been doing on the issue of health care and the many other leadership issues. There are a lot of things going on. There are a lot of moving parts in the health care reform debate situation. I would like for us, however, to maybe pause and look back for a second as to what we heard and what has actually been going on. First, we heard the President say that if you like the insurance you have, you can keep it, period. Increasing mandates on employers, who today have difficulty affording health care coverage, and cutting Medicare by $500 billion will ensure that millions of Americans will not be able to keep the coverage they have today. CBO and common sense tell us this. According to CBO, 3 million fewer Americans will be covered under employer health plans; and further, millions of seniors may lose the Medicare plan they have and that they want to keep. That is called Medicare Advantage. We also heard the President say that he won't support legislation that increases the deficit one dime. We now know that is not true. We saw yesterday an attempt at incredible gimmickry to do away with $247 billion worth of debt that would have been associated with health care. Obviously, it is a way to get around the $\1/4\ trillion increase in the cost of health care that would have accrued if we had kept doing what we are doing. We all know that the true implementation cost of the proposal in the Senate Finance Committee is $1.8 trillion, once you look at the real numbers. One of the more entertaining aspects of the protestations of cost savings is the approach that all of these bills take to medical malpractice reform. There is none. There is none. Before the joint session of Congress several weeks ago the President even referenced a grand initiative, that he was going to support medical malpractice reform. Consequently, we found out the announcement was that the administration was going to--get this; I am not making it up--the President was going to accept grant applications for demonstration programs. I say to the President and to my colleagues, there are already demonstration programs: One is called Texas and the other is called California. They have enacted medical malpractice reform and it has saved incredible amounts of money. CBO now estimates that real medical malpractice reforms can save the health care system $54 billion over the next 10 years. Real medical malpractice reform can save as much as $200 billion. My favorite example so far--and then we politicians wonder sometimes why the American people are a little cynical about the things we promise and the things we commit to during political campaigns; that we are going to do A, B and C and you can count on it, et cetera. My favorite so far is when the President was running for office. Three months before he was elected, President Obama vowed not only to reform health care but also to pass the legislation in an unprecedented way. He said: I'm going to have all the negotiations around a big table. He said that at an appearance in Chester, VA, repeating an assertion he had made many times. In referring to the debate on health care, he said the discussions would be-- . . . televised on C-SPAN, so that people can see who is making arguments on behalf of their constituents and who are making arguments on behalf of the drug companies or the insurance companies. Well, maybe the administration and the majority leader don't know where the C-SPAN cameras are. I can get them outside of Senator Reid's office at a moment's notice. In fact, they are televising this. I want to repeat what the President of the United States promised the American people specifically on health care reform. He said the discussions would be-- . . . televised on C-SPAN, so that people can see who is making the arguments on behalf of their constituents and who are making arguments on behalf of the drug companies or the insurance companies. It might be a little late for the drug companies. They have already cut a sweetheart deal with the drug companies. They have agreed to oppose importation of drugs from Canada and oppose competition amongst drug companies for Medicare patient recipients in return for some $80 billion in supposed savings over 10 years, and $100-some million worth of advertising by the drug companies in favor of health care reform. I am not making it up. President Obama also said he didn't want to be-- . . . negotiating behind closed doors but bringing all parties together and broadcasting those negotiations on C- SPAN so the American people can see what the choices are. Because, part of what we have to do is enlist the American people in this process. The last I saw, they were trying to enlist the AMA by doing a $247 billion unpaid for deal so that they could buy their support. They bought the drug companies. They couldn't buy the health insurance companies, so now they are going to retaliate against them by removing their antitrust exemptions. One thing I have to say for this administration, they know how to play hardball. They know how to play hardball. But they also don't seem to care about the commitments that the President made during his campaign for the Presidency. I see my colleague is here--Senator Barrasso--and he wants to speak also, but I say to my colleagues on the other side of the aisle, the American people are tired of this behind-closed-doors dealmaking, deal cutting, which none of us on this side of the aisle have had anything to do with and very few on the other side of the aisle. They are doing a multi-trillion-dollar deal which will affect the future and the lives of 300 million Americans eventually. It is not right. This process is not right. The process they should be going through is exactly the one that the President promised the American people when he was running for President of the United States. Mr. President, I yield the floor.

Mr. McCAIN

Mr. McCAIN. Mr. President, I yield myself such time as I may consume. Today, the Senate begins consideration of the conference report to accompany this year's national defense authorization bill providing our soldiers, sailors, airmen, marines, and their families with the support they need and deserve. This is a responsibility I do not take lightly, especially during a time of war. It is a responsibility my good friend and colleague Senator Levin understands very well. I thank and commend Senator Levin for his skill in shepherding this bill through the conference process in a bipartisan fashion. I thank Senator Levin for his leadership. I thank him for his commitment to the men and women who are serving in the military and the long relationship we have enjoyed working together as colleagues in that effort. The conference report largely supports the defense priorities laid out by Secretary Gates and authorizes over $550 billion in base program funding for the Department of Defense and the national security programs of the Department of Energy. Additionally, the legislation authorizes over $129 billion in overseas contingency operations funding for ongoing activities in Iraq, Afghanistan, Pakistan, and other regional operations and support of the war on terrorism. The conference report demonstrates our bipartisan support for the men and women of the Armed Forces and their families and provides them with the pay, benefits, equipment, and training they need and deserve. The report increases benefits for our wounded warriors and provides an across-the-board pay raise for our military. The report terminates production of the F-22 aircraft, contains no funding for additional C-17 cargo aircraft, provides full funding for procurement of 30 Joint Strike Fighters, and fully authorizes funding to train and equip the Afghan National Army and police forces. I am disappointed that we are unable to eliminate funding for the continued development of the alternative engine for the Joint Strike Fighter. As Secretary Gates said, ``This program is unnecessary and could disrupt the overall JSF Program by diverting resources away from efforts needed for the continuation of that program.'' During the more than 20 years Senator Levin and I have worked together, we have had our share of respectful disagreements, and this year is no exception. I strongly disagree with the majority's decision to include hate crimes legislation in the national defense authorization bill. I have consistently opposed attaching hate crimes legislation to the national defense authorization bill in years past. This year, I again objected to the inclusion of this nongermane, nonrelevant language as an amendment to the defense authorization bill when the bill was being considered on the floor of the Senate. Today, I remain strongly opposed to its inclusion in the conference report. The defense authorization bill is not the appropriate vehicle for consideration of hate crimes legislation. It is not germane to the work of the Armed Services Committee. The stand-alone legislation, S. 909, has not even been considered by the Senate Judiciary Committee, where it could have been debated, modified, improved, and brought to the floor of the Senate. What we are doing here is an abuse of the Senate process. I also object to the language itself because it would create a new Federal crime for willfully causing bodily injury to any person due to the actual or perceived race, national origin, religion, or gender identity, sexual orientation, or disability of any person. I do not believe an expansion of the Federal criminal code is necessary to cover a certain class of citizens from ``perceived injustices.'' Let me tell you one of the biggest problems I have here. We have now seen a virtual disappearance of authorization bills for various functions of government from Senate consideration. We have done that because extraneous and nongermane issues have been raised on those authorization bills. I don't remember the last time we had authorization bills for foreign operations out of the Foreign Relations Committee. I don't know when we have had authorization for other branches of government. The reason is because they always get bogged down in extraneous amendments on both sides. I am not placing the blame on the other side. I am placing the blame on both sides. This then bogs down the legislation which then, because of the exigencies of time, means we are not able to address the proper authorizing process for many functions of government. That, then, throws it all into the appropriations process. Of course, that is now an enormous shift of power and authority and responsibility from the authorizing committees, in whom the responsibility should lie, to the appropriating committees which are simply only supposed to appropriate money for previously authorized functions of government. I worry a great deal about that. The only bill that has been consistently passed for many years through the Senate and into law is the Defense authorization bill. The Defense authorization bill is vital. We are now starting a very dangerous precedent by adding a very large and controversial provision, which is nongermane and nonrelated to defense, to a Defense authorization bill. As my friend Senator Levin will point out, there have been other times where provisions have been added to this bill which were nongermane. Nothing of this magnitude, nothing of the controversy that is associated with the hate crimes legislation which was tacked on to this bill without any consideration in the committee itself. There was no committee consideration. When the bill came to the floor, bang, the first amendment out of the box was the hate crimes legislation which, of course, tied up the legislation for some days. I understand the realities around here. I know what majority votes are. I know what majority membership in this body means. It was jammed through. I want to tell my colleagues, if we allow hate crimes to be added to this Defense authorization bill, what is next? What pet project or legislation on the part of the majority leader or the majority will be included in the next authorization bill? If this legislation is signed into law, it will force police and prosecutors to treat identical crimes differently depending on a police officer or prosecutor's determination of the political, gender, philosophical, or even religious beliefs of the offender. Our legal system is based on identifying, capturing, and punishing criminals, not on using the power of government to divine biases. Crimes motivated by hate deserve vigorous prosecution, and I strongly support punishing those who commit such heinous acts under existing laws. Moreover, I am committed to a full and transparent debate on the issue. But I strongly oppose using the men and women of the military as the vehicle to pass this controversial and partisan legislation. The Detroit News editorialized: Certainly, threats of violence or violence against individuals for any reason should be prosecuted to the full extent of the law. Not, however, because the victims are members of a particular race or sex, adherents of a particular religion or are gay. These crimes should be punished because the victims are uniquely valuable individuals who deserve the protection of the law solely on that basis. The idea of special prosecutions for ``hate crimes'' is inherently divisive. I am pleased the conference report does retain some legislative language offered by Senator Brownback during Senate debate on the bill. The Brownback language clarifies that nothing in the hate crimes legislation language shall be construed as an infringement on Americans' first amendment rights. Additionally, his amendment ensures that nothing in the hate crimes language should be construed to overturn ``the Religious Freedom Restoration Act of 1993'' that ensures our laws do not substantially burden Americans' free exercise of their religion. The majority had the votes in July to add hate crimes to the Senate bill, and I am sure the majority will again have the votes today to invoke cloture on the conference report containing hate crimes language. It is indeed, unfortunate, that we are using the brave men and women in uniform as leverage to pass hate crimes legislation. This legislation should have gone through the Judiciary Committee. That is the oversight committee. That is the committee of jurisdiction. I know my colleagues who are here on the floor will be justifying this legislation on the grounds of how badly it is needed. I say to the majority, who controls the legislative schedule here, they could have had this bill through the Judiciary Committee and on the floor of the Senate and passed in the Senate in the proper fashion and not put hate crimes on a bill that cares for the men and women serving in the military today. I worry a great deal about the precedent we will be setting by including an incredibly controversial piece of legislation in the Defense authorization bill which provides for our first and foremost obligation, and that is to secure the safety and welfare of our fellow citizens. Finally, I believe it is important to note that the Defense authorization bill has been the only authorization bill that the U.S. Congress has consistently passed every year. Other authorization bills have often fallen under the weight of provisions inserted into must- pass bills that are not relevant to the legislation and highly controversial. The lives of our men and men serving abroad literally depend on our ability to consistently and reliably pass this authorization bill every year. I am not willing to take a gamble with our troops. For these reasons I cannot in good conscience vote to support the motion to invoke cloture on this bill, and I encourage my colleagues to do the same. Prior to the final vote on passage of the conference report, I plan to speak in more detail about the overall bill and the commitment we have made in this conference report to do everything possible to ensure our soldiers, sailors, airmen, and marines receive the support they deserve and need, as well as a message we need to send those brave men and women and their families whom we support and stand behind. I will vote against cloture. I will vote for final passage of the legislation in deference to our need to care for the men and women who are serving. I also would point out that if cloture is not invoked, we could immediately pass a resolution reconvening the conference and get this bill done today. But that is not going to happen, unfortunately. I yield the floor.

Mr. McCAIN

Mr. McCAIN. Mr. President, today I am pleased to introduce legislation that would prohibit the Federal Communications Commission from enacting rules that would seek to regulate the Internet. Today the commission will meet to determine whether the historically open architecture and free flow of the Internet should be subject to onerous Federal regulation. Specifically, the commission will seek to impose ``net neutrality'' rules that would reign in the network management practices of all Internet service providers, including wireless phone companies. Skeptical consumers should rightly view these new rules as yet another government power grab over a private service provided by a private company in a competitive marketplace. Earlier this year the administration moved to control much of the auto industry and the banking industry and now the administration is trying to control the technology industry by regulating its very core: the Internet. This government takeover of the Internet will stifle innovation, in turn slowing our economic turnaround and further depressing an already anemic job market. Outside of health care, the technology industry is the nation's fastest growing job market. Innovation and job growth in this sector of our economy is the key to America's future prosperity. In 2008, while most industries were slashing jobs in the worst economy in nearly 30 years, high tech industries actually added over 77,000 good high-paying jobs. Just this month, Google and Yahoo both released positive earnings reports. According to a report released last week by the Recovery Accountability and Transparency Board, which oversees the stimulus plan, 30,000 jobs have been directly created or saved by contractors who received money from the $787 billion stimulus package for infrastructure and social programs. This pales in comparison to the fact that the high tech industry produced more than double the number of jobs so far ``created or saved'' by the so-called ``stimulus legislation.'' It did so without the assistance of $787 billion from the wallets of taxpayers. Maybe a better stimulus package for this economy would be an administration decision to keep the Internet free of government control and regulation. Unfortunately, the administration seems oblivious to the fact that their stated opposition to the supposed excesses of capitalism is at odds with a new regulatory regime being lobbied for by the most powerful businesses. As the Chairman of the Federal Communications Commission has recognized, Americans have benefitted enormously from the Internet's ``fundamental architecture of openness.'' The light touch regulatory approach toward the Internet that was advanced by previous administrations has brought Americans social networking, low cost long distance calling, texting, telemedicine and over 85,000 ``apps'' for the iPhone. It also brought us Twitter, You Tube, Hulu, Kindle, the Blackberry and the Palm. It has allowed the Internet to change our lives forever. The wireless industry exploded over the past twenty years due to limited government regulation. Wireless carriers invested $100 billion in infrastructure and development over the past three years which has led to faster networks, more competitors in the marketplace and lower prices compared to any other country. Meanwhile, wired telephones and networks have become a slow dying breed as they are mired in state and Federal regulations, universal service contribution requirements and limitations on use. It is for these reasons that today I introduce The Internet Freedom Act of 2009 that will keep the Internet free from government control and regulation. This will allow for continued innovation that will in turn create more high-paying jobs for the millions of Americans who are out of work or seeking new employment. Keeping businesses free from oppressive regulations is the best stimulus for the current economy.

Mr. McCAIN

Mr. McCAIN. Mr. President, today I am pleased to introduce legislation that would prohibit the Federal Communications Commission from enacting rules that would seek to regulate the Internet. Today the commission will meet to determine whether the historically open architecture and free flow of the Internet should be subject to onerous Federal regulation. Specifically, the commission will seek to impose ``net neutrality'' rules that would reign in the network management practices of all Internet service providers, including wireless phone companies. Skeptical consumers should rightly view these new rules as yet another government power grab over a private service provided by a private company in a competitive marketplace. Earlier this year the administration moved to control much of the auto industry and the banking industry and now the administration is trying to control the technology industry by regulating its very core: the Internet. This government takeover of the Internet will stifle innovation, in turn slowing our economic turnaround and further depressing an already anemic job market. Outside of health care, the technology industry is the nation's fastest growing job market. Innovation and job growth in this sector of our economy is the key to America's future prosperity. In 2008, while most industries were slashing jobs in the worst economy in nearly 30 years, high tech industries actually added over 77,000 good high-paying jobs. Just this month, Google and Yahoo both released positive earnings reports. According to a report released last week by the Recovery Accountability and Transparency Board, which oversees the stimulus plan, 30,000 jobs have been directly created or saved by contractors who received money from the $787 billion stimulus package for infrastructure and social programs. This pales in comparison to the fact that the high tech industry produced more than double the number of jobs so far ``created or saved'' by the so-called ``stimulus legislation.'' It did so without the assistance of $787 billion from the wallets of taxpayers. Maybe a better stimulus package for this economy would be an administration decision to keep the Internet free of government control and regulation. Unfortunately, the administration seems oblivious to the fact that their stated opposition to the supposed excesses of capitalism is at odds with a new regulatory regime being lobbied for by the most powerful businesses. As the Chairman of the Federal Communications Commission has recognized, Americans have benefitted enormously from the Internet's ``fundamental architecture of openness.'' The light touch regulatory approach toward the Internet that was advanced by previous administrations has brought Americans social networking, low cost long distance calling, texting, telemedicine and over 85,000 ``apps'' for the iPhone. It also brought us Twitter, You Tube, Hulu, Kindle, the Blackberry and the Palm. It has allowed the Internet to change our lives forever. The wireless industry exploded over the past twenty years due to limited government regulation. Wireless carriers invested $100 billion in infrastructure and development over the past three years which has led to faster networks, more competitors in the marketplace and lower prices compared to any other country. Meanwhile, wired telephones and networks have become a slow dying breed as they are mired in state and Federal regulations, universal service contribution requirements and limitations on use. It is for these reasons that today I introduce The Internet Freedom Act of 2009 that will keep the Internet free from government control and regulation. This will allow for continued innovation that will in turn create more high-paying jobs for the millions of Americans who are out of work or seeking new employment. Keeping businesses free from oppressive regulations is the best stimulus for the current economy.

Mr. McCAIN

Mr. McCAIN. Mr. President, I am joined by my friend and colleague and fellow warrior, Senator Feingold. He and I both have some remarks to make. I was chosen to go first, and then Senator Feingold, I know, will also want to address what we think is a very important issue. This is the issue of the U.S. Supreme Court case Citizens United v. Federal Election Commission. On September 9, the U.S. Supreme Court heard oral arguments from both sides in the Citizens United v. Federal Election Commission. The implications of this case are very serious, and the Supreme Court's decision could result in the unraveling of over 100 years of congressional action and judicial precedent with respect to corporate spending in political campaigns. Senator Feingold and I were present in the Supreme Court chamber for the arguments in this case. I commend both sides for presenting their case in a thoughtful, intelligent manner. However, there was one part of the argument I found particularly disturbing. While responding to a question from Justice Alito, the Solicitor General was interrupted by Justice Scalia, who said: Congress has a self-interest. I mean, we--we are suspicious of Congressional action in the First Amendment area precisely because we--at least I am-- Here is the interesting part, when Justice Scalia said: I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so. Yes, I think it is excessively cynical. I take great exception to Justice Scalia's statement, as should every Member of both Houses of Congress. It is an affront to the thousands of good, decent, honorable men and women who have served this Nation in these Halls for well over 200 years. Not only was Justice Scalia's statement excessively cynical, it showed his unfortunate lack of understanding of the facts and history of campaign reform. Throughout our history, America has faced periods of political corruption, and in every instance, Congress has risen above its own self-interest and enacted the necessary reforms to address the scandals and corruption that have plagued our democratic institutions over time and throughout our history. The Tillman Act in 1907, the Publicity Act of 1910, the Federal Corrupt Practices Act in 1925, the Public Utilities Holding Act in 1935, the Hatch Act in 1939, the Smith-Connelly Act in 1943, the Taft-Hartley Act of 1947, the Long Act in 1968, the Federal Election Campaign Act in 1974, and the bipartisan Campaign Reform Act in 2002 are just some of the reforms enacted by Congress over the years to address corruption in our government and in our campaigns. Simply put, history has proven Justice Scalia wrong in his assessment that Congress will not act in anything but a self-serving manner. Justice Scalia's statement was also remarkable in that it exposed his belief that when it comes to issues relating to campaign reform, he somehow is a better arbiter of what is needed to reform the electoral process than the Congress or the American people. With all due respect, that is not the job of the judicial branch. Judges who stray beyond their constitutional role to try and take Congress's place as policymakers falsely believe that judges somehow have a greater insight into what legislation is necessary and proper than representatives who are duly elected by the people and accountable to them every several years. Activist judges--regardless of whether it is liberal or conservative activism--assume the judiciary is a superlegislature of moral philosophers, entitled to support Congress's policy choices whenever they choose. I believe this judicial activism is wrong and is contrary to the Constitution. Our Constitution is very clear in its delineation and dispersement of power. It solely tasks the Congress with creating law, not the courts. I have a long history of opposing activist judges. Judicial activism demonstrates a lack of respect for the popular will, and that is at fundamental odds with our republican system of government. I believe a judge should seek to uphold all acts of Congress and State legislatures, unless they clearly violate a specific section of the Constitution, and refrain from interpreting the law in a manner which creates new law. That is a fundamentally conservative position I have held throughout my career. I wish Justice Scalia shared that position. Let us be very clear. At stake in the Citizens United case are the voices of millions and millions of Americans that could be drowned out by large corporations if the decades-old restrictions on corporate electioneering are rescinded. Overturning Supreme Court precedent would open the floodgates to unlimited corporate and union spending during elections and undermine election laws across the country. Those able to spend tens of millions of dollars, such as a Fortune 500 company or a big labor union, are much more likely to be heard during an election than the average American voter is. For this reason, I have always advocated laws that would prevent big-moneyed special interests from drowning out the voices of individual American citizens in elections and dominating the decisionmaking process of our government. Contrary to some of my critics, I am a firm believer in the first amendment. For more than 100 years, laws have stood to limit corporate donations to political candidates and campaigns--for more than 100 years. The concern about corporate involvement in campaigns is not new in America. On September 3, 1897, in a speech on government and citizenship, Elihu Root, who would go on to become Theodore Roosevelt's Secretary of State and a Nobel Peace Prize winner, said: The idea . . . is to prevent the great moneyed corporations of the country from furnishing the money with which to elect members of the legislature . . . in order that those members of the legislature may vote to protect the corporations. It is to prevent the great railroad companies, the great insurance companies, the great telephone companies, the great aggregations of wealth, from using their corporate funds, directly or indirectly, to send members of the legislature to these halls, in order to vote for their protection and the advancement of their interests as against those of the public. It strikes, Mr. Chairman, at a constantly growing evil in our political affairs, which has, in my judgment, done more to shake the confidence of the plain people of small means in our political institutions, than any other practice which has ever obtained since the foundation of our government. Remember, this was in 1897. He went on to say: And I believe that the time has come when something ought to be done to put a check upon the giving of $50,000 or $100,000 by a great corporation toward political purposes, upon the understanding that a debt is created from a political party to it; a debt to be recognized and repaid with the votes of representatives in the legislature and in Congress, or by the action of administrative or executive officers who have been elected in a measure through the use of the money so contributed. Additionally, one can make the case that the concern about corporate influence extends as far back as our Founding Fathers. In 1816, Thomas Jefferson wrote: I hope we shall crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government in a trial of strength, and bid defiance to the laws of our country. Kentucky was the first State to ban corporations from spending their funds in State elections in 1891, and by 1897 Florida, Missouri, Nebraska, and Tennessee had all enacted similar corporate spending prohibitions in their State elections. While some States began enacting limits on the influence of money on politics during the Civil War era, Congress did not begin to pass major campaign finance regulations until some decades later. By that time, political contributions by major corporate interests and business leaders dominated campaign fundraising, and this development sparked the first major movement for national reform. Progressive reformers, such as President Theodore Roosevelt and investigative journalists, charged that these business interests were attempting to gain special access and favors; thereby, corrupting the democratic process. This reform movement, combined with allegations of financial impropriety in the 1904 Presidential election, resulted in the enactment of significant reforms. On October 1, 1904, Joseph Pulitzer published an editorial in the New York World questioning President Roosevelt's ties to many of the large corporations that had donated to his campaign. Those questions led Roosevelt's opponent, Judge Alton Parker, to describe the donations as blackmail and insinuated there was a quid pro quo involved. President Roosevelt responded angrily, calling the accusations monstrous and said: The assertion that there has been any blackmail, direct or indirect . . . is a falsehood. The assertion that there has been made any pledge or promise or that there has been any understanding as to future immunities or benefits, in recognition from any source is a wicked falsehood. President Roosevelt, not wanting to give the appearance of improper influence, directed his staff to return a $100,000 contribution from the Standard Oil Corporation. In his memo he wrote: We cannot under any circumstances afford to take a contribution which can be even improperly construed as putting us under an improper obligation. The allegations of impropriety also led Roosevelt to call for an end to corporate donations to campaigns. In his fifth annual message to the Congress on December 5, 1905, Roosevelt said: The power of the Government to protect the integrity of the elections of its own officials is inherent and has been recognized and affirmed by repeated declarations of the Supreme Court. There is no enemy of free government more dangerous and none so insidious as the corruption of the electorate. He warned: If [legislators] are extorted by any kind of pressure or promise, express or implied, direct or indirect, in the way of favor or immunity, then the giving or receiving becomes not only improper but criminal. All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in the corrupt practices acts. Not only should both the national and the several State legislatures forbid any officer of a corporation from using the money of the corporation in or about any election, but they should also forbid such use of money in connection with any legislation. Again, the following year, in his sixth annual message to Congress in December 1906, President Roosevelt tried to limit corporate influence, stating: I again recommend a law prohibiting all corporations from contributing to the campaign expenses of any party. Such a bill has already passed one House of Congress. Let individuals contribute as they desire . . . I repeat what he said: Let individuals contribute as they desire; but let us prohibit in effective fashion all corporations from making contributions for any political purpose, directly or indirectly. In January 1907, Theodore Roosevelt signed into law the Tillman Act. This law prohibited nationally chartered banks and corporations from contributing to campaigns. In the report to accompany the Senate version of the legislation, dated April 27, 1906, the Senate Committee on Privileges and Elections wrote: The evils of the use of money in connection with political elections are so generally recognized that the committee deems it unnecessary to make any argument in favor of the general purpose of this measure. It is in the interest of good government and calculated to promote purity in the selection of public officials.'' Following passage of the Tillman Act, Roosevelt again addressed the issue in his Seventh Annual Message to Congress in December, 1907. He said: Under our form of government voting is not merely a right but a duty, and, moreover, a fundamental and necessary duty if a man is to be a good citizen. It is well to provide that corporations shall not contribute to Presidential or National campaigns, and furthermore to provide for the publication of both contributions and expenditures. Although the Tillman Act constituted a landmark in Federal law, according to campaign finance expert Anthony Corrado, ``its adoption did not quell the cries for reform. Eliminating corporate influence was only one of the ideas being advanced at this time to clean up political finance.'' In the years following the passage of the Tillman Act, reducing the influence of wealthy individuals and labor unions became a concern and reformers pushed for further limits on donations. Consequently, in 1947, Congress enacted the Taft-Hartley Act, which explicitly banned corporate and labor union expenditures in Federal campaigns. In doing so, Senator Robert Taft made clear that the purpose of the new language was simply to affirm what had been understood to always be the case--that the 1907 corporate ban had prohibited corporate expenditures, or indirect contributions, as well as direct corporate contributions. A ban on corporate expenditures in campaigns has been consistently upheld by the Supreme Court as constitutional and as ``firmly embedded in our law.'' The constitutionality of the ban on corporate campaign expenditures was upheld by the Supreme Court in the Austin v. Michigan Chamber of Commerce decision in 1990 and reaffirmed by the Court in the McConnell v. Federal Election Commission decision in 2003. And the corporate expenditure ban had been commented on favorably by the Court in earlier cases. In 1990, in the Austin case, the Supreme Court acknowledged the importance of maintaining the integrity of the political process. From the Court's opinion: Michigan identified as a serious danger the significant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem. By requiring corporations to make all independent political expenditures through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to influence unfairly the outcome of elections. In the McConnell case, the Supreme Court recognized its long-standing support for the constitutionality of bans on corporate campaign expenditures going back to its Buckley decision in 1976. From the Court's decision: Since our decision in Buckley, Congress' power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law. Additionally, in 1982, in the National Right to Work Committee case, the Supreme Court, in an opinion authored by Chief Justice William Rhenquist, stated regarding the Federal ban on corporate and labor union expenditures: The careful legislative adjustment of the federal electoral laws, in a cautious advance, step by step, to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference. [I]t also reflects a permissible assessment of the dangers posed by those entities to the electoral process. In order to prevent both actual and apparent corruption, Congress aimed a part of its regulatory scheme at corporations. The statute reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. Nor will we second guess a legislative determination as to the need for prophylactic measures where corruption is the evil feared. As we said in California Medical Association v. FEC, the ``differing structures and purposes; of different entities `may require different forms of regulation in order to protect the integrity of the electoral process . . .' '' The governmental interest in preventing both actual corruption and the appearance of corruption of elected representatives has long been recognized, First National Bank of Boston v. Bellotti, supra, and there is no reason why it may not in this case be accomplished by treating unions, corporations and similar organizations different from individuals. In 1986, in the Massachusetts Citizens for Life case, the Supreme Court stated regarding the Federal ban on corporate expenditures in campaigns: This concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas . . . Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace . . . The resources in the treasury of a business corporation . . . are not an indication of popular support for the corporation's political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas. By requiring that corporate independent expenditures be financed through a political committee expressly established to engage in campaign spending, section 441b seeks to prevent this threat to the political marketplace. The resources available to this fund, as opposed to the corporate treasury, in fact reflect popular support for the political positions of the committee. If anyone has doubts about the influence of big-moneyed special interests on policy makers in this town, let me relay a personal observation. During the Senate Commerce Committee's consideration of the 1996 Telecommunications Act, every company affected by the legislation had purchased a seat at the table with soft money. Consequently, the bill attempted to protect them all, a goal that is obviously incompatible with competition. Consumers, who only give us their votes, had no seat at the table, and the lower prices that competition produces never materialized. Cable rates went up. Phone rates went up. And huge broadcasting giants received billions of dollars in digital spectrum, property that belonged to the American people, for free. They got it for free, billions of dollars worth of spectrum. Information gathered from various sources in the press at the time indicated that the special interest groups involved spent nearly $150 million to lobby Congress on telecommunications reform--and they all came out on top--at the expense of the American consumer. Similarly, the pharmaceutical industry has spent millions of dollars to sway lawmakers against the idea of drug importation. In the 2008 election cycle, pharmaceutical companies gave almost $30 million in campaign contributions to Members of Congress. Just this year, according to an article published in the June 3 edition of The Hill, the prescription drug industry has given more than one million dollars to both Republicans and Democrats. And these contributions were from the limited funds of corporate PACs--a fraction of the flood of money that could be spent out of corporate treasuries if the Supreme Court changes the law by judicial fiat. As my colleagues know, for many years my colleague from Wisconsin, Senator Feingold and I fought to ban soft money--the large, unregulated donations from corporations, labor unions, and wealthy individuals-- from Federal elections. As the sponsors of the Bipartisan Campaign Finance Reform Act, we submitted, together with our colleagues from the House, Representatives Shays and Meehan, a brief for the court. In this brief we stated: More fundamentally, Austin and McConnell were correctly decided. Unlimited expenditures supporting or opposing candidates may create at least the appearance of corruption, as Caperton v. A.T. Massey Coal Co. illustrates. The tremendous resources business corporations and unions can bring to bear on elections, and the greater magnitude of the resulting apparent corruption, amply justify treating corporate and union expenditures differently from those by individuals and ideological nonprofit groups. So, too, does the countervailing free-speech interest of the many shareholders who may not wish to support corporate electioneering but have no effective means of controlling what corporations do with what is ultimately the shareholders' money. Austin was rightly concerned with the corruption of the system that will result if campaign discourse becomes dominated not by individual citizens--whose right it is to select their political representatives--but by corporate and union war-chests amassed as a result of the special benefits the government confers on these artificial ``persons.'' That concern remains a compelling justification for restrictions on using corporate treasury funds for electoral advocacy--constraints that ban no speech but only require that it be funded by individuals who have chosen to do so. The holdings of Austin and McConnell--that it is constitutional to require business corporations to use segregated funds contributed by shareholders, officers and employees for express candidate advocacy or its functional equivalent--remain sound today. The interests in preventing actual or apparent corruption of the electoral process and protecting shareholders provide compelling justification for such requirements, which neither unduly burden nor overbroadly inhibit protected speech. The corporate PAC option, moreover, is ideally suited to balancing the First Amendment interests of corporate entities and their shareholders. It allows the corporation to direct political spending only to the extent shareholders have personally decided to contribute for that specific purpose. It thus ensures that the corporation may have a voice, but one that is not subsidized unwillingly by those who may disagree with its electoral message. And there is no basis in the record for concluding that PACs are inadequate or unduly burdensome for business corporations, whatever may be true of certain ideological nonprofit corporations. Indeed, PAC requirements pale in comparison with the detailed recordkeeping and accounting otherwise required of corporations and unions. The ability of corporate campaign expenditures to buy influence with Federal officeholders, and to create the appearance of such influence- buying is sadly evident in nearly every aspect of the legislative process. This fact was recognized in the McConnell case. The brief filed in the McConnell case by me and my colleagues stated: Not surprisingly, the McConnell record provided strong corroboration that corporate and union expenditures on ads that were the functional equivalent of express advocacy created the appearance of corruption. Based on that record, Judge Kollar-Kotelly found that such expenditures ``permit corporations and labor unions to inject immense aggregations of wealth into the process'' and ``radically distort the electoral landscape.'' She further found that candidates are ``acutely aware of'' and ``appreciate'' such expenditures, and ``feel indebted to those who spend money to help get them elected.'' She concluded that ``the record demonstrates that candidates and parties appreciate and encourage corporations and labor unions to deploy their large aggregations of wealth into the political process,'' and that ``the record presents an appearance of corruption stemming from the dependence of officeholders and parties on advertisements run by these outside groups.'' According to the Solicitor General's brief, the record in the McConnell case showed that: Federal officeholders and candidates were aware of and felt indebted to corporations and unions that financed electioneering advertisements on their behalf or against their opponents. The brief further stated: [T]he record compiled in the McConnell case indicated that corporate spending on candidate-related speech, even if conducted independent of candidates, had come to be used as a means of currying favor with and attempting to influence Federal office-holders. It is important for us to remember that this case does not affect solely the integrity of Federal elections. The States also have a great deal at stake in this case. In a brief filed in the Citizens United case, 26 State attorneys general wrote that ``Courts have repeatedly upheld these State and Federal corporate electioneering restrictions from their inception.'' In their brief, the attorneys general wrote: This case does not concern the traditional regulation of corporate spending by State Laws. Instead it presents the application of a recent Federal statute to a novel form of political campaigning through the medium of video-on-demand and the message of a ninety-minute film. These and other political campaign innovations present an occasion to draw on State law experiments, not end them. The court cannot reach the validity of these laws under Austin without departing from its conventional approach to constitutional avoidance and as-applied review of campaign finance statutes, and ignoring its cautions against facial challenges in election law generally. Austin follows a century of campaign finance law at the State and Federal level honed by six decades of this Court's holdings. Those decisions, and the State and Federal laws that gave rise to and rely on them, delineate a workable segregated-fund requirement for corporate electioneering that is embedded in campaign laws and practice at the Federal and State level. While imposing minimal burdens on corporations, the segregated fund protects the integrity of the political process from the corrupting influence of corporate executives funding political campaigns that have no proven support from the shareholders or customers whose money pays for the advocacy. The flourishing of corporate speech through PACs, and continued harms of direct corporate electioneering, has vindicated rather than undermined Austin's approval of segregated funds. It is clear that the Austin and McConnell cases were correctly decided on the merits and those decisions remain sound today. According to the brief filed by the U.S. Solicitor General: The Court in Austin held that corporations may constitutionally be prohibited from financing electoral advocacy with funds derived from business activities. That holding was correct when issued and should not be overturned now. Use of corporate treasury funds for electoral advocacy is inherently likely to corrode the political system both by actually corrupting political officeholders and by creating the appearance of corruption. Moreover, such use of corporate funds diverts shareholders' money to the support of candidates who the shareholders may oppose. Congress's interest in preventing these pernicious consequences is compelling, and Congress has chosen a valid message of achieving it, requiring a corporation to fund its electoral advocacy through the voluntary contributions of officers and shareholders who agree with its political statements. The Solicitor General's brief further stated: Corporate participation in candidate elections creates a substantial risk of corruption or the appearance thereof. Corporations can use electoral spending to curry favor with particular candidates and thus to acquire undue influence over the candidates' behavior once in office. The record in McConnell, which is by far the most extensive body of evidence ever compiled on these issues, indicates that during the period leading up to BCRA's enactment, Federal office-holders and candidates were aware of and felt indebted to corporations and unions that financed electioneering advertisements on their behalf or against their opponents. The nature of business corporations makes corporate political activity inherently more likely than individual advocacy to cause quid pro quo corruption or the appearance of such corruption. Even minor modifications in complex legislation have great potential to benefit or burden particular companies, industries, or sectors. The economic stake of corporations in the nuances of such matters as industry-specific tax credits, subsidies, or tariffs generally dwarfs that of any set of individuals. And when those benefits can be obtained through a game of ``pay to play,'' corporations are better suited than individuals to afford the ante. Corporate managers need not assemble a coalition of the like-minded; they can draw on the firm's entire capitalization without seeking the approval of shareholders. If only businesses can afford the investment necessary to pursue rents in this way, only businesses can reap the (even larger) reward. And the public perception that businesses reap such rewards from legislators whom they support in campaigns creates an appearance of corruption that corrodes popular confidence in our democracy. At the heart of the Citizens United case is a critical question: Do the cherished individual rights protected by the Constitution extend in the same manner to corporations? Corporations, after all, are artificial creations of law, provided for by acts of Congress and the State legislaturs, and endowed under these laws with perpetual existence, special tax status, and other privileges, all for the sole purpose of economic gain. The resolution of this question in the affirmative will have wide-ranging and unpredictable results for our legal system. For example, if the Court determines corporations have first amendment rights, it will be logical that corporations also have fifth amendment rights against self-incrimination. Is a corporation ``endowed by its creator with inalienable rights''? Just last year the Court found that the second amendment right to bear arms is a personal right. If the Court were to determine that corporations had the same rights as persons, would corporations have the right to arm themselves? Would lobbies of Fortune 500 companies contain grand weapon caches? The absurdity of the argument should be apparent to the members of the Court. John Marshall, former Chief Justice of the Supreme Court, wrote in 1819 that corporations were ``an artificial being, invisible, intangible.'' Therefore, he stated, ``Being the more creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence.'' Essential to a corporation's existence is a first amendment right to speak about their products and services. Essential to a corporation's existence is the right to sue for the theft of its intellectual property. Essential to a corporation's existence is the right to enter into contracts. Not essential to a corporation's existence is the ability to contribute unlimited funds to political candidates. It is for this reason and others that the Supreme Court has repeatedly and consistently upheld a ban on direct contributions to political candidates by corporations and unions. Chief Justice Roberts stated at one point during the argument in the Citizens United case that: ``We do not put our First Amendment rights in the hands of FEC bureaucrats.'' I agree. And that is why the Court has repeatedly upheld bans passed by the Congress of the United States and by the State legislators on unlimited corporate or union spending in elections. Under current law, corporations are free to give to political candidates through political action committees. In an editorial in the Boston Globe entitled ``Corporations Aren't People Yet,'' the editorial board rightly states: ``Even under current financial restrictions, health care industry groups are pouring millions of dollars into Congressional campaigns in the hope of thwarting reforms that might constrain their members.'' A September 10, 2009 editorial in the Philadelphia Inquirer stated: Allowing corporations to flood elections with their aggregate corporate wealth would place a heavy thumb on the scales of democracy. If a certain industry did not like the way a Senator voted on environmental regulations, for example, there would be nothing to stop that industry from dumping $200 million into the campaign of that Senator's opponent. The editorial goes on to say: If the high court rules now that corporations have the same political speech rights as individuals, average citizens will have that much more trouble being heard . . . the distinction between corporate speech and individual speech is clear enough, and the importance of limiting the undue influence of money and politics is significant enough that the court, in all its wisdom, should leave well enough alone. I agree. In conclusion, the Court should not overturn precedent and Congress's clear intent to limit corporate contributions to political candidates. In summary, there are three simple points raised by the Court's consideration of the Citizens United case. First, whatever one thinks of a first amendment right for corporations, it is not appropriate for a nondemocratic branch of government to raise a question of the broadest scope at the last minute when such a question was not raised in the trial court and there is no ability to build a record. Congress is the most democratically elected branch of government and should be able to make laws that do not stand in the face of the Constitution whether or not the members of the Court would themselves support such legislation if they served in the elected branches of government. Secondly, the principle enshrined in law for many years was that corporations, because of their artificial legal nature and special privileges, including perpetual existence, pose a unique threat to our democracy. However, the current court seems poised to find that Thomas Jefferson, Theodore Roosevelt, and others were wrong despite there being no record built on this point in this case. In McConnell, there was a record built to support the decision. Here, the trial court never examined the idea of corporations having broad first amendment rights. The Court is reaching to find such a conclusion as part of the Citizens United case. Lastly, I stress again to my colleagues the implications of the decision the Court may reach in this case. The Court is considering a question that may lead to corporations being treated as ``persons'' under the Constitution, would allow corporations to assert a fifth amendment right to refuse to testify under oath and to keep documents from lawful investigations, and would allow corporations to be subject to individual tax brackets. Are my colleagues prepared to provide such rights to corporations? Are my colleagues prepared to pass legislation that taxes corporations and persons at the same rate? If the Court provides full first amendment rights to corporations, there is no reason that corporations could not receive the benefits as well as the responsibilities of being a person. Justice Sandra Day O'Connor wrote in the McConnell decision, and I think with such accuracy, that ``money, like water, will always find an outlet,'' and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits. Again, Justice O'Connor knew better than most jurists, as a former Arizona State Senator, and majority leader of the Arizona State Senate. I hope and wish that the current Court heeds the words of this brilliant jurist who had real-life experiences in politics. Needless to say, I am very concerned about the integrity of our elections should the Supreme Court rule to overturn the Austin decision. I sincerely hope that the Justices will practice restraint and rule in a manner consistent with judicial precedent and the Constitution of the United States of America. I again want to, as I have on many occasions, thank my friend from Wisconsin, a man of courage and a man of integrity, and a man I have always been proud to be associated with on issues such as these that are important to the integrity of the institution that we both try to serve with honor. I yield the floor.

Mr. McCAIN

Mr. McCAIN. Mr. President, last year, the President of the United States, during his campaign, stated that there was going to be a change in the way we do business here in our Nation's Capitol, and that when it comes time for a conference on a bill that the American people would be brought in; that C-SPAN cameras would be there as Republicans and Democrats in a room that was open to the American public; that they would sit down and negotiate and come forward with results from a process that the American people would all be aware of. I have the direct quote here. So what is going on today? Here is the bill from the HELP Committee. This is only some 600 pages. And over here we have the Finance Committee bill, some 1,500 pages. And not far from here--very close to here--there is a handful of Democrats and administration people behind closed doors who are reconciling these two bills. Sooner or later they will come out of that room--fortunately no longer smoke filled, but certainly with no access or information available for the American people--with perhaps a 2,100-page bill which has yet to be on the Internet so that the American people can see it. A remarkable process. No one should wonder then about the cynicism that is out there in America about the way we do business in our Nation's Capitol. Less than 6 months ago, the President stood before a receptive audience and he told the members of the American Medical Association, and I quote him: Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. Now I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue. I do think we need to explore a range of ideas about how to put patient safety first, how to let doctors focus on practicing medicine. I want to work with the AMA so we can scale back the excessive defensive medicine that reinforces our current system. So this is going to be a priority for me. That is a quote from the President back when he spoke to the AMA less than 6 months ago. Yet in this 600-page document there is not a mention of medical malpractice reform. In this 1,500-page document there are 20 pages of sense-of-the-Senate language. In case there is anyone who doesn't know what sense of the Senate means, it means exactly that. It does not mean law. So the President of the United States talks to the AMA and tells them that we are going to bring about change. We are going to stop this practice of defensive medicine, which by the way, the estimates say account for as much as $200 billion a year added to health care expenses. But what have we got here, and here, and going on behind closed doors? Does anybody believe the Democrats are going to come out with anything that is meaningful on medical malpractice reform? No. But what they will do is to say that we are going to try some demonstration projects. We are going to try some demonstrations. In fact, on September 9, 2009, before a joint session of Congress, the President went a step further and stated: Now, finally, many in this Chamber--particularly on the Republican side of the aisle--have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. Now, I don't believe malpractice reform is a silver bullet, but . . . defensive medicine may be contributing to unnecessary costs. I know that the Bush administration considered authorizing demonstration projects in individual States to test these ideas. And by the way, the reason why they did that was because they couldn't get meaningful malpractice reform through the Congress. Continuing the quote from the President: I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today. Shortly thereafter, the President did issue a memo on medical malpractice reform where he stated: We should explore medical liability reform as one way to improve the quality of care and patient-safety practices and to reduce defensive medicine. So we all read with great interest about the new initiative. The memo went on to state: We must foster better communication between doctors and their patients. We must ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits. And we must work to reduce liability premiums. The memo concluded with the grand policy crescendo and a request that the Secretary of Health and Human Services announce: . . . that the department will make available demonstration grants to States, localities, and health systems for the development, implementation, and evaluation of alternatives to our current medical liability system. There is nothing to be demonstrated. We already have two demonstration States--California and Texas--where medical malpractice laws are working. What is needed is leadership. Despite all the promises, the President and his party have yet to put forward any real medical malpractice liability reforms as part of either of the two health bills that have been shepherded through two Senate committees that are being merged behind closed doors by a select few. I wish to point out that every time we tried to get an amendment on the 600-page bill--not the 1,500-page bill--those amendments to do even the slightest change in medical malpractice were voted down on a party- line basis. It is a failure of leadership. How many patients are subjected to unneeded and unwarranted tests and procedures--some of which are certainly not painless--because the doctor has to perform defensive medicine? How many medical practitioners in America today are like the chief of surgery, the surgeon I met at the Palmetto Medical Center in Miami, who said: No, I don't have insurance. I couldn't afford the premiums. I don't have insurance. But if they sue me, all they can do is take everything I have. What kind of incentive is that for people to engage in the medical profession? As I said, the Finance Committee bill--1,522 pages--contains 20 lines of nonbinding sense-of-the-Senate language that merely expresses a view that ``health care reform presents an opportunity to address issues related to medical malpractice and medical liability insurance.'' Let me repeat that. This is the 1,500-page bill. In 1,500 pages, there are 20 lines of sense-of-the-Senate language which says: ``Health care reform presents an opportunity to address issues related to medical malpractice and medical liability insurance.'' I am not making that up. I am not making it up. It surely does present an opportunity to address issues related to medical malpractice reform. However, the other side passes on such an opportunity. It is a fact that just the narrowest specifics of medical liability reform could save $11 billion this year alone. As I said, there are some estimates which claim it could be as much as $200 billion when you look at the defensive medicine that is being practiced today. California addressed this precise problem in 1975 by passing legislation that capped jury awards for ``noneconomic'' damages such as pain and suffering in medical malpractice suits. Not only does this cap reduce the amount of damages but it has had the effect of deterring unwarranted lawsuits. Malpractice filings have fallen in almost every county in California, medical malpractice insurance premiums have dropped, and patient costs have lessened. In Texas, the trial lawyers had created such a problem for lawsuit abuse that patients didn't have access to doctors for several primary and specialty care services. Women couldn't find OB-GYNs. Several counties didn't even have neurosurgeons or anesthesiologists. Texas put in place a new structure that ensured patients got full compensation for their losses while at the same time curbing lawsuit abuse. In Texas, ``Patients are the ultimate beneficiaries of the tort reform measures passed in 2003,'' said Dan Stultz, M.D., president/CEO of the Texas Hospital Association. It's clear that hospitals are able to attract more specialty physicians and offer new or expanded services that have enhanced patients' access to care and saved lives. A survey conducted by THA--that is the Texas Health Association--in July 2008 found that 85 percent of hospitals are finding it easier to recruit medical specialists and subspecialists. We could replicate these success stories across America, but the other side has refused to consider medical malpractice amendments to the bills. Instead, the Democrats and the White House are attempting to buy the silence of American medical associations and doctors everywhere who support reform by increasing the deficit by $250 billion in Medicare physician payment increases. CBO estimates the medical malpractice reform would reduce the Federal deficit by $54 billion over the next 10 years. Others say it is as high as $200 billion. The question is, is there anyone who denies that medical malpractice reform would not reduce health care costs in America? Is there anyone? Of course not. This bill is ample testimony of the influence of the trial lawyers of America on this body. We should be ashamed. Talk is cheap. This issue requires real leadership. I believe the President needs to stand by his word and put forward real medical malpractice reforms rather than simply request applications for demonstration grants. I hope the President will demonstrate a willingness to listen and a willingness to reach a bipartisan agreement on this important issue. Patients, doctors, hospitals, and taxpayers need action. We are going through an interesting process. Mr. President, 1,522- page and 622-page bills are being merged behind closed doors with a handful of elected representatives, leaving out not only everyone on this side of the aisle and most of the people on that side of the aisle, but the American people are being left out of this process. The American people are getting more and more angry. I don't think this will go over well with the American people. In fact, I think they will steadfastly reject it. I yield the floor and suggest the absence of a quorum.

Mr. McCAIN

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

Mr. McCAIN

Mr. McCAIN. Madam President, parliamentary inquiry: What is the pending business before the Senate?

Mr. McCAIN. And then?

Mr. McCAIN. Madam President, thank you. I suggest the absence of a quorum.

Mr. McCAIN

Mr. McCAIN. Mr. President, later today--in fact, as I understand, in a very short time--the Senate will vote on the conference report to accompany the fiscal year 2010 Department of Homeland Security appropriations bill. This conference report spends approximately $42.7 billion, 6.6 percent above last year's bill. I am sure many American households would love a 6-percent increase in their budget but cannot afford it. The Federal Government can't afford it either. Specifically, this conference report contains 181 congressionally directed spending items totaling over $269 million. As far as I can tell, none of these projects was requested by the administration, authorized, or competitively bid in any way. No hearing was held to judge whether these were national priorities worthy of scarce taxpayers' dollars. By the way, as I recall, when we first started with the Homeland Security Appropriations bills, we had decided at that time there would be no earmarks. So the next time we didn't do them. Then there are a few more. Now there are 181 of them--181, totaling over $269 million. I do not need to remind Americans--I might want to try to keep reminding the appropriators--the Federal deficit now stands at $1.4 trillion. It is an all-time high. Americans are losing their jobs and their homes at record rates. What are we doing? We just keep on spending. Let's take a look at some of the earmarks included in this conference report: $4 million for the Fort Madison Bridge, in Fort Madison, WI. How is that related to homeland security? There is $3.6 million for a Coast Guard Operations Systems Center in West Virginia. Why would the Coast Guard Operations Systems Center be located in a landlocked State? There is $200,000 to retrofit a college radio station in Athens, OH. Let me be clear here. This is to appropriate funds for homeland security. Obviously high on somebody's list is $200,000 to retrofit a college radio station. My, my, my. There is $900,000 for the City of Whitefish Emergency Operations Center in Whitefish, MT. The population is 5,849. That comes out to $153.87 per resident which is paid for by my taxpayers and all American taxpayers. There is $250,000 to retrofit a senior center in Brigham City, UT. The last time I checked, senior centers are important but they have very little relation to homeland security. There is $125,000 to replace a generator in La Grange Park, IL. I have to say, maybe there is something we don't know here. Maybe there is a reason why we need to retrofit a college radio station in Athens, OH; maybe there is a reason we need to replace a generator in La Grange Park, IL; maybe there is a reason why we have to spend $250,000 to retrofit a senior center in Brigham City, UT in the name of homeland security; maybe there is a reason to spend $130,000 to relocate the residents of 130 homes in DeKalb, IL. But we will never know because we don't have any hearings, we don't have any authorization. We just go ahead and spend the money-- 6.6 percent over last year. The original intent was there were not going to be any earmarks. Amazing. In addition to the earmarks contained in the conference report, Congress continues to fund programs that the President, as part of his budget submission, had recommended terminating or reducing. This is the President's budget submission. These are the requests of the President that certain programs be terminated because they are unnecessary and unwanted and redundant. Remember, this is in the face of a $1.43 trillion deficit. We are still funding them, no matter what the President of the United States says and no matter what good sense says. The first amendment I tried was to terminate a terrestrial-based, long-range maritime radio navigation system called the LORAN-C. The Bush and Clinton administrations sought to terminate the program. They tried. The current administration states in its budget that, although the program is not fully developed, it is already ``obsolete technology.'' This is what the President says: The Nation no longer needs this system because the federally supported civilian global positioning system, GPS, has replaced it with superior capabilities. Is there anybody who doubts that GPS is a superior capability? The elimination of this program, according to the President, would achieve a savings of $36 million in 2010 and $190 million over 5 years. Those are not my words, those are the words of the administration. So what have the appropriators done? They continued to fund it. When I offered an amendment to eliminate that obsolete technology that the Nation no longer needs, 36--count them--36 of my colleague also supported it. The majority party in the Senate did not support the administration's view that this program should be eliminated and this conference report continues to fund the program into next year, rather than cutting funding immediately--as we should have done a long time ago. My other attempt to support the President's effort to eliminate wasteful government programs also failed. The administration proposed in its 2010 budget to cut the Over-the-Road Bus Security Program because the money was not awarded based on risk, as recommended by the 9/11 Commission, and the program has been assessed as not effective. The appropriators have now gone against the recommendations of the 9/ 11 Commission, they have gone against the recommendations of the President of the United States, and we will continue to spend another $6 million. I offered the amendment to eliminate the program. The amendment was defeated by a vote of 47 to 51, so we will spend another $6 million that the administration says we do not need and that clearly is unnecessary to be funded. During the Senate consideration of the bill, I filed a total of 28 amendments to strike earmarks and end funding for programs that the President had sought to terminate. Not surprisingly, my efforts were rebuffed each time by the members of the Appropriations Committee. The American people are tired of this process, they are tired of watching their hard-earned money go down the drain. Earlier this year, the President pointedly stated, and I quote him: We cannot sustain a system that bleeds billions of taxpayers dollars on programs that have outlived their usefulness, or exist solely because of the power of politicians, lobbyists or interest groups. We simply cannot afford it. . . . We will go through our Federal budget--page by page, line by line--eliminating those programs we don't need, and insisting those we do operate in a sensible and cost-effective way. This is the document. The President went through it line by line. So we offered amendments to eliminate these programs. So of course the appropriators won again. They not only voted against my attempts to strike wasteful and unneeded spending, they also eliminated a provision that was supported by 54 Members of the Senate to mandate the completion of 700 miles of fence along the Southwest border by December 31, 2010. This elimination will only serve to weaken our efforts to secure the border. We know that fencing alone is not a panacea to every security issue on the border, but there is no doubt that increased fencing bolsters Customs border patrol efforts to secure our border. Additionally, the other body's leadership added language that prohibits use of the funds in this act or any other act for the release of detainees held at Guantanamo into the United States, its territories and possessions. By extending this prohibition to U.S. territories and possessions, the conference report further restricts the release of detainees enacted into law in the supplemental appropriations act for fiscal year 2009. The conference report also restricts transfers of detainees from Guantanamo, limiting them to only transfers for the purpose of prosecution or detention during legal proceedings, and requires the President provide a plan to Congress 45 days prior to transfer. These provisions allow detainees to be tried for acts that amount to war crimes in Federal criminal courts and would authorize bringing detainees into the United States for that purpose. I will continue to believe that war crimes--and by that I include the intentional attacks by civilians that resulted in the loss of nearly 3,000 lives on September 11, 2001--should be tried in a war crimes tribunal created especially for that purpose. The Military Commission's Act of 2009 is a result of extensive input and coordination with the Obama administration. It should be the vehicle for the trial for the horrendous war crimes committed against thousands of innocent American civilians, rather than bringing detainees from Guantanamo to the United States to face trial in a domestic Federal criminal court. I am sure that many of my colleagues read with interest the views of former Attorney General of the United States Michael Mukasey in the Wall Street Journal on Monday, October 19, in which he opposes trial of these detainees who are suspected of being responsible for the 9/11 attacks in Federal criminal court. He says: The Obama administration has said it intends to try several of the prisoners now detained at Guantanamo Bay in civilian courts in this country. This would include Khalid Sheikh Mohammed, the mastermind of the September 11, 2001 terrorist attacks, and other detainees involved. The Justice Department claims our courts are well suited to the task. This is the former Attorney General of the United States who says: Based on my experience trying such cases and what I saw as Attorney General, they are not. That is not to say civilian courts cannot ever handle terrorist prosecutions, but rather their role in a war on terror--to use an unfashionable phrase--should be as the term ``war'' would suggest, a supporting and not a principal role. I ask unanimous consent the article from the Wall Street Journal by the former Attorney General of the United States saying, ``Civilian Courts Are No Place To Try Terrorists,'' be printed in the Record.

Mr. McCAIN. Finally, I hope we will have the opportunity to come back to this debate during the floor consideration of the Commerce-Justice- State appropriations bill in the context of the Graham amendment on this issue, which I am proud to cosponsor along with Senator Lieberman. I am concerned, however, because I understand the administration will soon announce its decision on prosecuting the 9/11 detainees, and indications are the administration will seek such prosecutions in Federal criminal courts. Congress should have the opportunity to speak on this issue before the administration embarks on a course with which I and many law and national security experts strongly disagree. I am also pleased this conference report does contain a provision that will allow the Secretary of Defense to prohibit the disclosure of detainee photographs under the Freedom of Information Act if he certifies that release of the photos would endanger U.S. citizens, members of the Armed Forces, or U.S. Government employees deployed outside the United States. I do not have to, nor should I have to, remind my colleagues about the seriousness of the fiscal crisis our Nation is facing. There is no better way to prove we are serious about getting our country back on the right path than by ending the wasteful practice of earmarking funds in appropriations bills, especially a bill as important as this one that provides for funding of our critical homeland security programs. Our current economic situation and our vital national security concerns require that now more than ever we prioritize our Federal spending. But this conference report does not do that. We cannot continue to spend taxpayer dollars in such an irresponsible manner. So, obviously, I am unable to support this legislation. I encourage my colleagues to vote against it, and if it is passed, I urge the President of the United States to send a message that this is going to stop and veto this bill and every other bill that is larded down with earmarked porkbarrel projects. It is time for a change, a real change. Finally, there are some angry people out there. They call them tea parties. They come to the townhall meetings in huge numbers. They write. They call. They e-mail. They Twitter. They tell us they are sick and tired of this. I urge my colleagues to vote no. I yield the floor.

Mr. McCAIN

Mr. McCAIN. Madam President, will the Senator yield for a question?

Mr. McCAIN. It is my understanding of the proposal that this reform will begin to be implemented in what year?

Mr. McCAIN. 2013, 2014. But when do the taxes that would supposedly implement this proposal kick in?

Mr. McCAIN. So we have 10 years' worth of tax increases to pay for 5\1/2\ years of the implementation of this so-called reform, and then what are the implications in the future?

Mr. McCAIN. I have one more question for my colleague. Is there any provision in the legislation, as you have seen it, that has any approach whatsoever to medical malpractice reform or medical liability reform which, in the view of many experts, could be as much as $100 billion to $200 billion a year?

Mr. McCAIN. Isn't that incredible?