Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, what is the agreement at this point?

Mr. SESSIONS. I thank the Senator from Florida. I yield the floor.

Mr. SESSIONS. Mr. President, I see the Senator from Florida is here. I yield the floor.

Mr. SESSIONS. I will.

Mr. SESSIONS. Mr. President, I had my fourth trip to Iraq recently and met with a number of leaders over there. I have been impressed with them and have enjoyed them. I know Senator Nelson has also. He and I are the chair and ranking member respectively of the Strategic Forces Subcommittee. We have worked together on many important issues. I wanted to say a couple things. First, the amendment he has is of value and will be something that can be accepted. I believe it should be. You worry a little bit that maybe language difficulties come into play in how miscommunications can occur. Even among those of us who speak English together, we can have misunderstandings. I was just handed a CNN interview today. It just came across the wire. It was by a reporter, Daryn Kagan, with the new national security adviser to Prime Minister Maliki in Iraq. He was asked about this very subject because the reporter obviously felt some of the same concerns the Senator from Florida raised. He said this to him. The reporter: Doctor, I know there's a big effort by your government in your country to try to prevent civil war. And as a part of that, the Washington Post reports today that your Prime Minister is considering offering amnesty to Sunnis or to others who perhaps attacked only U.S. troops. This, not surprisingly, is causing great consternation here in the U.S., even talking about it and being raised on the floor of the U.S. Senate today. Is this, indeed, the case? Is your government thinking about offering amnesty to those that attacked only U.S. military? This is Dr. Rubaie's reply: This is not the case. I'm sorry to say that the prime minister of Iraq has been misquoted and misunderstood. He did not mean to give amnesty to those who killed Americans. As a matter of fact, if you go there in his meeting with the President Bush a couple of days ago, he looked the president in the eye and he said, thank you very, very much for liberating our country. Please thank the American wives and American women and American mothers for the treasure and blood they have invested in this country. It's well worth investing, of liberating 30 million people in this country. And we are ever so grateful. And we will--the blood of the Iraqi soldier and the blood of Iraqi civilian soldier is as sacred to us as the American soldier. We are fighting the same war, we are fighting together, and this is a joined responsibility. And we will never give amnesty to those who have killed American soldiers or killed Iraqi soldier or civilian. What the prime minister is going to give amnesty to are those who have not committed the crimes, rather they're against Iraqis or coalition. Those who have--still carry arms and they might have probably done some minor mistakes in storing some arms or allowing some terrorists to stay overnight or shelter, give shelter to some of these insurgents. That's it. Basically, it's a goodwill gesture he's extending to the Sunni community, to those who have committed some mistakes in the past. I don't know exactly how it all came about or how the comments were made. Mr. Maliki is new to being Prime Minister. There are language difficulties. I hope this reflects the firm view of the people of Iraq. I find it consistent with the responses I have had when I talked to the Iraqi leadership. I thank the Senator from Florida for raising the question. I am pleased to see this very strong response from the national security adviser, Prime Minister Maliki's top adviser on national security.

Mr. SESSIONS

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

Mr. SESSIONS

Mr. SESSIONS. With regard to the growth of revenue to our Government--and you had a chart which showed that--as I recall, last year we showed over 14 percent growth, and with this year almost half gone, we are looking at in excess of 11 percent growth. That is after taxes have been cut. Is that correct?

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today to pay tribute to our U.S. Army. On June 14, 1775, our Founding Fathers formed the U.S. Army out of a desire to defend their liberties. The Continental Army that emerged in the midst of our war for independence laid a foundation for patriotism, tenacity and courage that remains at the care of the Army of today. Since that time, American Soldiers have fought in more than 10 wars, from the American Revolution to the global war on terror. This 231st birthday serves as a reminder that today's Army continues to stand as the guardian of our nation's freedom. Today, we salute the brave men and women who call the Army home, and those soldiers that have served and died before them, in a celebration of their ``Call to Duty.'' The American soldier has always been the centerpiece of the Nation's defense. Coupled with the desires to maintain our democracy and freedom, these soldiers continue to march to the sound of the guns by putting ``boots on the ground'' in more than 120 countries around the world today. From Valley Forge to New Orleans, from Gettysburg to the Marne, from Sicily and the beaches of Normandy to Inchon and the Ia Drang Valley, from Kuwait to Operations Enduring Freedom and Iraqi Freedom, the American Soldier: brave, professional and determined, has not faltered in his duty and stands ready to answer the next call. Since 1775, millions of men and women, from all backgrounds and parts of our Nation, have raised their right hands and taken an oath to support and defend our Constitution. Today's 231st birthday reminds us that these soldiers are the backbone of our society. Living each day by the ``Warrior Ethos,'' these men and women personify the Army values of loyalty, duty, respect, selfless service, honor, integrity and personal courage. No tribute to our men and women in uniform, whether they are from Alabama or elsewhere, would be complete without mentioning their families. America salutes our military families and the unspoken burden they bear when their husbands and wives, fathers and mothers or sons and daughters are called away to steamy jungles or unforgiving deserts to defend this great nation and our way of life. The love and support our soldier's families provide through their support and strength. We remember also their sacrifices and the long days they spend apart. To those currently serving, our thoughts and prayers are with you and your families on this 231st Army birthday. Humbled by your sacrifice and awed by your achievements, we continue to find comfort in knowing you are an eminent presence: resolute in standing watch over our democracy and freedoms. Celebrate this Army birthday and continue to live to a higher standard through the Army values and the Warrior Ethos. Our celebration of the 231st Army birthday reminds us all of the sacrifice so many have made in the preservation of our Nation. These words are but a small token of the appreciation and thanks that are owed for the dedication to duty and sacrifice these brave men and women make on a daily basis. These soldiers deserve our gratitude, our praise and most importantly our continued support as they continue to drive on with the mission. Happy Birthday to our Army.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I commend four students from my home State of Alabama who have been named members of the 42nd class of Presidential scholars. Since its creation in 1964, the Presidential Scholars Program has honored over 5,000 graduating high school seniors for academic excellence, artistic accomplishments, and civic contributions. These remarkable young people have proven to meet rigorous standards of academic excellence and leadership. This year, I am proud to announce that Alabama has three Presidential scholars and one Presidential scholar in the arts. Students designated as Presidential scholars are among only 121 selected for this high honor out of over 2,700 applicants invited to apply. Alabama students selected this year include Amanda R. Long of Oxford High School in Anniston, AL; Adam M. Trettel of Briarwood Christian School in Birmingham, AL; and, Kelly M. McConnaughey of Virgil I. Grissom High School in Huntsville, AL. I am also very pleased to share that Sarah C. Campbell, of the Alabama School of Fine Arts in Birmingham, AL, has been named one of only 20 Presidential scholars in the arts. These recipients are selected from a pool of over 6,500 students for accomplishments in the visual, literary, and performing arts, in addition to their scholarship, leadership, and public service. The Presidential Scholars Program not only seeks to honor Our Nation's finest students but also recognizes the teachers who have been influential in these students' lives. Each student had the opportunity to nominate one exceptional teacher to receive the program's Teacher Recognition Award. Teachers play an essential role in our society and give of themselves selflessly in aiding the development of their students. I applaud the work of these fine teachers: Mrs. Angela L. Dickert, nominated by Amanda R. Long; Mr. Barry Walker, nominated by Adam M. Trettel; Ms. Suzanne Bailey, nominated by Kelly M. McConnaughey; and, Mr. D. Bradford Hill, nominated by Sarah C. Campbell. It is fitting and appropriate that we recognize these fine students for their accomplishments and to recognize the teachers that have meant so much to their success.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I would like to make some remarks today about two remarkable educators, Mary Hand and Philip Holley, recipients of the 2005 Presidential Award for Excellence in Mathematics and Science Teaching. This is the Nation's highest honor for teaching in mathematics and science. Only 100 7th to 12th grade teachers across the Nation are chosen for this remarkable award, which was established by Congress in 1983. Ms. Mary Hand, mathematics teacher at Liberty Middle School in Madison, AL, aims to make students comfortable in her classroom and encourages them to work in groups. Ms. Hand establishes a classroom environment that is optimal for student learning, and she aims to equip her students with teamwork skills that are essential in the workplace. Mr. Philip Holley, science teacher at Mountain Brook Junior High School in Birmingham, AL, strives to let students experience science and apply what they learn. He uses real-world examples to bring science to life in his classroom, which undoubtedly motivates his students and enhances their understanding of the importance of science. As a former educator and the father of three children, I realize the important role teachers play in our society. I am proud to know that teachers such as Ms. Hand and Mr. Holley are striving to develop students' math and science abilities. These skills will surely take students far in the workplace where math and science are increasingly in demand. I commend Ms. Hand and Mr. Holley for their leadership and professional excellence in education. Their work has impacted the lives of many students, and their influence will surely spread for years to come.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I thank the Senator from Texas. Earlier this year, 26 Senators signed a letter that I produced asking Senator Frist, the majority leader, to bring up this bill. He has worked hard to find the time, and here we are. I recall, and I will set the record straight, that the death tax is eliminated already in the year 2010. It goes to zero. But the next year, the exemption is $1 million and the rate is 55 percent, a confiscatory rate. The American heritage is one of savings and frugality and a belief in the right to own private property and leave that property to whomever people choose on their death. That is why overwhelmingly people who are not impacted by the death tax believe it is wrong and say in poll after poll it should be eliminated. The cost of collecting this tax exceeds what it brings in to the Government coffers. That is the definition of a bad tax--the very definition of it. A good tax is one that is simple and fair and low cost to collect. This one is exactly the opposite, causing all kinds of gymnastics to avoid it. Finally, and importantly, it savages growing closely held businesses. I think about one man I met traveling in Alabama. He and his sons own three motels. He met with me and told me they were paying $80,000 a year for a life insurance policy because when that father dies, it will take that much life insurance, $7,000 a month, to pay the death tax. They are competing with the big guys--Howard Johnson's, Holiday Inn, Marriott--trying to really get up there, but every month they are paying $7,000 that could be used to pay down the mortgage on their motels and build a competitive business. That is why this tax is adversely impacting our country. It is against savings, it is against frugality. I received a call from Robert Johnson this week, head of Black Entertainment Television. He is competing with CBS, NBC, Fox, and ABC. He is trying to do well. He has a family-held business. If something happens to him, he said there is no other African American who can buy this business. It is going to be bought up by some conglomerate. I ask my colleagues to remember that CBS, ABC, FOX, and NBC never pay a death tax. Holiday Inn never pays a death tax. It is the small, closely held businesses that are expanding, have no cash for investing in their next new motel who compete with the big guys who have to suck out that money. Those who want to keep estate tax claim repealing it will cost the Government too much money. I would like to discuss this issue in some detail. They point to two Government reports--one by the Joint Committee on Taxation, or JCT, and one by the Congressional Budget Office, or CBO. Both these reports assert that repealing the death tax will reduce Government revenues by approximately $280 billion from 2011 to 2015. However, simply put, these cost estimates are not realistic. Before discussing why, it is important to note that the JCT does not generally share the specifics of their revenue estimates, describe their methodology, or reveal their assumptions to the general public or Members of Congress. We thus must speculate exactly how JCT arrives at their revenue projections. Of course, if the JCT is so confident in the quality of their estimates, one must ask why they are reluctant to reveal their methods and assumptions. There are many reasons to believe that revenue loss estimates by JCT and CBO regarding repeal of death tax are on the ``high side.'' First, as Joint Economic Committee points out, JCT has estimated that the total revenue loss from death tax repeal would actually exceed revenue the tax raises. This is a curious notion, to say the least. At the time of JCT's analysis, estate tax was expected to raise $218 billion from 2011 to 2015--the 5-years after the death tax returns to its 55 percent top rate. However, JCT estimates that over that same period of time, repeal would lose $281 billion in revenue. In other words, revenue lost from estate tax repeal would equal 129 percent of the actual revenue the tax is supposed to raise. A similar pattern exists for CBO estimate where revenue lost from repeal equals 120 percent of the actual revenue it is estimated to raise. This pattern--present in both estimates-- certainly begins to raise questions about these scores. Second, passing the bill before us would eliminate the stepped-up basis rule. What is the stepped-up basis rule? Current law allows inherited assets to be valued at their current market value at the time of decedent's death. The heirs get a stepped-up basis rather than having as a basis the original purchase price. No capital gains tax is therefore applied to any increase in the value of that asset. This reduces capital gains tax collections significantly. For example, if an heir were to inherit a house valued at $250,000 that was originally purchased by her father for $100,000, the daughter would pay no capital gains tax on the $150,000 increase in the value of that home. The bill we are debating today would effectively change this to require that a capital gains tax be paid on the full increase in the asset price from the time it was originally purchased. As the Wall Street Journal pointed out this week, the JCT has calculated that changing how inherited assets are treated in terms of capital gains tax law would raise $50 billion to $60 billion a year. Most important, this $50 to $60 billion exceeds the amount of revenue the estate tax raises annually, which has only accounted for 1 percent to 2 percent of all Federal receipts over the years. In other words, the estate tax has not traditionally been a major source of revenue for the Federal Government and elimination of the stepped-up basis rule should more than cover any loss of revenue from eliminating this tax. A 2005 study from one econometrics firm--CONSAD Research Corporation--backs up this analysis. In particular, they found that the revenue impact of permanent repeal coupled with a limited stepped-up basis rule for the calculation of estates' capital gains realizations would actually yield a small net gain in revenues through 2014. Third, JCT and CBO scores ignore fact that existence of estate tax itself helps reduce income tax collections. For example, the estate tax encourages widespread tax avoidance, given its high top tax rate, which would return to 55 percent if we do not pass this bill. To avoid paying the estate tax, parents in high-income brackets often shift resources to their children in lower tax brackets, lowering income tax receipts. Similarly, income tax revenue is lost when transfers are made to tax- exempt groups, such as charities and family trusts. Existence of estate tax also reduces income tax collections by reducing the amount of capital in the economy. Joint Economic Committee estimates that the estate tax has resulted in $847 billion less in savings and capital investment in the United States over the long run-- in other words, investment in such assets as office buildings, retirement accounts, houses, factory equipment and so forth. Similarly, recent studies have shown that the estate tax encourages consumption rather than savings and wealth accumulation, shrinking the size of taxable estates. In addition, according to Heritage Foundation economists, the estate tax costs our economy between 170,000 and 250,000 productive jobs each year. These jobs are never created because the investments that would have financed them are not made, as these resources are diverted to pay the death tax itself or pay for complex trusts and insurance policies to avoid the tax. If these jobs were created, each of these 170,000 to 250,000 individuals would be paying income tax, lessening revenue loss from estate tax repeal. The estate tax also imposes an excessive compliance cost on taxpayers, again lowering income tax collections. Estate planning can be very complex, requiring the average family which engages in it to spend anywhere from $30,000 to $150,000 according to one study. It should be noted that twice the number of estates were required in 2004 to file all the death tax paperwork than actually paid the tax. Many of these filings require hiring lawyers and accountants at a significant cost to these estates. In fact, Alicia Munnell, a professor of finance at Boston College and a former member of President Clinton's Council of Economic Advisers, has estimated that the costs of complying with estate tax laws are roughly the same as the revenue raised. In particular, she has written that ``in the United States, resources spent on avoiding wealth transfer taxes are of the same general magnitude as the yield.'' Similarly, she wrote in another article, ``the compliance, or, more appropriately, the avoidance costs of the transfer tax system may well approach the revenue yields.'' Put another way, for every dollar of tax revenue raised by the estate tax, Munnell estimates that another dollar is wasted simply to comply with or avoid the tax. Fourth, another reason it is safe to believe that the estimates we are discussing today are inaccurate is that, according to an analysis by the American Family Business Institute, the CBO underestimates economic growth in its analysis and thus tax revenues. Specifically, in scoring revenue loss with repeal, CBO assumes that over the next 10 years that real GDP growth will average 2.95 percent per year. This forecast is an underestimation of historical averages. Over the past 40 years, average growth in GDP is 3.20 percent; the 30-year average is 3.23 percent; the 20-year average is 3.11 percent; and the past 10-year average is 3.34 percent. If we assume a 0.1 percent per year increase in GDP growth above CBO baseline, which would keep GDP below any of the averages I just mentioned, the result is a revenue loss from repeal of only $87 billion over the next 10 years. In other words, revenue loss is more than 300 percent lower if we assume only a slightly higher growth in GDP, which is still lower than other recent 10-year GDP averages. Finally, past estimates by JCT and CBO have been wildly off base. JCT forecast that the capital gains tax reduction enacted in 2003 would ``cost'' $3 billion from fiscal years 2003 to 2005. What happened? The cut in capital gains tax rate raised revenue. In fact, tax receipts from capital gains tax are now expected to be $87 billion more than CBO originally predicted for years 2003 to 2006. Similarly, JCT estimated total revenue loss for the first year of the 2004 American JOBS Creation Act--a bill that provided several corporate tax cuts would be $4.5 billion. In reality, enactment of this law actually resulted in a revenue gain of $16 billion. Finally, Congress reduced the capital gains rate from 28 to 20 percent in 1997. JCT estimated at that time that such a reduction would result in a revenue loss of $21.2 billion over 10 years. However, over the first 4 years following this rate reduction alone, revenues from capital gains tax were $47.8 billion more than JCT estimates. Given all these problems with the JCT and CBO estimates, what are we to believe about the cost of repealing the death tax? Personally, I believe that even though the Federal Government may lose some revenue from eliminating the estate tax, that amount will be negligible, if the Government loses any money at all. Thus, the argument that we cannot afford to eliminate the death tax is a hollow one. Two-thirds of the American people support repeal of the death tax according to a recent survey. It is time to follow their wishes.

Mr. SESSIONS. I thank the Chair and yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent the Senate stand in adjournment under the previous order.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that my budget fellow, Dr. Andrew Barrett, be granted the privilege of the floor for the duration of the death tax debate.

Mr. SESSIONS

Mr. SESSIONS. On behalf of the leader, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m. on Thursday, June 8. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and the Senate resume consideration of the motion to proceed to H.R. 8, the death tax relief bill, as under the previous order.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, the nomination has been held up since March 8 when it was reported by the HELP Committee. Therefore, I now send a cloture motion to the desk.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the mandatory quorum be waived.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, the people of the United States do care about marriage. Marriage is important. Our culture and the quality of life of our people in this Nation are important. Just yesterday, the people of my State, by an 81-percent majority, approved a constitutional amendment to the Alabama Constitution which said that no marriage license shall be issued in Alabama to parties of the same sex and the State shall not recognize a marriage of parties of the same sex that occurred as a result of the law of any other jurisdiction. But that amendment is in jeopardy by the court rulings in the United States, and a ruling that the U.S. Constitution requires that same-sex marriage be recognized just like other marriages will trump Alabama's constitution and that of the 19 other States which passed such resolutions by a vote of 71 percent. The only reason to oppose this amendment would be to deny the States the right to make this decision without having it overruled by the Supreme Court.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, with regard to the death tax, I will be offering some remarks later in the process that deal with the estimated cost of the elimination of this tax which does not account for the lack of stepped-up basis that will not occur if the death tax is eliminated and other factors that demonstrate that the allegations being made about large losses of revenue are not true. That is an important factor in the debate. I will not go over that tonight. I take this moment on another subject to read to the Senate a letter we received, received by Senator Frist, the majority leader, today, from the administration, William Moschella, U.S. Department of Justice. He deals with the Native Hawaiian bill. I said earlier today, the Native Hawaiian legislation is exceedingly important. It has to do with whether this great republic is going to allow itself, through the vote of its own legislature, to create within its own boundaries a sovereign entity, a sovereign Nation, that, according to those who support it, even on the Web site of the State of Hawaii, indicates that it could result in an independent nation being created. So any principled approach--and the Senate, of all bodies in the Government, ought to be principled; we should think about the long- term--to dealing with this issue should convince us in the most stark way that this is not a path down which we should travel. This is not a way this Nation should go. We should say no now and no to any other attempt to divide, balkanize or disrupt the unity of our Nation. We had a Civil War over that. The Presiding Officer is from South Carolina. I am from Alabama. That issue was settled in the 1860s. We don't need to go back to it. It is important that we read the language of the Department of Justice and how they deal with it. It is very similar to strong language from the U.S. Civil Rights Commission that also voted to oppose this legislation. The letter is to Majority Leader Bill Frist: Dear Mr. Leader: The Administration strongly opposes passage of S. 147. As noted recently by the U.S. Civil Rights Commission, this bill risks ``further subdivid[ing] the American people into discrete subgroups accorded varying degrees of privilege.'' As the President has said, ``we must honor the great American tradition of the melting pot, which has made us one nation out of many peoples.'' This bill would reverse that great American tradition and divide people by their race. Closely related to that policy concern, this bill raises the serious threshold constitutional issues that arise anytime legislation seeks to separate American citizens into race-related classifications rather than ``according to [their] own merit[s] and essential qualities.'' Indeed, in the particular context of native Hawaiians, the Supreme Court and lower Federal courts have invalidated state legislation containing similar race-based qualifications for participation in government entities and programs. While this legislation seeks to address this issue by affording federal tribal recognition to native Hawaiians, the Supreme Court has noted that whether native Hawaiians are eligible for tribal status is a ``matter of dispute'' and ``of considerable moment and difficulty.'' Given the substantial historical, structural and cultural differences between native Hawaiians as a group and recognized federal Indian tribes, tribal recognition is inappropriate for native Hawaiians and would still raise difficult constitutional issues. Sincerely, William E. Moschella, Assistant Attorney General. I am pleased the Department of Justice has given this letter to us. It represents an opinion of the agency of Government charged with justice. The Department of Justice is well aware of equal protection requirements. They are well aware of voting rights and the 15th amendment. They are well aware of all of the issues involving tribal questions. They have to deal with that on a regular basis. They understand this. This is part of what they do. The import of this letter is to say that the Native Hawaiians do not comply with tribal requirements. Indeed, a lawyer for the State of Hawaii has admitted as much in previous filings with the Supreme Court. It is not a tribal situation. It is a unique situation. We are going to create under the bill, if the bill were to become law--hopefully, it will not, but I am troubled by the prospect of maybe even proceeding to this bill tomorrow. It is almost breathtaking to me that that would occur. But what we will see as we go forward is that we are talking about creating an entity, a sovereign entity which will be controlled by individuals who are given a right to vote. And their right to vote in this entity will be entirely contingent upon their race. Indian tribes were different. Indian tribes were entities with long- established governing councils. They are native groups that have had centuries of cohesion. Many of them entered into treaties with the United States and they were given certain rights and privileges. But Hawaii came into the Union; 94 percent voted to come into the Union. They bragged and were quite proud of their melting pot reputation. They never suggested that they would later want to come back and have this sovereign entity be created. The reason it is fundamentally unfair is that there was a queen in Hawaii in the 1880s, but she did not preside over a tribe. She didn't preside over a racial group. She presided over the people in her territory of all races and entities. There were Asians, Irish, Filipinos, Chinese, and others that were there. They would not get to vote in this race-based government, even if they were there at the time she was queen. And she never pretended that she was presiding only over Native Hawaiians. Of course, I don't know how you could say a third-generation Irish or Chinese American or Japanese American who was in Hawaii, they are not a Native Hawaiian anyway, but that is the way they are defining this. There is only that certain racial group. So these would not be able to participate, even though they were multigenerational residents of Hawaii at the time they became a State, at the time the queen's government was ended. It is not the right thing to do. It would create a precedent of far- reaching implications and would jeopardize the unity and cohesion of our Government and would, for the first time, create a sovereign entity within the United States. You are not allowed to vote in it unless you belong a certain race. It is a bad idea of great significance. We should not go down that road. I hope the Senate will not. I suggest the absence of a quorum.

Mr. SESSIONS. Mr. President, I couldn't agree more with Senator Gregg's comments. He is someone who has had experience with the estate tax. He understands these ramifications well. My college professor, Harold Apolinsky, in Birmingham, one of the great estate tax lawyers in the country, has dedicated his career in recent years to eliminating this tax. He said it is the worst thing happening to our country, and it absolutely ought to be eliminated. He said: Even if it affects my business, I am doing this because I think it is the right thing to do. He has inspired me to be active in this area. I would like to share three stories. I was traveling in a small town in Alabama. A man came up to me with his son. They have three motels. He was sharing with me their frustration that they had to take out an insurance policy that cost the family $80,000 a year because if something happened to him, they had no cash--they had built motels, they were investing in a growing economy and expanding this small business and they had no cash--and they would be faced with a death tax. I want my colleagues to think about this: Against whom is this small business family competing? It is competing against Holiday Inn, Howard Johnson's, Courtyard Marriott, and who all else--huge international corporations that never pay a death tax--never pay it. But this closely held family business can be devastated. And if we don't change the law, as we all know, in 2011, this tax will again be 55 percent of net worth over the base amount. We need to be encouraging these kinds of businesses. I got a call yesterday from Robert Johnson, the founder and CEO of Black Entertainment Television. He told me that the death tax was going to make it impossible for African Americans to continue to develop wealth. He said he is competing against CBS, ABC, NBC, and Fox. He is not as big as they are, but he is competing. He has made some money. If something happens to him, the family is going to have to take out of his business huge amounts of cash reserves. What then will happen? BET will be put on the sale block, and it will be bought, as he said, by some big conglomerate. It will not be bought by an African American because they won't have the money to do it. He said we are capping off the growth rate, instead of allowing that company to devolve to his heirs so it would continue to be run in that fashion. Think about a person who may own 5,000 acres of land, let's say. That sounds like a lot. They have managed well. They have been a good steward for 50, 60 years. They saved money. They drove an old pickup truck. They have a modest home. They are frugal. We know people like that. What about International Paper? They own millions of acres of land. International Paper will never pay a death tax. But yet this landowner who is competing--maybe they have a forestry business--competing, in a way, directly against International Paper. But every generation of this family, Robert Johnson, the motel owner, has to pay a tax the big guys don't pay. Do you want to ask why we are seeing consolidation of wealth in America today? I submit to you that is the reason. Independent bankers, funeral home directors, they are selling out in large numbers. They can't afford to manage their business. They have to get liquid so if something happens to them, they can pay the death tax. It brings in less than 1.3 percent of the income to the United States Government. I submit the way it is working today is destroying competition. It is hurting, savaging, killing off vibrant, growing small businesses, the family-owned entities that need to be competing against the big guys. It reminds me of going into a forest of trees and there is this little tree trying to grow up in the middle of the forest and somebody just comes in every generation and chops off the top of the little tree. How can it ever compete against the big guys if it has to pay a tax they don't pay? I believe it is important for us for a lot of different reasons. This is why I think we ought to eliminate the whole thing: some of these companies are $50 million, $100 million companies, but they are tiny-- $200 million, $300 million, but they are tiny compared to these big, international corporations. Polls show that the death tax is the most unfair tax--Americans consider it the most unfair tax because people have already paid their money. You earn money, and then you pay, if you are in the higher income bracket, a 35-percent tax rate, and then you buy an asset with it, and a few years later, you die, and Uncle Sam comes in and he wants 55 percent of it. What kind of a tax system is that? It is really a confiscation. Also, this is very important: Any good tax should be clear, fair, easy to collect, and does not cost a lot of money to collect. When you evaluate the death tax by those standards, it is the worst tax of all. Alicia Munnell, a professor of finance at Boston College and a former member of President Clinton's Council of Economic Advisers, has written two times that in her opinion the cost of compliance and avoidance--as the big, wealthy people spend a lot of money trying to avoid this tax-- may be as high as the revenue raised. How horrible is that, to have a tax that costs as much to collect as it brings in in revenue? I have a deep concern about the scoring that has been produced by the Joint Tax Committee on this death tax repeal. I do not believe it is accurate. I have not believed it has been accurate for quite some time. The Wall Street Journal just devastated their analysis a couple of days ago in an article. I believe it is absolutely incorrect. I would note that they scored the reduction of the capital gains tax a few years ago, reduced it from 20 to 15 percent, as costing the Federal Government billions of dollars. The truth is, the Federal tax revenues from capital gains increased when the capital gains tax was reduced, and they missed it by more than $80 billion. They had a reduction projected, we ended up with a substantial increase, and the difference between their projection and reality was over $80 billion. Do you know they won't tell us how they compute this death tax cost? They will not tell the Members of this Senate what their working numbers are. So I will give some more information on my concerns about the score, but I will again note that it brings in less than 1.3 percent of the revenue to the Government. It is time to eliminate it. It will be great for our economy. It will eliminate a tax that costs as much to administer as it does to collect. It will stop savaging small businesses. It will stop preying on families during the most painful time in their lives: the death of a loved one. I yield the floor.

Mr. SESSIONS. Mr. President, I thank the Senator from Tennessee, Mr. Alexander, for his thoughtful comments on this subject and other related subjects. He taught me a phrase that he uses, which is that we need to make sure everyone who grows up in this country knows what it means to be an American. To be an American is not a racial thing. An American is a person who adopts the American ideal of equal justice under law, without regard to race, religion, national origin, or any other matter of that kind. Our Founders of this Nation were very wise in a number of important ways. One of the most important ways was they had a clear vision of the Nation they birthed and they saw it far into the future. They always considered the importance of principle because principle was important to the growth and progress of the Nation they loved for the long term. They never failed to think of the impact their actions may have on the future, even the distant future of the country they birthed, the country they loved. I do not believe we are as thoughtful today in that matter as we used to be. Too often, we make decisions based on perceived immediate needs or on political forces at the time or friendship or some deal we thought we were forced to make or needed to make at a given time; and too seldom in this busy, hectic place do we take the time to consider the long-term implications of our actions on the great Republic which we have been given. We simply must think in the long term in a principled way as we consider the Native Hawaiian legislation. It is not too much to say the legislation could create a crack in the American ideal of equal rights and colorblind justice. This would be a huge step. It is a step we must not take. This Nation in its maturity and wisdom must not succumb to any balkanization of America. A great nation must set crystal clear policies on these matters, crystal clear policies on this question. The Republic must firmly reject, must nip in the bud now and whenever it may appear in the future, any notion of creating sovereign governments within our borders unless they meet every criteria of the Indian Tribe Program. National Review said in a recent article: You might have thought after watching the immigration debate that the Senate could not be more cavalier about the unity and sovereignty of the Nation. Think again. The Senate is about to vote to pave the way with a bill to create a race-based government which is on the verge of passing. This bill has been around a number of years, but we have never had a full debate about it. Unfortunately, many in Congress don't seem to fully understand yet the enormous implication of establishing what can really fairly be said to be a race-based government. And further, the American people have not been informed of the breadth and significance of the legislation. That is why it is good we are having the debate at this time. We must talk about it. We ought to let the American people know that this bill would create a nation out of United States citizens. The territory known as Hawaii is the epitome really of our country's great melting-pot concept and has always been made up of a diverse group of citizens with different racial backgrounds. They are famous for that. If we pass this bill, we will divide them. The bill would result in the State of Hawaii giving up substantial lands to the new nation which would begin a downward spiral from an America that is based on a shared ideal to one where race, ancestry, our nationality constitute a legally approved basis for segregation and really discrimination. What is discrimination? Discrimination is saying you have an advantage or a disadvantage based on race. This legislation seeks to create an extra constitutional race-based government of Native Hawaiians by arbitrarily labeling that race of people as an Indian tribe. Essentially, it seeks to create a sovereign entity out of thin air, something that the Supreme Court said as far back as 1913 cannot be done. Indian tribes existed before our Constitution, before our Nation, in many cases, with continuity of leadership, centralized locality, and cultural cohesiveness. Therefore, the United States recognizes qualified Indian tribes as sovereign entities. Indeed, we signed treaties with many of them and made promises in those treaties to provide them certain degrees of sovereignty. Equating Native Hawaiians with a legitimate Indian tribe is not possible because Native Hawaiians share none of the unique characteristics possessed by recognized tribes. Native Hawaiians never lived as a separate, distinct, racially exclusive community, much less exercise sovereignty over Hawaiian lands. They never established organizational or political power. They never lived under a racially exclusive government. All Hawaiians, regardless of race, were subjects to the same monarch in 1893. In other words, Native Hawaiians have never exercised inherent sovereignty as a native indigenous people, as the bill asserts and must assert if it were to have any chance of withstanding constitutional muster. Nonetheless, the bill would carve out a special exemption in the Constitution for these people based on race solely. A special exception being sought for Native Hawaiians is extraordinary. Under the bill, there is no guarantee that members of a new government would be subject to constitutional rights and protections, such as the first, fourth, and 15th amendments. The U.S. Constitution guarantees to every citizen a republican form of government, and this has been defined to mean all the protections of our Constitution. At a minimum, the Founding Fathers intended that a republican form of government ensure popular rule and no monarchy, but under this bill, nothing guarantees these basic principles will be honored. This new government, this new sovereignty will be free to reinstate a monarchy or establish any other method of government they may choose. Essentially, persons who are now citizens of the United States and who are now guaranteed these protections, a republican form of government, would now be turned over to a government that is not bound to honor that. One should not be deprived of the right to vote or be denied free speech or have property taken without due process. These are deeply rooted principles in the United States, but they will not be guaranteed as part of a Native Hawaiian government. Under the bill, Congress would strip United States citizens of these and other great protections they now enjoy. Perhaps this is why there is a lot of unease in Hawaii about this legislation. Indeed, so many residents oppose it. In May of 2006, in a telephone pole, 58 percent of Hawaiian residents said they opposed the bill. Of the respondents identifying themselves as Native Hawaiian, only 56 percent said they supported it. Of the Native Hawaiians, only a little more than half said they supported it. Given this split among even Hawaiians, is it not surprising that 50 percent of all respondents said they want a vote on the bill before it becomes law, which is not provided for in this legislation? I will share a few thoughts by the U.S. Commission on Civil Rights. They oppose the bill. The U.S. Commission on Civil Rights voted recently to oppose the legislation because of its concern with the bill's discriminatory impact. The Commission is an independent Government agency tasked with the duty to examine and resolve issues related to race, color, religion, sex, age, disability, or national origin. It is composed of eight members, though currently only seven. Four are appointed by the President and four are appointed by Congress. At no time may more than four members of the same party sit on the Commission. Pursuant to its authority to submit reports, findings, and recommendations to the Congress, the Commission released their report last month on this bill recommending ``against the passage of the Native Hawaiians Government Reorganization Act or any other legislation that would discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded various degrees of privilege.'' That is strong language. I submit that is what the bill does. I submit that is why we should not pass it. Let me repeat that. They oppose this act and any other legislation that would ``discriminate on the basis of race or national origin and further subdivide the American people into discrete subgroups accorded varying degrees of privilege.'' And, I would add, based on their national ancestry or race. ThIs report was issued after--the Commission held a hearing on January 20, 2006, where experts--both opposing and supporting the bill--testified about the legislation. The Commission held the briefing record open until March 21, 2006, to receive additional comments from the public. Sixteen public comments were received during the period, and most of the commentators wrote to express their opposition to the bill. Interestingly, the report notes that ``While most commenters oppose the legislation, the governmental and institutional commenters primarily support it. The report also states that ``Many [opponents] argued, in very personal terms, that the proposed legislation would be inconsistent with basic American principles of equality, traditional Hawaiian values, and their own personal ethics. Commission Chairman Gerald A. Reynold, himself an African American, agreed with opponents, stating that: I am concerned that the Akaka Bill would authorize a government entity to treat people differently based on their race and ethnicity . . . This runs counter to the basic American value that the government should not prefer one race over another.'' In a case called Rice v. Cayetano, the Supreme Court found a similar attempt to create a race-based classification unconstitutional. In that case, the Court struck down a race-determinative voting restriction in Hawaii as a violation of the fifteenth amendment, which bars racial restrictions on voting. By a vote of 7 to 2, the Court held unconstitutional a system under which non-Native Hawaiians were barred from voting for or serving as trustees of the State's Office of Hawaiian Affairs. Finding that the fifteenth amendment protects the rights of Whites, Asians, Hispanics, and persons of other races in Hawaii just as it protects all other individuals against racial discrimination, the Court stated: One of the reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens. Proponents of this bill seek to circumvent this Supreme Court decision by completely separating the Native Hawaiian community into its own sovereignty, placing it and its members outside of Constitutional protections. This is the only way it can be done. Instead of carving Native Hawaiians out from constitutional protections, and separating them from America, we must uphold constitutional principles, as well as American--especially Hawaiian-- ideals, by not discriminating against anyone on account of race. Our Constitution seeks to eliminate racial separatism, not promote it. How can we promote equality while separating our people into distinct, legally-recognized racial sovereignties with more or less rights and still be ``one nation''? Because they existed prior to the establishment of our Constitution and Federal Government, Native American Indian tribes have long been recognized as sovereign entities--most signed treaties to that effect. Tribes have never been, nor can they now be, created out of thin air by Congressional legislation. Instead, ``tribes'' seeking recognition after statehood must adhere to a process established by the Federal Government. To be formally recognized, a tribe must demonstrate that it has operated as a sovereign for the past century, was a separate and distinct community, and had a preexisting political orgranization. The Native Hawaiian people cannot meet these criteria and have conceded such on at least one occasion. In the case that I previously mentioned, Rice v. Cayetano, the State of Hawaii argued in its brief that: [F]or the Indians the formerly independent sovereign entity that governed them was the tribe, but for native Hawaiians, their formerly independent sovereign nation was the Kingdom of Hawaii, not any particular `tribe' or equivalent political entity. . . . The tribal concept simply has no place in the context of Hawaiian history. Let me reiterate and further explain why Native Hawaiians cannot meet the Bureau of Indian Affairs' standards for tribal recognition. Those standards boil down to two basic requirements: one, the group must be a separate and distinct community, and two, a prexisting political entity must be present. The BIA requires a tribe to demonstrate that it represents a separate and distinct community. Yet, Native Hawaiians live in almost every state in the Nation and have fully integrated into American society. Native Hawaiians do not live as a cohesive, autonomous group of people and have not done so at any point in history. Rather, they are fully immersed in all aspects of American life. For example, almost half of all marriages in Hawaii are interracial. Hawaiians serve in the U.S. military, dedicating their lives to the service of America. They are a part of American culture and certainly do not live separate and distinct from the rest of us. The BIA requires a tribe to demonstrate that it had a preexisting political organization. Yet, no political entity--whether active or dormant--exists in Hawaii that claims to exercise any kind of organizational or political power. Knowing this, the bill's advocates rely on findings in the bill declaring that ``Native Hawaiians'' exercised ``sovereignty'' over Hawaii prior to the fall of the monarchy in 1893, and that it is therefore appropriate for Native Hawaiians to exercise their ``inherent sovereignty'' again. This argument is fatally flawed because there was no race-based Tribal Hawaiian government in 1893, so there is no ``Native Hawaiian'' government to be restored. Since the early 19th century, the Hawaiian ``people'' included many native-born and naturalized subjects who were not ``Native Hawaiians'' in the sense of this bill--those people included Americans, Chinese, Japanese, Koreans, Samoans, Portuguese, Scandinavians, Scots, Germans, Russians, Puerto Ricans, and Greeks. All were subjects of the monarch, not just those with aboriginal blood. Further, Hawaiian government, including the monarchy that existed until 1893, always employed non- Natives, even at the highest levels of government. Therefore, it would be impossible to ``restore'' the ``Native Hawaiian'' government of 1893--as the bill purports to do--because no such racially- exclusive government--or nation--ever existed. If there ever was a time for Native Hawaiians to establish themselves as an Indian tribe, it has long passed. When Hawaii was considering statehood, there was absolutely no push to establish any tribal sovereignty. In fact, 94 percent of voters supported statehood in 1959, and at the moment it was attained, all people living in the territory became full-fledged citizens of the United States of America. They deserve every protection that our Constitution ensures. There are many practical consequences of this legislation that must be considered. If this bill passes, it would allow for the creation of Hawaiian ``tribes'' in every State. This would have extreme social consequences--sporadic pockets of people in almost every State would be governed differently than their neighbors and would be immune from State and Federal laws and taxes. The result would be a chaotic intermixing of different rules and regulations throughout the entire country. Native Hawaiian business owners, exempt from state and local taxes, could displace non-Native Hawaiian business-owning neighbors, giving them an enormous competitive advantage. Further, the bill could conceivably lead to complete secession from the United States. In fact, a group of supporters, including the State of Hawaii's own Office of Hawaiian Affairs, views this bill as a potential step towards ``total independence.'' On a website operated by that agency, the following passage appears under a section called, ``How Will Federal Recognition Affect Me?'' [The bill] creates the process for the establishment of the Native Hawaiian governing entity and a process for federal recognition. The Native Hawaiian people may exercise their right to self-determination by selecting another form of government including free association or total independence. How breathtaking is that? We simply cannot return to a government where different races of Americans are governed by different laws. The bill itself does not require any percentage of Native Hawaiian blood for inclusion in the new race-based government, which could therefore include someone with only ``one drop'' of native blood. Hawaiians with significant traceable blood heritage oppose the bill, in part, for this very reason. Those Hawaiians with at least 50 percent blood quantum were given Federal assistance and lands by the Hawaiian Homes Commission Act of 1921, a requirement which still exists today, with the only exception being for children of homesteaders with 25 percent blood quantum. Doesn't this entire process of dividing money, property, and benefits based on a person's race--the percentage of ``blood'' they have--sound an alarm? Yet this bill positively seeks to divide people based upon race and blood--all in the name of apology and restitution. What about the French who held the Louisiana territory? Should they be given special benefits because we forced them into a sale? We cannot go down this path. Not only would all Americans suffer if we sever Native Hawaiians from our American community, but those individuals who would become citizens of a Native Hawaiian sovereignty would lose rights that we as Americans cherish. One of the many lessons learned from the Civil War is the importance of national unity. Abraham Lincoln referred to the principle of secession as ``one of disintegration, and [one] upon which no government can possibly endure.'' We fought a war over the issue, and the question was settled for all time. We are one Nation and will not be separated--whether by secession of a State or a racial group. Certainly we cannot promote this state- sanctioned racial separatism. If passed, this bill would create a slippery slope that could lead to a host of pernicious possibilities for our future as a unified Nation. In an editorial written last fall, Georgie Anne Geyer quoted the eminent historian Henry Steele Commager praising the Founding Fathers for thinking hard about the future--even the distant future. They ``couldn't give a speech or write a letter without talking about posterity.'' We cannot set a precedent that would allow every racial group in America to become its own independent sovereignty. Native Hawaiians, just like any other racial group in this country, are free to practice and promote their culture. They are free to pass down their traditions from generation to generation. America celebrates her diversity, but she cannot allow her diversity to divide her citizens. E Pluribus Unum--out of many, one--is fundamental to our national character. This bill seeks to turn that fundamental principle upside down and would make us many out of one. Mr. President, I see my colleague from Idaho is in the Chamber. I will conclude with these thoughts. We are as Members of this Senate particularly charged with thinking about the long-term future of our Republic. That is how we are today in a relatively healthy condition because our forefathers thought about those matters. They thought about the principles on which this Nation was founded. The concept is that once an American, based on adoption of the American ideal, you become an American regardless of your race, your ancestry, your religion, or your national origin. That is who we are as a people. And I submit, it is a matter of the greatest danger that we move away from the classical acceptance of Indian tribes to now start creating sovereign entities. Sovereign means independent, to a certain degree uncontrollable by the U.S. Government. Sovereign entities within our Nation based on race, with people spread all over the Nation actually, being a member of a new government, a new government that according to the supporters and even the Hawaiian Web site indicates could lead to separation and independence, that is not a step we ought to take. We need to nip this in the bud. We need to end this now. We need not go down this road. I so respect my colleagues from Hawaii. They are committed to their people. They understand the concerns of their citizens. They want to help them. They have a particular desire to be compassionate to the Hawaiian people, the Native Hawaiians who have grown up on the islands for many years. But I say with all due respect, in terms of the overall National Government of which we are a part and the principles to which we must adhere, that we should not go down the road creating an independent sovereign entity based on race, as this bill would do. Therefore, with reluctance and great respect for my colleagues who support this legislation, I urge our Members to vote no. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table, and that any statements relating to the resolution be printed in the Record.

Mr. SESSIONS

Mr. SESSIONS. I ask unanimous consent that the amendment at the desk be agreed to, the bill as amended be read a third time and passed, the motion to reconsider be laid upon the table, and any statement relating to the measure be printed in the Record.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that the Senate return to legislative session.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, we have had a full day debating the motions to proceed to the death tax relief bill and the Native Hawaiian bill. Tomorrow morning, at approximately 10:45, we will have a cloture vote on the motion to proceed to the death tax relief bill, and at 12:45 we will have a cloture vote on the motion to proceed to the Native Hawaiian bill. We have several nominations to address before the end of the week. These include several judicial nominations, as well as Susan Schwab to be United States Trade Representative, and Richard Stickler to be the Assistant Secretary of Labor for Mine Safety and Health. We hope to vote tomorrow afternoon on the Schwab nomination and four district judges. Following these votes, the schedule for the remainder of the afternoon will be dependent on the outcome of the cloture votes on the motions to proceed to the death tax relief bill and the Native Hawaiian bill. Moments ago, cloture was filed on the Stickler nomination. Therefore, Senators can expect to have a cloture vote on Friday unless we work out an agreement to vote at an earlier time.