Ron Wyden

Mr. WYDEN

Mr. WYDEN. Will the distinguished ranking member yield?

Mr. WYDEN. I think the ranking member has made a number of very important points here. The fact of the matter is that we are all here because the majority leader wasn't able to defeat the surveillance reform. So instead, he has chosen to introduce amendments designed to water it down. I am disappointed by this. I will oppose all of these amendments, and I want to have a colloquy briefly with the ranking minority member. The ranking minority member and our colleague from Connecticut, Senator Blumenthal, have done very good reform work with respect to the FISA Court. In particular, what the distinguished Senator from Vermont has done, with the help of the Senator from Connecticut, is to bring some very important sunshine and transparency to the court. As my two colleagues have pointed out on the Judiciary Committee, we really meet on the major questions--not all of them, as the Senator from Vermont has just said--but what is really needed is to make sure that both sides get a chance to be heard, not just the government side. So what troubles me--and I am interested in the reaction of my colleague from Vermont, and I want to praise him and my colleague from Connecticut--is that it seems to me that what the Senate majority leader wants to do is basically to take us back to the days of secret law. What is important, as we get into this, and particularly with this amendment, is that there is a difference between secret operations and secret law. Operations always have to be kept secret. I see my friend Chairman Burr here. We serve on the Intelligence Committee together. The two of us feel so strongly about making sure secret operations are kept secret because otherwise Americans are going to die. We can't have secret operations splayed all hither and yon in the public square. But the law always ought to be public. As Senator Leahy has pointed out for some time--and I warned about it here on the floor--what we would see is, if you live in Connecticut or Vermont, the PATRIOT Act talked about collecting information relevant to investigation. Nobody thought that meant millions and millions of records on law-abiding people. That decision was made in secret. It was made without the reforms advocated by the Senator from Connecticut and the Senator from Vermont. So I would be interested in my colleague from Vermont's reaction to the majority leader's amendment to scale back your very constructive reforms on the FISA Court. And my sense is that what the majority leader's approach would do would take us back to the days of secret law. I think that is a mistake, and I would be curious about the reaction of my colleague from Vermont on this.

Mr. WYDEN

Mr. WYDEN. Mr. President, I yield the floor.

Mr. WYDEN. I thank my colleague. I will wrap up and then give the last word to my friend from New Mexico on the subject. He is absolutely right that some of the most authoritative leaders in our country-- experts on terror--have reached the same judgment we have. I made mention of the President's Review Group on Intelligence and Communications Technologies, and I really would encourage colleagues who are following this debate and citizens across the country--that report is available online, and it is available in our office. Page 104 of that report is very explicit. It says that the information that would otherwise be obtained in collecting all of these phone records-- millions of phone records of law-abiding Americans, people such as Mike Morell, former Acting Director of the CIA, and Richard Clark, who served in two administrations--they said it could have been obtained through conventional processes. This is a program that is not making us safer. And it is not my judgment that ought to be the last word; it should be that of people like those I just quoted. The Privacy and Civil Liberties Oversight Board's report on the telephone records program said pretty much the same thing: [T]he Section 215 program has shown minimal value in safeguarding the nation from terrorism. Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. I will close by way of saying--and I touched on this before my friend from New Mexico arrived--I would like to do a lot more than I believe is likely to happen here quickly in the Senate. I do want to see us finally throw in the dustbin of history this bulk phone records collection program because it doesn't make us safer and it compromises our liberty. But, as I indicated to my friend from New Mexico, I would also like to close this backdoor search loophole in the FISA Act, which is going to be a bigger problem in the days ahead given the evolution of communications systems and how they have become globally integrated. I will close by saying that one of the most important issues we are going to have to tackle in the days ahead is going to deal with encryption. Encryption, of course, is the encoding of data and messages so that they cannot be easily read. The reason this will be an enormously important issue--and my colleague and I have talked about this--is because of the NSA overreach, the collection of all these phone records of law-abiding people. A lot of our most innovative, cutting-edge companies have found their customers raising real questions about whether their products can be used safely, and a lot of the purchasers who buy their products around the world are saying: Maybe we shouldn't trust them. Maybe we should try to start taking control over their servers and have local storage requirements and that sort of thing. So what our companies did, because they saw the effect of the overreach by the NSA, was they started to use encryption to protect the data and messages of the consumers who buy their products. Most recently, the head of the FBI, Mr. Comey, rather than try to come back with a solution that protected both our privacy and our security, he said he was interested in requiring companies to build weaknesses into their products. Just think about that--requiring companies to build weaknesses into their products. So the government-- which, in effect, caused this problem with the overreach--in effect, rather than trying to find a solution that worked for both security and liberty, said: We will start talking about requiring companies to actually build weaknesses into their products. I and others have pointed out that once you do that, hang on to your hat. When the good guys have the keys, that is one thing, but when companies are required to build weaknesses into their products, the bad guys are going to get the keys in a hurry, too. And with all the cyber hacking and the risks we already have, we ought to be really careful about going where Mr. Comey, our FBI Director, has proposed to go. But that is not for tonight. Tonight is not an occasion where we will be able to, on a bipartisan basis, close the backdoor-search loophole or where we will be able to come up with a sensible policy with respect to encryption rather than requiring companies to actually build weaknesses in their products. We will not be able to do that tonight. But we will now have a chance here in the Senate to take steps that have been bipartisan both here in the Senate and in the other body, in the House of Representatives, to end the bulk phone records collection program because it doesn't make us safer and it threatens our liberties. I always like to close by thinking about Ben Franklin, who said that anybody who gives up their liberty to have security really doesn't deserve either. I am so pleased to have a chance to serve with my colleague from New Mexico on the Intelligence Committee, who is going to be a thoughtful advocate for these kinds of policies, in my view, for many years to come. I thank him for his involvement tonight and would be happy to give him the last word of our colloquy at this time. I yield to my colleague.

Mr. WYDEN. I thank my colleague for his statements and would just want to explore this a little bit further. I hope that those who are following this debate understand that my colleague from New Mexico is a real rising star in the Senate. He and I would like the USA FREEDOM Act to go further, and we both worked together on legislation that would make additional reforms. Certainly, our colleagues on the Intelligence Committee and here in the Senate can expect to see us continuing to work together to advance these additional reforms over the coming months and years. For now, the two of us are saying we ought to support the USA FREEDOM Act and then move on--move on to other critical areas. I particularly want to see closed what is called the backdoor search loophole, which my colleague from New Mexico talked about. What this means, colleagues, is that when you are engaged in a lawful search of someone who is a threat overseas, pursuant to section 702 of the Foreign Intelligence Surveillance Act, very often law-abiding Americans can get swept up in this search and have their emails looked at. This is a problem today, and my view is it is likely to be a growing concern in the future because, increasingly, communications systems around the world are becoming globally integrated, so the amount of emails that are reviewed of Americans is likely to grow. But we can't get that change here tonight. So, as my colleague from New Mexico has mentioned, the USA FREEDOM Act would make several worthwhile reforms, such as increasing transparency, reducing the government's reliance on secret laws. But from my perspective, the centerpiece of it is ending the bulk collection of Americans' information under the PATRIOT Act. I have been trying to close this particular loophole for close to a decade now. Some of our colleagues have said the bulk collection has never been abused; that no one's rights have been violated. My own view is--and I will ask what my colleague thinks--that vacuuming up all this information, particularly when databases get violated all the time--we have seen historically instances where there has been improper conduct by the government. I believe dragnet surveillance violates the rights of millions of our people every day. Vacuuming up the private phone records of millions of Americans with no connection to wrongdoing is simply a violation of their rights. And vacuuming up Americans' email records, which I pointed out before my colleague came to the floor--which he and our former colleague Senator Udall and I battled--is surely a violation of the rights of Americans as well. Colleagues, that wouldn't have been pointed out at all--it wouldn't have been pointed out at all--unless Senator Udall and I, with the help of our friend from New Mexico, hadn't been pushing back on it. Finally, one day the government said: Well, we will get rid of it because it wasn't effective. They got rid of it because they saw they were going to get hard questions, the kinds of questions my friend from New Mexico has been asking. Now, with respect to the legality of this program, I know my colleague and I actually filed a legal brief, along with our former colleague Mark Udall, when the Court of Appeals for the Second Circuit was examining that program. In our brief, it was argued that we were able to debunk many of the claims that had been made about the effectiveness of the program. I think it would be helpful if my colleague from New Mexico laid out some of that analysis here tonight. I would ask the Senator from New Mexico to begin, and I would encourage him to start by addressing the claim that the bulk collection of Americans' phone records is essential for stopping terrorist attacks. My question to my colleague is, Is there any evidence, any real concrete evidence, to support that claim?

Mr. WYDEN. Mr. President, before he leaves the floor, I just want to make sure, having worked with Senator Paul for many, many months now, that I especially appreciate his efforts in the last few days in this week to try to accommodate this body with respect to amendments. My colleague has said repeatedly that he was very interested in a short list of amendments, that he hoped to have some modest time that would be available for these amendments. He and I have worked together on a number of them. I think it is a reflection, as people think about this debate and on a topic that is of such enormous importance, that my colleague from Kentucky, especially with respect to this amendment issue, has tried continually to be reasonable and to be accommodating to this body. Until just a few hours ago, I was at home in Oregon having townhall meetings, flew all night to be here for this extremely important session. Of course, the topic we discussed this evening was front and center in terms of my constituents. The message from Oregonians at these townhall meetings was very clear. The people whom I have the honor to represent in the Senate want policies that advance their security and protect their liberties. The program we have been talking about tonight in the Senate really does not deliver either. It does not make us safer. It chips away at our liberties. I am going to spend a little bit of time this evening making the case for those kinds of arguments and laying out the challenge for the days ahead. Now, with respect to this safety issue, all of us understand-- particularly the Presiding Officer, who has been on the Intelligence Committee, as I have, for over 14 years--that it is a dangerous world. Anyone who serves on the Intelligence Committee knows that beyond any kind of debate. So we want policies that really deliver both security and liberty. This is what the President's own experts had to say with respect to this program that involves collecting millions and millions of phone records on law-abiding Americans. This was a group that was appointed and spent a considerable amount of time looking at the bulk phone records collection program. They issued a report, and will I just paraphrase what is the central finding, on page 104 of their report: As to information contributed to terrorist investigations by the use of section 215 telephony metadata--that is the collecting all of these millions and millions of phone records--these experts say that ``could readily have been obtained in a timely manner using conventional Section 215 orders.'' Now, the reason that is important is it spells out and recognizes that those who signed this report are individuals with some of the most pristine antiterror credentials in this country--Mike Morell, for example, the former Acting Director of the CIA; Richard Clarke, who held an extremely important position in two administrations and served with both Republicans and Democrats. Both of them are signatories to this important report. Beyond that--and it has not received much attention--the reality is that our government, on top of everything else, has emergency authorities so that when those who are charged with protecting our country believe there is a threat to the Nation, they are allowed to issue an emergency authorization to get the information they need right away, and then they can go back and get the warrant approved after the fact. Nobody is talking about eliminating that emergency authority. So what we have is a program that the most authoritative antiterror experts in the country believe does not make our Nation any safer. I read the most significant finding in their report. On top of that, as I just indicated, emergency authorities are still preserved. In fact, I have indicated to our President and to those who work in the intelligence agencies that if at any point the executive branch and, particularly, the intelligence agencies feel that their emergency authorities are inadequate to protect the country, I personally would be willing to support efforts to ensure that those emergency capabilities are reformed and our country can take the steps it needs when it is necessary. On top of this question, with respect to the issue of our safety, I want to talk about what I heard at some length earlier today with respect to how the program worked. I heard a number of Senators say that nobody in government is listening to these calls. That was repeated a number of times on the floor of this body. When the government, under this program, knows whom you called, when you called, and where you called from, in many instances the government doesn't need to be listening. If the government knows, under this program, that a person called a psychiatrist 3 times in 36 hours--twice after midnight--that is a lot of private and personal information. The government doesn't need to be listening to that call. So as to this notion that some who have wanted to make sure that our country would have both security and liberty are saying that it is a fantasy that the government is listening to calls, I could tell you that those who have been trying to reform the program have said, in effect, that the government doesn't need to listen to those calls. If the government has that amount of private and personal information, the government knows a lot about you, and it really doesn't need to listen. Certainly, if you are talking about a land line, then the government knows where you are calling from if they have a phone book. So with respect to this question of the government listening, I want it particularly understood that a program such as this, when the government has this kind of information, I believe, represents a threat to our liberty. The reason why I think so is that hardly a week goes by when databases aren't violated. No. 1, we see that reported regularly in the press. No. 2, we have known about unfortunate times in our history--J. Edgar Hoover comes to mind--when this kind of information could be used. And, No. 3, I have been very concerned, given what our former colleague, Senator Udall, and I had to do with respect to bulk phone record collection of email. We battled to end this. Of course, this was email that could be read by government agencies. We battled with various intelligence leaders saying that we felt this was a violation of people's rights and it wasn't effective. They asserted for months and months that it was. Finally, one day they woke up and said the program wasn't needed any more. None of this would have even happened had not Senator Udall and I made that case repeatedly. The intelligence leadership knew that we were not going to give it up, but that is what goes on if there isn't a check on some of these kinds of procedures. Senator Paul made mention of the fact that the intelligence leadership has not exactly been straight with the American people on these issues. I emphasize that we are not talking about the thousands and thousands of law-abiding patriotic, dedicated, wonderful people who work in the intelligence field. Day in and day out they do so much for our country. We are so appreciative of all they do. They are the ones who do the hard work, for example, to capture Bin Laden and day in and day out to make us safer. But the intelligence leadership, on the other hand, as noted by our colleague from Kentucky, has not always been straight with the American people. I spent many months trying to decipher what the former NSA Director meant when he said the government doesn't collect any dossiers on millions of Americans. I pointed out I had been on the Intelligence Committee for a long time and I had never heard the term ``dossier'' used. So I tried to learn more about it, used private opportunities and public opportunities, and just couldn't get the information. So, finally, I said: I have to ask this question in public. On the Intelligence Committee you don't get but perhaps 20 or 25 minutes a year to ask questions in public, to hold intelligence leaders accountable on policy matters--not secret operations, because secret operations have to stay secret, but policy matters. So, after being stonewalled for many months--many months--I finally said I have to ask this question in public. So to make sure no one would feel ambushed, I sent the question to the Director of National Intelligence, Mr. Clapper. I sent it a day ahead of time. Then I didn't hear anything about its being inappropriate or in violation of classification rules. So I asked in public: Does the government collect any type of data at all on millions or hundreds of millions of Americans? I was told no, and that answer was obviously false. I tried to get it corrected, and we still couldn't get it corrected. Of course, then Mr. Snowden spoke out publicly and pointed that out. Since that time, the Director of National Intelligence and his representatives have given these five different explanations for why that answer was given. So that is why you have to ask the hard questions. You have to ask the hard questions about these issues. I see my friend and colleague Senator Heinrich has joined us tonight. I am so pleased that he has joined the Intelligence Committee. Senator Heinrich is one of those Senators who subscribes to that view that I just mentioned--that it is our job to ask the hard questions. It may be uncomfortable. It is not designed in any way to convey disrespect. We see it as our job to ask the hard questions. I would be interested in my colleague's thoughts with respect to this issue and to have him be given a chance to participate in this colloquy.

Mr. WYDEN. I thank my colleague. The first of these examples--and they really are kind of overblown examples about the effectiveness of bulk collection--is the case of an individual named Najibullah Zazi. Mr. Zazi was a known terrorism suspect, and a number of people have suggested that bulk phone records collection was somehow essential to stopping him because a query of the bulk phone records database for numbers linked to Mr. Zazi returned a previously unknown number belonging to another terrorism suspect. However, since the government had already identified Zazi as a terrorism suspect prior to querying the bulk phone records database, it had all the evidence it needed to obtain the phone records of Zazi and his associates using an individualized section 215 order or other legal authorities. In the second case, some have pointed to Mr. Moalin, the San Diego man convicted of sending $8,500 to support al-Shabaab in Somalia. The intelligence community has indicated that information from the bulk phone records database ``established a connection between a phone number known to be used by an extremist overseas . . . and an unknown San Diego-based number'' that belonged to Mr. Moalin. Yet there are ample existing authorities under which the United States can conduct surveillance on a phone number known to be used by extremists overseas and other phone numbers in contact with that phone number. The argument that Mr. Moalin's case is an example of a unique value of bulk phone records collection is just not accurate. My view is this is yet another case that offers a misleading exaggeration with respect to the effectiveness of bulk phone records collection. Finally, several supporters of the bulk metadata program have claimed that ``[i]f we had had [the bulk phone-records] program in place at the time [of the September 11, 2001 attacks,] we would have been able to identify'' the phone number of one of the hijackers, Khalid al-Mihdhar. Just as in these other cases, however, the record indicates that Mr. Mihdhar's phone number could also have been obtained by the government using a variety of alternate means. Before September 11, the government was surveilling a safe house in Yemen but failed to realize that Mr. Mihdhar, who was in contact with the safe house, was actually inside the United States. The government could have used any number of authorities to determine whether anyone in our country was in contact with the safe house it was already targeting. It didn't need a record of every Americans' phone calls to establish that simple connection.

Mr. WYDEN

Mr. WYDEN. I object.

Mr. WYDEN

Mr. WYDEN. Mr. President, I will be brief. It would be an understatement to say there have been strong differences of opinion here in this Chamber and in our country with respect to this legislation. I have said from the very beginning that opponents of this effort--trade promotion authority--have a number of very valid points. There is no question in my mind, colleagues, that there has been way too much secrecy in the past, so Senator Hatch and I set out to make some very significant changes in that. Now, starting with the TPP but with all other agreements, the American people will have that agreement in their hands for close to 4 months before anybody votes here in the Senate or in the House on TPP or a trade agreement. I think that is a step toward a sunshine trade policy. Second, I thought opponents were spot-on with respect to their comments that we needed a completely new regime with respect to enforcing our trade laws. Again and again the American people say: What are you talking about in terms of passing a new trade deal if you aren't doing a better job of enforcing the laws on the books? So we set about to put in place a tough enforce act to go after cheats. We had Senator Brown's leveling the playing field, which I think is a very important piece of legislation, and an early warning system so that for the first time, rather than waiting until it is too late, businesses and labor unions and others would see what is coming. I think that is a significant step forward. Many skeptics said there isn't an aggressive approach to protect labor and the environment. It essentially gets shunted to the side. Now we have enforceable standards in this area. Because of the good work of Senator Ben Cardin, for the first time, colleagues, human rights will be a significant factor in trade legislation. Finally, we put in place a new process so that this body can put the brakes on a bad deal. We have always talked about fast-track because we want people to have an opportunity to consider a new agreement. We also ought to put the brakes on a bad deal. I will close with this point: At the end of the day, colleagues, we have always known that one of the paths to more good-paying jobs in our country is exports. There are going to be 1 billion middle-class people--1 billion--in the developing world in 2025. These will be people with money, colleagues. They are going to buy our wine, our computers, our helicopters, our planes, and all kinds of goods and services with the American brand. They are going to buy our products because they buy and use our products with great pride. We all ought to appreciate the opportunity for more exports. I know there are strong differences of opinion on this legislation. I want it understood that we tried especially hard--and I appreciate the help of Chairman Hatch--to address as many of those concerns as we possibly could. With that, I yield the floor.

Mr. WYDEN. Mr. President, as we bring this very dramatic chapter in U.S. trade policy to its conclusion in the Senate, I wish to take a few minutes to acknowledge the many people who helped in ways large and small to bring about the passage of the Bipartisan Congressional Trade Priorities and Accountability Act. First and foremost, I thank Chairman Hatch for his partnership throughout the process. I think Chairman Hatch and I can smile a bit looking back on some very spirited debates in the process of getting to this point. I do want colleagues to understand that Chairman Hatch has been a true leader in this bipartisan effort in the Finance Committee and on the floor. I thank Chairman Hatch and his staff for all they have done. I think both Chairman Hatch and I also want to acknowledge our partner in the House, Chairman Ryan. All through the discussions, Chairman Hatch, Chairman Ryan, and myself, all tried to make sure that we would have a bipartisan, bicameral collaborative effort. The three of us obviously don't see eye to eye on everything, but we thought it was very important to try to come together and move an extraordinarily important and challenging economic policy forward for the country. Chairman Ryan has been there every single step of the way, and we look forward to returning the favor as he moves this historic package through the House and on to the President's desk. We also thank Leader McConnell for his work in shepherding this package through the process. It has not been easy, but Leader McConnell has had a single-minded focus in terms of getting this bill across the finish line. While we are on the subject of Senate leadership, I especially want to acknowledge the extraordinary contributions of my Pacific Northwest colleague Senator Murray and her staff. Over the last few years, colleagues, we have seen time and time again Senator Murray demonstrate her extraordinary ability. She is a person of modest size, but she is sure good at getting big things done. This bill is no exception, and it could not have happened without her leadership and help. Finally, I note Chairman Hatch and I wish to thank all the members of the Finance Committee because they had a lot of good ideas, and they were constructive in terms of bringing this debate along, recognizing that we had strong differences. Every single member of the Finance Committee made a meaningful contribution, whether it was to the policy or to the process. Chairman Hatch and I want to say that when you look at a full recounting of all the great work done by Finance Committee members, if we were to do it all night, we would keep you all the way through the recess. I wrap up with a quick word of my thanks to my staff who have done an exceptional job putting the legislation together: Jayme White, Elissa Alben, Greta Peisch, Anderson Heiman, Keith Chu, Malcolm McGreary, Danielle Deraney, Kara Getz, and Juan Machado. I close by way of saying I think it is fair to say that there were a lot of observers, both in and outside this body, who thought it would not be possible to move forward on an issue like this--which is going to affect 40 percent of the global economy--in a bipartisan fashion. We know there are going to be a billion middle-class consumers in the developing world in 2025, and they want to ``Buy American.'' They like our brand. With the extraordinary leadership of Chairman Hatch and many others who contributed to this effort, I think once again there is going to be a very significant array of economic opportunities for the people we represent to get high-skill, high-wage, export-related jobs with products and services that we sell to these countries. So I close this part of the debate tonight--again, as we began, I think, 7 months ago, Chairman Hatch, by telling you that this, to me, is what we are sent to do, tackle the big issues in a bipartisan way. With that, I yield the floor. Recess Subject to the Call of the Chair

Mr. WYDEN. Mr. President, on my reservation, I don't have a problem with the Senate voting on the three amendments included in Chairman Hatch's request, but there are a number of other important amendments that are not included in that request that colleagues on my side feel very strongly about and want to have the Senate vote on. Because the chairman's request would not allow these important additional amendments to be considered, I must object.

Mr. WYDEN. Mr. President, I ask unanimous consent to also be heard for 2 minutes in opposition.

Mr. WYDEN. Mr. President, this trade package is about bringing our policies into 2015. This amendment would throw us back into the 1950s. President Kennedy, who first proposed TAA, called it a program to afford time for American initiative, American adaptability, and American resiliency to assert itself. To me, those sound like sound bipartisan priorities. This package will expand TAA and help ensure workers are not knocked off stride in tough times. Let's not turn our backs on this country's workers. Let's not break the bipartisan compact this bill represents. I strongly urge my colleagues to oppose the amendment.

Mr. WYDEN. Colleagues, for three decades, our country has never lost an investor dispute case and never paid one dime in penalties. Let me repeat that. We have never lost an investor dispute case and have never paid a dime in penalties. Here is our record: 17 cases, 17 victories. These provisions are about raising the world to our economy's level of safety for investment. Without these protections, our small businesses with investments abroad will have nowhere to turn if a corrupt government steals a factory or a crooked judge targets them unfairly. Each of our States has businesses that started in a garage, grew up, and looked abroad for new chances to expand. Let's make the world safer for the American brand. I urge rejection of this amendment.

Mr. WYDEN. Mr. President and colleagues, the Senate now has an opportunity to throw the 1990s NAFTA play book into the dustbin of history and begin a new forward-thinking era in trade. This can be a momentous day for creating more economic opportunity for our people, transparency and sunshine and the forward march of American values. The legislation can help us pry open the booming markets for our exports. It will strengthen the American brand in the fight against trade cheats and bad actors who block our way. It will raise the bar for worker rights, environmental safeguards, and human rights. It will help strip out the excessive secrecy that makes people skeptical about trade. Colleagues, in a sentence, this is how you begin to get trade done right. I yield the floor and urge support for cloture. Cloture Motion

Mr. WYDEN. Mr. President, I am going to be brief because I know Chairman Hatch and I are going to be propounding some unanimous consent requests here in a moment. On this currency issue, I want it understood that this is a serious, serious issue, and it is absolutely essential that our trade laws include tough enforceable currency rules and that we put in place those rules without doing damage to American monetary policy or to our ability to tackle the big economic challenges in the days ahead. The Senate has a choice between the amendment offered by Senator Hatch and me and the amendment offered by Senator Portman and Senator Stabenow. My view is this. The Portman amendment could outsource the question of the Federal Reserve's intent and decisionmaking to the whims of an international tribunal. This could take tools out of the economic toolbox that we could need--need greatly--during a potential financial crisis. We hope it will never happen, but the bottom line is the Congress must not set up the possibility of collateral damage for the Fed and our dollar. The right solution, which Chairman Hatch and I have worked to offer as an alternative, will make sure that America gets the upside of cracking down on currency manipulators and avoids the downside of limiting the Federal Reserve's toolkit of monetary policy. Our view is that we strike the right balance. We make sure that we are going to have the widest array of effective tools available, including strong, enforceable rules. I think we ought to take that route. The alternative could subject our country to disputes over our own monetary policies. That means, as I indicated, that the alternative--the Portman-Stabenow amendment--would, in effect, outsource questions of the Federal Reserve's intent to the whims of an international tribunal. Now, the Portman amendment tries to carve out domestic monetary policy. It sure sounds like a good idea. But when we have opened ourselves up to attack over our policies, other countries will not have to take our word that our policies are on the up and up. Even with that carve-out, other countries can still come after us. For example, many countries argued that our quantitative easing policy unfairly devalued the dollar. They were dead wrong on that. But the Senate shouldn't do anything that could strengthen the hand of those countries that want to attack our monetary policies. Now that Chairman Hatch is here, I wish to propound a unanimous consent request. Over the past few days, Chairman Hatch and I have been working in a bipartisan and cooperative fashion to come up with a balanced package of amendments that can be voted on. I very much appreciate the work of the chairman and his bipartisan leadership and particularly of my northwest colleague, Senator Murray. It appears regrettable that we have come up short, but for the benefit of colleagues, I wish to propound a unanimous consent request that would be acceptable to our side. These are amendments that I believe are important for the Senate to consider as part of this debate. I ask unanimous consent that it be in order for the following first- degree amendments to the Hatch substitute be made pending during today's session of the Senate and that no other first-degree amendments be in order: Cruz-Grassley No. 1384 on immigration; Menendez No. 1430 on trafficking; Sullivan No. 1246 on fish and shellfish; Warren No. 1328 on financial services; Daines No. 1418 on Indian tribes; Donnelly No. 1406 on training programs; Sessions No. 1233 on congressional approval; Boxer No. 1371 on minimum wage; Paul No. 1383 on bonuses for cost cutters; Manchin No. 1413 on State effects; Paul No. 1408 on auditing the Fed; Cardin No. 1230 on human rights; Brown-Portman No. 1252 on leveling playing field; Whitehouse No. 1387 on unregulated fishing; Markey No. 1308 on clean air and water; Merkley No. 1404 on food information; Casey-Murphy No. 1436 on Buy American; Baldwin No. 1317 on trade remedy; Bennet No. 1309 on poverty/hunger; Further, that the time until 5 p.m. today be equally divided in the usual form; that at 5 p.m. today the Senate vote in relation to the following amendments in the order listed: Hatch-Wyden No. 1411 on currency; Portman-Stabenow No. 1299 on currency; Warren No. 1327 on ISDS; Flake No. 1243 on striking TAA; Brown No. 1251 on China docking; Cruz-Grassley No. 1384 on immigration; Menendez No. 1430 on trafficking; Sullivan No. 1246 on fish and shellfish; Warren No. 1328 on financial services; Daines No. 1418 on Indian tribes; Donnelly No. 1406 on training programs; Boxer No. 1371 on minimum wage; Manchin No. 1413 on State effects; Cardin No. 1230 on human rights; Brown-Portman No. 1252 on level playing field; Whitehouse No. 1387 on unregulated fishing; Markey No. 1308 on clean air and water; Merkley No. 1404 on food information; Casey-Murphy No. 1436 on Buy American; Baldwin No. 1317 on trade remedy; Bennet No. 1309 on poverty/hunger; Further, that no second-degree amendments be in order to the amendments prior to the votes; that all after the Brown amendment No. 1251 be subject to a 60-affirmative-vote threshold for adoption; that upon disposition of the Bennet amendment No. 1309, all other pending amendments, including Sessions No. 1233, Paul No. 1383, Paul No. 1408, Inhofe No. 1312, McCain No. 1226, and Shaheen No. 1227, to the Hatch substitute be withdrawn; that all postcloture time be considered expired; and the Senate vote on the adoption of the Hatch substitute amendment, as amended; finally, if cloture is invoked on H.R. 1314, all postcloture time be yielded back, the bill, as amended, be read a third time, and the Senate vote on passage of the bill, as amended.

Mr. WYDEN. I ask for the yeas and nays.

Mr. WYDEN. Reserving the right to object.

Mr. WYDEN. Mr. President, I ask unanimous consent to have printed in the Record a letter from Judge Stephen Schwebel, who is both a dispute arbitrator and president of the International Court of Justice. This letter provides a useful perspective on the investment matters that have been discussed this week.

Mr. WYDEN

Mr. WYDEN. I agree, that these are very important issues that we are committed to addressing in the coming conference on the Trade Facilitation and Trade Enforcement Act. I will note that the Brown-Portman trade remedy legislation was included in the Senate version of the bill. I think it would be appropriate to try to address these other issues in that context as well, and I commit to working with Chairman Hatch to do so.

Mr. WYDEN. Yes, I also commit to include your Nepal legislation in the Customs enforcement bill.

Mr. WYDEN

Mr. WYDEN. Madam President, I ask unanimous consent that at the conclusion of my remarks, Senator Durbin, who has been very gracious to let me follow the Finance Committee chairman, be allowed to speak.

Mr. WYDEN. Madam President, and colleagues, Chairman Hatch has made a number of important points this morning. I wish to follow up and give a little bit of an update on where we are and touch on one issue that has not been discussed. First, under Chairman Hatch's leadership, both sides have been working together in good faith with respect to the amendments, and I think it would be fair to say the chairman and I are optimistic that we can have a good and fair list of amendments. That is No. 1. I wish to commend both the Democrats and the Republicans who were part of that amendment discussion. Second, with respect to the currency issue which Chairman Hatch has addressed--and I certainly share his views--I would also sum it up by saying the Hatch-Wyden approach on currency provides a wider array of tools to deal with the currency issue without undermining our monetary policy. That is really the heart of the Hatch-Wyden proposal. We wanted to come up with the widest possible array of tools but at the same time not undermine monetary policy. That is what Janet Yellen has been concerned about. She has always been concerned about what would happen if, Heaven forbid, we had another financial crisis. She doesn't want her hands tied or the hands of the Fed tied in terms of being able to fight that challenge. We know that during that period of quantitative easing, a number of countries said the United States was manipulating our currency. Now, of course, that was an outrageous assertion. Chairman Hatch and I certainly disagree with that, but that is what we are up against. To me, what we ought to be trying to do is to provide the widest array of tools to fight these currency manipulation issues while at the same time not undermining our monetary policy. So those are two concerns. Now, I wish to provide an update from yesterday. Yesterday, I came to the floor because colleagues were talking about excessive secrecy in the way trade policy has been made in the past. I made clear that I have very much shared that view, and I went through in considerable detail how we have put in place a new approach that I am calling the sunshine trade policy. In particular, what it means is that before any Member of the Senate and the House vote on the Trans-Pacific Partnership or any other agreement--the American people will have that agreement in their hands for close to 4 months before any Member of the Senate or any Member of the House actually votes on the Trans-Pacific Partnership. The way it works--and I thank Chairman Hatch also for his efforts to build this sunshine trade policy--is that before the President of the United States even signs the Trans-Pacific Partnership, that document has to be public for 60 days. On top of that, there are probably about another 2 months that the American people would have that document in their hands. I know the Presiding Officer of the Senate is here. We welcomed her to the Senate. What this means is that when my colleague from West Virginia has a community meeting--and certainly people in West Virginia, like the rest of our country, care greatly about trade-- people would be able to come to a townhall meeting in West Virginia with the Trans-Pacific Partnership document in their hands for close to 4 months before you or any other Member of Congress votes on it. So that is an awful lot of sunshine, Madam President, and it is long overdue. I thank Chairman Hatch again for working closely with me on this matter. This is required by law. It is required by law that the President of the United States make public the Trans-Pacific Partnership for 60 days before it is signed. Beyond that, yesterday we talked about the labor and environmental issues. Once again, there is a very dramatic set of changes, and that is why the President and I have said this is the most progressive trade policy in our country's history. For example, during the 1990s--my friend from Illinois is here. We remember all those fierce debates in the 1990s. One point that I think all Members now realize is that those labor and environmental positions meant very little. They weren't enforceable. They were off on the side. They were really shunted way out of real opportunities to affect the debate. That is different now because labor and environmental rights--I went through them in great detail yesterday--are now enforceable. On the labor issue, we are going to comply with the International Labor Organization standards, the ILO. So this is going to be a very different day, and it is why the President and I have both said this is the most progressive trade policy in our country's history. To just touch on one other topic briefly, I want to address some of the misstatements about what this trade package will and will not do. We have heard suggested, for example, that it is a backdoor route for immigration reform or action on climate change. We have heard some say that a future President could use trade deals to repeal the Affordable Care Act or water down Wall Street reforms. These hypotheticals somehow just seem to be getting more and more far-fetched. My sense is that at the rate these hypotheticals are going, one is bound to hear that a future President working on a trade deal might have second thoughts about the Louisiana Purchase. Now, to me, it is pretty important to keep this debate grounded in facts, and the fact is that the bipartisan legislation passed by the Finance Committee says in clear terms that trade deals cannot change or override American laws or regulations. Let me repeat that. Trade deals cannot change or override American laws or regulations. But there has been an awful lot of spin out there on this point, and I want to address some of those issues this morning. Many of the hypotheticals are centered on a common part of trade agreements called investor-state dispute settlement, also known as ISDS. Over the course of three decades with this approach in our trade agreement, our country has never lost a single dispute settlement case or paid one dime in penalties. So I have heard all kinds of discussion about this. We never lost a single dispute settlement case. We have never paid a dime in penalties. In fact, our country has been sued 17 times, and if you look at the number of years we have had it, it is not as if there is some kind of tidal wave of litigation. Some have said that even the mere threat of a lawsuit causes laws and regulations to get watered down. Again, when you have gone 17-for-17 in dispute settlement in those cases, you have to put that upfront in this discussion. What we know is that our country has regulations challenged nearly every day in our own domestic court system, and there are thousands of lawsuits every year. This trade promotion legislation makes it clear that companies do not have greater rights under the investor-state dispute settlement approach than they do in U.S. courts. The fact is that our country is a safe and welcoming environment for investment, but that sure hasn't been the case all over the world. Property can be stolen, governments can dream up regulations designed to discriminate against our investors, or companies in fields such as renewable energy can be targeted and punished in unfair ways. Those are companies that we think are right at the heart of a vibrant economy-- renewable energy companies--and they have been targeted. In some places, unlike the United States, there is not a reliable court to turn to for help. This raises serious questions. What happens, for example, if a Malaysian judge decides to vote against an American company and it costs them millions? In another era, our country turned to gunboat diplomacy to protect our economic interests, but, in my view, the rule of law is a better option than military force. It is also important to recognize that there are an increasing number of cases brought by pro-environment plaintiffs. That looks to me like a positive trend, whether it is the renewable energy companies challenging a European Union state that has rolled back incentives for solar or wind energy or the ecotourism investors suing Barbados for the discharge of sewage in a wetlands area. Skeptics have argued that the arbiters are invariably biased in favor of corporations and that the panels that decide cases are rife with conflict. The numbers, however, tell a different story, which is that the overwhelming majority of cases are decided in favor of government. The record does not support the proposition that all of the arbiters are unprincipled individuals who allow corporations in those dispute settlements to get laws and regulations tossed out. Finally, I want it to be clear that I will only accept a plan for dispute settlement that uses a transparent process. What is true in trade negotiations overall has to be true with dispute settlement, too. America cannot be kept in the dark. The hearing briefs, the decisions-- all of the important matters must be open to the public. My bottom line is this: The bipartisan trade legislation that is now before the Senate will go further than ever before to protect American sovereignty and affirm the fact that only democratically elected leaders write the laws in our country. Done right, our trade policies help guarantee that American companies that have grown up here, invested here, and found opportunities to sell brand Oregon and brand America around the world are going to get the same fair treatment abroad that they get here at home. I thank my colleague, Senator Durbin, for his patience. I yield the floor.

Mr. WYDEN

Mr. WYDEN. Mr. President, most of us have heard the metaphor that small businesses are the engines that power our economy. What we don't hear people talk about as much is the fuel that feeds the engines: capital. Without capital, entrepreneurs cannot see their ideas to fruition, successful business owners cannot expand to meet the needs of the market, and eager job seekers must take their skills elsewhere. Without capital, Main Street falters. Today, more than 7 years after the start of the Great Recession and many policy reforms later, access to capital remains a challenge that stands in the way of small business growth, economic development and job creation in Oregon and across the country. Despite this, government regulation continues to tie the hands of many potential lenders; namely, credit unions. According to some estimates, credit unions could lend an additional $16 billion to small businesses, helping them create nearly 150,000 new jobs in just 1 year if Congress loosened restraints on credit union business lending. With this in mind, I am pleased to introduce today the Credit Union Residential Loan Parity Act, which would increase access to capital by exempting certain loans from the member business lending cap imposed on credit unions. Currently, loans made for one- to four-person, non-owner occupied housing are treated as business loans when they are made by credit unions. As such, these types of loans count against a credit union's business lending cap, and thereby limit a credit union's ability to provide loans to small businesses. My legislation would address this issue by allowing credit unions to treat these types of loans as residential loans--as they are when they are made by other financial institutions--therefore exempting these loans from the business lending cap. In doing so, this legislation would increase the availability of business capital, providing greater opportunities for small businesses to receive credit union loans to help them continue to grow and expand, create jobs and support our local economies. I am hopeful that this legislation will be received by colleagues for what it is: a simple step to help ensure America's small businesses have access to the fuel they need to power our economy. It is my hope that the Senate will pass this legislation swiftly. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WYDEN

Mr. WYDEN. Mr. President, I listened to some of the debate earlier this afternoon--in between the effort to make progress toward getting a fair array of amendments for both sides--about this whole question of secrecy surrounding trade policy. A number of Senators were discussing it, and so I just wanted to take a minute to be very clear that I think they have a very valid point with respect to the secrecy that has long accompanied these trade discussions. I would like to discuss how I made it my paramount reform to make sure we would have a new era of transparency, openness, and accountability in the discussion about making trade policy. I have always felt that if you believe deeply in international trade--the way I do--and you want more of it, why in the world would you be for all this secrecy? That just makes Americans more cynical about the whole topic and makes them think that in Washington, DC, there is something to hide. I note my friend and partner in all this, Chairman Hatch, is on the floor, and he will recall when we began our discussions--and they went on really for close to 7 months in our effort to forge a bipartisan package--that I wanted to take a very fresh approach with respect to transparency, and I wanted us to be able to say that for the first time in the history of debating these policies, we would no longer have the country and elected officials in the dark with respect to really what is at issue in these discussions. So here is a short assessment of what really has changed. Of course, right now we are working on the rules for future trade agreements. We are working on the trade promotion act that sets out the rules for future agreements. Obviously, the first one will involve the Trans- Pacific Partnership--what is known as TPP--and there are a variety of others that are under discussion, particularly one with Europe. If the Congress--the Senate and the other body--adopts this package that Chairman Hatch and I, in conjunction with Chairman Ryan, have put together over these many months, I think we will have achieved our goal of making sure everybody in the Congress and everybody in the United States who chooses to can have the information they need about trade agreements before a single vote is cast on the floor of the Senate or on the floor of the other body. Here is how the reform would work: First, it is required by law--in other words, this isn't something that is discretionary--that these trade agreements, starting with the Trans-Pacific Partnership, would be made public 60 days before the President of the United States signs that agreement. That means if you want to come to a townhall meeting in Colorado, held by the distinguished Presiding Officer of the Senate-- even before the President signs it--a citizen in Colorado can come with the Trans-Pacific Partnership Agreement--the entire agreement--in their hands and ask questions of the Presiding Officer of the Senate or any one of our colleagues in the Senate and the House. After that 60-day period of sunshine and exposure, the President can sign it, and then there would be close to 2 additional months--2 additional months--before the voting on the floor of the Senate and the House begins. So when I heard my colleagues--Senators whom I respect greatly--talk earlier today about secrecy and that secrecy was no good and why couldn't this be changed and why couldn't that be changed, it made me want to come to the floor--and I will do an overview of all of the progressive reforms that have been made to this package; reforms I thought were important for a new era of what I call trade done right-- to make sure we corrected the suggestion that somehow everybody is going to be in the dark before the Congress and the country saw voting begin in the Senate and the House. Chairman Hatch is here, and he remembers all of our negotiations on this point. It is really going to mean--with the 60-day requirement for sunlight before the President signs the agreement and then probably 2 more months after it has been signed, before we start voting--that a citizen can come to a townhall meeting in Colorado, Utah or any part of the country and have that Trans-Pacific Partnership Agreement in their hands in order to be able to ask questions about it. I certainly think that puts our trade negotiators and everybody else kind of on their toes because they know the American people and the Congress are going to have that document. That is going to start with the Trans-Pacific Partnership Agreement. Now, Chairman Hatch and I made a number of other changes. In the future, it would be possible for the discussion of negotiations-- summaries of the negotiations--to be made public so people would also have more information about the process as it was going forward. We have lifted a number of the restrictions in terms of Members having access to the materials and staff having access to the materials. Because the chairman is here, I want to express my thanks to him especially on this point. We spent a lot of time on a whole host of issues: How you could put the brakes on a flawed agreement. I am glad the chairman can smile about our discussions on that point today, but suffice it to say they were pretty spirited. We had discussions on a host of these topics. I am especially pleased we made these very substantial changes on the issue of sunlight, transparency, openness, and accountability because I think my colleagues--who discussed it on the floor and many others who have been concerned about secrecy in the past with respect to these agreements--when they get a chance to actually see the details that are in the reforms Chairman Hatch, Chairman Ryan, and I put together, are going to see we have made some very dramatic changes. Now, I think some specific changes here are areas that I would like to outline. I am going to go to the question of major changes in workers' rights and environmental protections because I know that a number of my colleagues, when they talked earlier, were concerned about these issues as well. Suffice it to say, on workers' rights and environmental protections, if we go back to the 1990s, back to the NAFTA era, these vital priorities basically were just shunted to the side. It would be almost inflationary to say they got short shrift. They basically got no shrift. They just got shunted to the side. They were in unenforceable side deals, which meant that the United States in effect had to take it on blind faith that our partners would live up to their commitments. It was my view that many of my colleagues, particularly on the Democratic side of the aisle, were spot-on in saying that wasn't good enough. This trade package will say in clear terms that the United States is done allowing labor and environmental protections to be pushed aside and disregarded. Our partners will be required to adopt and maintain core international labor standards. Core international labor standards are going to be required of our trading partners. They will have to adopt them, and they will have to maintain them. That is not something that is to the side and is unenforceable. That is real. It has got teeth. Also, our partners would be required to adopt what are really common multilateral environmental agreements, and these would be backed by the threat of trade sanctions. So these are major changes that certainly contribute to what I think makes the most progressive approach with respect to trade policy in the future. And for the first time, the President is directed under this piece of legislation to make sure our trading partners adopt and maintain key laws. That is why, for example, I mentioned labor standards. And here is what those are: freedom of association, the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labor, the effective abolition of child labor and a prohibition on the worst forms of child labor, and the elimination of discrimination with respect to employment and occupation. Now, those are the keys with respect to the labor side. Here are the key protections on the environmental side, which I have again highlighted here at the outset. The bedrock protections here are that there has to be recognition to ensure that there is compliance with the Convention on International Trade and Endangered Species Act, the Montreal Protocol on Substances that Depletes the Ozone Layer, the Protocol on Prevention of Pollution from Ships, the Convention on Wetlands, the Convention on the Conservation of Antarctic Marine Resources, the Convention on Whaling, and the Tropical Tuna Convention. This, again, is not stuck in a side deal but is fully enforceable, and not just rearranging inadequate policies of the past, sort of rearranging sinking deck chairs. This is better than anything that has existed before--better than the North American Free Trade Agreement, better than the Central American Free Trade Agreement. With these changes, our country is saying that we will no longer take it on blind faith that other countries are going to adopt stronger standards for protecting workers and the environment. This is the first time the United States is setting the standard and demanding that trading partners hit that mark. That is very real progress. I will close with just this point. Many colleagues who have been skeptical about trade agreements always raise the issue about whether trade is somehow going to be a race to the bottom. What I have just described is a concrete way to have a new force for raising standards up and getting the standards up, because my colleagues are right that they have been inadequate in the past. So whether you are for this bill or not, I hope my colleagues will take a look at the new sunshine provisions, because the American people are not going to be in the dark about what is in a trade agreement before anybody votes on that agreement here in the Senate and the House. I hope my colleagues will especially look at the new provisions with respect to labor rights and environmental rights, because the day is over when those considerations are going to be shunted to the side. They are going to be front and center, and they are going to have teeth. And instead of a race to the bottom that my colleagues have been concerned about, the United States will be where it always is, where we are at our best--forcing standards up. I yield the floor.