Senate Record - January 29, 2007
From dKosopedia
| Congressional Record | |
|---|---|
| Senate - January 29, 2007 - week 5 | |
| 110th - United States Congress | |
| |
| Senate Majority Leader | Harry Reid |
| Minority Leader | Mitch McConnell |
| Previous | Senate Record - January 26, 2007 |
| Next | legislative session |
These are consolidate excerpts from the Congressional Record, covering the major actions of the United States Senate in the 110th United States Congress on January 29, 2007. For the daily summary of the actions in the Senate click here. For a summary of the actions in the House click here, and for Congress as a whole on this date, click here.
Only major action or debates are usually included in these excerpts. For the complete Congressional Record for this date, click on the THOMAS link (i.e. the date within the title of the opening header) in the article below.
Contents
|
On the Floor
Morning Session - Senate - Monday, January 29, 2007
The Senate met at 2 p.m. and was called to order by the Honorable Harry Reid, a Senator from the State of Nevada.
Schedule (Harry Reid-Majority Leader)
Mr. Harry Reid, Majority Leader - Mr. President, the Senate will be in a period for the transaction of morning business until 3:30 p.m. today. Senator Dorgan will be recognized for up to 45 minutes and Senator Specter for up to 30 minutes. We will resume H.R. 2 at 3:30 p.m. for debate only until 5:30 p.m. During this time, Senator Sessions will be recognized for an hour at 4 p.m. As a reminder to Members, cloture has been filed on the substitute amendment to H.R. 2. and the bill itself. Therefore, Members have until 3 p.m. today to file any additional first-degree amendments.
Currently, there are 23 amendments pending. I am told that the vast majority of these amendments, after initial review by the Parliamentarians, will be ruled not germane or arguably not germane. The cloture vote on the substitute amendment will occur prior to the conference luncheons tomorrow at 12 noon.
Mr. President, if I may say a few words in addition, today we are going to, hopefully, have a debate that will be meaningful to the American people on minimum wage. This debate will be completed tomorrow in many respects, with a cloture vote on the substitute occurring tomorrow. The other debate we may get to this week is that dealing with Iraq. Both are issues past Congresses have neglected and both are areas where Democrats and Republicans must work together to move America forward.
Minimum Wage
It has been 10 years since the minimum wage was last raised. During that period of time, the cost of food has risen 23 percent, the cost of health care almost 45 percent, the cost of housing about 30 percent, the cost of gas 135 percent, and that is as of today. Of course, as we know, in the past, it has been much more than that. Congressional pay has risen during that period of time by $30,000 per year per Member of Congress. But the minimum wage has stayed the same, $5.15.
Today, a full-time minimum wage worker earns $10,700 a year, working 40 hours a week. That is $6,000 below the Federal poverty line for a family of three. This is wrong. It doesn't speak well of our country. At its heart, this debate is about fairness.
In America, we believe--I think we should believe--a person working full time should be able to live a life that is not in poverty. A mother, a father who works hard and plays by the rules should be able to feed, clothe, and raise their children. Isn't it better that we have people who are engaged in work rather than welfare? The answer is yes.
Mr. President, $7.25 might not seem like a lot of money in Washington, but it would mean almost $4,500 more a year for the Nation's working poor. That is enough money for a family of 3 to buy 15 months of groceries, 19 months for their utility bills, 8 months of rent, 2 years of health care, 20 months of childcare, and even 30 months of college tuition at some schools.
Tomorrow we will have a cloture vote on the minimum wage, and I sure hope this will be a good bipartisan vote on cloture, so we can complete this legislation quickly.
Senators have had time to offer amendments. As I said Friday, when is enough enough? After 10 years, it is time to stop talking about this issue and finally give working
Americans an overdue raise.
Iraq
When the Senate completes its work on the minimum wage--whether it is tomorrow, the next day, next day, the next day or next week--we are going to move to Iraq, and that is a debate regarding the proposed plan by the President to escalate the conflict. We owe it to our troops who serve bravely to have a real debate about the way forward in that war.
We are approaching 3,100 dead American soldiers. I was watching the Lehrer "NewsHour". They show, in silence, pictures of the soldiers who have died in Iraq. They do it every few days. I watched this Friday and was struck by the number of women in this most recent reporting of deaths who are pictured there, who have been killed. They were not combat troops. They were doing activities important to the cause, such as driving vehicles. It is hard to determine what is combat and what is not combat. A helicopter went down and women were in that helicopter. A helicopter went down yesterday. I don't know who was in it, but we know two Americans were killed. So we have to have a debate about the way forward in the war in Iraq.
In Washington, we hear a lot of rhetoric about how the upcoming congressional debate emboldens our enemies. To quote a headline that appeared in a lot of newspapers, this particular one was the Las Vegas Sun newspaper, it said: Those who peddle such deceitful, political talking points "need a lesson in civics."
As Mr. Warner, the gentleman Senator from Virginia, has said in this debate, Senators are "trying to exercise the fundamental responsibilities of our democracy."
Critics of the war also need a lesson in history. If history has taught us anything, it is that our country is strongest when all three branches of Government function. Our country is strongest when this legislative branch is more than a rubberstamp. And, finally, our country is strongest when we have real, meaningful debate on issues of consequence on behalf of the American people.
There is no issue greater in consequence than what is going on in Iraq. To suggest that the former chairman of the Armed Services Committee, a former Secretary of the Navy, a former marine, Senator John Warner, or highly decorated Vietnam veteran Chuck Hagel, who on the battlefields of Vietnam saved his own brother's life, would take any action to undermine our troops and embolden the enemy—of course not—to suggest such is beneath any administration official or Member of Congress, even though they both tried it. I think they should reexamine what they have said. It is dangerous rhetoric, motivated more by politics than events in Iraq.
These two men are examples of this not emboldening the enemy but our doing, as the legislative branch of Government, what we are obligated to do: to talk about this conflict in Iraq.
We are in a hole in Iraq. Escalating the war is deepening that hole. We need to find a way out of that hole. Our troops, most of all, need our help. They need a policy that is worthy of their heroic sacrifices. They don't need hollow speeches or inflammatory rhetoric. They don't need a rubberstamp. They need someone to ask the tough questions. They need a legislative branch that will finally exercise its constitutional responsibilities.
I, for one, am glad we have finally arrived at this point where Congress is exercising its power. We arrived here because the American people demanded we exercise our power.
In his State of the Union Address, the President asked Members of Congress to give escalation a chance. But the truth is, escalation is the same failed President Bush policy that has already run out of chances. The President has escalated the war before, only to see the same results: increasing chaos, innumerable costs, and a civil war that is spinning out of control.
Is there a war in Iraq that is civil in nature? Of course. A marketplace where people came to buy pets, to sell pets was blown to smithereens, snakes crawling away from their cages. Children taking tests were hit with a mortar round over the weekend. And 600 insurgents were gathered in an orchard where a battle that took 15 hours ensued over the weekend. Is there a civil war? Of course, there is a civil war. Is there chaos in Iraq? Of course, there is chaos in Iraq.
The President knows how the American people feel. Generals Abizaid and Casey, when asked whether this escalation would be a good idea, told the President "no." They were relieved of duty. Prime Minister Maliki, speaking face to face with the President, said: Mr. President, get American troops out of Baghdad. That is what the democratically elected Prime Minister of Iraq told the President of the United States. The Iraq Study Group has so told the President. And now we are going to have a bipartisan vote that will tell the President the same.
There is no military solution in Iraq; there are only political solutions in Iraq. With the vote, which will eventually come, we will give the President another chance to listen, listen to the generals, listen to the Iraq Study Group, listen to the American people, and listen to a bipartisan Congress.
The stunning part of this is the people of Iraq don't want us there. Polls show that 70 percent of the Iraqis believe Iraq would be better off if we were out of there. So it is another chance to listen and change course. That is what we hope will be the outcome of our debate. That will be the right result for the Nation, for our strategic interests, and for the troops.
We will work with my distinguished friend, the Republican leader, to try to have something that is more understandable. The way things now stand, if cloture is invoked tomorrow, this matter can be played out, as I understand the procedures here, until about 1 o'clock Friday morning and, if necessary, we will do that. But hopefully we can agree on a way to proceed through this without those many votes and arrive at a point where we can come to some agreement as to how we should proceed in a reasonable, logical way, so everyone has their opportunity to express views on Iraq. We have a number of competing legislative matters we can vote on. It would seem to me very likely it will take 60 votes to pass anything, but at least if we set up a responsible way to go forward, I think it would be more meaningful to the body and to the American people.
I know my friend, the Republican leader, will work with me. We will try to do the best we can for the body itself; otherwise, we will work through the rules of the Senate, which will get us there but maybe not as quickly and as conveniently.
The Acting President pro tempore - The Republican leader.
Republican Cooperation (Mitch McConnell-Minority Leader)
Mr. Mitch McConnell, Minority Leader - Let me say to my good friend, the majority leader, I think we should be able to work our way through some negotiations on the Iraq matter that will allow us to consider a variety of proposals that may be forthcoming. With regard to the advisability of doing any resolution at all, I think the Washington Post basically had it right last week when they said they found it curious that we would confirm General Petraeus overwhelmingly, which we did Friday, 81 to nothing, and then turn around and pass a resolution saying his mission, in our judgment, has no chance of succeeding.
I hope at the end of the day such a resolution will not be approved. Having said that, I do think this is the last opportunity for the Iraqis to get it right. They need to understand that even those of us who are strong supporters of the President believe this is it. This is their chance to demonstrate that they can function in this effort to quiet the capital city of Baghdad so it can become a place in which political compromise can in fact occur. It is very difficult for that to happen when there are daily car bombings.
With regard to the minimum wage, let me indicate, Republicans made a pledge at the start of this session to cooperate and that is exactly what we have done. We passed one strong bill and we are about to pass another by keeping that pledge. Two weeks ago some of our colleagues on the other side started to dispute our commitment to cooperation over the ethics and lobbying bill. One of my good friends on the other side said Republicans hated the bill and decided to kill it. Another said our effort to make the bill better through the amendment process was "one of the worst stunts he had seen in 25 years as a legislator." What made those observations particularly absurd is that on that same day, the very same day those quotes were made, the bill passed 96 to 2.
Last week, many of our colleagues on the other side were reviving their charges of noncooperation after we took up the minimum wage bill. One said Republicans don't tend to vote for a minimum wage increase. Another said we were putting up obstacles to the bill so we wouldn't have to act on it.
We passed a good ethics and lobby reform bill and we are going to pass a good minimum wage increase bill because of Republican support and because Republicans insisted on a bipartisan package for both ethics and lobbying. That is the reason we saw an overwhelming vote at the end, support on both sides of the aisle. It is only because Republicans insisted on a bipartisan package for the minimum wage bill that I expect at some point in the near future we will see a similar vote on that. We pledged cooperation, and cooperation is exactly what we are offering in these early days of this Congress.
I yield the floor.
Morning Business
Televising Supreme Court Proceedings (Arlen Specter-PA)
Mr. Specter, Pennsylvania - Mr. President, I have sought recognition to comment about S. 344, which provides for the televising of Supreme Court proceedings. This bill is cosponsored by Senator Grassley, Senator Durbin, Senator Schumer, Senator Feingold, and, with unanimous consent Senator Cornyn--a bipartisan representation. It is identical with legislation introduced in the last Congress after having been voted out of committee, and was voted out of committee on a 12-to-6 vote. It was previously introduced in 2005. It had a hearing on November 9 of 2005 and was reported out of committee on March 30 of 2006.
The essential provision is to require televising proceedings at the Supreme Court of the United States unless the Court determines on an individual basis that there would be an inappropriate occasion and a violation of the due process rights of the parties.
The thrust of this legislation is to bring public attention and understanding of how the Supreme Court of the United States functions, because it is the ultimate decisionmaker on so many--virtually all of the cutting edge questions of our day. The Supreme Court of the United States made the decision in Bush v. Gore, essentially deciding who would be President of the United States. The Supreme Court decides cases on the death penalty, as to who will die.
It decides by 5-to-4 decisions so many vital cases, including partial-birth or late-term abortion, deciding who will live. It decides the question of who will be elected, controlling the constitutional decision on campaign contributions. It decides the constitutionality--again, and all of the cases I mentioned are 5 to 4--on school prayer, on school vouchers, on whether the Ten Commandments may be publicly displayed, on whether affirmative action will be permitted, on whether eminent domain will be allowed--the taking of private property for governmental purposes. The Supreme Court of the United States decides the power of the President as illustrated by Hamdan v. Rumsfeld--that the President does not have a blank check and that the President is not a monarch.
The Supreme Court of the United States, again in a series of 5-to-4 decisions, has decided what is the power of Congress, declaring in U.S. v. Morrison the legislation to protect women against violence unconstitutional because the Court questioned our ``method of reasoning, raising a fundamental question as to where is the superiority of the Court's method of reasoning over that of the Congress. But that kind of decision, simply stated, is not understood.
Or the Supreme Court of the United States dealing with the Americans With Disabilities Act, making two decisions which are indistinguishable, upholding the statute on a paraplegic crawling into the courthouse in Tennessee and striking down the constitutionality of the statute when dealing with employment discrimination. They did so on a manufactured test of congruence and proportionality, which is literally picked out of thin air.
Under our Constitution, I respect the standing of the Supreme Court of the United States to be the final arbiter and to make the final decisions. But it is, I think, fundamental that the Court's work, the Court's operation ought to be more broadly understood. That can be achieved by television. Just as these proceedings are televised on C-SPAN, just as the House of Representatives is televised on C-SPAN, so, too, could the Supreme Court be televised on an offer made by C-SPAN to have a separate channel for Supreme Court oral arguments. There are many opportunities for the Court to receive this kind of coverage, to inform the American people about what is going on so that the American people can participate in a meaningful way as to whether the Court is functioning as a super-legislature--which it ought not to do, that being entrusted to the Congress and State legislatures, with the Court's responsibility being to interpret the law.
It should be noted that the individual Justices of the Supreme Court have already been extensively televised. Chief Justice Roberts and Justice Stevens were on ``Prime Time on ABC TV. Justice Ruth Bader Ginsburg was on CBS with Mike Wallace. Justice Breyer was on ``FOX News Sunday. Justice Scalia and Justice Breyer had an extensive debate last December, which is available for viewing on the Web--and in television archives. So there has been very extensive participation by Court members, which totally undercuts one of the arguments, that the notoriety would imperil the security of Supreme Court Justices.
It is also worth noting that a number of the Justices have stated support for televising the Supreme Court. For example, Justice Stevens, in an article by Henry Weinstein on July 14, 1989, said he supported cameras in the Supreme Court and told the annual Ninth Circuit Judicial Conference at about the same time that, ``In my view, it is worth a try.
Justice Stevens has been quoted recently stating his favorable disposition to televising the Supreme Court.
Justice Breyer, during his confirmation hearings in 1994, indicated support for televising Supreme Court proceedings. He has since equivocated, but has also noted that it would be a wonderful teaching device.
In a December 13, 2006 article by David Pereira, Justice Scalia said he favored cameras in the Supreme Court to show the public that a majority of the caseload involves dull stuff.
In December of 2000, an article by Marjorie Cohn noted Justice Ruth Bader Ginsburg's support of camera coverage, so long as it is gavel to gavel--which can be arranged.
Justice Alito, in his Senate confirmation hearings last year, said that as a member of the Third Circuit Court of Appeals he voted to admit cameras.
He added that it would be presumptuous of him to state a final position until he had consulted with his colleagues, if confirmed. But at a minimum, he promised to keep an open mind, noting that he had favored television in the Third Circuit Court of Appeals.
Justice Kennedy, according to a September 10, 1990, article by James Rubin, told a group of visiting high school students that cameras in the Court were ``inevitable, as he put it. He has since equivocated, stating that if any of his colleagues raise serious objections, he would be reluctant to see the Supreme Court televised. Chief Justice Roberts said in his confirmation hearings that he would keep an open mind. Justice Thomas has opposed cameras. Justice David Souter has opposed televising the Supreme Court. Justice Souter has been the most outspoken opponent of televising the Supreme Court, saying if cameras rolled into the Supreme Court, they would roll over his--as he put it--over his dead body--a rather colorful statement. But there has been, as noted, considerable sentiment by quite a number of the Justices as to their personal views expressing favorable disposition toward televising the Supreme Court.
The question inevitably arises as to whether Congress has the authority to require televising Supreme Court proceedings, and I submit there is ample authority on Congress's generalized control over administrative matters in the Court. For example, it is the Congress which decides how many Justices there will be on the Court. It is remembered that President Roosevelt, in the mid to late 1930s, proposed a so-called ``packing of the Court plan to raise the number to 15. But that is a congressional judgment. The Congress decides when the Supreme Court will begin its term: on the first Monday of every October. The Congress decides what number will constitute a quorum of the Supreme Court: six. The Congress of the United States has instituted timelines that are required to be observed by the Supreme Court when determining timeliness in habeas corpus cases. So there is ample authority for the proposition that televising the Supreme Court would be constitutional.
There is an article which is due for publication in May 2007 by Associate Professor Bruce Peabody of the political science department of Fairleigh Dickinson University, and in that article, Professor Peabody makes a strong analysis that congressional action to televise the Supreme Court would be constitutional. Also, in that article Professor Peabody refers at length to the legislation which I introduced in 2005 and says that it would be constitutional and observes that:
A case could be made for reform giving rise to more wide-ranging and creative thinking of the role and status of the judiciary if the Supreme Court was, in fact, televised.
He further notes that:
Televising the Supreme Court could stimulate a more general discussion about whether other reforms of the court might be in order.
He notes that:
The so-called Specter bill would be meaningful in giving wider play to a set of conversations that have long been coursing through the academy about the relationship between the court and the Congress.
The Supreme Court itself, in the 1980 decision in Richmond Newspapers v. Virginia, implicitly recognized, perhaps even sanctioned, televising the Court because in that case, the Supreme Court noted that a public trial belongs not only to the accused but to the public and the press as well; and that people acquire information on Court proceedings chiefly through the print and electronic media. But we know as a factual matter that the electronic media, television, is the basic way of best informing the public about what the Supreme Court does.
There was enormous public interest in the case of Bush v. Gore argued in the Supreme Court in December of 2000 after the challenge had been made to the calculation of the electoral votes from the State of Florida and whether the so-called chads suggested or showed that Vice President Gore was the rightful claimant for those electoral votes or whether then-Governor Bush was the rightful claimant.
The streets in front of the Supreme Court chambers across the green from the Senate Chamber were filled with television trucks. At that time, Senator Biden and I wrote to Chief Justice Rehnquist urging that the proceedings be televised and got back a prompt reply in the negative.
But at least on that day the Supreme Court did release an audiotape when the proceedings were over, and the Supreme Court has made available virtually contemporaneous audio tapes since. But I suggest the audio tapes do not fill the bill. They do not have the audience. They do not have the impact. They do not convey the forcefulness that televising the Supreme Court would.
There has been considerable commentary lately about the Court's workload and the Court's caseload. Chief Justice Roberts, for example, noted that the Justices:
Hear about half the number of cases they did 25 years ago.
And, he remarked that from his vantage point, outside the Court:
They could contribute more to the clarity and uniformity of the law by taking more cases.
They have a very light backlog. In the 2005 term, only 87 cases were argued and 69 signed opinions were issued, which is a decrease from prior years. They have left many of the splits in the circuits undecided. Former Senator DeWine, when serving on the Judiciary Committee, asked Justice Alito about the unresolved authority at the circuit level. Now Justice Alito characterized that as ``undesirable. But that happens because of the limited number of cases which the Supreme Court takes.
There has also been concern, as noted in an article by Stuart Taylor and Ben Wittes captioned, ``Of Clerks And Perks, that the four clerks per Justice constitute an undesirable allocation of resources, and the Taylor-Wittes article cites the Justice's extensive extracurricular traveling, speaking, and writing, in addition to their summer recesses and the vastly reduced docket as evidence that something needs to be done to spur the Court into taking more cases. If the Court were to be televised, there would be more focus on what the Court is doing. That focus can be given without television, but once the Supreme Court becomes the center of attraction, the center of attention, articles such as that written by Taylor and Wittes would have much more currency.
The commentators have also raised a question about the pooling of the applications for certiorari. There were, in the 2005 term, some 8,521 filers. Most of those are petitions for certiorari. That is the fancy Latin word for whether the Court will grant process to hear the case from the lower courts. As we see, the Court acts on a very small number of those cases. Only 87 cases were argued that year in a term when more than 8,500 filings were recorded, most of those constituting cases which could have been heard. And, the Supreme Court has adopted a practice of the so-called ``cert pool, a process used by eight of the nine Justices. Only Justice Stevens maintains a practice of reviewing the cert petitions himself on an individual basis, of course, assisted by his clerks. But when the Court is charged with the responsibility of deciding which cases to hear, it is my view that it is very problematic and, in my judgment, inappropriate for the Justices not to be giving individualized attention, at least through their clerks, and not having a cert pool where eight of the Justices have delegated the job of deciding which cases are sufficiently important to hear to a pool.
We do not know the inner workings of the pool, but I believe it is fair and safe to infer that the judgments are made by clerks. Precisely what the level of reference and what the level of consultation with the Justices is we do not know, but when an application is made to the Supreme Court of the United States to hear a case, it is my view that there ought to be individualized consideration.
That also appeared to be the view of now Chief Justice John Roberts, who said in a 1997 speech, according to a September 20, 2000, article in the Legal Times by reporter Tony Mauro where then-private practitioner John Roberts said he ``found the pool disquieting, in that it made clerks a bit too significant in determining the Court's docket.
I would suggest that is an understatement, to give that kind of power to the clerks and, beyond that, to give that kind of power to the clerks in a pool, where the individual Justices do not even make the delegation to their own clerks with whatever review they would then utilize but make that a delegation to a cert pool.
There have been many scholarly statements about the desirability of having greater oversight on what happens in the Supreme Court. Chief Justice William Howard Taft, who was the 10th Supreme Court Chief Justice and the 27th President of the United States, said that review and public scrutiny was the best way to keep the judges on their toes. And Justice Felix Frankfurter said that he longed for the day when the Supreme Court would receive as much attention as the World Series because the status of the Supreme Court depended upon its reputation with the people.
These are the exact words of Chief Justice William Howard Taft:
Nothing tends more to render judges careful in their decision and anxiously solicitous to do exact justice than the consciousness that every act of theirs is subject to the intelligent scrutiny of their fellow men and to candid criticism.
Justice Felix Frankfurter's exact words were:
If the news media would cover the Supreme Court as thoroughly as it did the World Series, it would be very important since ``public confidence in the judiciary hinges on the public perception of it.
We have a continuing dialogue and a continuing discussion as to the role of the Supreme Court in our society. We have the cutting edge questions consistently coming to the Court. We have them deciding the issues of who will live, who will die, what will be the status of prayer in the schools, what will be the status of our election laws, and through the vagaries of due process of law and equal protection, there are many standards which the Court can adopt.
I was candidly surprised, in reviewing the recent Supreme Court decisions for the confirmation hearings on Chief Justice Roberts and Justice Alito, to find how far the Court had gone in striking down the power of Congress. It was 11 years between the confirmation proceeding on Justice Breyer and the confirmation proceeding on Chief Justice Roberts. With our workload here, it is not possible, even with responsibilities on the Judiciary Committee, even with responsibilities as chairman of the Judiciary Committee, to keep up with the Supreme Court opinions.
When I read United States v. Morrison, where the Supreme Court struck down the legislation protecting women against violence on a 5-to-4 decision because Chief Justice Rehnquist questioned our ``method of reasoning, I wondered what kind of a transformation there was when you leave the Senate Chamber, where our columns are aligned exactly with the Supreme Court columns across the green, what kind of a transformation there was with method of reasoning that there is such superior status when going to the Court. Certainly I have noted no complaint about Senators' method of reasoning when we confirm Supreme Court Justices.
Then we picked up the Americans with Disabilities Act. We had two cases--one involving Alabama which involved employment discrimination and one involving Tennessee which involved access by a paraplegic to the courtroom--dealing with exactly the same records. In the Alabama case, the Supreme Court declared 5 to 4 that the act of Congress was unconstitutional. In the Tennessee case, exactly on the same record, they decided the act was constitutional. What standard did they use? They adopted a standard on a 1997 Supreme Court decision in a case called Boerne. In that case, the Supreme Court decided they would render a constitutional judgment in a context where Congress had legislated under article V of the 14th amendment to preserve due process of law where the challenge was made by the State that the States were immune under the 11th amendment. The Supreme Court decided it would impose a test of whether the statute was ``congruent and proportional. This standard had never been heard in jurisprudence before that time, ``congruent and proportional. I defy anyone to say what those words mean in a standard which can be applied in a way which can be predicted by lawyers and understood by State legislators and understood by clients.
In a dissenting opinion, Justice Scalia chastised the Court for being, in effect, the taskmaster of the Congress, to see if the Congress had done its homework, whereas in prior cases the adequacy of the record was determined by a substantial record and the Court would defer to the judgment of Congress, which established, through lengthy hearings and proceedings, a very extensive record. In talking to my colleagues, those decisions by the Supreme Court undercutting congressional power were not known.
Then we have the Supreme Court being the final arbiter on what happens on Executive power, what happens at Guantanamo, what is the responsibility of the President of the United States on military commissions, what is the responsibility under the Geneva Conventions. Here again, I respect the Supreme Court's decisions, respect their role as the final arbiter, but say that there ought to be an understanding by the public. It may be that there will never be a case which has more impact on the working of Government than the decision as to whether the Florida electoral votes would be counted for George Bush or for Albert Gore in the famous case of Bush v. Gore.
A prior version of this legislation came out of committee last year on a bipartisan 12-to-6 vote. It has very substantial cosponsorship. I urge my colleagues to consider it carefully. I urge the distinguished majority leader to look for a spot to bring such legislation to the Senate.
There is companion legislation which Senator Grassley is offering which gives the courts--the Supreme Court, courts of appeals, trial courts--the discretion to have television. My legislation, S. 344, is more targeted. It has a requirement as to the Supreme Court televising its proceedings unless there is some due-process violation which is considered on a case-by-case basis.
When the article comes out by Professor Bruce Peabody in the University of Notre Dame Law Journal, I commend it to everyone's attention. I have advance text, have cited some of Professor Peabody's conclusions on his decision that the legislation has very important public policy benefits and, as he analyzes it, is constitutional.
I ask unanimous consent that the full text of the written statement be printed in the Congressional Record as if recited, and I ask that prior to the introduction of that prepared statement, my statement appear, that the comments I have made up until now have been a summary of that more extensive statement, an extemporaneous summary, and the full statement follows. Sometimes people reading the Congressional Record wonder why there is so much repetition, and I think a word of explanation that the initial statement is a summary and the formal statement is added would explain why the repetition exists.
I ask all of this explanation be printed in the RECORD. Finally, I ask that Senator Cornyn be included as a cosponsor.
The Presiding Officer - Without objection, it is so ordered.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
Senator Specter's Talking Points Upon Introduction of S. 344, a Bill To Permit the Televising of Supreme Court Proceedings
Mr. Specter, Pennsylvania - Mr. President, once again I seek recognition to introduce legislation that will give the public greater access to our Supreme Court. This bill requires the high Court to permit television coverage of its open sessions unless it decides by a majority vote of the Justices that allowing such coverage in a particular case would violate the due process rights of one or more of the parties involved in the matter.
The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions that affect this country and all Americans. The Supreme Court makes pronouncements on Constitutional and Federal law that have a direct impact on the rights and lives of all of us. Televising the Court's oral arguments will enhance the public's understanding of the issues and the impact of, and reasons for, the Court's decisions.
I believe that now is the right time for this legislation. In his 2006 Year-End Report on the Federal Judiciary, Chief Justice Roberts noted that ``The total number of cases filed in the Supreme Court increased from 7,496 filings in the 2004 Term to 8,521 filings in the 2005 Term--an increase of 13.7 percent. Despite this increase in petitions, during the 2005 Term, only 87 cases were argued, and 69 signed opinions were issued. These 69 signed opinions compares to 74 opinions in the 2004 Term.
A recent article by law professor Jeffrey Rosen in The Atlantic Monthly points out that ``Fifty-four percent of the decisions in the first year of the Roberts Court were unanimous and ``the Court issued more consecutive unanimous opinions than at any other time in recent history. I commend the Supreme Court and Chief Justice Roberts for what appears to be an increase in consensus, as reflected in the unanimity in these cases.
But I am concerned about the steady decline each year in the number of Supreme Court full opinions; the number of cases decided by the slimmest majority of five justices; and the number of opinions that have multiple dissents and concurrences that lead to more confusion than clarity in the law. I believe that permitting cameras into oral arguments is one way to shed light on the nature of the work of the Supreme Court and to improve public awareness of the Court's workload, the Court's institutional prerogatives, and even judicial personalities. The public wants to know: Who are these judges and how do they do what they do?
A January 7, 2007 article by Robert Barnes in the Washington Post observes that ``After decades of decline in its caseload, the [Supreme] Court is once again on track to take its fewest number of cases in modern history. The article notes that during his confirmation proceedings, Chief Justice Roberts observed that the justices ``hear about half the number of cases they did 25 years ago and he remarked that from his vantage point outside the court, ``they could contribute more to the clarity and uniformity of the law by taking more cases. Similarly, during his confirmation hearings and in response to questions from Senator DeWine, Justice Alito described unresolved splits of authority at the circuit court level as ``undesirable.
The Barnes article posits six possible reasons for the Court's waning docket: (1) 1988 legislation passed at the Court's request that limits the Court's mandatory review docket (2) the change in justices over the past couple of decades, (3) a decrease in splits among the circuits due to an increasingly homogenous appellate judiciary appointed by Republican administrations, (4) a decrease in appeals by the Federal government as a result of more government wins in the lower courts, (5) the ``cert pool process used by eight of the nine Justices, which relies upon law clerks to recommend which cases are ``cert-worthy; and (6) the possibility that justices on a closely divided court are hesitant to grant certiorari if they think their view will not prevail in the ultimate outcome of a case. I have no particular view on the merits of these possible explanations but they do make me increasingly curious about the Court and its workload.
In a September 2005 article in The Atlantic Monthly, Stuart Taylor, Jr. suggests, ``As our Supreme Court justices have become remote from the real world, they've also become more reluctant to do real work--especially the sort of quotidian chores done by prior justices to ensure the smooth functioning of the judicial system. The Court's overall productivity--as measured by the number of full, signed decisions--has fallen by almost half since 1985. Clerks draft almost all the opinions and perform almost all the screening that leads to the dismissal without comment of 99 percent of all petitions for review. Many of the cases dismissed are the sort that could be used to wring clear perversities and inefficiencies out of our litigation system--especially out of commercial and personal-injury litigation. Mr. Taylor concludes the article by exclaiming, ``Quietly our Supreme Court has become a sort of aristocracy--unable or unwilling to clearly see the workings, glitches, and peculiarities of the justice system over which it presides from such great altitude.
Mr. Taylor's frustration with the Supreme Court may have reached its zenith when, in July of 2006, he coauthored an article with Benn Wittes entitled, ``Of Clerks and Perks. In this piece the authors suggest that ``an exasperated Congress should ``fire the Court's clerks by reducing the budget for clerks from four (4) per justice to one (1). Mr. Taylor and Mr. Wittes cite the justices' extracurricular traveling, speaking and writing, in addition to their summer recesses and vastly reduced docket as evidence that something needs to be done to spur the Court into taking up more cases. According to the authors, terminating 3/4 of the clerks would end the justices' ``debilitating reliance on twentysomething law-school graduates and ``shorten their tenure by forcing them to do their own work, making their jobs harder and inducing them to retire before power corrupts absolutely or decrepitude sets in.
I do not necessarily agree with Mr. Taylor or Mr. Wittes about what ails the Supreme Court. I do, however, strongly agree with their observation that ``Any competent justice should be able to handle more than the current average of about nine majority opinions a year. And those who don't want to work hard ought to resign in favor of people who do.
Shortly after Taylor and Wittes issued their acerbic diatribe against the Court for its failure to grant certiorari in more cases, a September 20, 2006 article by Legal Times reporter Tony Mauro observed that eight of the nine sitting justices, including the recently confirmed Chief Justice Roberts and Justice Alito, would continue to participate in the Supreme Court's law clerk cert-pool. Mauro describes the cert-pool as an ``arrangement, devised in 1972, [that] radically changed what happens when a petition for review or certiorari comes in to the court. Instead of being reviewed separately by nine clerks and/or nine justices, it is scrutinized for the pool, presumably in greater depth, by one clerk, who then writes a memo for all the justices in the pool. Mr. Mauro goes on to remind us that in a 1997 speech John Roberts gave while in private practice, ``he found the pool `disquieting' in that it made clerks `a bit too significant' in determining the court's docket.
A December 7, 2006 article by Linda Greenhouse observed that ``The Court has taken about 40 percent fewer cases so far this term than last. It now faces noticeable gaps in its calendar for late winter and early spring. The December shortfall is the result of a pipeline empty of cases granted last term and carried over to this one. Looking back at last term, Ms. Greenhouse observed, ``The number of cases the court decided with signed opinions last term, 69, was the lowest since 1953 and fewer than half the number the court was deciding as recently as the mid-1980s. Ms. Greenhouse goes on to note that 16 of the 69 cases--about 23 percent--were decisions with a split of five to four.
On January 11, 2007, in an article by Brooke Masters and Patti Waldmeir, the Financial Times tells how ``For years, the court declined to hear many cases that most profoundly affected corporate America. Ms. Masters and Ms. Waldmeir note that 44 percent of the Supreme Court's docket this term includes cases involving business, up from 30 percent in the previous two terms. Nonetheless, they note, ``Far too often . . . Supreme Court rulings cast as much ambiguity as they resolve. The authors go on to quote Steve Bokat, general counsel of the U.S. Chamber of Commerce as saying he'd ``rather have a bad decision that's clear than an OK decision that's not. According to Bokat, ``Ninety percent of the time, if you get clarity in a decision with a definitive holding, you at least know what your obligations are, and even if you don't like the opinion you are much less likely to get in trouble with litigation. Bokat said Chief Justice Roberts ``gets this and ``understands the importance of clarity yet Bokat notes that ``in order to get that unanimity the decisions tend to be more narrow [and] it doesn't give you much advice on what to do going forward.
I should also note that recent news articles point out the high Court has become more media friendly--even though the same articles deem the prospect of televised proceedings ``remote. A December 25, 2006 article by Mark Sherman observes ``Lately . . . some members of the court have been popping up in unusual places--including network television news programs--and talking about more than just the law. Mr. Sherman notes with some irony that then-Chief Justice ``Rehnquist could stroll around the court, unrecognized by tourists. Justice Anthony Kennedy snapped a photograph for visitors who had no idea who he was and Justice John Paul Stevens was once asked to move out of the way by a picture-taking tourist. The article suggests that despite the Supreme Court's reticence about cameras in oral arguments, Chief Justice ``Roberts believes its credibility will be enhanced if the justices appear less remote.
Frankly, I agree with the view that making the justices less remote adds to the credibility of the Supreme Court. I also believe that public understanding may help heal some of the deep division and even cynicism we have in some segments of our society. This is why I'm introducing legislation to permit cameras into oral arguments. As our 27th President and 10th Chief Justice William Howard Taft teaches, ``Nothing tends more to render judges careful in their decision and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subject to the intelligent scrutiny of their fellow men, and to their candid criticism ....... In the case of judges having a life tenure, indeed, their very independence makes the right freely to comment on their decisions of greater importance, because it is the only practical and available instrument in the hands of a free people to keep judges alive to the reasonable demands of those they serve.
For their part, some of the justices have expressed an openness to the idea of allowing a broader audience to see oral arguments.
Chief Justice Roberts, in addition to comments about the court needing to appear less remote, stated at his 2005 confirmation hearing upon being nominated as Chief Justice, ``Well, you know my new best friend, [former] Sen. Thompson assures me that television cameras are nothing to be afraid of. But, I don't have a set view on that.
Justice Alito, at his Senate Confirmation hearings in 2006, said that as a member of the 3rd Circuit Court of Appeals, he voted to admit cameras, but a majority of his colleagues rejected the idea. In response to a question I posed, Justice Alito said, ``I argued we should do it but he went on to qualify his personal belief by saying, ``it would be presumptuous for me to talk about it right now with respect to the Supreme Court. Justice Alito pledged he would ``keep an open mind despite the position I took on the circuit court.
Justice Breyer, during his confirmation hearings in 1994, indicated support for televised Supreme Court proceedings. He has more recently stated, at an event in late 2005, that cameras in the Supreme Court ``would be a wonderful teaching device but might become a symbol for lower federal courts and state courts on the advisability of cameras in courtrooms. Justice Breyer noted that ``not one of us wants to take a step that could undermine the court as an institution and expressed the hope that ``eventually the answer will become clear .......
Justice Stevens, according to a July 14, 1989 article by Henry Weinstein in the Times Mirror, appears to support cameras and he told the annual 9th Circuit Judicial Conference attendees, ``In my view, it's worth a try.
Justice Kennedy, according to a September 10, 1990 article by James H. Rubin, told a group of visiting high school students that cameras in the Court were ``inevitable. But Justice Kennedy later stated that ``a number of people would want to make us part of the national entertainment network. In testimony before the Commerce, Justice, State and Judiciary Subcommittee of the House Appropriations Committee in March of 1996, Justice Kennedy pledged, ``as long as any of my colleagues very seriously objects, I shall join with them.
Justice Thomas, in an October 27, 2006 article by R. Robin McDonald, is quoted as saying, ``I'm not all that enthralled with that idea. I don't see how it helps us do our job. I think it may distract from us doing our job. Justice Thomas added that if 80 percent of the appellate process is wrapped up in the briefs, ``How many of the people watching will know what the case is about if they haven't read the briefs? Justice Thomas went on to suggest the viewing public would have a ``very shallow level of understanding about the case.
On October 10, 2005, Justice Scalia, opposed an earlier version of my bill, stating, ``We don't want to become entertainment ....... I think there's something sick about making entertainment out of real people's problems. I don't like it in the lower courts, and I don't particularly like it in the Supreme Court. Yet a recent December 13, 2006, article by David Perara reports that Justice Scalia favors cameras in the Supreme Court to show the public that a majority of the caseload involves, ``Internal Revenue code, the [Employee Retirement Income Security Act], the bankruptcy code--really dull stuff.
Justice Ginsburg made a similar observation: ``The problem is the dullness of most [Supreme] Court proceedings. This comment was in a December 2000 article by Marjorie Cohen who noted Justice Ginsburg's support of camera coverage so long as it is gavel-to-gavel.
Justice Scalia's, Justice Thomas' and Justice Ginsberg's points are well taken. The public should see that the issues decided by the Court are not simple and not always exciting, but they are, nonetheless, very important.
So I have to disagree with Justice Souter, who appears to be the staunchest opponent of cameras in the Supreme Court and who famously said in 1996, ``I can tell you the day you see a camera come into our courtroom, it is going to roll over my dead body.
Many years ago, Justice Felix Frankfurter may have anticipated the day when Supreme Court arguments would be televised when he said that he longed for a day when: ``The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system. It is hard to justify continuing to exclude cameras from the courtroom of the Nation's highest court. As one legal commentator observes: ``An effective and legitimate way to satisfy America's curiosity about the Supreme Court's holdings, Justices, and modus operandi is to permit broadcast coverage of oral arguments and decision announcements from the courtroom itself.
In recent years watershed Supreme Court precedents, have been joined by important cases like Hamdi, Rasul and Roper--all cases that affect fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court concluded that although Congress authorized the detention of combatants, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. The Court reaffirmed the Nation's commitment to constitutional principles even during times of war and uncertainty.
Similarly, in Rasul v. Bush, 2004, the Court held that the Federal habeas statute gave district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism. In Roper v. Simmons, a 2005 case, the Court held that executions of individuals who were under 18 years of age at the time of their capital crimes is prohibited by Eighth and Fourteenth Amendments.
Then on June 27, 2005, the high Court issued two rulings regarding the public display of the Ten Commandments. Each opinion was backed by a different coalition of four, with Justice Breyer as the swing vote. The only discernible rule seems to be that the Ten Commandments may be displayed outside a public courthouse (Van Orden v. Perry), but not inside (McCreary County v. American Civil Liberties Union) and may be displayed with other documents, but not alone. In Van Orden v. Perry, the Supreme Court permitted a display of the Ten Commandments to remain on the grounds outside the Texas State Capitol. However, in McCreary County v. ACLU, a bare majority of Supreme Court Justices ruled that two Kentucky counties violated the Establishment Clause by erecting displays of the Ten Commandments indoors for the purpose of advancing religion. While the multiple concurring and dissenting opinions in these cases serve to explain some of the confounding differences in outcomes, it would have been extraordinarily fruitful for the American public to watch the Justices as they grappled with these issues during oral arguments that, presumably, reveal much more of their deliberative processes than mere text.
These are important cases, but does the public understand how the Court grappled with the issues? When so many Americans get their news and information from television, how can we keep them in the dark about how the Court works?
When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions have been reached through a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the meaning of the Constitution, reason and the application of legal precedents. On the contrary, these major Supreme Court opinions embody critical decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, an individual justice has the power by his or her vote to change the law of the land.
5-4 Split Decisions Since the Beginning of the October 2005 Term
Since the beginning of its October 2005 Term when Chief Justice Roberts first began hearing cases, the Supreme Court has issued twelve (12) decisions with a 5-4 split out of a total of 96 decisions--the most recent of which, Osborn v. Haley, was issued few days ago (January 22, 2007). The Court has also issued four (4) decisions with votes of 5-3, with one justice recused. Finally, it has issued a rare 5-2 decision in which Chief Justice Roberts and Justice Alito took no part. In sum, since the beginning of its October 2005 Term, the Supreme Court has issued seventeen (17) decisions establishing the law of the land in which only five (5) justices explicitly concurred. Many these narrow majorities occur in decisions involving the Court's interpretation of our Constitution--a sometimes divisive endeavor on the Court. I will not discuss all 17 of these narrow majority cases, but will describe a few to illustrate my point about the importance of the Court and its decisions in the lives of Americans.
Eighth Amendment, Death Penalty & Aggravating Factors or Mitigating Evidence
The first 5-4 split decision, decided on January 11, 2006, was Brown v. Sanders, which involves the death penalty. In that case the Court held that in death penalty cases, an invalidated sentencing factor will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances. The majority opinion was authored by Justice Scalia and joined by Chief Justice Roberts and Justices O'Connor, Kennedy and Thomas. Justice Stevens filed a dissenting opinion in which Justice Souter joined. Similarly, Justice Breyer filed a dissenting opinion in which Justice Ginsburg joined.
Last November the Supreme Court decided Ayers v. Belmontes, a capital murder case in which the Belmontes contended that California law and the trial court's instructions precluded the jury from considering his forward looking mitigation evidence suggesting he could lead a constructive life while incarcerated. In Ayers the Supreme Court found the Ninth Circuit erred in holding that the jury was precluded by jury instructions from considering mitigation evidence. Justice Kennedy authored the majority opinion while Justice Stevens wrote a dissent joined by three other justices.
Other 5-4 split decisions since October 2005 include United States v. Gonzalez-Lopez, concerning whether a defendant's Sixth Amendment right to counsel was violated when a district court refused to grant his paid lawyer permission to represent him based upon some past ethical violation by the lawyer (June 26, 2006); LULAC v. Perry, deciding whether the 2004 Texas redistricting violated provisions of the Voting Rights Act (June 28, 2006); Kansas v. Marsh, concerning the Eighth and Fourteenth Amendments in a capital murder case in which the defense argued that a Kansas statute established an unconstitutional presumption in favor of the death sentence when aggravating and mitigating factors were in equipoise (April 25, 2006); Clark v. Arizona, a capital murder case involving the constitutionality of an Arizona Supreme Court precedent governing the admissibility of evidence to support an insanity defense (June 29, 2006); and Garcetti v. Ceballos, a case holding that when public employees make statements pursuant to their official duties they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline (May 30, 2006).
The Justices Have Split 5-3 Four (4) Times Since October 2005
Fourth Amendment Warrant Requirement
In Georgia v. Randolph, (March 22, 2006), a 5-3 majority of the Supreme Court held that a physically present co-occupant's stated refusal to permit a warrantless entry and search rendered the search unreasonable and invalid as to that occupant. Justice Souter authored the majority opinion. Justice Stevens filed a concurring opinion as did Justice Breyer. The Chief Justice authored a dissent joined by Justice Scalia. Moreover, Justice Scalia issued his own dissent as did Justice Thomas. In Randolph, there were six opinions in all from a Court that only has nine justices. One can only imagine the spirited debate and interplay of ideas, facial expressions and gestures that occurred in oral arguments. Audio recordings are simply inadequate to capture all the nuance that only cameras could capture and convey.
Actual Innocence and Habeas Corpus
In House v. Bell, a 5-3 opinion authored by Justice Kennedy (June 12, 2006), the Supreme Court held that because House had made the stringent showing required by the actual innocence exception to judicially-established procedural default rules, he could challenge his conviction even after exhausting his regular appeals. Justice Alito took no part in considering or deciding the House case. It bears noting, however, that if one Justice had been on the other side of this decision it would have resulted in a 4-4 tie and, ultimately, led to affirming the lower court's denial of House's post-conviction habeas petitions due to a procedural default.
Military Commissions, Geneva Conventions and Habeas Corpus
In Hamdan v. Rumsfeld, a 5-3 decision in which Chief Justice Roberts did not participate, the Supreme Court held that Hamdan could challenge his detention and the jurisdiction of the President's military commissions to try him despite the 2005 enactment of the Detainee Treatment Act. A thin majority of the justices held that, although the DTA states that ``no court ..... shall have jurisdiction to hear or consider ..... an application for ..... habeas corpus filed by ..... an alien detained ..... at Guantanamo Bay, the President could not establish a military commission to try Hamdan unless Congress granted him the authority through legislation. This case was of great interest and great importance, and was one of a handful of recent cases in which the Supreme Court released audiotapes or oral arguments almost immediately after they occurred. The prompt release of the audiotapes was good, but it would have been far better to allow the public to watch the parties' advocates and the Justices grapple with the jurisdictional, constitutional and merits-related questions that were addressed in that case. With due respect to Justices Scalia and Ginsberg, watching the advocates respond as the Justices pepper them with questions is something that should be seen and heard.
14th Amendment Due Process and Notice Concerning Tax Liens on Homes
In another 5-3 case, Jones v. Flowers, (April 26, 2006), the Supreme Court considered whether the government must take additional reasonable steps to provide notice before taking the owner's property when notice of a tax sale is mailed to the owner and returned undelivered. The public can readily understand this issue. In an opinion by Chief Justice Roberts, the Court held that where the Arkansas Commissioner of State Lands had mailed Jones a certified letter and it had been returned unclaimed, the Commissioner had to take additional reasonable steps to provide Jones notice. Justices Thomas, Scalia and Kennedy dissented and Justice Alito took no part in the decision.
Not only lawyers who might listen to the audio tapes and read the full opinions, but all citizens could benefit from knowing how the Court grapples with legal issues related to their rights--in one case something as straightforward as the right to own one's home as it may be affected by unclaimed mail--and in another the right of someone who is in prison to be heard by a court. My legislation creates the opportunity for all interested Americans to watch the Court in action in cases like these.
Regardless of one's views concerning the merits of these decisions, the interplay between the government, on the one hand, and the individual on the other is something many Americans want to understand more fully. So, it is with these watershed decisions in mind that I introduce legislation designed to make the Supreme Court less remote. Millions of Americans recently watched the televised confirmation hearings for our two newest Justices. Americans want information, knowledge, and understanding; in short, they want access.
In a democracy, the workings of the government at all levels should be open to public view. With respect to oral arguments, the more openness and the broader opportunity for public observation--the greater will be the public's understanding and trust. As the Supreme Court observed in Press-Enterprise Co. v. Superior Court (1986), ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-SPAN to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor.
Judiciary Committee Hearings and Action on Cameras in the Federal Courts
On November 9, 2005, the Judiciary Committee held a hearing to address whether Federal court proceedings should be televised generally and to consider S. 1768, my earlier version of this bill, and S. 829, Senator Grassley's ``Sunshine in the Courtroom Act of 2005. During the November 9 hearing, most witnesses spoke favorably of cameras in the courts, particularly at the appellate level. Among the witnesses favorably disposed toward the cameras were Peter Irons, author of May It Please the Court, Seth Berlin, a First Amendment expert at a local firm, Brian Lamb, founder of C-SPAN, Henry Schleif of Court TV Networks, and Barbara Cochran of the Radio-Television News Directors Association and Foundation.
A different view was expressed by Judge Jan DuBois of the Eastern District of Pennsylvania, who testified on behalf of the Judicial Conference. Judge DuBois warned of concerns, particularly at the trial level, where witnesses may appear uncomfortable because of cameras, and thus might seem less credible to jurors. I note, however, that these would not be issues in appellate courts, where there are no witnesses or jurors.
The Judiciary Committee considered and passed both bills on March 30, 2006. The Committee vote to report S. 1768 was 12-6, and the bill was placed on the Senate Legislative Calendar. Unfortunately, due to the press of other business neither bill was allotted time on the Senate Floor.
Congressional Authority to Legislate Cameras in the Court
In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and may be tested in the Supreme Court, which will have the final word. As I see it, there is no constitutional prohibition against this legislation.
Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish. While the Constitution specifically creates the Supreme Court, it left it to Congress to determine how the Court would operate. For example, it was Congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office. Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the appellate jurisdiction of the Court, it provides that such jurisdiction exists ``with such exceptions and under such regulations as the Congress shall make.
The Supreme Court could permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating television coverage of oral arguments and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that its proceedings ought to be better known to the public; and, in the absence of a Court rule, public policy would be best served by enacting legislation requiring the televising of Supreme Court proceedings.
My legislation embodies sound policy and will prove valuable to the public. I urge my colleagues to support this bill. Finally, I ask unanimous consent that the text of the bill be printed in the Record and I yield the Floor.
VA Health Care (Byron Dorgan-ND)
Mr. Dorgan, North Dakota - Mr. President, on Saturday of this past weekend, I was in Minneapolis, MN, for some meetings. In the Minneapolis Star Tribune newspaper, there was on the front page a story that I read with substantial disappointment and concern. I will relate it to my colleagues.
Kevin Giles for the Minneapolis Star Tribune wrote a story:
This Marine's death came after he served in Iraq.
The subhead is:
When Jonathan Schulze came home from Iraq, he tried to live a normal life, but the war kept that from happening.
The story is a lengthy one about a man who served in Iraq, was a marine, very proud of being a marine, a combat marine. His name was Jonathan Schulze. In Iraq, he carried a heavy machine gun as part of his combat experience. He apparently indicated he had watched about 16 of his unit members and close friends die in some very aggressive fighting in Iraq, described the battles. He was twice wounded, earned two Purple Hearts, came back to this country, was discharged, and had very serious post-traumatic stress disorder, severe psychological problems. He couldn't sleep, reliving the combat during his sleep and then having flashbacks when awake.
On December 14, he went to the VA center in Minneapolis, met with a psychiatrist, according to this news account, and was told that he could be admitted for some treatment in March. This was December. On January 12, a couple of weeks ago, he went to the VA hospital in St. Cloud, according to this account. He told the people at the VA hospital in St. Cloud that he was thinking of committing suicide, thinking of killing himself. His parents were with him at that point. They verify that is what he told the VA hospital in St. Cloud. He was thinking of committing suicide, and he wanted to be admitted as a patient. They told him they could not admit him as a patient.
The next day, he called the VA, called them back, and they told him that he was No. 26 on the waiting list. Four days later, he hung himself. This young man who served his country honorably as a U.S. marine reached out for help. According to his parents, who were there at the time, he went to a VA hospital and said: I need help, I want to be admitted, I am having thoughts of suicide, and he was refused. The next day, he was told he is 26th on the list.
I don't know all of the facts about this. I only know the facts I have read in a newspaper. But the story is nearly unbelievable to me. The newspaper description of the flag-draped coffin of this young marine who earned two Purple Hearts fighting for his country in Iraq contains a sad, sad story of a young marine who should have gotten medical help for serious psychological problems that were the result of his wartime experience.
I am going to ask the inspector general to investigate what happened in this case. What happened that a young man who was a marine veteran with two Purple Hearts turns up at a VA center and says: I am thinking of committing suicide, can you help me, can you admit me, and he is told: No, the list is 26 long in front of you? Something dreadfully wrong happened. The result is a young man is dead. What happened here? Does it happen other places?
We know the heavy toll war imposes on these young men and women who wear America's uniform and who answer this country's call. My colleagues and I have all been to Bethesda and Walter Reed, and have visited the veterans who have lost arms and legs, who have had head injuries, especially, because the body armor these days means that the injuries more often sustained are the loss of an arm or a leg or a brain injury due to the improvised explosive devices. We know about the VA health care system. The VA health care system has been excellent in some respects. It has gotten good reviews. But what has happened here? Are there others who show up at a VA center and say: I need help, only to be told no help is available? I hope that is not the case.
But I am going to ask the Inspector General to investigate this case and find out what happened. Is it happening other places? And what can we do to prevent this from happening again? It is the unbelievable cost of war.
Issues of Priority (Byron Dorgan-ND)
Iraq
Mr. DORGAN. This week or next week we will discuss once again the war in Iraq--a war that has now lasted longer than World War II. President Bush has indicated to the Congress and to the American people he has a new strategy. The new strategy he is proposing is to move an additional 20,000 American troops into Iraq. This morning, the more recent polls suggest the President's approval is at 30 percent. Polls also suggest the American people do not support deepening our country's involvement in Iraq. It is quite clear that the Congress does not support it either.
The decision by the President comes on the heels of the Baker-Hamilton commission that had some of the best minds in this country--Republicans and Democrats, old hands and younger people--who took a look at this, who understand foreign policy, understand military policy, and evaluated what are the potential choices, and decided that the deepening of our country's involvement in Iraq would be the wrong choice.
The blue ribbon commission told the President it would be the wrong choice to deepen our involvement in Iraq. Yet, the President decided that is exactly what he is going to do.
It is important, I think, as we discuss it this week and next week, to understand this Congress will always support the men and women whom we have asked to go to battle for our country. I would not support any effort by anyone to withdraw funds for our troops. If our troops are there, they must have everything they need to complete their mission and finish their jobs. But the fact is, in all of these discussions, I regret to say the President and Vice President do not have all that much credibility. Four years ago they presented to this Congress--much of it in top-secret briefings in this Capitol--intelligence that supposedly buttressed the Administration's request that Congress pass a resolution that would give them the authority to use force against Iraq. It turns out now that much of that intelligence was wrong. Much of it was just fundamentally wrong. Now we know that those who offered the intelligence assessment to Congress knew there were serious doubts about it even as they were offering it to Congress as fact. They are some of the highest officials in our Government. I wish I did not have to say that, but it is the truth.
It was not good intelligence. For example, take the mobile chemical weapons labs that we were told existed for sure. We now understand that was the product of a single source of intelligence, a person named ``Curveball, a person who was likely a drunk and a fabricator. On the basis of a single source, whom the Germans, who turned Curveball's information over to our country, thought not to be reliable or likely not to be reliable, we were told by this administration in briefings that this was a case that would justify going to war.
The aluminum tubes. We now understand the aluminum tubes were not for the purpose of reconstituting a nuclear threat. We also understand there are those in the line of--well, I was going to say the chain of command--those at high positions in our Government today who knew there was substantial evidence and disagreement from other parts of our Government who did not believe the aluminum tubes were for the purpose of reconstituting a nuclear effort or nuclear capability in Iraq. Yet, that information was withheld from the Congress, probably and apparently deliberately withheld from the Congress.
Yellowcake from Niger: Again, another case of almost exactly the same thing.
It is the case that the Congress was misled by bad intelligence, and the American people were misled by that same intelligence. That is not me saying that. It is Colonel Wilkerson, who worked 17 years as a top assistant to Colin Powell, the Secretary of State, who made the case at the United Nations. Colonel Wilkerson, who was involved in all that activity, spoke out publicly, and he said it was the ``perpetration of a hoax on the American people. That is not me. Those are the words of a top official who was involved, who was there. Yet, no one has had to answer for it, no one.
Hearings. No oversight hearings by the majority party in the last Congress. No one has answered for it.
Now we have a new Iraqi policy, new warnings about more danger in Iraq. But it comes at a time when there is precious little credibility. We now find ourselves in Iraq, longer than we were in the Second World War, in the middle of a civil war. Most of the violence in Iraq is sectarian violence: Sunnis and Shias killing each other; American soldiers placed in the middle of a civil war.
The fact is, the leader of Iraq is now gone, dead. He was executed. Saddam Hussein does not exist. The Iraqi people were able to elect their own Government. They were able to vote for their own constitution. That is done. That is progress. But now Iraq is in the middle of a civil war. And to deepen America's involvement in the middle of a civil war in Iraq makes little sense to me.
What does make sense to me is to say to the Iraqis: This is your Government, not ours. This belongs to you, not us. And you have a responsibility now to provide for your own security.
Here is what General Abizaid, the head of Central Command, said 2 months ago. He said:
I met every divisional commander, General Casey, the corps commander, General Dempsey, we all talked together. And I said, ``in your professional opinion, if we were to bring in more American troops now, does it add considerably to our ability to achieve success in Iraq? And they all said no.
"I met with every divisional commander. ``They said no.
Now, General Abizaid, also in testimony 2 months ago, said:
And the reason [his commanders said no to additional troops] is because we want the Iraqis to do more. It is easy for the Iraqis to rely upon us to do this work. I believe that more American forces prevent the Iraqis from doing more, from taking more responsibility for their own future.
In other words, the Iraqi attitude is: if American troops can do the job, that is fine. Let the American troops do the job. Our responsibility, it seems to me, is to say to the Iraqi people: This is your country, not ours. Security is your responsibility. And if you cannot provide for security, the American soldiers cannot do that for any great length of time. You have to decide whether you want to take your country back.
Now, as the President says, his change in strategy is to move more American troops to Iraq. I want to describe what John Negroponte, the head of our intelligence service, said in open testimony to the Congress 2 weeks ago:
Al-Qaeda is the terrorist organization that poses the greatest threat to U.S. interests, including to the homeland.
That is testimony from the top intelligence chief in our country: Al-Qaida is the greatest terrorist threat to U.S. interests, including to the homeland. Then let me show you what he says beyond that. He says: al-Qaida ``continues to plot attacks against our homeland and other targets with the objective of inflicting mass casualties. And they continue to maintain active connections and relationships that radiate outward from their leaders' secure hideout in Pakistan. .....
Understand this is who attacked America: al-Qaida. They described it. They boasted about it. They murdered thousands of Americans. They attacked America on 9/11. Their leadership is now, according to our top intelligence chief, in testimony before this Congress 2 weeks ago, in a ``secure hideout in Pakistan.
It seems to me if there are 20,000 additional soldiers available, job one for this country is to eliminate the greatest terrorist threat--the greatest terrorist threat--described by the intelligence chief the week before last as al-Qaida. It ``poses the greatest threat to U.S. interests, including to the homeland. He also says they are in secure hideaways in Pakistan.
I do not understand for a moment why the greatest priority for us is not to eliminate the most significant terrorist threat to our country and to eliminate the leadership of the organization that boasts about murdering Americans on 9/11. If that were part of the new strategy, I would be here saying: I am for it. But it is not.
There is not, regrettably, an easy answer or a good answer with respect to Iraq. The President described, last fall, prior to the election, false choices. He said the choice is between stay the course and cut and run. That was always a false choice.
We have to find a way to resolve this and be able to bring American troops home. It is just that simple. We have to say to the Iraqi people: This country belongs to you, and you have responsibilities. Meet those responsibilities.
We have responsibilities here at home--plenty of them--and we need to turn inward to meet those responsibilities. That does not mean we should pay no attention to what is going on around the world. But we also need to begin taking care of things here at home.
I was at a meeting in Minneapolis, a listening session with American tribes this weekend. Let me tell you what one fellow stood up and said. He was a tribal chair, a chairman of the tribe. He said: My two daughters are living in rehabilitated trailers that were brought to our reservation from Michigan. They heat those trailers with wooden stoves. The trailers have no plumbing. There is no running water and no indoor toilets. This is in South Dakota. Sound like something in a Third World country? He said: One of my daughters has eight children. The other has three. They live in donated trailers that came from Michigan, with no water and no toilet. And they heat it with a wood stove. Sound like the United States? No, it doesn't to me. It sounds like a Third World country. We have lots of people in this country living on Indian reservations in Third World conditions. We are told there is not enough money to respond to their housing, education, and health care needs. That is wrong.
We are going to have presented to us in a couple weeks another proposal for as much as $120 billion in emergency spending to deal with Iraq and Afghanistan. That will bring to roughly $600 billion what we have provided for the war. But when we have needs here at home, it does not matter whether it is health care needs or housing or perhaps energy needs, the Administration tells us we cannot afford to spend for that.
Well, we have afforded now what is going to be about $600 billion that the President has requested, all on an emergency basis, most of it for the war in Iraq. So we will debate and have great controversy, I assume, in the next couple weeks on the issue of a resolution dealing with Iraq. But controversy is not a stranger to the floor of the Senate.
Minimum Wage Increase
Mr. President, we have a provision on the floor of the Senate today that should have been completed long ago dealing with the minimum wage. I mentioned the other day when I was talking about issues that come to the floor of the Senate that butter the bread of big interests, man, they float through here like greased lightning. We do not get it through fast enough, at least in the last Congress. Do you want to give a big tax break to the biggest interests in the country? Be my guest. We get it through here in 1, 2, 3 days.
Do you want to help the people at the bottom of the economic ladder, the people who make the beds in hotel rooms for the minimum wage, the people across the country in convenience stores getting the minimum wage--often working two, three jobs a day, 60 percent of whom are women, one-third of whom are working at the minimum wage for the only income for their family--well, then, you have some trouble because then it is going to get stalled. That does not get through here quickly because that hallway is not clogged with people representing the folks who are making the minimum wage and working two jobs a day.
It is just a fact, and it is a shame. We need to take care of some things here at home, and we need to do so soon. This minimum wage bill is not rocket science, nor should it be heavy lifting for any of us here. It has been 10 years since those who worked at the bottom of the economic ladder have had any adjustment in the minimum wage--10 years.
I mentioned the other day, what about a ``maximum wage? I am not proposing one. But I can tell you that the head of one of the largest oil companies in our country, when he left his company, was making $150,000 a day in total income. Can you imagine that, $150,000 a day?
Then when he left, the papers reported, in addition to having made $150,000 a day, he got a $400 million parachute on the way out. Anybody standing around here squawking about that? No, no complaints about that. It is the little guy, the person at the bottom. After 10 years, there is great complaint about trying to move a bill through the Senate that would give them some help, lift that minimum wage a bit. We are told: You can't do that without giving corporations a break. I guess I don't understand the priorities. Some of the suggestions that have been described, expensing for small business, I support that, but it has nothing to do with this bill. We will almost certainly do it in other circumstances. We have done it before. But why should we hold hostage a bill that deals with a whole lot of folks who work hard all day long and for very little money, not $150,000 a day but maybe $44 a day, because of those who have an appetite for additional tax breaks? I don't understand that.
Sweatshop Abuses
My point is, there is so much to do. I wish to talk for a moment about a couple of other items that relate to this. I introduced a bill last week with some of my colleagues to try to stop sweatshop abuses overseas, products made overseas in sweatshop conditions and sent into this country to compete unfairly against American workers.
The fact is, American workers are losing their jobs because there is so much outsourcing to foreign countries. American jobs are being shipped to foreign countries. The very people in this Chamber who are reluctant to increase the minimum wage and are holding us up are the same people who have voted when I have offered four times a simple amendment that says: Let's stop giving large tax breaks to U.S. companies that ship American jobs overseas.
Can you think of anything more pernicious than deciding, let's figure out what we have to do in America; let's give a big, fat tax break to a company that would fire their workers, lock their manufacturing plant, shut the lights off and move the jobs overseas? They move the jobs overseas, manufacture a product in Sri Lanka or Bangladesh and ship it back here and they get a big, fat tax break out of this Congress. That is unbelievable to me. We can't get that repealed. And we can't, on the other edge of the sword, get the minimum wage increased. Boy, that slices the wrong direction. There is something fundamentally wrong with that system.
I introduced legislation called the Decent Working Conditions and Fair Competition Act that sets up a circumstance so that at least if companies are going overseas to find sweatshop conditions, hire a bunch of people who will work for 20 or 30 cents an hour and then produce a product and ship it back here, at least we could try to stop them. There is a lot of dispute about trade and the conditions of employment. I think we could all agree that American workers should not have to compete against the product of prison labor in China. I think we could all agree that if somebody is making socks in a Chinese prison, that is not fair competition for an American worker. So we don't have Chinese prison labor products come into this country. What about the product of sweatshop labor, where people are brought into sweatshops?
I will cite an example: A sweatshop in northern Jordan, airplanes flying in the Chinese and Bangladeshis, with Chinese textiles, being put in sweatshops in northern Jordan to produce products to ship into this country. Some were working 40-hour shifts, not a 40-hour week, 40 hours at a time. Some weren't paid for months. And then when they were paid, they were paid a pittance. Some were beaten.
Do we want that kind of product coming into this country? Is that whom we want American workers to compete with? I don't think so. This legislation is a first baby step toward some sanity in trying to make sure that what we are purchasing on the store shelves in our country is not the product of sweatshop labor overseas. We define what sweatshop labor is, what sweatshop conditions are. We establish a provision by the Federal Trade Commission to enforce, and we also allow American companies who are forced to compete against this unfairness to take action in American courts to seek recompense for the damages.
My hope is Congress will pass this. It is bipartisan. It relates to exactly the same thing we are talking about for people in this country who work on the minimum wage.
Last week, I also introduced a piece of legislation that deals with this building. This is a picture of a little white building on Church Street in the Cayman Islands. It is called the Ugland House. It is five stories. According to some enterprising investigative reporting done by David Evans of Bloomberg, this building is actually home to 12,748 corporations. It doesn't look like it could house 12,748 corporations. It is a five-story stucco building in the Cayman Islands, and it is what lawyers have allowed to become legal fiction so that companies could create a legal address in this little white building. It is their tax haven Cayman Island address so they can avoid paying taxes. Isn't that something? Twelve thousand seven hundred forty-eight companies call this place home. We ought to stop it.
I have introduced legislation to stop it, to say this: When U.S. companies want to set up a subsidiary in a tax-haven country, if they are not doing substantial business activity in that country, then they have created a legal fiction, and it will not be considered legal for us.
They will be taxed as if they never left our country. We can shut this down like that. If this Congress has the will, we can shut down these tax havens in a moment. And we should. Everybody else is paying taxes. It will be April 15th in a couple months. The American people work. They pay taxes and support the Government for the cost of roads and bridges and health care, all the things we do together, the National Institutes of Health, and our national defense. So they pay taxes. It is just that there are some in this country who decide they don't want to participate. They don't want to pay taxes.
Here is a report from the Government Accountability Office. It was done at my request and, I believe, that of Senator Levin as well. The report showed the number of large Federal contractors who do business with the Federal Government--that is, they want to benefit from having contracts with the Federal Government--who set up offshore subsidiaries in tax-haven countries to avoid paying U.S. taxes. The very companies that benefit from doing business with the Federal Government in getting contracts are setting up offshore tax haven companies to avoid paying U.S. taxes. That is unbelievable. It ought to stop.
I have introduced legislation--I should call it the Ugland House Act, now that I think about it--that shuts down that opportunity. This bill can shut down in a moment the opportunity for companies to decide they want all the benefits America has to offer them, but they don't want the responsibility of paying taxes. My hope is that this bill, which is cosponsored by Senators LEVIN and FEINGOLD, will be dealt with by the Senate Finance Committee and the full Senate in the days and weeks ahead.
Fast Track Authority
One final point, if I might. We are told this week that the President Bush will be asking the Congress for something called fast-track authority. Although the Constitution provides Congress the right to regulate foreign commerce--it is a constitutional responsibility of the Congress--the Congress has, in the past, given the President something called fast track, which says: Mr. President, you go out and negotiate trade agreements in secret and then you bring them back and we will have an expedited procedure. And we will require that no Senator be allowed to offer any amendments, no matter what you have negotiated.
I don't support fast-track authorization. I didn't support it for President Clinton. I don't support it for this President. This President has had it for 6 years over my objection. He is attempting to now get an extension of it by the end of June 30. I intend--and I am sure a number of my colleagues with whom I have spoken intend--to aggressively resist it. I am for trade and plenty of it. But I am for fair trade. I demand fair trade. This notion of a trade policy that has an $800 billion trade deficit is an unbelievable failure. No one can describe it as a success for this country.
It is time to have a fair debate about trade, what strengthens America and what weakens it, what are the conditions under which we participate in the global economy? We have a right to participate the way we choose. We have been told in recent years that the way to participate in the global economy is to engage in a race to the bottom. If American workers can't compete with somebody making 36 cents an hour, that is tough luck.
I have often told stories about the companies and the stories of struggle of the last 100 years. But James Fyler died of lead poisoning. He was shot 54 times. I suppose that is lead poisoning. Why was he shot 54 times? Because it was 1914, and James Fyler was radical enough to believe that people who went underground to dig coal should be paid a fair wage and ought to be able to work in a safe workplace. For that, he was shot 54 times. Over a century, going back to the early 1900s, we have created the standards of work. We lifted America. We expanded the middle class. We said: We will put in place fair labor standards, child labor provisions, safe workplace rules. We are going to lift America up. We are going to expand the opportunity for health care. We will have good jobs that pay well. We will give people the right to organize. We did all of that. We created the broadest middle class in the world and an economic engine that is unparalleled.
Now we are told it is a new day. We should compete. If there is a woman named ``Saditia in Indonesia making shoes and she makes 21 cents an hour and we can't compete with that, that is tough luck. If we have people in China making 33 cents an hour producing Huffy bicycles that used to be produced here and we can't compete with that, tough luck. If the Radio Flyer little red wagon that used to be produced in Chicago went to China, it was because we can't compete with Chinese workers. If Pennsylvania House furniture left Pennsylvania and they now ship the wood to China and then ship the furniture back, those workers in Pennsylvania should not complain because they couldn't compete with Chinese workers. It doesn't matter to me whether it is Chinese workers or Sri Lanka or Bangladeshi. The fact is, we are seeing a diminished standard in which we are racing to the bottom.
I read in the paper this weekend an op-ed piece. Somebody was asking: What is everybody complaining about? Things are great.
Wages and salaries are the way most people get their income. They are the lowest percentage of gross domestic product since they started keeping score in 1947. We added 5 million people to the poverty rolls in the last 6 years. Everything is great. Probably for some. Maybe the guy who is making $100,000 a day running an oil company but not for the person working three jobs at a minimum wage who hasn't been boosted for 10 years, not to Natasha Humphrey. She did everything. She went to Stanford, an African-American woman, got her degree, went to work for a technology company. Her last job was to train her replacement, an engineer from India who would work for one-fifth the cost of an engineer in the United States. So things aren't so great for everybody. When you have a $700 billion-a-year trade deficit, over $250 billion a year with China alone, I say you better pay attention. You better get it straight.
Energy Policy
There is a lot to say and a lot to do. I was going to talk about energy policy briefly, but I will only say that one of the major challenges in our country is the challenge of energy. We are so unbelievably dependent on foreign sources of oil. The bulk of our oil comes from outside of our country, well over 60 percent. We are dependent on the Saudis and the Kuwaitis, the Iraqis, the Venezuelans, and others for oil. It is unhealthy.
We need to make a major commitment to renewable energy. What we have done in energy is pretty much what we have done in too many areas. We put in place, in 1916, permanent robust tax incentives to incentivize the production of oil
It has been in place for 90 years. In 1992, we said: You know what, let's boost the production of renewable energy, so we put in place a production tax credit--temporary and rather narrow. It has been extended short term five times and allowed to expire three times. There has been virtually no consistent commitment to renewable energy. It has been on again/off again, like a switch. That is not a commitment.
If you are going to commit as a country to move in a direction on energy, whether it is renewable, biofuels, or hydrogen fuel cells, you should make a commitment and say: Here is where the country is headed, where we intend to be in 10 years, and we are going to give a tax incentive for 10 years for the production of these renewable fuels. You should have targets and timetables. That hasn't been the case. It has been a rather limited, tepid, miniature kind of provision that is turned off again and on again, a stutter-stop approach that tells investors: Don't rely on this because this Government isn't committed to it. We need to do better. I hope this year we can decide, as the President asked for in his State of the Union Address, on a much more robust commitment to renewable energy.
Having said that, let me point out, under this President and previous Presidents, the amount of money we have committed to the renewable energy area. We have laboratories, renewable energy laboratories, whose funding dropped consistently. Again, it is one thing to say something and have a goal; it is another thing to decide you are going to take steps to meet the goal. We have not done that.
So, Mr. President, I have said a lot about a lot of things because we are facing a lot of things that, in many ways, are related, including the war in Iraq, the international challenges. All of us want the same thing for our country. We all want this country to succeed and do well. I don't think there is a difference in goals. We will have sharp debate in the next 2 weeks, but I don't believe there is a difference in the goals we have. I suspect everybody in this Chamber wants very much for the Iraq war to be over, for our troops to be home, and for stability to exist in Iraq and in that region. I expect we share the goal on energy. Does anybody think that we as a country aspire to be 60, 65 percent dependent upon oil from Saudi Arabia, Kuwait, Iraq, and elsewhere? I don't think so. It seems to me that it would make some sense for us to find a way to get the best of what both sides have to offer in these discussions rather than the worst of each. I hope in the coming days we can at least clear away the bill on the floor so we can move to other issues.
Last week, Senator Kennedy gave a pretty animated presentation about his frustration with the day after day after day digging in the heels of this Chamber to stop or delay the passage of a minimum wage. Again, I just walked through the halls coming over here. They are not filled with people representing the workers at the bottom. We should represent those workers. We have that responsibility. We have the responsibility to do the right thing, and after 10 long years, it is the right thing to pass this minimum wage bill and not hold it hostage for other issues and other agendas. We will have plenty of opportunity with amendments that have nothing to do with this bill; we will have the opportunity to offer them. But not now. Don't hold a bill hostage that would help those working two and three jobs a day trying to take care of their families.
I yield the floor.
Iraq (Kyl-AZ)
Mr. Kyl, Arizona - Mr. President, I, too, am anxious to get on to the debate about the resolutions that deal with Iraq. I will speak to that for 10 minutes.
My position is clear. I think we ought to give the President's strategy a chance to work. We asked him to come up with a new strategy. He has done so, and it seems to me that it is our responsibility as a Senate to give that a chance to work or to provide an alternative—not an alternative to leave but an alternative to win. There are plenty of ways to leave. We can begin leaving now and have it done in a year. We can leave in 6 months. We can leave to the border but not beyond. There are a lot of different ideas about how to leave, but an alternative is not how to leave but how to win.
The President has presented such a strategy and I believe we ought to give it a chance to work.
Resolutions that are nonbinding nevertheless have consequences. They can't change the policy that is already being effected, the strategy in Iraq, but what they can do is send very powerful messages. First, they can send a message to our enemies. It seems to me the last message we want to send to the enemy is that the Congress does not support the mission in Iraq. Obviously that emboldens the enemy. That is what Gen. David Petraeus said in his testimony before the Armed Services Committee last week. It sends a message to our allies that we are not in it to the end, and they begin to wonder whether they should start hedging their bets.
By the way, it sends a message to a country such as Iran, which is already beginning to offer, now, to in effect take our place in Iraq: They will do the training of troops, they will do the reconstruction if the Iraqis will simply invite them in. That obviously would not be in our best interests, not to mention the Iraqis' best interests.
Most importantly, a resolution such as this sends a message to our troops. It is a very powerful message and a very negative one. It is a message that in effect says we support you, but we don't support your mission. We are sending you into a place where you could well die, but we don't support the cause for which you are dying. We don't think you can win. As a matter of fact, I have more respect for those who advocate voting on whether we should continue to support the effort monetarily--the legitimate function of the Congress, to cut off the funds if we don't like the war--than I do for those who simply want to ``send a message. At least the others would be willing to have the courage of their convictions, that if this is not a winnable war, we better stop it now as opposed to simply trying to send a message.
Let me tell you what this message does. Last Friday night I was watching the NBC ``Nightly News. Brian Williams was the broadcaster, and he called on Richard Engel, reporting from Iraq, to talk about what was going on there. Richard Engel talked about the Stryker Brigade, Apache Company, setting out on a mission to find bases for U.S. troops. I will quote what he said in the report.
He said:
It's not just the new mission the soldiers are adjusting to. They have something else on their minds: The growing debate at home about the war. Troops here say they are increasingly frustrated by American criticism of the war. Many take it personally, believing it is also criticism of what they've been fighting for.
He goes on to say:
Twenty-one-year-old Specialist Tyler Johnson is on his first tour in Iraq. He thinks skeptics should come over and see what it's like firsthand before criticizing.
And here is what Specialist Tyler Johnson said:
Those people are dying. You know what I'm saying? You may support--``oh we support the troops, but you're not supporting what they do, what they share and sweat for, what they believe for, what we die for. It just don't make sense to me.
Back to Richard Engel:
Staff Sergeant Manuel Sahagun has served in Afghanistan and is now on his second tour in Iraq. He says people back home can't have it both ways.
And then Staff Sergeant Manuel Sahagun says the following:
One thing I don't like is when people back home say they support the troops but they don't support the war. If they're going to support us, support us all the way.
Engel then says:
Specialist Peter Manna thinks people have forgotten the toll the war has taken.
And Specialist Peter Manna says:
If they don't think we are doing a good job, everything we have done here is all in vain.
Engel concludes the report by saying:
Apache Company has lost two soldiers and now worries their country may be abandoning the mission they died for.
Richard Engel, ABC News, Baghdad.
That report struck me. I immediately talked to my wife about it, and I said those three soldiers have said more eloquently than I and my colleagues have, than we have, in making the point that you can't have it both ways. You can't both support the troops and oppose the mission we are sending them on, putting them in harm's way. And can we say that their colleagues who died did not die in vain if the Senate goes on record saying we don't support your mission?
This is the conflict that has to be in the minds of the families of those who are putting their lives on the line and the very soldiers and marines who are doing the same.
Last Friday, this Senate confirmed GEN David Petraeus to take command of that theater, and there were all kinds of expressions of support for him. He is, indeed, one of the finest military officers ever to come before the Senate for confirmation. No one said otherwise. Yet at the same time we are talking about passing a resolution that would say to him: We don't believe in the mission we have just sent you on.
He testified he needed more troops in order to carry out the mission and that he supported the President's new strategy, one component of which is to add some troops so that he has the capability, in conjunction with the new Iraqi troops, to stabilize and pacify the city of Baghdad as well as the Al Anbar Province, which is currently being threatened by al-Qaida terrorists. He said he needs those new troops. Yet Congress would go on record as saying we do not believe you should have those new troops.
Again, at least some number of my colleagues, maybe half or thereabouts on the other side of the aisle, would cut off the funding for the troops in order not just to send a message but to end the involvement. At least that is a position that has action attached to it. I disagree with it, but simply sending the message by sending David Petraeus on the way, patting him on the back, saying, ``Go do a good job but, by the way, we don't believe in the mission, it seems to me is starting off on the wrong foot.
He said something else in his testimony that I thought was telling. He said: Wars are all about your will, your will and your enemy's will.
When asked a question by Senator Lieberman, he said passage of these resolutions would not be helpful, among other things, because you need to break the enemy's will in a conflict, in a war. This kind of resolution would inhibit his ability, General Petraeus's ability, with our great military, to break the enemy's will to fight. How can you break the enemy's will to fight when the people who are allegedly running the war back home have already signaled that they think it is lost and it is simply a matter of bringing the troops home, and that the mission is not supported by a majority of the Senate?
Resolutions, even if they are nonbinding, have consequences. In this case the consequences are detrimental, to our enemy, to our allies, and to our soldiers and their families.
We have some solemn responsibility here, but none is more serious than putting our young men and women in harm's way. All of us want to bring them home safe and sound. We all understand when we vote for that, people are going to die. Everyone who does that does so with a solemn responsibility. We are all looking for a way also to end the conflict so no more have to die. But the reason we authorized this in the first place was because we understood there was a mission to perform. Even those who disagree with the reasons to begin with appreciate the fact that we cannot leave Iraq a failed state. I think virtually everybody in this body would agree with that proposition. We cannot leave Iraq a failed state. The consequences, not just to the Iraqis and to the other people in the region but to United States security, would be devastating.
Something else on which most people agree is that the Iraqis are not currently in a position to pacify Baghdad and Al Anbar Province all by themselves. They need our help. That is what the testimony before the committees was last week.
If they need our help, if we all agree we can't leave Iraq a failed state, if General Petraeus is saying we need some time and some troops to get this job done in conjunction with a significant change in the way the Iraqis are approaching the war--finally backing us up now when we say we want to go into these areas and not just clear them but hold them, keep the bad guys in jail, the ones who have not been killed, for example--if we agree with all those things, then it seems to me the last thing the Senate should be doing is considering a resolution which would say we disagree with the mission, we disagree with the President's strategy, we don't think we should be sending any more troops, and we want to begin a process of withdrawing from Iraq.
When the debate time comes, I am anxious to have it. The American people deserve a debate. I heard a message yesterday that the American people had spoken. Indeed they did. I had an opponent who said we should withdraw from Iraq. Yet I won the last election, saying we needed to stay there until the mission was completed, and I even supported the addition of more troops if that were necessary. In the case of Arizona, I think people have spoken.
The reality is, however, I think it is a mixed message. They would all like to get out as quickly as possible, but if you ask them, Do you think we should leave before the mission is accomplished, do you think we should leave even though there is the strong probability of a failed Iraqi state, do you think we can say we support the American troops but we don't support the mission, I think we would disagree with that proposition.
It is up to us as leaders to lead. That means to let them know we support not just them but their mission, that we want to see it accomplished, and we will not undercut that mission or their support by passing a resolution that disapproves of the new strategy.
I hope my colleagues will agree we have to give this strategy a chance to work.
Committe on Indian Affairs Rules of Procedure (Byron Dorgan-ND)
Mr. Dorgan, North Dakota - Madam President, I ask unanimous consent to have printed in the Record The Committee on Indian Affairs Rules of Procedure. --- There being no objection, the material was ordered to be printed in the RECORD, as follows:
Special Committee on Aging Rules of Procedure (Herb Kohl-WI)
Mr. Kohl, Wisconsin - Madam President, in accordance with rule XXVI, paragraph 2, of the Standing Rules of the Senate, I hereby submit for publication in the Congressional Record the Rules of the Special Committee on Aging.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
Legislative Session
Fair Minimum Wage Act of 2007
The Presiding Officer - Under the previous order, the Senate will resume consideration of H.R. 2, which the clerk will report. --- The legislative clerk read as follows:
A bill (H.R. 2) to amend the Fair Labor Standards Act of 1938 to provide for an increase in the