Jeff Merkley

Mr. MERKLEY

Mr. MERKLEY. Madam President, I rise to talk about an issue that is important to many Oregonians, section 735 of the continuing resolution, also known as the Monsanto Protection Act. I appreciate this opportunity to engage in a dialog about it with Senator Stabenow, who, as the chair of the committee, is doing a magnificent job of guiding this farm bill through the Senate. The Monsanto Protection Act refers to a policy rider the House slipped into the recently passed continuing resolution and sent over to the Senate. Because of the time-urgent consideration of this must-pass legislation--necessary to avert a government shutdown--this policy rider slipped through without examination or debate. That outcome is unfortunate and unacceptable because the content of the policy rider is nothing short of astounding. It allows the unrestricted sale and planting of new variants of genetically modified seeds that a court ruled have not been properly examined for their effect on other farmers, the environment, and human health. The impact on other farmers can be significant. The current situation in Oregon of GMO wheat escaping a field test--resulting in several nations suspending the import of white wheat from the United States-- underscores the fact that poorly regulated GMO cultivation can pose a significant threat to farmers who are not cultivating GMO crops. Equally troubling to the policy rider's allowance of unrestricted sale and planting of GMO seeds is the fact that the Monsanto Protection Act instructs the seed producers to ignore a ruling of the court, thereby raising profound questions about the constitutional separation of powers and the ability of our courts to hold agencies accountable. Moreover, while there is undoubtedly some difference in this legislative body on the wisdom of the core policy, there should be outrage on all sides about the manner in which this policy rider was adopted. I have certainly heard that outrage from my constituents in Oregon. They have come to my townhalls to protest, and more than 2,200 have written to me. In an accountable and transparent legislative system, the Monsanto Protection Act would have had to be considered by the Agriculture Committee, complete with testimony by relevant parties. If the committee had approved the act, there would have been a subsequent opportunity to debate it on the floor of this Chamber. Complete transparency with a full opportunity for the public to weigh in is essential. Since these features of an accountable and transparent legislative system were not honored and because I think the policy itself is unacceptable, I have offered an amendment to the farm bill which would repeal this rider in its entirety. To this point, my efforts to introduce that amendment have been objected to, and it takes unanimous consent. This type of rider has no place in an appropriations bill to fund the Federal Government, and a bill that interferes with our system of checks and balances should never have become law.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I regret that we have heard an objection to pulling up this amendment. Many may not understand that to pull up an amendment and to have it considered in the Senate takes unanimous consent. All 100 have to agree. My colleague has objected, making it impossible to consider an amendment that should be debated here on the floor of the Senate because this amendment is about good policy and good process. Not so long ago, in the continuing resolution, a provision was slipped in by the House of Representatives. Because this was a must- pass bill under tight time constraints, it also slipped through the Senate with no debate. And what did this legislation do, the Monsanto protection act? This legislation does something that I think most would find astounding. It allows the unrestricted sale and planting of new variants of genetically modified seeds that a court has ruled have not been properly examined for their effect on other farmers, the environment, and human health. Obviously, this raises a lot of concerns about the impact on farmers and the impact on human health, but there is even more. The fact that the act instructs the seed producers to ignore a ruling of the court is equally troubling. It raises profound questions about the constitutional separation of powers and the ability of our courts to hold agencies accountable to the law and their responsibilities. I can tell my colleagues that this process and this policy has provoked outrage across the country. When I held townhalls in Oregon after this happened, at every townhall it was raised by farmers concerned that this would endanger the crops they were growing and hoped to export overseas. I have received over 2,200 letters on this topic. I am very hopeful that when we come back next week, we can have a full debate on this amendment, that it won't be objected to, and that certainly there will be no opportunity of any kind for this policy to be extended because it hurts a process of holding our departments accountable for enforcing the law, and it provides a policy of overriding the court order designed to protect other farmers, to protect the environment, and to protect human health, and that is absolutely unacceptable.

Mr. MERKLEY. Mr. President, I ask unanimous consent that the pending amendment be set aside and that my amendment No. 978 be called up.

Mr. MERKLEY

Mr. MERKLEY. Madam President, I rise to speak to the nomination of Michael McShane to serve on the U.S. district court of Eugene. Judge McShane is an exceptionally qualified nominee and will make a terrific addition to the Federal bench in Oregon. Over his entire career, Judge McShane has demonstrated a tremendous commitment to the law, to public service, and to our State. He came to Oregon 30 years ago to serve communities through the Jesuit Volunteer Corps. The Jesuit Volunteer Corps, known as JVC, is folks, often graduating from college, who dedicate 1 year of direct service to the poor, simple living, and spiritual community. They work in locations such as food banks and local church programs, to work with at-risk youth and work of this nature. They work directly to help make the world a better place and do so in an exceptional manner. Anyone who comes out of college and dedicates 1 year to such an effort certainly starts in a very sound place. Since that time, Judge McShane has remained deeply dedicated both to Oregon and to serving those in our society most in need. After graduating from Lewis & Clark Law School, Judge McShane went to work as a public defender in Portland. For more than 10 years, he represented those who otherwise would have no voice in our legal system. After his time as a public defender, he went to work on the circuit court, first as a judge pro tem and then simply as a judge. In the approximately 15 years he served on the circuit court, Judge McShane has developed an excellent reputation for fairness, thoroughness, and accuracy. He also continued to serve in the community as a foster parent and adjunct law professor at Lewis & Clark College. In one letter of support I received, a member of the Portland law community summed up his nomination by saying: What stands out to me is that Judge McShane lives and conducts his personal life with the same integrity, honor, compassion and diligence as he displays as a judge. Judge McShane will make an excellent addition to the U.S. district court. I urge my colleagues present tonight to join in support for his nomination. I yield the floor.

Mr. MERKLEY

Mr. MERKLEY. Madam President, we have long recognized the principle that when taxpayers are paying for public infrastructure projects, it makes sense for American business, for the American economy, for our workers to do as much of the work as possible to create that supply chain in America. The ``Buy American'' rules we already have on the books provide the foundation for millions of miles of roads, bridges, light rail, and subways and millions of good-paying jobs. This amendment extends that concept with appropriate waivers for cost, for supply chain inadequacies, or for public interest. With that, I turn this over to my colleague for this bipartisan amendment, and I ask for my colleagues' support.

Mr. MERKLEY. Madam President, I call up amendment No. 866.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I rise today to talk about one particular aspect of this bill, which is WIFIA. Before I explain what WIFIA is, I want to thank the Chair for managing this bill in a very bipartisan discussion of the committee. It has come to the floor with full committee examination, thorough debate, and amendment process. Here we are having a very thorough, visible, accountable process for considering this bill on the floor of the Senate. That is a very good example of the Senate working well. Thank you, Madam Chair.

Mr. MERKLEY. The heart of the WIFIA program is about jobs. It is about infrastructure. Five years after the greatest economic crisis in 80 years, we still face a serious jobs crisis. Too many are out of work and too many are unemployed. A good, living-wage job is the most important pillar of the American dream. There is no public program that can compare to the importance of a living-wage job for the stability and success of a family. We have to do more to create those jobs, a lot more. Wouldn't it be great if we could both create jobs and fill a desperate national need at the same time? Well, that is exactly what WIFIA--which is short for Water Infrastructure Finance and Innovation Act--does. Low-cost loans for water infrastructure projects create good jobs now while protecting our communities from devastating costs or public health crises in the future. WIFIA does all of this while making taxpayers money over time. The need for water infrastructure is great. Across Oregon and across America, our infrastructure is aging. That aging infrastructure needs to be replaced. Our communities are growing. The demand for water infrastructure increases, whether it is water treatment on the front end or water treatment on the back end--sending water out to our homes and businesses and then treating it after it comes back. Much of our infrastructure is approaching the end of its lifespan and needs to be replaced. We should recognize that America is behind much of the world in terms of investing in infrastructure. That is not only not good for our future economy, it is certainly not good for creating jobs. China is investing 10 percent of its gross domestic product in infrastructure. Europe is investing 5 percent. Here in America, which had a phenomenal infrastructure buildup after World War II, we are investing only 2 percent. That is barely enough to repair the aging infrastructure that previous generations so thoughtfully funded, let alone prepare the infrastructure to meet the expanding needs of the Nation. Infrastructure can be thought of as the bread and butter of success of our Nation. Building and maintaining infrastructure is one of the most effective ways also to create jobs in the short term. Having infrastructure in place is absolutely critical to strong, private sector economic growth over the long term. It is time to take water infrastructure seriously as a public policy challenge. For too long, we have been putting water infrastructure on the back burner. We are not investing enough in water infrastructure to keep clean, affordable water accessible to all Americans. In fact, we are not even coming close. There is a gap, a significant gap, a growing gap in the area of water infrastructure needs versus actual funding. If we do nothing and stay on the same course, that gap will be $90 billion per year by 2040. That is a disaster for our communities. That gap would leave municipalities with a terrible decision--allow the infrastructure to continue to degrade, which is obviously not a good idea, or have to raise utility rates astronomically to pay for long- neglected improvements. Already, we are seeing this kind of lose-lose proposition play out in my State in Oregon. Some communities have to set aside their plans because they can't afford them: to expand their infrastructure, to improve their infrastructure, to replace their infrastructure that is aging. Other communities are proceeding to upgrade their infrastructure but at costs that are doubling or even quadrupling the cost of water to the citizens. We need a new way to finance critical water projects. That is why the Water Infrastructure Finance and Innovation Act, or WIFIA, that is contained in this bill, fills a key missing link in our system. Currently Federal funding for water infrastructure and sewage through the Environmental Protection Agency Clean Water and Safe Drinking Water State Revolving Funds Program is helpful, but many projects do not qualify, and we need to expand the amount of funding available. Into that gap comes WIFIA, modeled after the very successful Transportation Infrastructure Finance and Innovation Act, or TIFIA, so we have a proven finance model for infrastructure in transportation. Let's take that proven model and apply it to the challenge of our communities on water. I hold a meeting with our local officials--our city officials and our county officials--before each of my townhalls, and I hold a townhall in every county every year. There is hardly a meeting with multiple officials that goes by that there aren't two or three or four critical water project needs discussed. And that was the motivation for having this WIFIA Program before us today. I applaud my colleague from Oklahoma Senator Inhofe, who has come forward and said: Let's not only make this work, but let's lower the minimum threshold for projects so we make sure we can get smaller communities, more rural communities involved. That was previously addressed in the bill by saying that smaller communities could aggregate their projects and submit their application, but this was a very helpful addition to the conversation, and I appreciate that type of bipartisan problem-solving which is evidenced in this bill as it is and as in the amendment proposed by my colleague from Oklahoma and passed yesterday. The reason that funding in this pilot project--and we are talking about $50 million a year for 5 years--is effective is because it has a huge leverage it can fund because it is guaranteeing loans that rarely go bad. The historical default on water and sewer bonds is less than 1 percent. In fact, it is less than one-tenth of 1 percent. So that $50 million to cover defaults can be extraordinarily leveraging. The communities get the funds they need to complete their projects at the lowest interest rates possible, and the American public can sleep soundly at night knowing that the treasury funds being invested are being invested in a manner that is both prudent and productive. This source of financing will allow communities to take on three types of projects necessary for safe and reliable water systems: repairing the aging infrastructure, upgrading the old systems to modern standards, and expanding the projects to meet growth needs. Another advantage of this structure of financing is that under WIFIA, projects would be selected by a competitive process rather than by State-by-State allocations, so we get funds to the greatest need across this Nation. We have communities all across Oregon, in every corner of our State, that are facing these infrastructure challenges. I know from talking with my colleagues that the same is true in States across our Nation. And communities that are in good shape now in 5 or 10 years may see the challenge of meeting new standards or meeting the growth in their communities. I would like to talk about another key aspect of our recovery; that is, manufacturing. If we don't make things in America, we will not have a middle class in America. Our manufacturing sector lost 5 million jobs over the last 14 to 15 years. It is starting to make a comeback, but we should do more to help create good manufacturing jobs. One very simple thing we can do is support ``Buy American'' provisions in legislation such as this. We recognize the principle. We are using taxpayer dollars to complete a public infrastructure project in America, so it only makes sense for American businesses and workers to do as much of the work as possible. For that reason I will be filing an amendment to this bill to expand the ``Buy American'' provisions for our water infrastructure. These two are very much connected. Yes, we need to be building infrastructure, but we need to make sure those tax dollars build our American economy when the work is being done. In closing, let's pass this bill, which has a tremendous amount of good in it, and one of those very good points is this water infrastructure act--WIFIA--which does support good jobs and good infrastructure across America. I also wish to mention the great work my science associate Mirvat Abdelhaq has done on this bill. We are fortunate as Senators to have folks come to work for us for a year or so, bringing their tremendous expertise in trying to develop a very important piece of legislation. She has been very involved, and I thank her, and I thank the program for making this kind of expertise available to our offices. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, I rise today to remember an Oregon hero. CMSgt Arden Hassenger was a 29-year-old from Lebanon, OR, when he and five other airmen set out on Christmas Eve 1965 on a reconnaissance trip over the Ho Chi Minh Trail. Tragically, they never returned. What was even more tragic for Hassenger's friends and family, though, was that the plane could not be found. His wife and children lived in uncertainty for decades, not knowing whether Arden had been killed that day or whether he was alive in Laos. Finally, the crash site was located, and in 2010 and 2011, remains of the missing men were at last recovered. Last year, they were buried with full honors in Arlington National Cemetery. This Sunday, Arden's ultimate sacrifice for our Nation will be honored once again at the Vietnam Memorial. The cross next to his name, which signified his status as missing in action, will be changed to a diamond, representing that he has returned home to rest after these many years. I hope that this final act of remembrance will help to bring closure to his family and all who loved him. We honor Chief Master Sergeant Hassenger, and we thank him and his family for the tremendous sacrifice and service they have given to our Nation.

Mr. MERKLEY

Mr. MERKLEY. Mr. President, how much time remains?

Mr. MERKLEY. I thank my senior Senator for his championing and his leadership and his longtime defense of the Internet as a place of fair transactions for small businesses and large, as a tax-free zone. I hope this Chamber is not engaging in a course that is going to change that dramatically, as it seems so intent on doing at this moment. I am very struck by the correct point my colleague made about foreign companies. Here we have a company in Canada that is not subject to this bill. We have a company in Mexico that is not subject to this bill. For that matter, we have a company in Nigeria or anywhere else in the world not subject to this bill. So when American businesses say we should maintain a level playing field to keep business in America, allow us to play on a level playing field, they are certainly hoping we won't pass something such as this that gives such an enormous advantage to other nations. I must say that constituents have been weighing in on this issue. I don't think it would surprise anyone to know that they don't like it. Ninety-eight percent are writing in to us to say: We don't like it. We don't like the idea of other States auditing our businesses. We don't like being asked to be a tax collection agency for another State. Oregon is not asking anyone else to do that unless they have a State- to-State compact, which is exactly the way this could have been done and should have been done but hasn't been done because the States couldn't agree, even though they were sales tax States. That tells us quite a lot. They don't like the idea of being subject to bureaucrats or the potential for legal action where they might have to travel to another State, and they don't like the idea that there is absolutely no compensation for the enormous imposition this bill places on the small businesses of Oregon. That is quite a lot not to like. So, of course, it is 98 percent against this bill. I thought I would read one such letter: Please do not support the Marketplace Fairness Act. It is not fair to businesses like mine that other States could tax my Oregon-based company. The voters of Oregon have continually voted down sales taxes as a method of collecting revenue within our State. It should not be imposed on us by other States. If these States have problems with their collection, they should figure it out with the help of their local populace . . . My company is an Internet retailer and we are able to compete and create jobs on a level playing field. The dynamics of this fight will have consequences for mid- sized retailers like mine, especially companies based in Oregon. Big retailers are fighting to limit our ability to compete with them. Their goals are to have local footprints and employees across the country in major metropolitan markets. They should pay those local taxes and fees where they are a burden. Companies like mine, that have not chosen to be in that model, should not. Please continue to support the Internet's free market. Please protect Oregon business and maybe even create some new opportunities. That is what we should be doing in the U.S. Senate--creating new opportunities for Oregon small businesses to succeed in this tough economy. That is what this business owner in Oregon believes, and I will repeat that sentence since the writer made that point: That is what we should be doing in the U.S. Senate--creating new opportunities for Oregon small businesses to succeed in this tough economy. But that is the opposite of what we are doing here. Maybe that is why Oregonians are overwhelmingly opposed to this bill. I think it is clear that there are some ideas for which, if someone passionately believes in them, they are willing to try them out, they are willing to develop a pilot project before they impose it on the entire Nation. Certainly out of the 45 States, since so many have come to the floor representing their States passionately, saying this should be done, why don't they have a pilot project among their States and demonstrate that this is not going to be a burden in which there are audits and fees and court appearances and phone calls from the some 9,600 jurisdictions my senior colleague has pointed out? Why don't they demonstrate that first before they decide to run an attack on the success of small businesses in the State of Oregon and, for that matter, across this Nation? How about that? That is a fair proposal. Run a pilot project. If you love this idea so much, do it among yourselves and demonstrate it and bring the report back to this Chamber for further conversation. But the idea of coercing my citizens of the State of Oregon to do your work, with enormous imposition and uncertainty, when they are trying to succeed as small businesses--and when small businesses are the power of creating jobs in this country--that is wrong. So for those who speak about the heavy hand of government, those who speak about the power of small businesses, those who speak about bureaucracy and imposition, then live your words in action and kill this vicious attack on small businesses across this Nation. Thank you, Mr. President.

Mr. MERKLEY. Mr. President, I think about the small businesses that would be subject to so many jurisdictions that they now have a tax relationship with and the responsibility to collect for and the possibility of having to basically call them and say: Well, you didn't do it right; you didn't use the right amount or the right software or this or that. I can't imagine any small business wanting to be exposed to, as my colleague pointed out, 9,000--and even if it is consolidated into 800, that is still a lot of people to deal with. If we have to deal with five or six, that is overwhelming. But then the question becomes whether those States have the power to audit the Oregon small businesses as collectors of a tax, just as they might audit any other group that was collecting sales tax for their State.

Mr. MERKLEY. Well, I appreciate the Senator expanding on that. On page 6 of this bill, there is a line that starts out very promising: ``Relieve remote sellers and certified software providers from liability to the State or locality for incorrect collection and remittance . . . '' Well, that sounds OK. That sounds as though you are not subject to an audit. But then it goes on to say, only from basically an error in the software provided by the State. In other words, if a mistake is made, a business owner is subject to all of the same things as if their efforts were inside the State of New York, and that means subject to the State organizations inside the government of New York, that means audits, that means fees. It could include court actions. So we are talking about, as the Senator put it, 9,000 jurisdictions that now can make life completely unmanageable. It would only take 2 or 3 to make it unmanageable, but 9,000 can make it unmanageable for a small business in Oregon. Now, my colleague from Illinois has said it is OK for small business because we put in an exemption for selling $1 million online. That is no kind of an exemption at all. Let me explain. Let's say a small business is selling $1 million online and they have a 5-percent margin. That means they are making $50,000 a year. After they basically recognize that a person is working for themselves--they have no benefits separate from that--that is a very modest, middle income. That is one person. So this has an exemption for only a business of one--a modestly successful business of one--which means every other business in the State that is engaged online is subject to this provision. So while others may feel comfortable telling their home State small businesses--and this would include those in the 45 sales tax States-- that they are subject to audits and fees and court action from 9,000 other entities, I am certainly not comfortable telling the small businesses of Oregon they are going to be facing this type of incredible bureaucracy created by some of the folks who come to the floor and say they are all about small business. Now, they want small businesses to be audited and fee'd and asked to turn up in some other State for a hearing. That is an outrageous attack on small business, not to mention our States that do not have a sales tax. It is an outrageous overplay attacking States rights.

Mr. MERKLEY. Mr. President, I compliment the senior Senator from Oregon who has come to this floor and very clearly laid out what is felt in the heart of Oregonians across our State, and that is this bill tells Oregonians they have to be the collection agents for folks from 45 other States and hundreds of local jurisdictions. This is not just an expense mandate, it is an offensive intrusion into the rights of the citizens of our State. In that regard, I want to just engage in a few questions and thoughts with my colleague from Oregon and try to highlight some of the concerns and issues we have. I ask through the Chair the senior Senator from Oregon: As he reads this bill, does he see in it any compensation for the time and effort that the businesses in Oregon will have to spend collecting the tax for hundreds of jurisdictions across this country?

Mr. MERKLEY. The Senator makes a great point. If States have not voluntarily entered into compacts where they get to collect their own sales tax for other States where it is a mutually beneficial relationship, then it is very strange to have to be compelled--even those 45 States that have sales tax obviously were not so excited about forming such a structure. They also seem determined to pull into this involuntary structure States that find the sales tax abhorrent. If they find a tax abhorrent--and just a little bit of background there. I believe our State has voted nine times on a sales tax. Largely the vote has been on heavy majorities defeating it. Many of those votes are 70 to 30. Some of those reasons for that is because it is an extremely regressive tax. Another reason is that it is an expensive tax to collect; therefore, it is much less efficient and much more government waste. Now we have all these Senators who are champions of government waste not only forcing an extension of their own State's wasteful tax system, but imposing it upon the small businesses of Oregon. Then we come to a whole series of concerns that any small business is going to have in this situation. A small business is told they must participate, and basically anything beyond a single-person shop is pulled into this bill. Then they are subjected to--I think it is over 800 tax jurisdictions--having to call them and say: We are not sure you gave us the right amount. Is there anything in this bill that says those hundreds of tax jurisdictions out there cannot call and basically challenge whether they have the right amount of money?

Mr. MERKLEY

Mr. MERKLEY. I thank my colleague from Minnesota. The vote was closed as I came in the door. Had I been here, I would have voted against cloture. I want that to be a clear part of the Record.

Mr. MERKLEY

Mr. MERKLEY. I ask unanimous consent for 20 more seconds.

Mr. MERKLEY. Mr. President, I call up amendment No. 398.

Mr. MERKLEY. Mr. President, in Oregon we don't like the sales tax, and that is why we don't have one. It is regressive and more expensive to collect. What we hate even more is some State telling us what we have to do. I have heard people on this floor talking about States rights all the time, and now folks are standing up here and saying: We want your retailers to collect our tax, and we are not even going to compensate them for their time or effort. That is virtually a taking. As my colleague pointed out, this is really about attacking business in America, small- and medium-sized businesses in America, which will just end up benefiting our foreign competitors. That is wrong, and we should oppose this for those multiple reasons. I yield back time.

Mr. MERKLEY. Mr. President, this amendment increases the Advanced Research Projects Agency-Energy of the Department of Energy by $50 million. This is essentially what we know as ARPA-E. This is the most basic research to create breakthroughs in areas which range from renewable energy to energy conservation, so on and so forth. Energy is the lifeblood of our economy. It is the lifeblood of putting ourselves in a position to be one of the nations which sells technology to the world, rather than buying it from the world. This is a huge leverage issue, and I encourage my colleagues to support it.

Mr. MERKLEY. Mr. President, under the American system of justice where Lady Justice is blindfolded, there should never be a prosecution- free zone. But that is what the Department of Justice announced there is on Tuesday, December 11 of last year. They said they would fine but they would not indict and they would not prosecute Hongkong and Shanghai Banking Corporation for laundering $800 million in illicit drug money; for laundering $600 million in transactions that violated U.S. sanctions against Iran, Sudan, Cuba, and other countries against American law; and for allowing $200 trillion to bypass the sanctions and money-laundering filters. As the New York Times reported, the Department of Justice decided not to indict HSBC ``over concerns that criminal charges could jeopardize one of the world's largest banks, ultimately destabilizing the global financial system.'' Our Attorney General repeated this justification on March 6, 2013, before the Senate Judiciary Committee, saying: I am concerned that the size of some of these institutions becomes so large, it does become difficult to prosecute them.

Mr. MERKLEY. I ask for 20 seconds.

Mr. MERKLEY. Thank you. Too-big-to-jail is wrong under our Constitution. It promises equality under the law. Let's send a strong message by supporting this. I thank my Republican sponsors, Senators Grassley, Heller, Cornyn, and Shelby; and Democrats Tester, Warren, Begich, and Levin; and our Independent Senators, Sanders and King.

Mr. MERKLEY

Mr. MERKLEY. Madam President, I ask unanimous consent that the Senate proceed to consideration of S. Res. 89, which was submitted earlier today.

Mr. MERKLEY

Mr. MERKLEY. There will be six votes at 11 a.m., and the budget vote- arama is expected to begin at approximately 3 p.m.