[Pages S4449-S4455]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

FOOD AND DRUG ADMINISTRATION SAFETY AND INNOVATION ACT

Cloture Motion

The PRESIDING OFFICER. Under the previous order and pursuant to rule
XXII, the Chair lays before the Senate the pending cloture motion,
which the clerk will state.
The assistant legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the Reid motion to
concur in the House amendment to S. 3187, the FDA Safety and
Innovation Act.
Harry Reid, Tom Harkin, Sheldon Whitehouse, Kent Conrad,
Jack Reed, Christopher A. Coons, Mark Begich, John F.
Kerry, Charles E. Schumer, Barbara A. Mikulski,
Benjamin L. Cardin, Robert Menendez, Joseph I.
Lieberman, Mary L. Landrieu, Richard Blumenthal, Patty
Murray, Tom Carper.

The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on the
motion to concur in the House amendment to S. 3187, a bill to amend the
Federal Food, Drug, and Cosmetic Act to revise and extend the user-fee
programs for prescription drugs and medical devices, to establish user-
fee programs for generic drugs and biosimilars, and for other purposes,
shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Hampshire (Mrs.
Shaheen) and the Senator from Colorado (Mr. Udall) are necessarily
absent.
Mr. THUNE. The following Senators are necessarily absent: the Senator
from Oklahoma (Mr. Coburn), the Senator from Utah (Mr. Hatch), the
Senator from Illinois (Mr. Kirk), the Senator from Arizona (Mr. Kyl),
the Senator from Alaska (Ms. Murkowski), and the Senator from Florida
(Mr. Rubio).
Further, if present and voting, the Senator from Utah (Mr. Hatch)
would have voted ``yea.''
The PRESIDING OFFICER (Mrs. Hagan). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 89, nays 3, as follows:

[Rollcall Vote No. 166 Leg.]

YEAS--89

Akaka
Alexander
Ayotte
Barrasso
Baucus
Begich
Bennet
Bingaman
Blumenthal
Blunt
Boozman
Boxer
Brown (MA)
Brown (OH)
Cantwell
Cardin
Carper
Casey
Chambliss
Coats
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Crapo
DeMint
Durbin
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Heller
Hoeven
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Lee
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Menendez
Merkley
Mikulski
Moran
Murray
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Schumer
Sessions
Shelby
Snowe
Stabenow
Tester
Thune
Toomey
Udall (NM)
Vitter
Warner
Webb
Whitehouse
Wicker
Wyden

NAYS--3

Burr
Paul
Sanders

NOT VOTING--8

Coburn
Hatch
Kirk
Kyl
Murkowski
Rubio
Shaheen
Udall (CO)
The PRESIDING OFFICER. On this vote, the yeas are 89, the nays are 3.
Three-fifths of the Senators duly chosen and sworn having voted in the
affirmative, the motion is agreed to.
Mr. GRASSLEY. Mr. President, 2 years ago a constituent of mine named
David Rozga committed suicide shortly after smoking a product called
K2--a synthetic form of marijuana.
A week before he passed away David had graduated from Indianola High
School.
He was looking forward to attending my alma mater, the University of
Northern Iowa, that fall.
David and his friends spent the week after graduation going to
parties and celebrating their achievements.
Some of David's friends heard about K2 from some other friends who
were home from college.
They were told that if you smoked this product like marijuana you
could get a high.
David and his friends were about to go to a concert and thought
smoking K2 before would be nothing but harmless fun.
However, shortly after smoking K2, David became highly agitated and
terrified.
His friends tried to calm him down and once he appeared calmer he
decided to go home instead of going out with them.
Tragically, David took his own life shortly after returning home--
only about 90 minutes after smoking K2 for the first time.
The only chemicals in his system at the time of his death were those
that comprised K2.
David's tragic death is one of the first in what has been a rapidly
growing drug abuse trend.
In the past 2 years, the availability and popularity of synthetic
drugs like K2, Spice, Bath Salts, and 2C-E has exploded.
These drugs are labeled and disguised as legitimate products to
circumvent the law.
They are easily purchased online, at gas stations, in shopping malls
and in other novelty stores.
Poison control centers and emergency rooms around the country are
reporting skyrocketing cases of calls and visits resulting from
synthetic drug use.
The physical effects associated with this use include increased
agitation, elevated heart rate and blood pressure, hallucinations, and
seizures.
A number of people across the country have acted violently while
under the influence of the drug, dying or injuring themselves and
others.
Just a few weeks ago a man in Miami, Florida attacked a homeless man
and ate nearly half his face before police had to shoot him to stop
him.
Two weeks ago, police in upstate New York tazered a woman who was
choking her 3-year-old son after smoking bath salts.
These ongoing and mounting tragedies underscore the fact that
Congress must take action to stop these drugs from causing further
damage to our society.
I introduced the David Mitchell Rozga Act a year ago last March to
ban the drugs that comprised K2.
My colleagues Senators Schumer, Klobuchar, and Portman have also
joined me to ban synthetic drugs including bath salts and 2-CE
compounds.
Today our separate bills are included as part of the House and Senate
agreement on the FDA User Fee bill we will be voting on shortly.
I thank all who have worked very hard to get my bill, as well as the
other bills banning synthetic drugs, through Congress.
I especially want to thank Mike and Jan Rozga and their family for
their tireless efforts to prevent more tragedy from befalling other
families.
This legislation will drastically help to remove these poisons from
the store shelves and protect our children from becoming more victims.
I urge my colleagues to support cloture on this bill.
The PRESIDING OFFICER. The Senator from Connecticut.

Nomination of Donna Murphy

Mr. LIEBERMAN. Madam President, I thank my friend and colleague from
Washington, Senator Murray, for yielding to me for a moment to make a
unanimous consent request regarding the nomination of Donna Murphy of
the District of Columbia to be an associate judge on the DC Superior
Court.
This nomination was favorably reported by the Homeland Security and
Governmental Affairs Committee on June 29, 2011. That is almost 1 year
ago. For that year, this nomination has been stopped from a vote. I
come to the

[[Page S4450]]

floor today to say it is time for this to stop.
In fairness to this able nominee, she deserves an up-or-down vote.
She would bring a wealth of talent and experience to the job.
Donna Murphy has been a career attorney in the Department of Justice
for four administrations--two Democratic and two Republican--and has
received strong support from senior officials for whom she worked in
each one of those administrations.
John Dunne, the Assistant Attorney General for Civil Rights under
President George H.W. Bush praised Ms. Murphy as ``extremely smart,
hard-working, and fair-minded.''
Bill Lee, the Assistant Attorney General for Civil Rights under
President Clinton recalls Ms. Murphy as ``one of the best lawyers in
the Division who was known for her fairness, integrity, smarts, legal
skills, dedication and exceedingly hard work.''
Wan J. Kim, the Deputy Assistant Attorney General and Assistant
Attorney General for Civil Rights under President George W. Bush
recommended Ms. Murphy for the D.C. Superior Court believing that she
possessed the qualities he has seen in exemplary jurists. Under Mr.
Kim, Donna Murphy received the division's highest award in 2007, the
John Doar Award for Excellence and Dedication, an award that was
established under the first Bush administration.
So there is no rational reason at all to continue to deny this
nominee an up or down vote.
A native of Norristown, PA, Ms. Murphy fell in love with Washington,
DC during a visit when she was just 12 years old. She moved here to
attend college at American University, where she received her Bachelor
of Science in Political Science in 1986.
From American University, she went to Yale Law School--a decision I
naturally admire--and received her law degree in 1989.
Since October 1990, she has worked for the Justice Department's Civil
Rights Division on a variety of cases, including voting rights,
discrimination in credit, housing and public accommodations, and
allegations of police misconduct.
It is her work on these police cases that has brought about some
criticism, but not much.
Both prior to the Committee's approval of Ms. Murphy's nomination and
afterwards, Committee staff investigated the criticism and found no
evidence to support the charge that she would be negative to police.
In fact, we have received letters of support for Ms. Murphy from
leading police officials, including one group in Los Angeles, CA, for
her work in negotiating and implementing consent decrees regarding
allegations that the Los Angeles Police Department had been
systematically violating people's civil rights.
The Committee received a letter from Gerald Chaleff, the Special
Assistant for Constitutional Policing for the LAPD who negotiated the
consent decree between the LAPD and Department of Justice. Mr. Chaleff
wrote that during negotiation and implementation of the consent decree
Ms. Murphy earned the respect and admiration of LAPD personnel with
whom she dealt. Mr. Chaleff also notes that contrary to the vague and
unsubstantiated allegations made against her, Ms. Murphy at all times
acted honorably, ethically, and intelligently.
We have similar letters from law enforcement officials praising her
work negotiating similar consent decrees with the Pittsburgh Bureau of
Police, the city of Steubenville, OH, and the New Jersey State Police.
It is past time the Senate approve this nomination and send this
qualified nominee to the bench and let her serve the city that has been
her home for more than 20 years.
Mr. President, I ask unanimous consent that these letters, as well as
the letters from former Justice Department officials that I cited
earlier, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Department of Justice,

Civil Rights Division,

Washington, DC, August 24, 2011.
Hon. Joseph Lieberman,
Chairman, Senate Homeland Security and Governmental Affairs
Committee, Washington, DC.
Dear Mr. Chairman: I write this letter to strongly
recommend Donna Murphy to the Superior Court of Washington,
DC. I started in the Civil Rights Division at the Department
of Justice as an Honors Program hire in 1989, where I served
as a prosecutor in the Criminal Section. I have also served
as Deputy Assistant Attorney General in the Division, and I
now have the privilege of serving as the Assistant Attorney
General. During this extensive experience working in the
Division, I have had the pleasure of working with Ms. Murphy,
who joined the Division in 1990, shortly after I was hired.
Ms. Murphy has also held a variety of positions during her
tenure in the Civil Rights Division, including serving as
both a trial attorney and also as a manager. Although she
began in the Voting Section, she has also served in the
Special Litigation Section and the Housing and Civil
Enforcement Section. The breadth and depth of her experience
in the Division enforcing many of our nation's most cherished
civil rights laws is nearly unparalleled. While working with
her over the last two decades, I have witnessed her
professionalism, intellect, and extraordinary judgment at
work. Ms. Murphy treats everyone with respect, and has shown
uncommon abilities as a leader. Her tactical and analytical
legal skills have allowed her to quickly master new, and
complex, areas of the law. The breadth of her experience
across three different Sections of the Division illustrates
her extraordinary abilities in this regard.
Her commitment to the Department of Justice and to the
enforcement of our nation's promise of equal opportunity has
been apparent to me from the beginning of my experiences
working with her, and it has been apparent to the leadership
of the Division in both Democratic and Republican
administrations. For example, in 2007, she received the
Division's John Doar Award, which is the Division's highest
overall award. She has also received the Division's highest
litigation award, the Walter W. Barnett Award, in 1995. In
addition, Ms. Murphy has consistently received performance
awards recognizing her outstanding contributions to the
Division's work.
When I returned to the Civil Rights Division in October
2009, I was pleased to find that Ms. Murphy had remained in
the Division, as I knew she was someone I could rely upon in
helping to ensure full and fair enforcement of civil rights
laws. I have the highest regard for her abilities and know
her to be a person of great character.
Please do not hesitate to contact me if you have any
questions about my experience working with Ms. Murphy.
Sincerely,
Thomas E. Perez,
Assistant Attorney General.
____

Los Angeles Police Department,

Los Angeles, California, July 14, 2011.
Re Donna M. Murphy.

Hon. Joseph I. Lieberman, Chairman,
Senate Homeland Security and Governmental Affairs Committee,
Dirksen Senate Office Building, Washington, DC.
Hon. Susan M. Collins, Ranking Member,
Senate Homeland Security and Governmental Affairs Committee,
Dirksen Senate Office Building Washington, DC.
Dear Senators Lieberman and Collins: I write in strong
support of the nomination of Donna M. Murphy to the Superior
Court of Washington, D.C. I am a senior police executive in
the Los Angeles Police Department (LAPD). I had a substantial
number of dealings with Ms. Murphy in her capacity as Deputy
Chief of the Special Litigation Section of the Civil Rights
Division of the United States Department of Justice (DOJ) in
connection with negotiation and implementation of a Consent
Decree with the LAPD and the City of Los Angeles, relating to
the conduct and operation of the police department. Ms.
Murphy's and the DOJ objective was to improve the LAPD and
she at all times acted honorably, ethically, and
intelligently. She never exhibited prejudice or bias or
rigidity of position. As a lawyer, I can ensure you that Ms.
Murphy will have an exemplary judicial temperament, is highly
intelligent, and will render equal justice to all, without
bias or favor. Her decisions will be firmly based in the law
and will be seen by all sides as fair and just.
I was President of the Los Angeles Board of Police
Commissioners and a member of the team that conducted the
negotiations with DOJ. These negotiations took six months
during which Ms. Murphy conducted herself with
professionalism and in the manner that all attorneys should
when in a similar situation. After the negotiations concluded
and the decree approved by the court, I returned to private
practice. When William Bratton was appointed Chief of the Los
Angeles Police Department (Department), he requested that I
join the Department and assist in the Department's compliance
with the decree. In that capacity I had the opportunity to
observe the conduct of Ms. Murphy and again found her to be
professional, intelligent and fair. It has been suggested
that because Ms. Murphy worked in the Special Litigation
Section, she is somehow biased against the police. Throughout
the Consent Decree negotiations and implementation, she
manifested a clear understanding of the issues facing the
LAPD and, where possible, she suggested resolutions that
demonstrated her understanding of the job of the police and
the pressures facing the officers performing their duties and
never exhibited any indication of prejudice against police
officers

[[Page S4451]]

or the Department. She earned the respect and admiration of
the LAPD personnel with whom she dealt. As the LAPD's
executive in charge of implementation of the Consent Decree,
I can assure that as difficult as it was, Ms. Murphy never
did anything to cause anyone to feel anyway other than that
she was fair and only trying to assist.
The Consent Decree was negotiated in perfect good faith by
the Special Litigation Section and that the goals and
intentions of the Consent Decree were in no way a reflection
of anti-police bias. Indeed, the Decree augmented police
professionalism, promoted officer safety, helped to restore
public trust and confidence, and made the LAPD an even
stronger law enforcement agency.
Please let me know if you have any questions about the
foregoing. I am available at (213) 486-8730.
Very truly yours,
Charlie Beck,
Chief of Police.
Gerald L. Chaleff,
Special Assistant for Constitutional Policing.
____

Lewis, Feinberg, Lee,

Renaker & Jackson, P.C.,

Oakland, California, October 28, 2011.
Re Nomination of Ms. Donna Murphy to the D.C. Superior Court.

Hon. Joseph Lieberman, Chairman,
Senate Homeland security and Governmental Affairs Committee,
U.S. Senate, Washington, DC.
Hon. Susan Collins, Ranking Member,
Senate Homeland Security and Governmental Affairs Committee,
U.S. Senate, Washington, DC.
Dear Chairman Lieberman and Ranking Member Collins: I write
in support of the nomination of Ms. Donna Murphy to be a
judge of the Superior Court of the District of Columbia. I
was Assistant Attorney General for Civil Rights from the end
of 1997 to the beginning of 2001 where I became familiar with
the work of Ms. Murphy who was an attorney in the Voting
Rights and the Special Litigation Sections, two Sections that
enforce important civil rights protections. After my time, I
understand Ms. Murphy worked in the Housing and General
Litigation Section, another high profile Section.
I recall Ms. Murphy as one of the best lawyers in the
Division who was known for her fairness, integrity, smarts,
legal skills, dedication, and exceedingly hard work. Ms.
Murphy was recognized for her skills and abilities by being
assigned some of the most significant and sensitive
investigations and cases and for being assigned managerial
duties supervising teams of other lawyers. I particularly
remember her excellent work in supervising a team of lawyers
who prepared and filed a police misconduct case against the
Los Angeles Police Department. Back then the LAPD was a
police department rife with problems that resulted in harm to
minority communities as well as lack of law enforcement for
those communities. Today the LAPD is appropriately lauded as
a department that deals with minority communities with
sensitivity and fairness. Much of the credit for the dramatic
difference is attributable to the role played by the Division
in the case that Ms. Murphy had so much to do with both in
its beginnings, the negotiation of a pioneering consent
decree and the implementation of the decree with LAPD
leaders.
I am happy to join predecessors and successors as former
Assistant Attorneys General for Civil Rights from several
different Administrations who have joined together to support
Ms. Murphy's nomination.
If I can be helpful to the Committee, please feel free to
call me.
Sincerely,
Bill Lann Lee.
____

Whiteman Osterman & Hanna LLP,

Albany, New York, October 7, 2011.
Re Nomination of Donna Murphy to the Superior Court of the
District of Columbia.

Hon. Joseph Lieberman, Chairman,
Senate Homeland Security and Governmental Affairs Committee,
U.S. Senate, Washington, DC.
Hon. Susan Collins, Ranking Member,
Senate Homeland Security and Governmental Affairs Committee,
U.S. Senate, Washington, DC.
Dear Chairman Lieberman and Senator Collins: I write to
support the nomination of Ms. Donna Murphy to be a Judge on
the Superior Court of the District of Columbia. From 1990
until 1993 I worked with Ms. Murphy in the Civil Rights
Division of the U.S. Department of Justice where I served as
Assistant Attorney General of the Division. During that time,
Ms. Murphy was an attorney in the Voting Rights Section and I
met regularly with her, reviewing a number of her reports and
recommendations concerning very complex and sensitive pre-
clearance applications pursuant to Section 5 of the Voting
Rights Act.
From those personal interactions, I became very impressed
by her legal intellect and her knowledge and commitment to
the Division's mission and work. She is extremely smart,
hardworking and fair-minded.
In 2007, for her significant contributions to the work of
the Division, Ms. Murphy received the Division's highest
award--the John Doar Award for Excellence and Dedication.
When, as Assistant Attorney General, I initiated that award,
I had in mind a recipient with qualities which Ms. Murphy has
faithfully demonstrated in the various assignments she has
discharged with distinction.
I strongly recommend your confirmation of her nomination
and, if I can be of any assistance, would welcome your
request.
Respectfully,
John R. Dunne.
____

August 21, 2011.
Re: Donna M. Murphy.

Hon. Joseph I. Lieberman,
Chairman, U.S. Senate Homeland Security and Governmental
Affairs Committee,
Washington, DC.
Hon. Susan M. Collins,
Ranking Member, U.S. Senate Homeland Security and
Governmental Affairs Committee,
Washington, DC.
I am pleased to write this letter in support of the
nomination of Donna M. Murphy to the Superior Court of
Washington, D.C. I am a retired police chief and a Past
President of the International Association of Chiefs of
Police. Since 1998 I have been working with the Special
Litigation Section of the Civil Rights Division of the United
States Department of Justice (DOJ) in a variety of capacities
dealing with police practices and reform. It was during one
such assignment that I met and worked with Donna Murphy.
In 1997, the U.S. DOJ and the City of Steubenville, Ohio
entered in to a Consent Decree regarding police practices. I
was appointed as an agent of the Federal Court to audit
compliance with the Decree. As one can imagine, even though
the Decree was negotiated and agreed upon by the parties (the
City and DOJ) there was considerable institutional resistance
to the changes in police practices outlined in its several
requirements. Donna Murphy was the supervisor overseeing line
attorneys assigned this matter during the period 2000-03,
which was a time when there was heightened resistance to the
Decree requirements since the easier tasks had been
accomplished and we were moving into an area of serious
substantive change.
There is little doubt that the persistence and leadership
of Donna Murphy; moreover her patience and understanding of
the issues and obstacles of concern to the City, and to the
members of the Police Department, were the basis for much of
the progress made with Decree compliance during her tenure.
She consistently sought information to insure she had a clear
understanding of the organizational and operational
difficulties faced by the police and in my opinion, made
decisions that were professional and fair to all concerned.
Accordingly, I am pleased to add my support for her
appointment to the Superior Court of Washington, D.C.
Please let me know if you have any questions regarding this
information.
Very truly yours,
Charles D. Reynolds,
Police Practices Consultant.
____

Blacks in Law Enforcement

of America,

Washington, DC, September 26, 2011.
Re Ms. Donna M. Murphy.

Hon. Joseph I. Lieberman,
Chairman, U.S. Senate Homeland Security and Governmental
Affairs Committee, Washington, D.C. 20510
Hon. Susan M. Collins,
Ranking Member, U.S. Senate Homeland Security and
Governmental Affairs Committee, Washington, DC.
I am pleased to offer this letter in support of the
nomination of Ms. Donna M. Murphy to the Superior Court of
Washington, D.C. I am a retired D.C. Metropolitan Police
Officer and retired Executive Director of the National Black
Police Association (NBPA). The NBPA is an advocacy
organization established to work on behalf of African
Americans in Law Enforcement involving the prevention and
intervention of police abuse and misconduct as well as other
criminal justice policies and practices that have a negative
impact on people and communities of color.
After the establishment of the Special Litigation Section
of the Civil Rights Division, the organization began to work
very closely with the section and its staff attorneys. Ms.
Murphy was assigned to work with a variety of cases involving
the investigation of police practices in cities that the NBPA
had brought to the attention of the Department of Justice.
Ms. Donna M. Murphy and her staff worked during that time
against a great deal of resistance to the necessary changes
needed for our nations police departments which most were the
results of court ordered consent decree. The National Black
Police Association was honored to work with Ms. Murphy and
found her very dedicated to the creation of fairness and
justice for all involved the consent decree compliance.
So, as a result of the positive and productive
relationships created during my tenure as Executive Director
of the National Black Police Association, I am please to add
my support to the nomination of Donna M. Murphy to the
Superior Court of Washington, D.C.
Please let me know if there any additional questions
regarding this correspondence.
Sincerely,
Ronald E. Hampton,
Director.

Unanimous Consent Request

Mr. LIEBERMAN. Madam President, I ask unanimous consent that at a
time to be determined by the majority leader, in consultation with the
Republican leader, the Senate proceed to executive session to consider
the following nominations: Calendar No. 231; that there be

[[Page S4452]]

2 hours for debate equally divided in the usual form; that upon the use
or yielding back of time, the Senate proceed to a vote without
intervening action or debate on Calendar No. 231; that the motion to
reconsider be considered made and laid upon the table, with no
intervening action or debate; that no further motions be in order, that
any related statements be printed in the Record, that the President be
immediately notified of the Senate's action, and the Senate then resume
legislative session.
The PRESIDING OFFICER. Is there objection.
Mr. McCONNELL. Madam President, Senator DeMint has some concerns
about this nomination. Therefore, at his request, I object.
The PRESIDING OFFICER. Objection is heard.
Mr. LIEBERMAN. Madam President, I am going to keep returning to the
floor of the Senate in fairness on this nomination. She is such a
deserving nominee and at least deserves a vote up or down.
I yield the floor.
Mrs. MURRAY. Madam President, I ask unanimous consent that following
my remarks, the Senator from Ohio, Mr. Brown, be recognized, and
following that, Senator Whitehouse be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from Washington is recognized.
(The remarks of Mrs. Murray pertaining to the introduction of S. 3340
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')

The Highway Bill

Mr. BROWN of Ohio. Madam President, I come to the floor this evening
to discuss the bipartisan transportation jobs bill that has been
lingering since March 14. March 14 was pretty early in the construction
season. If the House had moved as quickly as they should have, if the
House were not, apparently, held hostage by some tea party members who
think transportation should be a State issue and the Federal Government
shouldn't be involved, there would have been so many more jobs created
in the Presiding Officer's State of North Carolina and in Ohio and
elsewhere. Those tea party members should think about President
Eisenhower's legacy when they talk about transportation being a State
and not a Federal issue.
The Senate passed this job-creating economic development bill more
than 100 days ago, but this historically bipartisan highway bill
remains stalled. We know investments in infrastructure mean jobs
directly. We know investments in infrastructure mean economic
development in the future. President Eisenhower and Congress
established the Interstate Highway System not too many years after I
was born, in the 1950s. A generation of Americans was set to work
carving freeways, paving new roads, building bridges and tunnels across
our great country that allowed people and products to travel across the
48 States.
In the 1950s, the 1960s, the 1970s, and the 1980s, we had an
infrastructure which was the envy of the world--an infrastructure the
likes of which the world had never seen. Since then, we have not done
quite so well. Our Nation used our postwar infrastructure boom to
become an economic superpower, similar to how the GI bill helps
millions of families who take advantage of it--soldiers, veterans, and
families--yet at the same time creating prosperity for the whole
country. Infrastructure building helps those men and women who are
actually doing the construction, doing the work on the highways and
bridges and water and sewer systems, but it also helps the companies
and the workers who are manufacturing the steel and the concrete and
the glass that goes into infrastructure, and it also helps the
prosperity of society as a whole.
A truck leaving Toledo, OH, could be in Miami, FL, in less than a
day. A family could drive from one corner of Ohio--from Conneaut, the
county my wife was born in--to North Bend on the other end of the State
in several hours instead of a whole day.
We know infrastructure investments are forward thinking, with payoffs
that last for decades, yet also benefit our Nation--our small
businesses, our workers--both today and for generations to come. So it
is unacceptable that at a time of still too high unemployment--even
though the unemployment rate in my State has dropped between 2 and 3
percent in the last 3 years, it is still too high--Washington
politicians, for whatever reason, continue to block progress on this
bill.
No one in this Congress should be proud of the condition of our roads
or the safety of our bridges. No one in this Congress should be proud
of the fact the world's newest airports and most modern train stations
are not in the United States of America, as they were in the 1950s,
1960s, the 1970s, and the 1980s. They are being built overseas. No one
in this Congress should be proud of creating new hurdles to progress,
of obstruction, when the need is so great for us to create new jobs.
Historically, infrastructure has been a bipartisan issue. There is no
so such thing as a Democratic or Republican bridge. The most recent
extension is slated to expire Saturday at midnight. We can't afford to
keep passing short-term extensions. We need to think about consequences
for businesses that plan for the long term. Because Congress keeps
passing inch-by-inch, month-by-month extensions, businesses can't plan,
workers can't plan, State departments of transportation can't plan. It
hurts the contractor, who is unsure whether she will have the funds to
buy a new bulldozer; the crane operator, who is unsure of where his
next job will be; and it hurts the small business owner who sells
aggregate to the construction industry. We cannot afford to keep
passing the buck with these short-term extensions and disrupting the
ability of businesses to plan for the future.
This past weekend I visited El Meson Restaurante, a family-owned
restaurant located near the I-75 modernization project in West
Carrollton in Montgomery County, OH, in southwest Ohio, near Dayton. I
spoke with the owner Bill Castro. I asked him: What happens if the bill
expires and this project is delayed? He tells me that construction
surrounding the restaurant has already cut into El Meson's profits. I
have eaten at that restaurant three or four times. It has always been
crowded. The food is good, the hospitality is great, and the owners are
friendly and embracing. It is a great place. But because of this
delay--which happens from time to time, I understand, and should--he
has had to scale back his own salary, rather than lower his workers'
wages and reduce the staff. He knows this is good for Montgomery
County, for Dayton, and for the Miami Valley, but it is clear if this
project gets delayed it will do serious damage to his restaurant and to
the other small businesses in the area.
It is clear business owners in my State are doing their jobs. It is
time the House of Representatives does its job and works with us to
pass this highway bill, then get it back to the Senate and the House so
we can vote on it. We know what is at stake: Jobs created by
infrastructure investments are almost always good-paying middle-class
jobs. Whether they are the construction jobs or the manufacturing jobs
producing the products that go into the construction, these jobs
typically provide workers with health care and retirement benefits and
are the kinds of jobs our neighbors need to create a strong middle
class. These jobs enable people to buy a home, to save for their
children's college education, and plan for the future.
These investments not only create construction jobs, they improve our
Nation's economic efficiency, obviously creating more prosperity. This
bill is about rebuilding our infrastructure as much as it is about
rebuilding our middle class. It is time for Congress to pass the
highway bill. There is simply too much at stake not to.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Supreme Court Decisions

Mr. WHITEHOUSE. Madam President, this is the week for the Supreme
Court to release opinions from dozens of cases that it has been
considering over the past term. In most of these

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important cases, the Court followed its usual practice of allowing the
parties to file detailed legal briefs and to present oral arguments to
make their side of the case before the Court reached its decision. In
one case, however, it decided an issue vital to the ongoing function of
our democracy, and it decided that case without even allowing the
parties the opportunity to write legal briefs on the merits and to
argue their case before the Court.
In the Montana case, American Tradition Partnership v. Bullock, the
Court's five-man conservative bloc doubled down on a historic error
they made 2 years ago in Citizens United. Citizens United, I am
confident, will mark one of the lowest points in the Supreme Court's
history.
The case will ultimately stand alongside Lochner v. New York and
other such decisions in the Supreme Court gallery of horrible
decisions.
A telltale of these horrible court decisions is that they create
rights of the powerful against the powerless, turning the very concept
of ``rights'' inside out. Ordinarily, a right is something that stands
against power. That is why it is carved out as a right; it is because
it offends against the power structure, and yet we value it and we
defend it. And our courts have as their very purpose in our system of
government the purpose to be the guardians of those rights, the
guardians of those rights against whatever the structure of power is in
our society. That is why we give judges long or lifetime tenure. That
is why conflicts of interest in the judiciary are so particularly
concerning. That is why some decisions we take away from officialdom
entirely and give them to a jury of our peers. That is why it is a
crime to tamper with a jury. We do all of those because we want
courtrooms insulated from power so that courts can do the essential
work of protecting rights against the predations of power.
Look at the Lochner decision, for instance, and see how that Court
turned the whole question of rights inside out. Seeking to defend the
prevailing economic power structure, the Supreme Court held that bakers
had a constitutional right--under a theory of freedom to contract--to
agree to work whatever hours their employers wanted to make them work,
without overtime, without rest, a right on the part of the bakers to
enter into a contract where their employers could tell them they could
make them work whatever they wanted. Looking back now, that seems
almost silly, but if you were a judge affiliated with an economic
structure that saw workers as essentially disposable, this question of
workers' rights to work reasonable hours seems, well, unreasonable. And
the Lochner decision justifiably lies on the junk pile of judicial
history, a broken monument to the prejudice and error of that Court.
Citizens United and now the Montana decision join this gallery of
judicial horribles. Here, the right they turned inside out is the right
of free speech, and the power structure served is the vast and
unprecedented corporate power structure that exists today.
Under Citizens United, under this inside-out right they have created,
you now enjoy the free speech right to hear as much corporate speech as
they want to bombard you with. If you are a regular human, you are on
your own. If you are a CEO, you can access your corporate treasury to
drown out the voices of all of your workers. If you are a massive
multinational corporation or if you are a billionaire or a
multibillionaire, you now have a right to dominate the paid media
airwaves, and we have the free speech right to have to listen to all of
that.
At least if you are a billionaire, you are still a human being. And I
don't say this judgmentally; this is a legal fact. If you are a
corporation, you have no soul, you have no conscience, you have no
altruism. You have none of the characteristics that are special to
humankind. You are a legal fiction. You are a financial mechanism
created for the massing and the efficient use of capital. In the
economic sphere, the value of that corporate structure is immense,
there is no doubt about it. It has provided great value to our society.
But in the political sphere, it is dangerous. But for these five
Justices who constantly support corporate interests, to protect the
power that comes from being able to provide or promise or threaten
massive anonymous expenditures on political attack ads, well, that is
just how you see the world.
One day the Citizens United decision will lie next to Lochner on the
junk pile of judicial error and prejudice. There is too much wrong with
it for it ultimately to survive. But, sadly, today is not that day, and
the five conservative Justices have chosen, instead of correcting their
error, to double-down on it.
The central and deeply flawed premise of Citizens United was the
conservative majority's declaration that vast corporate independent
expenditures ``do not give rise to corruption or the appearance of
corruption.'' They had no record on which to make that decision. None
had ever run in an election before. They had no basis for making that
decision, but that was the declaration they issued.
First, whether independent expenditures by corporations pose dangers
of corruption or dangers of the appearance of corruption is a factual
question that depends on the actual workings of the electoral system.
Supreme courts aren't supposed to make findings of fact. So one of the
first errors in the Citizens United decision was that they drove off
the road of proper judicial procedure, across the rumble strip, and
they started making findings of fact--and they did so in a very
dangerous way.
The peculiar way the conservative Justices brought the Citizens
United question before the Court deprived the Court of any opportunity
to consider a record. Ordinarily, the Supreme Court has a record that
comes up to it from the court decisions below. But, as my colleagues
may recall, the parties in Citizens United did not ask the Court to
consider the constitutionality of limiting corporate independent
expenditures. That was not addressed below. What happened is that the
conservative Supreme Court Justices took it upon themselves to ask a
new question and to answer that question they themselves had asked. In
doing it this way, the Justices simply declared, with no factual basis,
that massive, independent corporate expenditures posed no risk of
corruption to our elections. They were wrong, as is obvious to most
people.
The case the Court decided today, American Tradition Partnership,
created an opportunity for the Court to have dug itself out from the
colossal mistake it made in Citizens United. It is an interesting
background in comparison to Citizens United because the case came out
of Montana, where there is an extensive record within the State of
Montana of historical evidence of immense corruption created in that
State by corporate influence and corporate campaign money dating all
the way back to the copper barons who bought and sold Montana State
government in the bad old days. The Montana court also found
substantial evidence that Montana voters believe that corporate
election expenditures lead to corruption and that this belief has
contributed in Montana to widespread cynicism and low voter turnout.
Those were findings of fact based on an actual record, and the Montana
Supreme Court carefully reviewed those findings of fact. That is what
it is supposed to do--not make findings of fact but review them. The
Montana court concluded that the State had a compelling interest
justifying the law based on the evidence in the record.
The corporations then came in and asked the U.S. Supreme Court to
overrule the Montana Supreme Court's decision, arguing that it was
inconsistent with Citizens United. At that point, I joined with Senator
John McCain, who has long been a national leader on campaign finance
issues, in filing a bipartisan amicus brief with the Supreme Court. In
our brief, Senator McCain and I challenged that central premise in
Citizens United--that phony premise about the corrupting potential of
outside political expenditures being nonexistent. The extensive factual
record developed in Montana and the facts that have developed since
Citizens United on the ground nationally provided the Court with plenty
of evidence--evidence that it lacked because of the way it had
approached Citizens United.
Our brief showed that Citizens United stood on a pair of false and
flawed factual assumptions about our elections. First, the Citizens
United decision assumed that outside political expenditures were going
to be independent,

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that they were not going to be coordinated with political campaigns.
Second, the Citizens United majority assumed that there would be
disclosure of what special interests were paying for the ads. Both of
these assumptions are demonstrably wrong. The ongoing Presidential and
congressional races reveal close coordination between campaigns and
these so-called independent expenditures. Wealthy donors, who have
maxed out their contributions to the candidate, now can use candidate-
specific super PACs as convenient proxies to make the functional
equivalent of excess campaign contributions. Campaigns and their super
PACs have closely connected staff, they have shared consultants, they
openly coordinate on fundraising, and they work together on
advertising, with super PACs acting, actually, as the successful
surrogates for the candidates in States where the candidate has made
few appearances or spent little money on advertising. Indeed, in the
Republican Presidential primary a candidate-specific super PAC for
Senator Santorum spent millions and won the Minnesota primary for
Senator Santorum when the candidate himself had no money to spend.
These vast expenditures are not just coordinated closely with
candidates and campaigns, they are anonymous, with the special
interests behind the ads keeping themselves secret from the American
public. As everybody in this Chamber and every American who has a
television set knows, the decision in Citizens United opened the
floodgates to unlimited corporate and special interest money pouring
into our elections. Using phony shell corporations, 501(c)
organizations, and super PACs, outside groups can now spend--or,
importantly, they can credibly threaten to spend because that can have
a big effect in politics--overwhelming amounts of money in support of
or against a candidate without any publicly disclosed paper trail.
Although the secretive interests behind the anonymous spending may be
hidden from voters, they may be hidden from regulators, they may be
hidden from prosecutors, they may be hidden from the media, they will
not be hidden from the candidate. They will be well known to the
candidate. That alone allows for an undetectable quid pro quo
corruption, as the wealthy outside interests can award a candidate with
massive, anonymous spending.
Worse than that is a type of corruption I touched on a moment ago
when I talked about threats--a corruption made possible by the Citizens
United decision that went completely unconsidered by the U.S. Supreme
Court. They never even mentioned it. That is the ability to threaten
large and secret expenditures without actually having to make them. A
candidate could be quietly warned that if they don't take the right
position on this issue, if they don't vote right when the amendment or
the bill comes up, they will be punished with a large expenditure
against them.
Now, how is that a threat under Citizens United? Before Citizens
United, if a corporation wanted to threaten a politician, the threat
would mean a $5,000 PAC contribution to the politician's opponent. It
would mean maybe some fundraising and bundling by the corporate
executives and by the corporate lobbyists. I suppose that is something
a candidate wouldn't necessarily want, but it is not a very big deal.
It happens all the time. And I don't think it throws much weight around
here.
Today, after Citizens United, the threat isn't of $5,000 and a couple
of fundraisers, the threat is of unlimited, anonymous corporate
spending against you--enough to defeat or elect a candidate. And if
this threat succeeds, the real danger is that there is no record
whatsoever of the corrupt deal for regulators, prosecutors, and media
outlets to track.
Sherlock Holmes famously talked in one of his decisions about the dog
that didn't bark. In political corruption, we need to be concerned
about the ad that didn't run--the ad that didn't run because the
politician obediently did what he or she was told.
The brief Senator McCain and I authored laid all of this before the
Court. We documented the close coordination between campaigns and this
so-called independent spending. We detailed the tangled web of
corporate 501(C) and super PAC relationships that allow wealthy
interests, special interests, to hide their spending from the public,
and we explained the various ways these forms of coordinated identity
laundering by special interests create the real threat of quid pro quo
corruption. As we said in our brief, ``The campaign finance system
assumed by Citizens United is no longer a reality, if it ever was.''
And, frankly, I don't think it ever was.
Confronted with the actual facts on the ground in Montana and
nationally, the Supreme Court's conservatives decided they were going
to ignore the evidence. There is a blindfold on Lady Justice. But the
blindfold on Lady Justice as she holds her scales aloft is supposed to
be blindness to the parties who are before her. It is supposed to be
blindness to what the interests are. It is not supposed to be a
considered and deliberate blindness to the evidence and the facts. But
in this case, that is the blindness the Supreme Court has deliberately
imposed on itself--or at least the five conservative Justices have.
This conservative bloc has decided to perpetuate the error of
Citizens United without considering the facts. Montana will not have an
opportunity to file briefs on the merits, explaining the importance of
its laws to protect against the corruption that is its historic
experience. The attorney general of Montana will not have the
opportunity to stand before the Justices to defend his State's law.
Once again, the Court has kept from itself any relevant record that
might present uncomfortable facts.
In Citizens United, the conservative Justices asked themselves to
decide a major constitutional case without any lower court record. And
now that they have a fully developed lower court record to proceed on
that happens to show how wrong they were, they have no interest in even
looking at that record.
We need to act now to fix our broken campaign finance system. The
Supreme Court had the chance to correct its error. These five
conservative Justices refused to correct their error. They doubled down
on their error. They have ignored the evidence of their error that we
all see around us, so we cannot wait. We know why they are doing it. We
know what is going on. We know it is not going to happen from this
Supreme Court, not from those five Justices, so we need to fix this on
our own. Americans of all political stripes, whether you are an
occupier or tea party, they are disgusted by the influence of unlimited
and anonymous corporate cash pouring into our elections, and by
campaigns that succeed or that fail depending on how many billionaires
support the candidate.
More and more, people in my home State of Rhode Island and around the
country believe their government responds only to wealthy special
interests. They see jobs disappear and wages stagnate and bailouts and
special deals for the big guys and they lose faith that elected
officials here in Washington are listening to them.
(Mr. MERKLEY assumed the Chair.)
For now we are left with one weapon in the fight against the
overwhelming tide of secret special interest money, and that one weapon
is disclosure. Let the sun shine in. At least let the American public
know who is behind these massive expenditures.
Earlier this year I introduced the DISCLOSE Act of 2012. I had
immense help from the Presiding Officer, Senator Merkley, in doing that
work. We call it DISCLOSE 2.0. This legislation will shine a bright
light on all of this spending by these powerful special interests.
With this legislation, which now has 44 Senators cosponsoring it,
every citizen will know who is spending these great sums of money to
get their candidates elected and to influence our elections. Passing
this law would begin to remove the dark cloud of unlimited secret money
that the Supreme Court has cast over our American elections.
The DISCLOSE Act includes a narrow and reasonable set of provisions.
We have trimmed it down so that it should have wide support from
Democrats and Republicans. A great number of my Republican colleagues
in this body are on record that disclosure and transparency are
essential in campaign finance, so we have made every effort to craft an
effective and a fair proposal while imposing the least possible burden
on the covered organizations.

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As Trevor Potter, a Republican, former Chairman of the Federal
Election Commission, said in a statement submitted to the Rules
Committee: Disclose 2.0 is ``appropriately targeted, narrowly tailored,
clearly constitutional and desperately needed.''
The same cannot be said for the conservative majority's holding in
Citizens United, echoed again today in American Tradition Partnership.
The conservative Justices' desire to maintain their error and to keep
the corporate money flowing represents a sad, sad day in the history of
the Court. It will, as I said earlier, one day be corrected. One day,
Citizens United will lie next to Lochner v. New York and other
decisions that have disgraced the Court in the past on the junk heap of
judicial history. But until that day, it is up to all of us to work
together to restore control of our elections, to restore control of our
democracy, to put it back in the hands of the American people, to
assure that we continue a government of the people, by the people, and
for the people--not a government of the big corporations, by the big
corporations, and for the big corporations.
I yield the floor.

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