Capitol Words a project of the Sunlight Foundation

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, I thank the majority leader. I thank Senator Collins, Senator Brown of Massachusetts, Senator Gillibrand, and a lot of others, who have worked to get us to this point where we can do two things. Most important to those of us who have worked on the STOCK Act is that we are now in a position this afternoon of adopting a clear statement that Members of Congress and our staffs are covered by anti-insider trading rules and that we can also provide for fuller disclosure by Members, making it accessible to the public online.

Instead of coming to a point where the system broke down again and Senator Reid being forced to file a cloture motion, we worked out an agreement here, people were reasonable, and there will be votes on a number of germane amendments--and some that are not, but we have agreed to a 60-vote threshold.

This is the way I think the Senate is supposed to work. Some of these votes will be controversial, some difficult. But that is why we are here. I thank everybody who was part of getting to this point.

I note the presence of the Senator from Massachusetts, Mr. Brown, and I yield to him.

Sen. Scott Brown

Party

R

State

MA

Mr. President, I also stand and commend the majority leader for allowing this process to unfold in a thoughtful and fair manner, the way it should. We are starting the new year off correctly and allowing everybody to feel as if they are participating in the democratic process, not moving for cloture, shutting off debate, and filling the tree, but allowing us to stay late and work together in a bipartisan manner to work through the amendments, allowing me and Senator Collins, and on their side, Senators Lieberman and Gillibrand, to call individual Members and say: You have four amendments up; which ones do you want? Is there a modification or can we combine them with other similar amendments? That is how it should work.

This is what I have been saying for the last 2 years and why I have continuously moved to work across the aisle: to allow that democratic process to work.

I am thankful we are here. These are some tough votes, but we are the Senate. We should be taking tough votes. That is why the people sent us here. I am thankful that we can send the message to the American people that we are trying to reestablish that trust that seems to have been lost with them by moving on the STOCK Act.

There are other issues we are taking up. I hope they are just as thoughtful and methodical and respectful. I hope we are going to do the postal bill next. It is something Senators Lieberman, Collins, Carper, and I have spearheaded. It is a solid bill and a good framework. If we allow it to move forward and everybody has their say and their day in the Sun, and we do as we have done today, we will have another good deed and, who knows, maybe we will be in double figures in terms of the approval rating pretty soon.

I suggest the absence of a quorum.

Sen. Daniel K. Inouye

Party

D

State

HI

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

Sen. Daniel K. Inouye

Party

D

State

HI

Madam President, I rise today to speak against the Toomey amendment that would impose a permanent ban on congressional initiatives or earmarks.

The Constitution grants to the Congress the power of the purse. There is no authority more vital to the separation of powers than the one that prevents the executive branch from directly spending the tax dollars collected from its citizens. Depriving the Congress of the ability to direct money to specific projects does not save money or reduce the deficit; it simply gives additional power to the President and weakens the legislative branch.

As I stated when I announced the initial moratorium on appropriations earmarks last February, I continue to support the constitutional right of Members of Congress to direct investments to their States and districts under the fiscally responsible and transparent earmarking process we have established.

Hawaii is a long way from the Capital City. It is simply not possible for a bureaucrat here in Washington to understand the needs of my home State as well as I do. And I believe such is the case with all 50 States. Each one is unique, each one has individual challenges, and each one has issues that cannot be fully understood by civil servants located thousands of miles away.

This amendment has nothing to do with lowering the deficit. Let me state that again. Eliminating earmarks will not save a single penny in spending. It will simply take decisions that were rightfully made by Congress and delegate them to the executive branch.

In truth, this is a political amendment meant to give cover to those who seek to mislead the American people into thinking earmarks are responsible for our current deficit, and that simply is not the case. Our deficit is driven by entitlement spending that is rising at a rate three times that of inflation, not by discretionary spending that is now capped at less than the rate of inflation. Our deficit is driven by the fact that revenues are at their lowest level in 50 years. A permanent ban on earmarks addresses neither of these matters.

Madam President, finally, I note for my colleagues that the voluntary moratorium in appropriations bills for fiscal year 2012 was 100 percent successful, and the committee will continue the moratorium for fiscal year 2013. Prior to the moratorium taking effect, the Appropriations Committee had to put into place a series of reforms that ensured openness and transparency for earmark requests. Every earmark request was posted online. Every earmark that was approved was listed along with the sponsor's name in committee reports and posted online. There were no secrets and no backroom deals.

The reality is that without congressional earmarks, we find ourselves at the mercy of the bureaucrats to ensure that our local needs are fulfilled. If we approve this amendment, from now on earmarks will be at the sole discretion of the executive branch. Local needs will either go unmet or will be included through deals made between our elected officials and the White House or unelected bureaucrats. No longer will we show the American people what earmarks we are funding and why. Instead, they will be part of a tradeoff between Members and bureaucrats--a bridge in return for support of a trade agreement.

By permanently banning earmarks, the spending decisions will move from the transparent process to discussions that are hidden from the public. So we face a choice between an open and transparent method for allocating targeted funding or one that will be done with phone calls, conversations, winks, and nods. One method allows for accountability and another leaves us all at the whim of unelected bureaucrats.

I urge my colleagues to vote against the Toomey amendment. This amendment will serve to deprive the Congress of essential congressional prerogatives. It has no impact on the debt, and it is simply designed to give political cover to those who refuse to address the core drivers of our fiscal imbalance--lack of revenues and ever-increasing entitlement spending.

I yield the floor, Madam President, and I suggest the absence of a quorum.

Sen. Daniel K. Inouye

Party

D

State

HI

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

Sen. Daniel K. Inouye

Party

D

State

HI

Madam President, on behalf of the Leader, I ask unanimous consent that any time spent in quorum calls be equally divided between the two sides.

Sen. Daniel K. Inouye

Party

D

State

HI

I thank the Chair, and I suggest the absence of a quorum.

Sen. Jon Kyl

Party

R

State

AZ

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

Sen. Jon Kyl

Party

R

State

AZ

Madam President, I rise to speak on the pending Toomey amendment, an amendment that we will be voting on here after a little bit, amendment No. 1472, known as the Earmark Elimination Act.

I thank Senators Toomey and McCaskill for continuing this important discussion and commend them as well as numerous other Senators, including my colleague from Arizona, Senator McCain, and Senators Coburn and DeMint, who have championed reforms to Washington's earmark culture. The concern, as noted by Senators Toomey and McCaskill, is that the earmark process lacks transparency and scrutiny. I support their efforts to reform the process in a manner that reflects the principles of our Founders and the trust the American people instill in us to represent them.

I wish to confirm, however, that this effort does not restrict Congress's ability to protect the American taxpayer from unnecessary expenses and significant legal exposure. In certain situations, the United States is required to fulfill legal obligations. For example, the United States must resolve water rights claims that American Indian tribes assert against the United States and other water users within an affected State. In those instances, as is common in other litigation, it is in the interest of the United States and the American taxpayer to limit ongoing legal exposure by settling the tribe's water rights claims. Effectuating the terms of such a settlement requires congressional review and approval. Congress will undoubtedly employ the searching scrutiny required to understand whether the settlement is in the best interests of the American people. Such settlements, however, are not amenable to a formula-driven or competitive award process. Rather, the settlements must be addressed and negotiated if and when the claims are asserted against the United States.

Congressionally enacted Indian water rights settlements have not previously fallen within the earmark moratorium. In that vein, I want to confirm with my colleague from Pennsylvania that the Earmark Elimination Act does not restrict Congress's authority to protect taxpayers by limiting the exposure of the United States to similar legal challenges.

Sen. Patrick J. Toomey

Party

R

State

PA

Madam President, the Senator from Arizona is absolutely correct. The Earmark Elimination Act is not intended to preclude Congress from effectuating legal settlements, such as Indian water rights settlements, that resolve claims against the United States. This body must maintain its ability to avoid costly litigation and to limit the legal exposure of the United States in a manner that ultimately benefits American taxpayers.

Sen. Jon Kyl

Party

R

State

AZ

I thank my colleague from Pennsylvania. I concur with my colleague in expressing a commitment to ensuring that these positive efforts to reform the earmark process do not result in an unintended consequence whereby Congress's efforts to settle legal claims against the United States are subject to a point of order.

I thank my colleague from Pennsylvania for his efforts, and I suggest the absence of a quorum.

Sen. James M. Inhofe

Party

R

State

OK

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

Sen. James M. Inhofe

Party

R

State

OK

I ask unanimous consent that I be recognized for as much time as I consume and that at the conclusion of my remarks, the Senator from Ohio be recognized for such time as he consumes.

Sen. James M. Inhofe

Party

R

State

OK

Madam President, we are going to have a number of votes on amendments this afternoon. I think it is important that we look at this in historic perspective. I am referring to the amendments and the meaning of the Toomey amendment, which I think is very significant.

As most people think about earmarks, yes, we want to do away with this. I am the first to admit that there has been a lot of abuse in the earmark process. I don't want to take sides between authorizers and appropriators, but I can remember several times here on the floor when appropriations bills are coming through, when people are legislating on appropriations bills, when they are swapping out deals. That is the kind of thing we want to stop. I think we have an opportunity to do that today.

I have an amendment. It is my understanding, the way the amendments are stacked up, there is going to be a vote on the Toomey amendment and then a vote on my amendment. Let me talk a little bit about how long we have been working on this issue.

Way back in 2007, I gave a talk to the Grover Norquist group. It was on July 25, 2007. I gave the Senate history of the 200-year fight between appropriators and authorizers.

In 1816 responsibilities between authorizing versus appropriating had been debated. In that year the Senate created the first 11 permanent standing committees.

I think most people understand that we in the Senate, each one of us is on at least two standing committees. Many of these are authorizing committees or appropriating committees. Mine happened to be authorizing committees. My two major committees I have been on since serving in the Senate are the Senate Armed Services Committee and the Environment and Public Works Committee. Both are authorizing committees.

What is significant about this is that there has always been a fight. This is not a new fight. People think this is just going on today. This has been going on literally since 1816.

In 1867 the Senate created the Appropriations Committee. The purpose of that was to have the tax writing put in the Finance Committee and then have the appropriating committee as a separate committee--keeping those functions divided. Here it is now a couple of hundred years later and we are still trying to do the same thing. Today may be the day we can do it, and my amendment actually would do that.

In 1921--I am reading notes from the speech I made in 2007 at the Grover Norquist event--in 1921 the Senate passed the Budget and Accounting Act of 1921. The Senate tried to ensure that authorizing had to take place in a separate committee.

There we go. That is what we are talking about today. My amendment actually resolves the problem because it defines an earmark as an appropriation that hasn't been authorized. In a minute, I am going to talk about that because there is a lot of support for that currently that should be considered.

Let me use my committees as an example. If we were to do away with all earmarks as they are described in the House bill, the earmarks would actually be defined as any appropriation or authorization. That gets into the huge question we will talk about in a minute--what our Constitution says. It says we, the House and the Senate, should do the spending or the appropriating. This has been this way for a long time.

I am hoping Members will go back and read Joseph Story and some of the great people in the past who have talked about why it is necessary for all the authorizing and the spending to take place in this body, in the Senate and in the House. If that does not happen, we are going to be in a position where we are giving our function to the President. We are ceding our constitutional obligation to the President--in this case, President Obama.

Back in the time I was making this speech initially, I talked about such things. I mentioned this on the floor yesterday. A lot of people do not understand. The budget that comes to us is a budget from the President. It is not from Congress, not from the House, not from the Senate, not from the Democrats, not from the Republicans, it is from the President. The President is the guy who sends the budget down. I am so critical of this President because every one of these budgets now--we have just gotten the fourth budget--has a deficit of over $1 trillion. Unheard of. I can remember back in the days--1996 was the first $1.5 trillion budget. That was during the Clinton administration. I remember coming down to the floor and saying: We cannot sustain this level of spending. That was $1.5 trillion to run the entire United States of America. What President Obama has sent down is $1 trillion to $1.5 trillion in each of his budgets, just deficit alone. We can't continue to do that.

I am on the Armed Services Committee. It is an authorizing committee. It is a committee staffed with experts in every area--missile defense, strike fighters--all of that having to do with defending America. Of course, when the budget comes down, historically--I am talking about historically from 100 years ago--we have taken that budget and analyzed that budget. The Chair is fully aware of this because she sits on that committee. We determine what is the best way to spend the given number of dollars that come down in the budget to best defend America.

The example I used yesterday was in one of the first budgets that came down. I think it was the first budget from President Obama. It had one item that was a $330 million item that was for a launching system that was referred to as a box of rockets--a good system, I might add, but with the scarce dollars we made a determination in the Armed Services Committee that we could take that same $300 million and instead of spending it on a launching system, spend it on six new F-18 strike fighter aircraft. And we did that. That is what we should be able to do. But if you have an earmark ban, then you would not be able to do that. It depends on how it is going to be interpreted, but the way I interpret it, it would mean we cannot change what the President sends down because that would be called a congressional earmark. Some might argue and say: No, it is that only if it happens to be in your district or something like that. That is not what it says, though. The way it is defined is anything that would be an authorization or an appropriation.

So we had the example there in the Armed Services Committee, and one of the unintended consequences would be--I will just use this as an example. I can remember back in the days, I am old enough to remember back when Reagan was President and nobody believed we would ever have a problem with people sending over a missile with some type of a weapon on it that would be very destructive to America, nor did they believe it would be possible, if a missile were coming in, that we could knock down that missile. Well, we have now settled that. Everyone knows you can hit a bullet with a bullet. We have done it before. We are doing a good job.

We also know after having gone through 9/11 that we should have at the very top of our concern as representatives of this country to defend America and to have an enhanced system. So we had a policy that we wanted to have a redundancy in all three phases of missile defense. In missile defense, you have three phases--a boost phase, a midcourse phase, and a terminal phase--and we want to have that. So when we are addressing that, if the President comes in with something that doesn't follow that redundancy, we could be in a position where we would not be able to do what is in the best interests of the country.

I am not the only one who believes that when we say we want an outright ban on all spending--and that is what we are saying, an outright ban on all spending--there is an article that I took out of the Hill Magazine--that would have been about 3 or 4 years ago--saying ``Lobbyists Hitting Up Agencies As Earmark Rate Drops.'' In other words, as we quit spending here, it does not save a cent. That money goes back into the bureaucracy, and they are spending it at that point. So that puts us in the position of, admittedly, what they are talking about--they are actually lobbying the bureaucrats as opposed to Members because that is where all the power is. In other words, we have ceded that power.

I can see a lot of the Democrats wanting to pass an all-out ban on congressional earmarks because they are supporting Obama. Obama wants to do the spending. They want him to do that. I understand that, and I heard from some of the Democrats who do not agree with that, and I appreciate their making that statement on the floor.

But I think as we address this and go back to things that we did on the floor a year and a half ago--this was November 2010--we talked about the Constitution and how it restricts spending only to the legislative branch and specifically denies that honor to the President.

We take an oath of office--

I am reading now from a statement I made on the floor a year and a half ago.

We take an oath of office to uphold the Constitution of the United States. That means that we take an oath of office to uphold article I section 9 of the Constitution.

What does that say? That says that the spending in our government should be confined to the legislative branch. That is us. If you go and look in the Federalist Papers, it talks about this. Over and over, judges without exception have reinforced this as the constitutional obligation we have.

Sometimes I miss Senator Bob Byrd more than other times, and this is one of the times I do. I can hear him standing on the floor saying: Why is it we are giving up our constitutional right? Remember he used to carry around the Constitution? He would hold it up. I wish he were here today so he could talk about article I, section 9 of the Constitution and how we are ceding that authority to the President.

I mentioned yesterday that one of the problems I have with a permanent moratorium without a definition of what an earmark is--one of the problems we have in giving the President, ceding our authority to him--and there is no better example--a lot of us got quite upset in this body when the President had his $800 billion-or-so stimulus plan. Remember the stimulus plan that didn't stimulate and he spent all this money? And when he signed it, he was talking about how this was going to stimulate. As it turned out, only 3 percent went into roads, highways, and so forth, and only 3 percent into defending America. When he signed it, President Obama said: What I am signing then is a balanced law with a mix of tax cuts and investments. It has been put together without earmarks or the usual porkbarrel spending. So, anyway, we had such examples of earmarks.

In fact, I remember on Sean Hannity's program, he had the 102 most egregious earmarks. In those earmarks was $219,000 to study the hookup and behavior of female college co-eds in New York; $1 million to do fossil research; $1.2 million to build an underpass for deer crossing in Wyoming. There were 102 egregious earmarks and not one of them was a congressional earmark. They are all bureaucratic earmarks. We ceded that so the President, through our action, was able to do all those things he could not otherwise do.

I have a longer list that I ask to be made a part of the Record at this point in my presentation, which includes about 10 or 15 other egregious earmarks.

Sen. James M. Inhofe

Party

R

State

OK

As it turned out, the President was the one who did the earmarks of the $800 billion stimulus program.

Again, getting back to article I, section 9:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.

The law, that is us. We are the legislative branch of government. That is what we are supposed to do. I think everyone understands that. It is unintended, and I know a lot of people out there would say, well, we want to kill all earmarks, without stopping to think that that is all spending and that is our constitutional duty.

I would say if we continue on making permanent and current moratoriums on congressional earmarks, then we are limiting our ability to govern with the President. If all we are doing is handing the President pots of money and requiring that he have competitive grants to disburse the funds, then we are washing our hands of the outcome. There is no light or transparency inherent to the Federal grant-making process. So what we are doing is giving up our constitutional responsibility in ceding that to the President.

It could be that things are going to be refined, with further definitions, and I have no objection to that. But I am saying we have one very simple solution to it. When the votes come up today, I will announce right now, if we don't have a definition of earmark, then I would vote against a permanent moratorium on earmarks because that is our constitutional responsibility.

My amendment is a little bit different, because what I do is define what an earmark is, and an earmark is defined as an appropriation that has not been authorized. I was very proud--2 days ago Senator Toomey said that some earmarks ought to be funded, but they ought to be funded in a transparent and honest way subject to evaluation by an authorizing committee. That is exactly what my amendment does. I talked to Senator Toomey, and I appreciate the fact that he is very open about this. I will repeat that: Some things ought to be funded, but they should be funded in a transparent and honest way subject to evaluation by an authorization committee. That is my amendment. A definition of an earmark is spending or appropriating without authorizing.

Last year Senator Coburn said: ``It is not wrong to go through an authorization process where your colleagues can actually see it. It is wrong to hide something in a bill . . . .'' Amen. I agree with that. I said earlier, and I said yesterday, I can remember Democrats and Republicans on consideration of appropriations bills sitting on the floor, swapping out deals, making deals back and forth. That is what we want to do something about, and this is not a partisan thing. This is something that has been going on, and we have a way now of doing it.

Senator McCain was kind enough to endorse a freestanding bill I had that does the very thing of defining an earmark as an appropriation that has not been authorized. Senator McCain said: Some earmarks are worthy. If they are worthy, then they should be authorized. Authorized, there is the key, and Senator McCain is exactly right. If you authorize it, then that is the process we want. When an earmark is considered by an authorization committee before it is appropriated, real transparency is brought to the process.

In fact, I remember it was Senator Coburn who said on the floor--and this is about a year and a half ago--he agreed with me and said one good thing about requiring an authorization before an appropriation is that then if it is a bad one, we have two chances to kill it. Senator Coburn is right. We can kill it in the authorization phase or we can kill it in the appropriations phase.

The example I use is a good example in terms of what we and the Armed Services Committee should be doing and are not doing. But I would say to you that this afternoon when we have these votes--it is my understanding we are going to have around 20 votes. A lot of these will be voice voted, I am sure. But the two votes I am concerned about are, No. 1, the vote on the Toomey bill, which I support, but I support it if you can define it and make real transparency set in by having the authorization process in place.

I would only say that we go back to the Constitution. As I mentioned, let's go back to the statements that were made by Senator Toomey, Senator McCain, and Senator Coburn, that we want transparency and we don't want to cede the power of our constitutional duty as Members of the Senate to the executive branch. I know some in here would probably want to do that. Some are stronger supporters of Obama than I am. I am very critical of what Obama has done in terms of the deficits, which we have already talked about, in terms of what he is doing to the military. Some trillion dollars over a period of 10 years would be taken out of our military. When you add his budget to the sequestration, that is something that should not happen.

With energy, right now the President is going around talking about how he is for developing energy in this country, and yet he is the obstacle to the development. He is the one who has in his budget the various things that make it very difficult, if not impossible, to get our resources that we have out there in oil and gas.

In fact, it is kind of humorous and very clever of the President. Last week during his State of the Union message the President was talking about wanting to exploit all of our natural gas when he slipped in a little phrase that hardly anyone heard. I know Senator Boxer heard it because she was next to me, and we disagree on this whole issue. He said: We want to go after this type of formation, all the shale that is out there, but we don't want to poison the ground at the same time. Well, what he is talking about there is hydraulic fracturing. If you take away hydraulic fracturing, as he is trying to do, and put that in the hands of the Federal Government, then you might as well say goodbye to all these types of formations, oil and gas. We would not be able to do it. So I am critical of him in that respect.

In the fourth area, in addition to what he is doing to the military, the deficit spending, and energy in this country is regulations. I am the ranking member of the Environmental and Public Works Committee, with all of these MACT programs--that is MACT, maximum achievable control technology. He is trying to do away with emission requirements where there is no technology to get into that type of requirement. So it is very expensive.

The other thing he is trying to do--and I know this is the most controversial issue among liberals and conservatives--and that is we were able to successfully stop this whole global warming cap-and-trade legislation that has been out there ever since we refused to ratify Kyoto. It was made very clear that there is one thing nobody argues with--we know it is true--if you were to have legislation for cap and trade, the cost would be between $300 billion and $400 billion a year. We know that is true. That has come from the MIT, it has come from the CRA, and it has come from the Wharton School. That is the range they talk about. However, now this President is trying to do by regulation what we have voted down in legislation.

Right now in this body of 100 Senators, there are at the very most 25 Members of the Senate who would vote for cap and trade, and yet he is trying to do that through regulation. I have to say that would be the largest amount of money in terms--that would probably exceed the obligations we have to pay back even the deficits he has had. We will talk more about that later, but the issue right now is the two votes that are coming up.

I would encourage us to vote for my amendment, which would define an earmark as an appropriation that has not been authorized. I have read to you quotes from virtually everyone in here who would agree with that, except for those individuals who want to cede this power to the President of the United States.

I yield the floor, and I understand under unanimous consent that the Senator from Ohio would be the next speaker.

Sen. Sherrod Brown

Party

D

State

OH

Madam President, at the conclusion of my remarks, I ask unanimous consent that the Senator from Iowa, Senator Grassley, be recognized.

Sen. Sherrod Brown

Party

D

State

OH

I thank Senator Inhofe for the sensible nature of his words in terms of the difference between a Presidential and a congressional earmark. I think the Senator brought good sense to this, and I appreciate his words.

Madam President, I rise in support of amendment No. 1481, cosponsored by Senator Merkley, our amendment to the STOCK Act. I thank Senator Gillibrand for her good work on managing this legislation.

USA Today had an editorial from Tuesday that said:

If lawmakers were really concerned with ethics, they'd put their equity holdings in blind trusts, so they wouldn't have the obvious conflict of interest that comes from setting the rules for the companies they own. Banking committee members wouldn't invest in financial institutions, Armed Services Committee members wouldn't invest in defense contracts, and energy committee members wouldn't invest in oil companies.

How simple is that? How straightforward is that? How right is that? These stories simply don't reflect well on the world's greatest deliberative body. Most of us think these investments don't affect our decisions here, and they probably don't, but isn't it time we held ourselves to a higher standard?

Senator Merkley and I are proposing the Putting the People's Interests First Act as an amendment to the STOCK Act. It would require Senators and their senior staff who are subject to financial disclosure--no more than two or three or four of our staff people in each office; the most well paid, those in the highest ranking decision-making position--to sell individual stocks that create conflicts or to put their investments in blind trusts or to invest in only widely held mutual funds.

No one is required to avoid equities. We could still invest in broad-based mutual funds or exchange-traded funds. You can keep your ownership interest in your family farm or small business. I will repeat that: In no way does this affect your ownership in your family farm or small business. If you are setting up a blind trust, you can instruct the trustee to hold onto your stock in your family company. This rule would be similar to steps that have already been taken to address financial conflicts of interest or at least the appearance of financial conflicts.

Senate Ethics rule 37.7 requires committee staff making more than $25,000 per year--way more strict than our amendment in that way--``to divest himself [or herself] of any substantial holdings which may be directly affected by the actions of the committee for which he works.''

The Armed Services Committee requires staff and spouses and dependents to divest themselves of stock in companies doing business with the Department of Defense and the Department of Energy. The committee does permit the use of blind trusts.

When asked about a requirement to divest, former Defense Secretary William Perry said:

That was very painful, but I do not disagree with the importance of doing this. The potential of corruption is very high. It keeps our government clean.

In the executive branch, Federal rules and Federal criminal law generally prohibit employees, their spouses, and their children from owning stock in companies they regulate. All Senator Merkley and I are saying is that Members of the Senate should hold themselves to the same standard we already require of much of our committee staff and executive branch employees. Our staff's requirements are more severe than ours, and we are the ones whose names are on the ballot, we are the ones who are sworn in to do the bidding of the American people. We are the 100 people in this so-called exclusive club and yet we are going to have different rules for us than we do for a $30,000-a-year staff person? That hardly seems right.

Some argue that selling all of our stock will make us lose touch with the rest of society. That kind of thinking falls on deaf ears for most Americans. The ranking member of the House Financial Services Committee doesn't invest in stocks. Instead he invests in State and local bonds with a small amount directed into mutual funds. When asked, Congressman Frank of Massachusetts said: ``I get a steady 4.5 percent, and I help my state in the process. I'm a patriot, and I'm making money too.''

Why should Members of the Senate who own stock in oil companies vote on issues that affect the oil industry? Why should Members of the Senate who might own stock in a pharmaceutical company vote on issues that affect health care, on a generic drug bill or on a biologics bill or on Medicare or Medicaid? Appearances matter. Right now the American people don't trust that we are acting in the Nation's best interest far too many times. Investing in broadly held funds or a blind trust will keep us in touch with society. It is not a retreat from the U.S. economy. Instead it will keep us from picking winners and losers. It will show the public that our focus is on policies that will help grow the economy. Again, I am not accusing any of my colleagues, if they own an oil stock, of voting for more tax breaks for the oil industry. I am not saying they do that; I am saying there is the appearance that some of them might do it.

We need to remember that public service is a privilege. Folks around Washington are already paid well in these jobs. There is no reason they need to be buying and selling stocks in small or multimillion-dollar portfolios.

When asked about the fact that Senate Armed Services Committee conflict-of-interest rules apply only to staff and Department of Defense appointees--but not to Senators--again, when asked about the fact that the Senate Armed Services Committee conflict-of-interest rules apply to staff people--and, again, not necessarily highly paid staff--and Department of Defense appointees, President Bush's Deputy Secretary of Defense, Gordon England, said: ``I think Congress should abide by the same rules we impose on other people.''

No kidding. Really.

In a State of the Union Message, the President said: ``Let's limit any elected official from owning stocks in industries they impact.''

As we cast votes, we all--the 100 Members of the Senate--have an impact on all kinds of industries every day, on all our economies.

I agree with Under Secretary England. I agree with President Obama. I agree with Senator Merkley as we offer this amendment. It is simple and direct. The public should expect nothing less from us.

Thank you.

Sen. Charles E. Grassley

Party

R

State

IA

Before I speak on the amendment, I ask unanimous consent that the pending amendment be set aside to call up my amendment No. 1493 and make that the pending amendment.

Sen. Charles E. Grassley

Party

R

State

IA

I ask unanimous consent that the reading of the amendment be dispensed with.

Sen. Charles E. Grassley

Party

R

State

IA

Madam President, the Wall Street Journal recently reported that political intelligence is an approximately $100 million industry. The article also says that expert networks employ over 2,000 people to do political intelligence in Washington, DC.

We have to say approximately because no one truly knows how many people work in this industry. We don't know from whom they seek information, what happens to that information, and how much they get paid. This is a problem if one believes in transparency in government and if one believes in the purposes behind this legislation, as I do--the underlying legislation--that Members of the Senate and Congress should not benefit from insider trading information.

So we have people in this city or people who come into this city to get information on what Congress might do or what their regulators might do that might affect the stock in some company or something, and this political intelligence information is gathered and given to people who presumably profit from it or I guess these people wouldn't be employed in the first place. So there is a growing unregulated industry with no transparency. If a lobbyist has to register in order to advocate for a school or a church or a private corporation, shouldn't the same lobbyist have to register if he or she is seeking and getting inside information that ends up in making people a profit? This is especially true if that information would make millions for a hedge fund or a private equity firm.

We have current law. Under current law, this is not the case. We have no registration of these people and we don't know who they are. So we go back to amendment No. 1493. My amendment merely brings sunlight to this unregulated area. It defines what a political intelligence lobbyist is and requires that person or firm to register. In other words, it requires them to do what, under the 1995 law, every lobbyist has to do.

I understand some would say there have not been hearings on this subject and that it should be studied first. But there isn't much that is complicated about this amendment. It is pretty simple. If a person seeks information from Congress in order to make money, the American people have a right to know the name of that person and who that person is selling that information to. That is just pretty basic good government, isn't it? It is the same as if a person is a lobbyist for a piece of legislation under laws going back to 1946 and amended since then, they have to register. The public has a right to know who the lobbyist is, whom they are working for, and what they are lobbying for or against.

This amendment isn't just helpful to the American people, though. It isn't just helpful to make people responsible, because the more transparency we have the more accountability there is and the more openness we have in government the better off we are. So I make a case to help the American people, yes. But it is also going to help Members of Congress and our staff who are trying to decipher their duties under this proposed legislation.

Senators have raised the question: How will we know if the people we speak to trade on what we say? So to answer that question, we require the people doing it to be responsible. So we achieve more transparency in government, and we even help Members of Congress and our staff because these political intelligence people are pretty smart. They know where to get the information because they come to us and ask questions, but we might not know why they are asking the questions. So it is going to help Members of Congress and our staff as well. By requiring lobbyists who sell information to stock traders to register, Members and staff then have an easy way to track who these people are and to whom they would sell their information. This strengthens the bill, from my point of view, and helps Members and staff comply with its requirements.

So I hope we can pass this amendment soon and bring light and transparency to this growing industry and, when we are talking to someone, know who they are, what they seek, whom they are working for, et cetera.

With that, I yield the floor, and I suggest the absence of a quorum.

Sen. Richard C. Shelby

Party

R

State

AL

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

Sen. Richard C. Shelby

Party

R

State

AL

Madam President, I rise again today to speak on behalf of fairness. We have heard quite a bit from the President on the campaign trail about fairness. But it appears there is no interest in fairness when it comes to transparency for the executive branch.

The bill we are currently debating in the Senate will subject Congress to additional reporting requirements for certain financial transactions. The goal is to ensure that Members of Congress and congressional staff are not using their unique access to confidential information for personal gain. That goal is worthy.

I believe this is an appropriate goal, and one I fully support. I do not understand, however, why the additional reporting requirements do not extend to members of the executive branch who arguably have even greater access to such confidential information than Members of Congress and their staffs do.

It only seems fair that executive branch officials, who are already required to file annual financial reports, as we are, also be directed to meet the same additional reporting requirements being imposed on the legislative branch.

I have yet to hear a compelling argument against equity between the branches. Some people have argued that the executive branch has other ways to deal with insider trading. Think about it. But none of those will subject executive branch employees to the same public scrutiny as this legislation would. I believe what is good for the goose, it seems to me, should be good for the gander. We have heard that all of our life.

I understand there is a willingness on the other side to expand the reporting requirements, but it would fall far short of parity.

Some have said here it would cost too much. But if we are willing to expand the population of executive branch officials required to report publicly, then any further expansion will only present marginal additional costs.

Currently, less than 1 percent of the executive branch workforce is required to file financial disclosure statements. The other 99 percent are not. My parity amendment will not expand that universe. It will only require them to meet the same reporting standards that will apply to the Congress itself.

As I understand it, the Democratic alternative to my amendment would produce some bizarre results. For example, a Senate office administrator who meets the reporting threshold would be required to report publicly as directed in this bill, but the head of enforcement at the Securities and Exchange Commission would not. That is bizarre. A Senate scheduler may have to make additional public disclosures, but the General Counsel of the Federal Reserve would not. This is not fair, and I believe it is unacceptable.

My amendment simply says if you are an executive branch or independent agency official and you currently file financial disclosure reports, you will have to comply with the same public reporting requirements contained in this bill that we plan to impose on the Congress.

My amendment also contains the same military personnel exemption that the Democratic alternative does, as well as the same 2-year implementation provision.

My amendment is simple, fair, and deserves the support of every Member of this body. If my friends on the other side of the aisle believe in fairness, this would be a very good way to show it.

I yield the floor.

I suggest the absence of a quorum.

Sen. Kirsten Gillibrand

Party

D

State

NY

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

Sen. Kirsten Gillibrand

Party

D

State

NY

Madam President, on behalf of Senator Boxer, I ask unanimous consent that the Boxer-Isakson amendment No. 1489 be modified with the changes that are at the desk; that the order for a Collins side-by-side amendment be vitiated; that the Paul amendment No. 1485 be modified with the changes that are at the desk; further, that the order for the Lieberman side-by-side amendment to the Paul amendment be vitiated.

Sen. Kirsten Gillibrand

Party

D

State

NY

Madam President, I ask unanimous consent to set aside the pending amendment so that I may call up on behalf of Senator Lieberman the side-by-side amendment to the Shelby amendment No. 1491 and on behalf of Senator Portman his amendment No. 1505.

Sen. Kirsten Gillibrand

Party

D

State

NY

Madam President, we here in the Senate are so close to doing something so basic, so common sense to begin restoring the faith and trust the American people have with this institution. I am encouraged that we have found more to agree on today than that which we disagree on, so we can bring this bill on the floor to a vote.

I thank Leader Reid for his extraordinary perseverance and leadership on this issue. I also thank Chairman Lieberman and Ranking Member Collins for their vision and their hard work in bringing this strong piece of legislation to the floor. I also thank Senator Scott Brown and our other cosponsors who have worked so hard to do what is right for the American people. And, of course, I thank my colleagues on the other side of the aisle who have worked with us in good faith to bring this legislation to fruition.

We have tried to focus on the specific task at hand, and that is closing loopholes to ensure that Members of Congress play by the exact same rules as every other American. While there are some amendments today that will not meet that test, there are others that will make this bill stronger, and I believe the final product will have teeth.

This sorely needed bill would establish for the first time a clear fiduciary responsibility to the people we serve--removing any doubt that both the SEC and the CFTC are empowered to investigate and prosecute cases involving insider trading of securities from nonpublic information that we have access to when we do our jobs.

We are entrusted with a profound responsibility to the American people: to look out for their best interests, not to do what is in our financial interest. Let's show the people who have sent us here that we as a body can come together and do the right thing.

Today, we are taking a step forward to show them we are worthy of their trust. I encourage all of my colleagues to take this step with us today.

I suggest the absence of a quorum.

Sen. Joseph I. Lieberman

Party

ID

State

CT

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

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, in 6 or 7 minutes the Senate will begin a series of votes on the matter before us, the STOCK Act. I want to take a few moments to restate the underlying main purpose of the legislation, which is to respond to the public concern, informed by testimony before our committee from experts on securities law, that it is not totally clear that Members of Congress and our staffs are covered by anti-insider trading laws enforced by the SEC. The No. 1 accomplishment of this proposal will be to make that crystal clear.

We are not exempt from that law; we should not be exempt. I presume most Members of Congress have assumed we have never been exempt. But this will make it clear if anybody crosses the line, they cannot defend themselves by saying that Members of Congress are not covered by the law.

We have also added in committee a couple of provisions which embrace the old but still important notion that sunshine is the best disinfectant in government by requiring that the annual financial disclosure reports we file will now be filed electronically and will therefore be available on the Internet. Right now, these are public documents. When they are filed in the Office of the Secretary of the Senate, people have to go there and make copies of them to see them. As Senator Begich, our colleague from Alaska, said: That is not easy if you are an Alaskan. This will bring that system up to date.

The third part--which I know is controversial for some, but I think it is sensible--is to require that within 30 days of any stock trades, disclosure forms must be filed with the Senate and also online. I can tell you that the Securities and Exchange Commission has made clear in testimony before the House committee and in discussions with our staff that that kind of periodic requirement for disclosure of trades in stock and securities will help them do the job we want them to do to make sure that insider trading laws are not being violated and, of course, will keep the public, our constituents, informed of what we are about.

A number of amendments are up. As Senator Reid said, I hope we don't have rollcall votes on all of them. I think a number of them will receive unanimous support on both sides. I hope we can adopt them by voice.

There is one amendment, Senator Shelby's amendment No. 1491, to which, as part of the agreement, I filed a side-by-side, as it were. I support the goal that Senator Shelby has of holding the executive branch accountable in ways similar to the way we are; that is, the amendment, generally speaking, would extend the 30-day reporting requirement, disclosure requirement, to a very large number of executive branch employees. That, to me, is the problem. It is too broad. It would create a cost and an unnecessary reporting system for many executive branch employees.

I want to point out here that when it comes to avoiding and preventing conflicts of interest, the executive branch is probably well ahead of the legislative branch. The ethics rules requirement and guidance put forward over the years by the Office of Government Ethics at the agencies are extensive and address a wide range of potential conflicts of interest and/or improprieties. They have teeth, criminal sanctions.

For instance, high-level executive branch employees already file financial disclosure forms that face a very extensive system of agency review. These agency officials and career civil servants are often forced to divest themselves of their stock holdings if they seem to be in conflict with their responsibilities or to recuse themselves, not to be involved in matters in order to minimize potential conflicts of interest. That is a much different standard than we impose on ourselves, which is the standard of disclosure.

I have introduced a version of Senator Shelby's amendment, which I think achieves his goal in a significant way but not so broadly. Rather than the tens of thousands of people encompassed in the Shelby amendment, mine is targeted at policymakers most equivalent to those of us in Congress and those who work with us; that is, positions in our government that are Senate-confirmed and also certain high-level White House and agency staff who might not be Senate-confirmed but are policymakers. These individuals are public officials with visible high-profile roles, and the extra scrutiny that comes with increased reporting requirements seems to be more appropriate for this group--including the President, Vice President, appointees in the White House, the so-called policy czars, special assistants to the President, as well as members of the Federal Reserve Board.

I hope we can take this significant step to achieve what Senator Shelby had in mind, but not, if I can put it this way, overdo it in a way that will actually, according to comments we have had from people in the executive branch, get in the way of the existing very tough ethics rules they live under now.

I yield the floor at this point.

Sen. Susan Collins

Party

R

State

ME

Madam President, first, let me commend the chairman of our committee, Senator Lieberman. As always, it has been a great pleasure to work with him to produce this bill. I also wish to commend the author of the bill, Senator Scott Brown, who was the first to introduce this legislation in the Senate, and also praise the work of the Senator from New York, Mrs. Gillibrand, for her contributions.

The STOCK Act is intended to affirm that Members of Congress are not exempt from our laws prohibiting insider trading. There are disputes among the experts about whether this legislation is necessary, but we feel we should send a very strong message to the American public that we understand Members of Congress are not exempt from insider trading laws, and that is exactly what this bill does.

We need to reassure a skeptical public that we understand elective office is a place for public service, not for private gain. Underscoring that important message is clearly the purpose of this bill, and that is why I support it.

I thank the Chair.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, this is a highly technical amendment. It simply says the GAO report, required by the underlying bill on the question of political intelligence, be sent not only to the Committee on Government Oversight in the House but also to the Judiciary Committee.

If there is no objection, I urge the adoption of the amendment. I don't believe there is any opposition and, therefore, no need for a rollcall vote.

Sen. Rand Paul

Party

R

State

KY

Mr. President, I rise in support of this amendment. This amendment would strike the underlying bill and would replace it with an affirmation that we are not exempt from insider trading and that each Senator would sign a statement each year affirming they did not participate in insider trading.

I think this is the way to go. I think the American people want to be sure we are not exempt. I think this is a good way to do it without creating a bureaucracy and a nightmare that may well have many unintended consequences.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, I respectfully oppose the amendment. It would, as the Senator from Kentucky, with his characteristic directness said, strike the entire bill. The affirmation by Members they have not violated insider trading laws is, in my opinion, not enough. In the

I yield the rest of my time to my friend from Maine.

Sen. Susan Collins

Party

R

State

ME

Mr. President, I too am opposed to the amendment offered by Senator Paul. I do think the idea of a certification is a good one, but, unfortunately, Senator Paul's amendment would strike the provisions of the bill that affirm the duty we have to the American people and that scholars who testified before the committee said was necessary.

Sen. Rand Paul

Party

R

State

KY

Mr. President, I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senators are necessarily absent: the Senator from Illinois (Mr. Kirk) and the Senator from Alabama (Mr. Sessions).

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, I move to reconsider the vote.

Sen. Susan Collins

Party

R

State

ME

Mr. President, I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Sen. Rand Paul

Party

R

State

KY

Mr. President, this amendment would say that those in the executive branch who decide loans and grants, if they have a self-interest in the company or if their family has a self-interest in the company, they should not be making decisions awarding grants and awarding loans. I think the idea that you should not make money off of government is an important one, but it is not just Congress that this should apply to; this should apply to the executive branch. We should not have hundreds of millions of dollars in loans--even billions of dollars in loans--dispensed by people who used to work for that company or whose family still works for the company.

I yield my time.

Sen. Joseph I. Lieberman

Party

ID

State

CT

This is one of a series of amendments in which our colleagues are applying ethics rules to the executive branch although the bill, of course, is focused on Members of Congress. In this case, this applies probably the harshest penalty that has ever been applied to members of the executive branch. The fact is, executive branch employees are already subject to an effective, in some ways broader ethics regime than we face now. It is backed up by criminal sanctions. As an example, executive branch employees file financial disclosure forms. Agency ethics officials who examine them can compel divestiture of holdings. They can require the individual to recuse himself from certain matters and, if recusal is not sufficient, the agency can reassign the individual.

In this case, Senator Paul would say that an executive branch employee is forbidden from holding a position in which they or their family have any financial interest of $5,000 or more, so I oppose the amendment.

Sen. Rand Paul

Party

R

State

KY

Mr. President, I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, I move to reconsider the vote.

Sen. Susan Collins

Party

R

State

ME

Mr. President, I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, this is a side-by-side with an amendment offered by my friend from Alabama. The question is, How many employees of the executive branch of government should be required to electronically file their disclosure statements? I believe, respectfully, Senator Shelby's amendment requires maybe more than 300,000 Federal employees, including many who filed confidential disclosure statements.

This amendment would include people in the Federal executive branch who hold positions equivalent to those of us in Congress who are policymakers, and that includes the President, the Vice President, appointees in the White House, members of the Federal Reserve Board, and Senior Executive Service. It is the difference between applying this requirement to 2,000 executive employees or more than 300,000 Federal employees.

I yield the remainder of my time.

Sen. Richard C. Shelby

Party

R

State

AL

Madam President, the Lieberman amendment is a side-by-side with the Shelby amendment. This Lieberman amendment would create loopholes, disparity, and it undermines the true transparency. I encourage my colleagues to oppose it.

On the other hand, my amendment would be a side-by-side, and it creates parity, fairness, and true transparency. Without transparency the American people will be left in the dark. Also, the Senator from Connecticut is talking about who would have to file these. It will be the same people who have to file disclosures now. Why should they be exempt? My amendment would make it a level playing field. It makes a lot of sense. It is fair, it is honest, and the executive branch should not be excluded for any reason I can think of.

I thank the Chair.

Sen. Joseph I. Lieberman

Party

ID

State

CT

I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I move to reconsider the vote.

Sen. Susan Collins

Party

R

State

ME

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Sen. Susan Collins

Party

R

State

ME

Madam President, first, I wish to commend Senator Paul and Senator Shelby for raising the issue of extending these requirements to the executive branch. I agree with them. I supported the amendment offered by Senator Lieberman, but I also encourage my colleagues to support the amendment offered by Senator Shelby. It would take in the independent regulatory agencies, and it goes a little bit deeper into the executive branch. So I think both principles are correct--that the kind of disclosures we are going to be required to make should also apply to high-level executive branch employees.

I thank both the Senator from Kentucky and the Senator from Alabama for their leadership.

Sen. Richard C. Shelby

Party

R

State

AL

Madam President, I appreciate the remarks of the Senator from Maine. She is urging people to vote yea on the Shelby amendment. I appreciate that. It is a good amendment, and I will do the same thing: Vote yea.

I thank the Chair.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I respectfully ask for a ``no'' vote.

As I indicated in support of the side-by-side I offered, executive branch employees are now under very tough ethics regulations requiring, in many cases, divestiture or recusal, and this adds a good requirement which is for some of them to file electronically the disclosure statements they have to make. But the amendment we just passed--mine--would add that requirement to 2,000 of the top-level policymakers in our Federal Government. Senator Shelby's amendment would extend that to more than 300,000 Federal employees, including some, by our count in the Office of Government Ethics, drivers and secretaries.

In addition to the burden it would place on them unduly, we are asking agencies to stretch personnel and resources to fulfill a totally new requirement when, in fact, we want them to save money and not figure out ways to spend more money.

I respectfully ask my colleagues to vote no.

Sen. Richard C. Shelby

Party

R

State

AL

I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I move to reconsider the vote.

Sen. Susan Collins

Party

R

State

ME

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Sen. Rand Paul

Party

R

State

KY

Madam President, I think the issue has already been addressed by previous amendments. I thank the chairman and the minority ranking member for their addressing this problem.

I ask unanimous consent that the amendment, as modified, be withdrawn.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I thank the Senator from Kentucky. I would urge others with amendments listed here to think of following that example. But certainly as I look at the next four amendments, I think they are all noncontroversial. I would urge their sponsors to have the 2 minutes of debate, and, hopefully, let's have a voice vote so we can proceed.

Sen. Barbara Boxer

Party

D

State

CA

Madam President, I believe my amendment is next.

Sen. Barbara Boxer

Party

D

State

CA

Madam President, I would be delighted to take a voice vote on this amendment, which I am proud to say was written by myself and Senator Isakson. I am very pleased Senator Collins suggested the modification.

All this amendment does is broaden the mortgage disclosure requirements on all of us--Members of Congress--and it does the same thing for the President, the Vice President, and the executive branch employees who are subject to the advice and consent of the Congress.

I think it is fair, I think it is wise, and I think we have had issues that require this to be done.

With that, I yield back my time to Senator Collins.

Sen. Susan Collins

Party

R

State

ME

Madam President, I am very pleased the Senator from California has agreed to modify her amendment to apply it to the executive branch. I thank her very much for her cooperation, and I would suggest the amendment be adopted, as modified, by a voice vote.

Sen. Barbara Boxer

Party

D

State

CA

Madam President, I ask for a voice vote.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I ask unanimous consent to vitiate the 60-vote requirement on this amendment.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I move to reconsider the vote.

Sen. Susan Collins

Party

R

State

ME

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Sen. Susan Collins

Party

R

State

ME

Madam President, the next amendment is one from Senator Portman. It is No. 1505. It is truly a technical amendment. I do not believe it needs a rollcall vote. I would suggest, with the concurrence of the chairman, that we vitiate the yeas and nays and adopt it by a voice vote.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I have no objection.

Sen. Robert J. Portman

Party

R

State

OH

Madam President, I move to reconsider the vote.

Sen. Susan Collins

Party

R

State

ME

I move to lay that motion upon the table.

The motion to lay upon the table was agreed to.

Sen. Susan Collins

Party

R

State

ME

Madam President, this is a very good amendment that Senator Enzi has offered. It recognizes the fact that we do not control trades that happen within mutual funds. Thus, there is not a need for reporting every 30 days; rather, we should keep the annual reporting requirement.

It has been cleared by both sides. I do not believe it requires a rollcall vote. I would suggest that we vitiate any rollcall vote that was suggested and adopt it by a voice vote, with the concurrence of the chairman of the committee.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, this is a good amendment. I support it.

Sen. Susan Collins

Party

R

State

ME

Madam President, on behalf of Senator Enzi, I call up the amendment.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I move to reconsider the vote.

Sen. Susan Collins

Party

R

State

ME

I move to lay that motion upon the table.

The motion to lay upon the table was agreed to.

Sen. Scott Brown

Party

R

State

MA

Madam President, I would like to take a moment to commend Senator Blumenthal and Senator Kirk. As you all know, Senator Kirk is battling to come back with us. As a gesture and also because it is a good-government measure, this particular amendment, No. 1498, extends the number and types of felonies for which Members of Congress and executive branch employees or an elected State or local government official can lose his or her pension. This is a good-government amendment and an appropriate way to honor our colleague, Senator Kirk, whom we wish a speedy recovery.

I ask to have the yeas and nays by voice vote.

Sen. Richard Blumenthal

Party

D

State

CT

Madam President, I wish to join in acknowledging Senator Kirk's contribution to this amendment. The reason I have offered it is very simply to send a message and have the effect that no corrupt elected official, no official convicted of a felony in connection with his official duties as a Member of Congress should receive one dime of taxpayer money. And that breach of law should have consequences.

I join in asking for a voice vote.

Sen. Scott Brown

Party

R

State

MA

Madam President, I ask unanimous consent to vitiate the 60-vote threshold on this amendment.

Sen. Scott Brown

Party

R

State

MA

Madam President, I move to reconsider the vote.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I move to lay that motion upon the table.

The motion to lay upon the table was agreed to.

Sen. Patrick J. Toomey

Party

R

State

PA

Madam President, I rise in support of my amendment. I wish to thank Senator McCaskill for cosponsoring this amendment and for her support on this ban on earmarks.

What this amendment does is it would codify the current moratorium that is in place. I commend the majority Senators for extending that moratorium, but let's just codify this now, put this in place, and end this process that lacks any transparency. This is a surgical point of order that would not be held against the entire bill but, rather, just the specific earmark.

Unlike the next amendment, which would allow earmarks on authorization bills and would permit, for instance, earmarking of the ``bridge to nowhere'' and would only forbid earmarks on appropriations bills, this would be a ban on earmarks of all kinds.

Some suggest that we would be ceding our constitutional control of the purse strings. This is clearly not true. Most of all government spending is not earmarked. Most discretionary spending is not earmarked. That doesn't mean we have ceded our authority to the executive branch. The fact is, we define the terms and the rules under which the spending can occur. That is appropriate, but it ought to happen under scrutiny and should be subject to full review.

Sen. Daniel K. Inouye

Party

D

State

HI

Madam President, this amendment does not save any money. It does not reduce the deficit. It simply gives additional power to the President and thereby weakens the legislative branch.

The reality is that without these earmarks, we find ourselves at the mercy of bureaucrats to ensure that our local needs are fulfilled. No one in this Chamber believes that a bureaucrat here in Washington knows better or understands the needs of their home State as well as they do.

So I say again, Madam President, the voluntary moratorium is now 100 percent successful. It will continue in fiscal year 2013.

I urge my colleagues to vote against the Toomey amendment.

Sen. John McCain

Party

R

State

AZ

Mr. President, I come to the floor today to speak in support of Senator Toomey's amendment to permanently ban the use of earmarks in Congress. The underlying bill, the STOCK Act, was designed to end a corrupt practice in Congress. I fully support that goal. But if we are serious about ending corruption in Congress, then we must begin by permanently banning earmarks. It is my belief that these two issues go hand and hand.

One of the most blatant examples of the corruption that stems from earmarking is the case of former U.S. Representative Randy Cunningham who now sits in a Federal penitentiary today for selling earmarks. Among the $2.4 million in bribes Cunningham admitted receiving were the sale of his house at an inflated price, the free use of a yacht, a used Rolls-Royce, antique furniture, Persian rugs, jewelry, and a $2,000 contribution for his daughter's college graduation party. In return, he earmarked untold millions of dollars and pressured the Department of Defense to award contracts to his co-conspirators.

Year after year I have been coming to the Senate floor to speak out against the corrupt practice of Congressional earmarking and I have been joined by many of my colleagues such as Senators Coburn and McCaskill. Even President Obama called for a ban on earmarks in last year's State of the Union speech. The time has come to end this practice once and for all, permanently.

Let me be clear, both Republicans and Democrats have been guilty of wasting valuable taxpayer dollars on these pet projects. And as the moratorium on earmarking expires at the end of this year, we must move forward with a permanent ban to protect the American taxpayer.

Let me remind my colleagues about our current fiscal situation. Our National debt now stands at over $15 trillion and our deficit stands at $1.3 trillion. In fact, this is the fourth year in a row with deficits over a trillion dollars. Unemployment in our country stands at 8.5 percent and according to CBO, unemployment is expected to remain above 8 percent until 2015. Given these dismal economic numbers, are we prepared to tell the American people that we want to go back to the corrupt practice of earmarking and spend their hard-earned tax dollars on pork barrel projects that have little purpose other than to improve the re-election prospects of their authors?

Some of my colleagues are ``happy'' with their earmarking pasts and have justified carrying on the practice by saying that they only account for a small percentage of our annual budget. That may be the case--but is that really reason enough to continue a practice that breeds corruption? I am very aware that earmarks consume a very small percentage of a budget measured in the trillions. But given the serious problems confronting American families, many of whom wake up every morning wondering if they will lose their job or their house, it is appalling that Congress will not stir itself to relinquish any of its self-serving prerogatives in solidarity with the people we serve, who have had to tighten their own budgets, change their spending habits and restrain their ambitions. It is all the more offensive given that we have had in recent times all the evidence we should require to understand that earmarks are so closely tied to acts of official corruption.

In a report titled ``Why Earmarks Matter'' The Heritage Foundation wrote:

They Invite Corruption: Congress does have a proper role in determining the rules, eligibility and benefit criteria for federal grant programs. However, allowing lawmakers to select exactly who receives government grants invites corruption. Instead of entering a competitive application process within a federal agency, grant-seekers now often have to hire a lobbyist to win the earmark auction. Encouraged by lobbyists who saw a growth industry in the making, local governments have become hooked on the earmark process for funding improvement projects. They Encourage Spending: While there may not be a causal relationship between the two, the number of earmarks approved each year tracks closely with growth in Federal spending. They Distort Priorities: Many earmarks do not add new spending by themselves, but instead redirect funds already slated to be spent through competitive grant programs or by states into specific projects favored by an individual member. So, for example, if a member of the Nevada delegation succeeded in getting a $2 million earmark to build a bicycle trail in Elko in 2005, then that $2 million would be taken out of the $254 million allocated to the Nevada Department of Transportation (DOT) for that year. So if Nevada had wanted to spend that money fixing a highway in rapidly expanding Las

If we want to show the American public that we are really serious about preventing corruption in Congress than we owe it to the American people to completely ban all earmarks in Congress. Senator Toomey's amendment proposes to do just that and I encourage my colleagues to support his amendment.

Sen. Patrick J. Toomey

Party

R

State

PA

Madam President, I ask for the yeas and nays.

Sen. James M. Inhofe

Party

R

State

OK

Madam President, I wanted to inquire, is there any time remaining?

Sen. James M. Inhofe

Party

R

State

OK

Madam President, I ask unanimous consent that I be recognized for 1 minute.

Sen. Richard J. Durbin

Party

D

State

IL

Reserving the right to object. I withdraw that reservation.

Sen. Patrick J. Toomey

Party

R

State

PA

Madam President, reserving the right to object, if the Senator will grant 1 minute on his amendment, then I will not object.

Sen. James M. Inhofe

Party

R

State

OK

Madam President, first of all, I appreciate the opportunity to be heard.

I agree with what the author, Senator Toomey, is trying to do in terms of what most people think of as an earmark. The problem is this: You can vote for this if you are voting for and are against all earmarks as it is defined. It depends on how you do it. In the House, it is defined, under their rules, and it has been defined here as any type of appropriation or authorization. I would suggest to you, if you get the Constitution and look up article I, section 9, it says that is what we are supposed to be doing here.

So if I knew that my next amendment would pass, which defines an earmark as an appropriation that has not been authorized, which I know Senator Toomey and several others agree would be a good idea, then I would be wholeheartedly in support of this. So obviously we should have had that vote first. So I would vote against this even though I agree with what they are trying to do. But my next amendment is going to be the one that is necessary.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Joseph I. Lieberman

Party

ID

State

CT

Madam President, I move to reconsider the vote, and I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Sen. James M. Inhofe

Party

R

State

OK

Madam President, I have the utmost respect for Senator Toomey and what he is trying to do. To me, this amendment is compatible with what he is trying to do. It merely defines an earmark as an appropriation that has not been authorized.

My junior Senator said on the Senate floor a year ago that, in a way that is good, because if a bad earmark comes up, we have two shots at it--one on authorization and one on appropriation. Senator Toomey, Senator McCain, and others have been supportive of the idea that we should go back to authorizing.

We have been fighting this battle since 1816, and it is time we end it. This is a way of doing it, merely defining it as an earmark that hasn't been authorized. I retain the remainder of my time.

Sen. Patrick J. Toomey

Party

R

State

PA

Madam President, I point out that the Constitution doesn't make a distinction between an authorizing committee and an appropriating committee. I don't think we ought to be having the discussion and argument over who gets the earmark and who doesn't. It is the process that is flawed. It is the process that doesn't have the kind of scrutiny and the transparency and is not subject to competition the way it ought to be before taxpayer dollars are spent. So my objection is to this process wherever this occurs in the Senate or the House.

While I respect the intentions of my colleague from Oklahoma, I disagree with him. I suggest a ``no'' vote.

Sen. James M. Inhofe

Party

R

State

OK

Madam President, I further say that after the stimulus bill, all of the 102 most egregious votes last year--or earmarks, not one was a congressional earmark. They were all bureaucratic earmarks. If we don't do our constitutional job under article I, section 9 of the Constitution, the President will be doing our job.

Sen. James M. Inhofe

Party

R

State

OK

Madam President, I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Scott Brown

Party

R

State

MA

Mr. President, I ask unanimous consent to vitiate the 60-vote requirement threshold on amendment No. 1471 and amendment No. 1483.

Sen. Scott Brown

Party

R

State

MA

I would also ask unanimous consent to have the yeas and nays by voice vote on amendment No. 1471 and amendment No. 1483 as well.

Sen. Scott Brown

Party

R

State

MA

Mr. President, further, before I yield to Senator McCain, I would like to briefly set up amendment No. 1471.

Fannie and Freddie have cost the American taxpayers billions of dollars. This year, they paid exorbitant bonuses to their executives.

I wish to commend Senator McCain for his work on this very important issue and his leadership, and I encourage everybody to vote yes on it.

I now yield to Senator McCain.

Sen. John McCain

Party

R

State

AZ

Mr. President, I don't have anything more to say. On behalf of myself and Senator Rockefeller, I offer this amendment.

I yield the floor.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Through the Chair, I was going to ask my friend from Arizona if he is feeling all right.

Sen. Joseph I. Lieberman

Party

ID

State

CT

He does.

Sen. Scott Brown

Party

R

State

MA

Mr. President, I move to reconsider the vote.

Sen. Joseph I. Lieberman

Party

ID

State

CT

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Sen. Patrick J. Leahy

Party

D

State

VT

Mr. President, am I correct that amendment No. 1483, the Leahy-Cornyn amendment, is next?

Sen. Carl Levin

Party

D

State

MI

Mr. President, Senator Leahy and Senator Cornyn have introduced a rather substantial amendment to the STOCK Act that would strengthen the tools that prosecutors and investigators use to detect and prosecute corruption by public officials. I would like to ask my colleagues a few clarifying questions about how their amendment achieves this laudable goal.

Sen. Patrick J. Leahy

Party

D

State

VT

We would be happy to answer the Senator's questions.

Sen. Carl Levin

Party

D

State

MI

My first question refers to section 205 of your amendment, covering bribery and graft. What is the purpose of including the phrase ``former public official''? How is it possible to bribe a former public official?

Sen. Patrick J. Leahy

Party

D

State

VT

You cannot bribe a former public official, at least not under the terms of this amendment. Section 205 does ensure that when a public official accepts a bribe in return for taking an official act, the official cannot escape liability by leaving public service before the bribe is received or discovered.

Sen. Carl Levin

Party

D

State

MI

Under section 205, an ``official act'' can refer to any matter which may ``at any time be pending.'' What prevents this definition from being overbroad and covering matters that a former public official, for example, never anticipated would be pending?

Sen. Patrick J. Leahy

Party

D

State

VT

The former public official must accept the bribe or gratuity ``for or because of'' the official act. If the public official does not know that a matter is pending, the public official cannot accept a bribe ``for or because'' of it.

Sen. Carl Levin

Party

D

State

MI

Section 205 also refers to an official's ``place of trust and profit.'' What is a ``place of trust and profit''?

Sen. Patrick J. Leahy

Party

D

State

VT

This phrase is in the current bribery and gratuities statute and has been part of the law for decades. Our amendment does not change its definition or the scope of its use. It appears in section 205 because of the way that the amendment is drafted, and it is interpreted consistent with the extensive body of case law on corruption.

Sen. Carl Levin

Party

D

State

MI

I thank my colleague. Turning to section 211 of your amendment, the ``Prohibition on Undisclosed Self-Dealing By Public Officials,'' what is purpose of codifying this prohibition?

Sen. Patrick J. Leahy

Party

D

State

VT

Without this codification, there is no Federal law prohibiting certain public officials from acting in their own financial interest, at the expense of the public, and in violation of existing State and local law.

Sen. Carl Levin

Party

D

State

MI

Why is it necessary to make it a Federal crime for a local official to engage in undisclosed self-dealing?

Sen. Patrick J. Leahy

Party

D

State

VT

This is an area where there is a particular Federal interest because if the corrupt official is in State or local law enforcement, there may be no other way to ferret out the corruption. In fact, in Skilling v. United States, the Supreme Court invited Congress to criminalize undisclosed self-dealing in the specific and narrowly tailored way we do today.

Sen. Carl Levin

Party

D

State

MI

Does this amendment create the potential for arbitrary or politically motivated prosecutions of local officials?

Sen. Patrick J. Leahy

Party

D

State

VT

No, it does not. Criminal liability only attaches when the public official acts with fraudulent intent and does so in knowing violation of existing rules and regulations.

Sen. Carl Levin

Party

D

State

MI

Why isn't there a magnitude requirement for the financial interest underlying undisclosed self-dealing? If one just reads this section, it appears as though even a trivial, attenuated financial benefit could lead to a violation.

Sen. Patrick J. Leahy

Party

D

State

VT

A trivial, attenuated financial benefit could not lead to this violation because the public official must still act knowingly and with fraudulent intent to receive the benefit, and they must do so in violation of existing law. For example, if State ethics rules do not require disclosure of financial interests below a certain threshold, then undisclosed self-dealing--even with fraudulent intent--below that threshold could not be charged under this statute. Moreover, the amendment requires the public official to act for the purpose of benefiting a financial interest.

Sen. Carl Levin

Party

D

State

MI

Suppose a local official has not disclosed, as required by a local ordinance, that he owns a home in a targeted improvement district in his county. Then this official votes to install street lights in his town, which lowers crime, improves commerce, and consequently increases the value of his and other homes. Has he committed a Federal offense?

Sen. Patrick J. Leahy

Party

D

State

VT

No, the local official has not committed a Federal offense in the hypothetical you describe. Criminal liability under Federal law only exists if the official knowingly fails to disclose the interest and further intentionally acts to benefit that financial interest and does so with the fraudulent intent required of the mail and wire fraud statute. In the hypothetical you describe, there is no fraud and therefore no criminal activity.

Sen. Carl Levin

Party

D

State

MI

I thank my colleague for his helpful explanation. There is one more issue I would like to discuss. Section 211 of your amendment includes a definition of ``material information.'' I want to be absolutely clear that this definition is specific to section 211 and is in no way intended to provide any meaning to the phrase ``material information'' as used elsewhere in the STOCK Act or anywhere else in law.

Sen. Patrick J. Leahy

Party

D

State

VT

Senator Cornyn and I worked hard to ensure that our amendment addresses the issue of undisclosed self-dealing in a narrow and precise manner. To make sure there are no ambiguities in the updated honest services statute our amendment creates, we carefully defined the term ``material information'' and made sure we did so in such a way that our definition would apply only to the precise section of the Criminal Code where the new undisclosed self-dealing provision will appear.

Sen. Carl Levin

Party

D

State

MI

One question that has arisen is whether the definition of ``material information'' in the new Criminal Code section your amendment creates is intended to or could affect other parts of the STOCK Act since the same term also appears in a very different context in other parts of the bill.

Sen. Patrick J. Leahy

Party

D

State

VT

Our definition will have no effect on the term ``material information'' as it appears in other parts of the STOCK Act because it is drafted to apply only to the new Criminal Code provision and not to other criminal laws or the Federal securities laws. On page 12, line 11 of amendment 1483, it says ``definitions--as used in this section:'' and then provides a set of definitions which includes ``material information.'' That provision very clearly applies the definition only to that new Criminal Code section, not to the rest of title 18, to the remainder of the STOCK Act, or to Federal securities law. In fact, this language was drawn from S. 401, the Leahy-Cornyn Public Corruption Prosecutions Improvement Act, and it is the legislative history of that bill and not that of the STOCK Act, that will apply when our amendment is interpreted.

Sen. Carl Levin

Party

D

State

MI

I thank the Senator for that clarification. In addition to the precise wording of amendment 1483 and clear congressional intent that the phrase used in the new Criminal Code section not be imported to Federal securities law, the definition actually used in your amendment has no applicability or relevance to the materiality considerations that arise in insider trading cases.

I ask Senator Cornyn, does he agree with Senator Leahy regarding our discussion of the amendment?

Sen. John Cornyn

Party

R

State

TX

I agree.

Sen. Carl Levin

Party

D

State

MI

I thank both of my colleagues for working with me to address my questions about the Leahy-Cornyn amendment.

Sen. Tom Coburn

Party

R

State

OK

Mr. President, I rise to express my concerns about amendment No. 1483 to the STOCK Act. While we all oppose public corruption and recognize the need for tough laws in this area, I believe this amendment may blur the line between innocent behavior and criminal public corruption offenses. This amendment expands the Federal criminal gratuities statute to cover the gift of anything of value, over $1,000, that is given to a public official simply because of their status as a public official. A unanimous Supreme Court in United States v. Sun-Diamond Growers of California interpreted the honest services law to require the government to actually prove a link between the thing of value given and the specific act. The Court said the thing of value must be given ``for or because of'' an official act. I am concerned that expanding the crime to include items given merely on the basis of the public official's status goes too far and criminalizes some legitimate conduct.

However, my primary concern with this amendment is the section that gives the Federal Government the authority to interpret, prosecute, and enforce State and local laws. I believe this provision violates the basic principles of federalism embodied in our Constitution. Amendment No. 1483 expands the definition of ``scheme or artifice to defraud'' in Federal criminal law to include the ``undisclosed self-dealing'' of an ``officer, employee, or elected or appointed representative, or person acting for or on behalf of the United States, a State, or a subdivision of a State, or any department, agency or branch of government.'' The amendment defines ``undisclosed self-dealing'' as an official act that furthers or benefits a financial interest of the official or certain family members and associates of the official. Undisclosed self-dealing also occurs when the official knowingly falsifies, conceals, or covers up material information that is required to be disclosed by any Federal, State, or local statute, rule, regulation, or charter or the knowing failure to disclose material information in a manner that is required by a Federal, State, or local statute, rule, regulation, or charter. Thus, this provision makes it a Federal crime for a State or local official to fail to comply with a State or local law, including the mere filing requirements of State or locality. This provision gives the Federal Government the power to enforce State and local laws.

I do not believe our Founders intended for Federal prosecutors to be able to bring Federal criminal cases against State or local officials based on that official allegedly breaking or failing to comply with a State or local law, and the Founders did not intend for Federal judges and Federal courts to be interpreting the State or local laws, expect in limited circumstances. Corruption of State and local officials is a serious problem, but it is not the Federal Government's problem to solve. For these other reasons, I oppose this amendment in its current form.

Sen. Patrick J. Leahy

Party

D

State

VT

Mr. President, the Leahy-Cornyn amendment is drawn from our Public Corruption Prosecution Improvements Act. Our bill has been supported by the United States Department of Justice in a March 2009 letter, and this amendment is supported by the National Taxpayers Union, the FBI Agents Association, the National Association of Assistant United States Attorneys, the nonpartisan Campaign Legal Center, the League of Women Voters, Citizens for Responsibility and Ethics in Washington, Common Cause, and Democracy 21. I am working with Senator Cornyn, the lead Republican cosponsor of our bill and this amendment. We thank Senators Casey and Kirk for cosponsoring this amendment.

This amendment will provide investigators and prosecutors with the tools they need to hold officials at all levels of government accountable when they act corruptly by closing legal loopholes. This amendment, which reflects a bipartisan, bicameral agreement, will strengthen and clarify key aspects of Federal criminal law and help investigators and prosecutors attack public corruption nationwide. The Senate Judiciary Committee has now reported this bill with bipartisan support in three successive Congresses. The House Judiciary Committee recently reported a companion bill unanimously. It is time for Congress to act to pass serious anti-corruption legislation.

Importantly, the amendment includes a fix to reverse a major step backward in the fight against fraud and corruption. In Skilling v. United States, the Supreme Court sided with a former executive from Enron and greatly narrowed the honest services fraud statute, a law that has been used for decades as a crucial weapon to combat public corruption and self-dealing. The Court's decision leaves corrupt conduct unchecked. Most notably, the Court's decision would leave open the opportunity for state and Federal public officials to secretly act in their own financial self-interest, rather than in the interest of the public. This amendment closes this gaping hole in our anti-corruption laws.

The amendment includes several other provisions designed to tighten existing law. It fixes the gratuities statute to make clear that public officials must not be bought. It reaffirms that public officials may not accept anything worth more than $1,000, other than what is permitted by existing rules and regulations, given to them because of their official position. It strengthens key sentences and gives prosecutors and investigators time to make complex and difficult cases.

As a former State prosecutor, I am sensitive to the dangers of creating too many Federal crimes. In the area of public corruption, however, sometimes it is only the Federal government that can effectively pursue complex corruption matters. Conflicts and relationships can make it difficult for State and local law enforcement, and these matters can require extensive resources that cannot be diverted from hard-pressed local budgets. This Federal law stands as a backstop to help ensure against public corruption.

I also know how important it is that our criminal laws be fair and precise, giving sufficient notice to those who may break the law. It is in that spirit that Senator Cornyn and I, working with Congressmen Sensenbrenner and Quigley, have refined this legislation. We have made it careful and precise and built in important safeguards. This amendment will only target corrupt conduct.

Right now, a mayor who takes a $1,000 payment to award a contract to a specific company can be prosecuted for corruption, but a mayor who conceals his interest in a company, awards a contract, and secretly makes $1 million out of the deal likely cannot be prosecuted. A contracting officer who accepts thousands of dollars in gifts from a frequent bidder hoping for favorable treatment on some unspecified future contract likely cannot be prosecuted. The Department of Justice has been dismissing counts and cases because of these gaps in the law. It is time to fix them.

If we are serious about addressing the kinds of egregious misconduct that we have witnessed in recent years in high-profile public corruption cases, Congress should enact meaningful legislation to give investigators and prosecutors the tools they need to enforce our laws. Public corruption erodes the faith the American people have in those who are given the privilege of public service. This amendment will help us to take real steps to restore confidence in government by rooting out criminal corruption.

Sen. John Cornyn

Party

R

State

TX

Mr. President, I hope our colleagues will support this amendment that Senator Leahy and I have worked on. This is an expansion of our Public Corruption and Prosecution Improvements Act which passed the Judiciary Committee last year.

Mr. President, I am proud to co-sponsor this important amendment with Senator Patrick Leahy, the distinguished chairman of the Judiciary Committee.

Our amendment is drawn from bipartisan, bicameral legislation--including our Public Corruption Prosecution Improvements Act, which passed the Judiciary Committee last year.

Public corruption is not a Republican or Democratic problem. It is a Washington, DC, problem. And it is a problem in statehouses and city halls across this country. Our citizens deserve to be governed by the rule of law, not the rule of man. Unfortunately, human nature being what it is, a few rotten apples have a tendency to spoil the bunch.

The amendment we will vote on today will strengthen the enforcement of U.S. Federal laws aimed at combating betrayals of public dollars and the public trust. Our amendment does this by making clarifications to public corruption laws and by giving prosecutors precise tools to use in their battle against corrupt officials.

Our amendment increases the maximum punishments on several offenses, including theft and embezzlement of federal funds, bribery, and a number of corrupt campaign contribution practices. For example, it cracks down on theft or bribery related to entities that receive Federal funds, by increasing the maximum sentence for a conviction from 10 to 15 years and lowering the threshold that prosecutors must prove, from $5,000 to $1,000.

It also clarifies the law in response to several court decisions narrowly interpreting the public corruption statutes. For example, the bill revises the definitions of ``illegal gratuities'' and ``official acts,'' clarifying that an entire ``course of conduct'' can be the result of bribery.

Federal investigators who seek to root out corrupt officials will benefit from new tools provided in this legislation. The bill would extend the statute of limitations on certain serious public corruption offenses, giving prosecutors more time to investigate and build a case.

And it expands the criminal venue provisions, allowing prosecutors to bring the case against corrupt officials in any district where some part of the corruption occurred. The bill similarly expands the venue for perjury and obstruction of justice.

I would like to take a minute or two to address concerns that I have heard, including from some on my side of the aisle.

One criticism I have heard is that this legislation ignores federalism principles.

This concern is directed at a portion of the amendment clarifying that the mail and wire fraud statute applies to any public official who uses the interstate mails or wires to advance a fraudulent scheme involving illegally undisclosed self-dealing.

The Supreme Court has interpreted the mail and wire fraud statutes more narrowly--asking that Congress clarify the definition of illegally undisclosed self-dealing.

Under this amendment, the Federal government would only be able to prosecute State officials where they can show, beyond a reasonable doubt, that the State official in question had knowingly or intentionally violated relevant State laws concerning the disclosure of material financial interests.

In other words, this legislation expressly defers to the States to determine what financial disclosures their public officials should be required to make.

Additionally, this provision would require the Federal government to show that the State official in question had engaged in an official act for the material purpose of benefitting the illegally concealed financial interest that they knowingly or intentionally failed to disclose.

Finally, the Federal government would have to show that the course of conduct included a constitutionally-sufficient federal nexus via use of the interstate mails or wires to perpetrate the fraud.

As for federalism principles generally, it is important to note that, under current law, the Federal government still has the authority to prosecute corrupt State officials for bribery and kickback schemes under the mail and wire fraud statutes.

This amendment simply updates and clarifies the honest services fraud statute to reach corrupt conduct--i.e., undisclosed self-dealing--that Congress intended to be part of the criminal law.

Some opponents of this amendment believe that we should repeal portions of current law so that the Federal government has no role whatsoever in rooting out public corruption at the State and local level. I fundamentally disagree.

Consider the all-too-common case of a corrupt State governor or State judge that local prosecutors are loathe to indict--or even investigate--for fear of reprisal.

Finally, I have heard some ask: Would this legislation criminalize the giving of baseball caps, jerseys, or other ceremonial gifts to Members of Congress?

The answer is very simple: No, it would not.

First, the amendment would only apply to status gratuities worth more than $1,000. Second, the amendment would also require prosecutors to prove that the government official in question knowingly accepted the illegal gratuity in violation of the relevant ethics rules or regulations governing their conduct.

I urge my colleagues to support the amendment. I look forward to engaging with any of my colleagues who have concerns or questions.

I thank Chairman Leahy for his leadership on this and other legislation we have crafted together. I yield the floor.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, I wish to briefly thank the Senators from Vermont and Texas for this amendment. It strengthens the bill, as does the preceding amendment offered by Senator McCain, and I urge its adoption.

Sen. Tom Coburn

Party

R

State

OK

This is a simple, bipartisan amendment, and we have voted on an identical amendment before, 63 yeas, 33 nays. My colleague, the Senator from Colorado, has been gracious enough to support this amendment. This is straightforward. We just need to know what we are doing when we do it. It requires the CRS to show us if we have duplicated anything before a bill comes before the Senate.

I yield to my colleague from Colorado.

Sen. Mark Udall

Party

D

State

CO

Mr. President, I rise in support of amendment No. 1473. Senator Coburn and I have introduced this critical amendment to curb Congressional temptations to create more programs, laws and regulations, without first analyzing what already exists. Senator Hatch and I have also introduced legislation to create an official ``Unauthorizing Committee'' that would reinstitute a committee in Congress to rid our government of outdated and ineffective laws.

In the next few weeks, the GAO will release a report showing the extent of the wasteful and duplicative programs in the federal government. It shows that too often Congress focuses on creating new programs and regulations while neglecting our important role of overseeing and reforming existing laws. Our amendment would require that any new bill that is reported from committee contain an analysis from the Congressional Research Service determining if the bill creates any new federal program, office, or initiative that would overlap existing programs. Opponents worry that this amendment will slow the legislative process, but I believe that we must first pursue informed legislating and efficient government.

Senator Coburn and I don't always agree on the reach of government and the investments we ought to make, but we agree that our government ought to be smart, it ought to be efficient, and we shouldn't have duplication. This amendment would see us to that goal. Sixty-three of us voted for this amendment last year. Let's get 63 votes and more.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, I respectfully oppose the amendment put in by my two friends. This would amend the Senate rules to make it out of order for the Senate to proceed to any bill or joint resolution unless the committee of jurisdiction has posted on its Web site a CRS analysis of whether the bill would create a new program, office, or initiative that duplicates or overlaps an existing one. So it sounds pretty good on the surface, but there are two problems. One is that CRS tells us it would be hard-pressed to carry out this responsibility, certainly in a timely manner. The second results from the first, which is that this would be another way to slow legislation because it did not yet have the CRS analysis.

A final point is this: The committees of jurisdiction ought to be making their own judgment and probably know better than CRS whether they are creating a new program that duplicates or overlaps an existing one.

So, respectfully, I would urge a ``no'' vote.

Sen. Tom Coburn

Party

R

State

OK

Mr. President, I ask unanimous consent for an additional 30 seconds.

Sen. Tom Coburn

Party

R

State

OK

I have the greatest respect for my chairman on homeland security. I love him dearly.

GAO has already told us we are not doing our job. The first study of the Federal Government showed $100 billion worth of duplication. The second study is coming. CRS will have this easy because GAO will have already shown them where all the duplication is.

Sen. Tom Coburn

Party

R

State

OK

Mr. President, I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, I move to reconsider the vote and I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Sen. Jim DeMint

Party

R

State

SC

Mr. President, it is unfortunate that the actions of a few make it necessary for us to create more rules for the many honest people who serve in Congress, but we must reassure Americans that we are here to serve them and not ourselves. Congressmen and Senators have lots of power and we know that power corrupts. The longer we stay in office the more power we have. Unfortunately, we have seen that power, over a period of time, creates more opportunity and temptation for us to benefit ourselves rather than our constituents.

All of the cases of corruption and bribery I have seen unfortunately come from more senior Members. No offense to my senior Members, please. But this is one of many reasons why we should have term limits in Congress.

My amendment is not a statute. It is a sense of the Senate that says we should have some form of constitutional limit on our terms in office. We are not specific in the number of years, the number of terms. It is a sense of the Senate that we should have some limit on the amount of time we serve. I encourage my colleagues to at least support this and get the debate started.

I yield the floor.

Sen. Richard J. Durbin

Party

D

State

IL

Mr. President, for some Members of Congress, 2 years in office is too long. For some Members of Congress, 20 years in office is not long enough. Who should make that decision? The Constitution in its wisdom says the voters of America make that decision. Let's stand by that Constitution and its language and defeat this sense-of-the-Senate resolution.

Sen. Tom Coburn

Party

R

State

OK

I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Charles E. Grassley

Party

R

State

IA

This is a good government amendment. Similar to the underlying piece of legislation, it is a good government amendment. The manager is going to tell you it ought to be studied a little bit longer. We have gone for far too long not having enough transparency in government. What my amendment does is it takes these people whom you call political intelligence professionals and has them register just like every lobbyist registers, so it is totally transparent when these people come around to get information from you that they sell to hedge funds. You will know who they are. You don't know that now, and transparency in government is very important if you want accountability.

For the Senators and their staffs who have to abide by these laws, they want to make sure they are not doing anything unethical. They have to know who these people are. They can come around and ask us questions. I don't know how many times each of us has maybe been caught up in this. You give them information, and they have information that people don't have on Wall Street and they sell it. We ought to know what we are being used for, and this gives identity to these people. So I want these people registered like lobbyists.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, there may be a problem.

Sen. Charles E. Grassley

Party

R

State

IA

There is a problem.

Sen. Joseph I. Lieberman

Party

ID

State

CT

But this amendment doesn't fix it. In the bill before the committee, there was a provision to bring so-called political intelligence under the Lobbying Disclosure Act. Political intelligence is defined as information which is intended for use in analyzing securities or commodity markets or information investment decisions, but what does that mean? Does it apply to a retailer who wants to open new stores and calls the Armed Services Committee to see whether there is a base that is going to be built in a particular neighborhood? Some would say yes; some would say no. Violation of the Lobbying Disclosure Act carries civil and criminal penalties. We just felt we wanted to get the anti-insider trading provision out quickly and study this more. The bill calls for a GAO study.

Senator Collins and I announced we are going to hold a hearing on this question. We need a little more time to do it thoughtfully. We are ultimately dealing with first-amendment rights, and we ought not to legislate until we are prepared to do so in a reasonable way.

I ask my colleagues to oppose this amendment.

Sen. Charles E. Grassley

Party

R

State

IA

Do I have time to tell the Senators not to vote for Wall Street, vote for my amendment?

Sen. Charles E. Grassley

Party

R

State

IA

I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Sherrod Brown

Party

D

State

OH

Mr. President, the amendment Senator Merkley and I have proposed would require all Senators and their senior staff to sell individual stocks that create conflicts or to place their investments in blind trusts. You can still invest in broad-based mutual funds. You can keep your ownership interest in your family farm or small business.

If you are setting up a blind trust, you can instruct the trustee to hold on to your stock in your family company.

Current Senate ethics rules require committee staff making more than $25,000 a year to ``divest [themselves] of any substantial holdings which may be directly affected by the actions of the committee for which [they work].''

All Senator Merkley and I are saying is, Members of the Senate should hold ourselves to the same standard we already require of our committee staff and executive branch employees.

As Senator Merkley said, baseball players cannot bet on their games. We should not be able to hold stock in individual companies and then vote on issues that affect our holdings.

I ask for a ``yes'' vote.

Sen. Susan Collins

Party

R

State

ME

Mr. President, I yield half of the time in opposition to Senator Toomey.

Sen. Patrick J. Toomey

Party

R

State

PA

Mr. President, I thank the Senator from Maine.

I disagree with the fundamental premise of this amendment. I do not think we should all be forced to divest ourselves of all of our holdings. But I think it is worse than it was characterized by my friend from Ohio--worse in the sense that, as I read the definition of the securities that would be covered and as the securities attorneys have advised us on this--we would be required to divest ourselves even of our investment in a small family-owned business, a business that, perhaps, has absolutely no market whatsoever for the equity, and we would, nevertheless, be forced to sell that where there is no buyer.

I think that is a very unreasonable standard, so I would urge a ``no'' vote on this amendment.

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, I rise to oppose the amendment. This amendment would take Congress from where we have always been and are going to be after this law passes. In pursuit of disclosure and transparency, sunshine is the best guarantee of integrity. This would be the first time I am aware of that in the legislative branch we would require divestment of personal holdings. For that reason, I oppose the amendment.

Remember, in the underlying bill we have increased the public's access to information about our holdings and our transactions. Ultimately, that knowledge ought to be enough to guarantee the public or to energize the public to make sure we are following the highest ethical norms. Divestment, in my opinion, is a step too far.

Sen. Susan Collins

Party

R

State

ME

Mr. President, I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).

Sen. Joseph I. Lieberman

Party

ID

State

CT

Mr. President, this has been a good, open process. We had a good bill that came in. We made it better. I yield back the remainder of my time.

Sen. Susan Collins

Party

R

State

ME

Mr. President, I am pleased to have joined Chairman Lieberman in helping bring this important bill to passage today.

I would also like to single out Senator Scott Brown of Massachusetts, who was the first Member of this body to introduce legislation on this topic. His leadership in tirelessly moving this bill forward has been indispensable.

Today, we confirm that Members of Congress are not exempt from the country's insider trading laws. We have sent a strong message to the American people that we affirm that we come to Washington for public service, and not for private gain.

We have added several amendments today which I believe strengthened the bill's focus on transparency. We have also extended several of its provisions to encompass all branches of the Federal Government.

Again, I thank my colleagues for their hard work on the bill. And my thanks to our hard-working staff.

Sen. Benjamin L. Cardin

Party

D

State

MD

Mr. President, I ask for the yeas and nays.

Sen. Jon Kyl

Party

R

State

AZ

The following Senator is necessarily absent: the Senator from Illinois (Mr. Kirk).