[Pages S773-S781]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEE (for himself, Mr. Leahy, Mr. Cornyn, Mr. Moran, Mr.
Gardner, Mrs. Shaheen, Mr. Merkley, and Mr. Blumenthal):
S. 356. A bill to improve the provisions relating to the privacy of
electronic communications; to the Committee on the Judiciary.
Mr. LEE. Mr. President, the Electronic Communications Privacy Act was
first enacted in 1986. I would ask my colleagues, what were you doing
in 1986? Mr. President, 1986 was a long time ago. In 1986 I was in the
ninth grade. This was an age when not everyone had a personal computer.
My family didn't have a computer. Most of the people I knew who had a
computer had something like the Commodore VIC-20, which was a very
small computer with very little processing power compared to what we
have today. But this law, the Electronic Communications Privacy Act--or
ECPA, as it is sometimes known--was and still is an important law with
an increasingly important objective; that is, to ensure that government
agencies respect the Fourth Amendment in accessing an individual's
electronic communications.
In the nearly three decades since ECPA became law, technology has
advanced rapidly, dramatically, far beyond the capacity of this
particular law, ECPA, to keep up. The prevalence of email and the low
cost of electronic data storage have made what were once robust
protections vastly insufficient to ensure that citizens' rights are
protected with respect to their electronic communications, such as
email.
There is no reason we should still be operating under a law written
in the analog age when we are living in a digital world. This is a
little bit like operating with a DOS-based operating system in the age
of much more sophisticated software systems that help us interact
relatively seamlessly with our computers. That is why Senator Leahy and
I have come together to craft this truly bipartisan piece of
legislation which would modernize ECPA and bring constitutional
protections against worthless searches and seizures into harmony with
the technological realities of the 21st century.
The Lee-Leahy ECPA Amendments Act of 2015 would prohibit electronic
communications or remote computing service providers--such as Gmail or
Facebook or Twitter, for example--from voluntarily disclosing the
contents of customer emails or other communications. It eliminates the
ambiguous and outdated 180-day rule that some government agencies
believe grants them warrantless access to the content of older emails.
That is any emails older than the very young age of 180 days old.
Instead, all requests for the content of electronic communications
would require a search warrant--a search warrant required by the Fourth
Amendment, a search warrant based on probable cause--and law
enforcement agencies would be required to notify within 10 days any
persons whose email accounts were searched, subject to some logical and
narrow exceptions, of course.
This legislation is also carefully crafted so that it would not
impede the ability of law enforcement agencies to conduct legitimate
investigative activities consistent with the Fourth Amendment.
[[Page S774]]
I am pleased to say that our bill enjoys very broad support from the
technology industry, from privacy advocates, constitutional scholars,
and policy groups on both ends of the ideological spectrum in America.
The Lee-Leahy ECPA Amendments Act of 2015 is truly bipartisan in
nature. The Senate bill, in addition to Senators Leahy and myself as
the principal sponsors, also has six additional cosponsors. We have
Republican Senators Cornyn, Moran, and Gardner and Democratic Senators
Shaheen, Merkley, and Blumenthal. I hope and expect that we will have a
lot of additional Senators of both political parties who will join us
in this effort. The House version of this bill has 228 additional
cosponsors--a very critical majority.
By working together as a Democrat from Vermont and a Republican from
Utah, we hope all Senators will join with us to pass this meaningful,
bipartisan legislation that would benefit all Americans. Congress
should pass ECPA reform this year, and President Obama should sign
these important privacy reforms into law.
I will end this discussion as I began. What were you doing in 1986?
As it relates to your interaction with the digital world with
computers, I would imagine that even though your life might be in many
respects similar to what it was in 1986, it is very different in the
way you interact with computers, with technology, with the online
world, which basically no one was even aware of in 1986. Since 1986 the
world has changed. We need to change the world to keep up with the
times. We need to change the law to hold in place those protections
that have been in our Constitution since 1791 to make sure the privacy
rights of the American people are respected.
I encourage each of my colleagues to support this bill
Mr. LEAHY. Mr. President, I want to talk about privacy because
privacy is not a partisan issue. It never has been, and never should
be. Remember, 30 years ago I was in the minority. The Republicans were
in the majority and controlled the Senate. It was then that I worked
with my colleagues and led the effort to write the Electronic
Communications Privacy Act, ECPA.
It required a lot of education because back then, electronic mail was
an emerging technology. The World Wide Web was unimaginable. Electronic
data storage was astronomically expensive. No one could have envisioned
the way mobile technologies would transform our lives. Yet fortunately
many of us in Congress had the foresight to anticipate that these new
electronic communications would also need privacy protections.
That was 30 years ago. Look at what has changed since then. Now three
decades later, that law is out of date. So today the Senator from Utah,
Mr. Lee, and I are reintroducing the Electronic Communications Privacy
Act Amendments Act of 2015. We want to bring this law into the 21st
century. Our legislation is very straightforward. It ensures that the
private information that we Americans electronically store in the cloud
gets the same protections as the private information we Americans
physically store at home. As it did in 1986, I hope the Senate will
come together on a bipartisan basis to support these commonsense
protections.
All of us have an expectation that the things we store in our house
are private. If law enforcement wants access to them, they have to get
the proper search warrants. Today, there seems to be an idea that if
they are stored electronically, these rules should not apply.
I believe they should.
The bill Senator Lee and I introduced today protects Americans'
digital privacy--in their emails and all the other files and
photographs they store in the cloud. It promotes cloud computing and
other new technologies by building consumer trust. And it also provides
law enforcement agencies with the tools they need to ensure public
safety.
I would remind my colleagues that several years ago the U.S. Circuit
Court of Appeals for the Sixth Circuit found that email was fully
protected by the Fourth Amendment. It said that ``the Fourth Amendment
must keep pace with the inexorable march of technological progress, or
its guarantees will wither and perish.'' This bill takes up that
challenge.
Obviously we have technologies today that nobody would have dreamed
of just a couple of generations ago. But we have a Constitution that
has protected this country for well over 200 years, and we hope it will
protect it for hundreds of years into the future. We need to make sure
our laws keep up with the protections we Americans expect from our
Constitution.
First and most importantly, the bill enshrines in statute the
fundamental Fourth Amendment warrant requirement for email, texts, and
other electronic data. It requires that the government have a criminal
search warrant based on possible cause to obtain the stored content of
Americans' email and other electronic communications from third-party
providers. This ensures that email communications have the same
protections as phone calls and private documents stored in your home.
However, the bill's warrant requirement contains an important
exception to address emergency circumstances. It explicitly states that
it does not affect current authorities under the Wiretap Act or the
Foreign Intelligence Surveillance Act. And it ensures that law
enforcement can continue to investigate corporate wrong-doing by using
grand jury subpoenas to obtain emails directly from corporate entities
when held on their internal systems.
The second major component of the bill requires law enforcement
agencies to promptly notify individuals when the government has
obtained their emails through their service providers, but permits a
delay of that notice to protect the integrity of ongoing
investigations--no different from what we do in other law enforcement
matters. The bill would also require service providers to notify the
government three days before they inform a customer that the provider
disclosed their information to the government.
This is not a Republican or Democratic issue, nor is it liberal or
conservative. In fact, Senator Lee and I would note that we have a
broad coalition of more than 50 privacy, civil liberties, civil rights,
and technology industry groups and leaders from across the political
spectrum who have endorsed this reform effort. Support spans from the
Heritage Foundation and Americans for Tax Reform, to the Center for
Democracy and Technology and the ACLU.
Mr. President, I ask unanimous consent to have printed in the Record
the January 22, 2015, coalition letter in support of the bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
January 22, 2015.
Hon. Charles Grassley,
Chairman,
Senate Judiciary Committee.
Hon. Patrick J. Leahy,
Ranking Member,
Senate Judiciary Committee.
Dear Chairman Grassley and Ranking Member Leahy: We, the
undersigned companies and organizations, are writing to urge
speedy consideration of Sen. Leahy's and Sen. Lee's ECPA
Amendments Act that we expect will be introduced in the
coming weeks. The bill would update the Electronic
Communications Privacy Act (ECPA) to provide stronger
protection to sensitive personal and proprietary
communications stored in ``the cloud.'' The legislation was
considered and adopted by a voice vote in the Committee in
the 113th Congress.
ECPA, which sets standards for government access to private
communications, is critically important to businesses,
government investigators and ordinary citizens. Though the
law was forward-looking when enacted in 1986, technology has
advanced dramatically and ECPA has been outpaced. Courts have
issued inconsistent interpretations of the law, creating
uncertainty for service providers, for law enforcement
agencies, and for the hundreds of millions of Americans who
use the Internet in their personal and professional lives.
Moreover, the Sixth Circuit Court of Appeals in US v. Warshak
has held that a provision of ECPA allowing the government to
obtain a person's email without a warrant is
unconstitutional.
The ECPA Amendments Act would update ECPA in one key
respect, making it clear that, except in emergencies or under
other existing exceptions, the government must obtain a
warrant in order to compel a service provider to disclose the
content of emails, texts or other private material stored by
the service provider on behalf of its users.
This standard would provide greater privacy protections and
create a more level playing field for technology. It would
cure the constitutional defect identified by the Sixth
Circuit It would allow law enforcement officials to obtain
electronic communications in all appropriate cases while
protecting
[[Page S775]]
Americans' constitutional rights. Notably, the Department of
Justice and FBI already follow the warrant-for-content rule.
It would provide certainty for American businesses developing
innovative new services and competing in a global
marketplace. It would implement a core principle supported by
Digital Due Process, www.digitaldueprocess.org, a broad
coalition of companies, privacy groups, think tanks,
academics and other groups.-
This legislation has seemingly been held up by only one
issue--an effort to allow civil regulators to demand, without
a warrant, the content of customer documents and
communications directly from third party service providers.
This should not be permitted. Such warrantless access would
expand government power; government regulators currently
cannot compel service providers to disclose their customers'
communications. It would prejudice the innovative services
that all stakeholders support, and would create one procedure
for data stored locally and a different one for data stored
in the cloud.
Because of all its benefits, there is an extraordinary
consensus around ECPA reform--one unmatched by any other
technology and privacy issue. Successful passage of ECPA
reform sends a powerful message--Congress can act swiftly on
crucial, widely supported, bipartisan legislation. Failure to
enact reform sends an equally powerful message--that privacy
protections are lacking in law enforcement access to user
information and that constitutional values are imperiled in a
digital world.
For all these reasons, we strongly urge all members of the
Senate Judiciary Committee to support the ECPA Amendments
Act.
Sincerely,
ACT--The App Association, Adobe, Amazon, American
Association of Law Libraries, American Booksellers for Free
Expression, American Civil Liberties Union, American Library
Association, Americans for Tax Reform and Digital Liberty,
AOL, Apple, Association of Research Libraries, Automattic,
Autonet Mobile, Brennan Center for Justice, BSA |, The
Software Alliance, Center for Financial Privacy and Human
Rights, Center for Democracy & Technology, Center for
National Security Studies, Cisco, Competitive Enterprise
Institute, Computer & Communications Industry Association,
Consumer Action, Council for Citizens Against Government
Waste, Data Foundry, Deluxe Corporation, Demand Progress,
Direct Marketing Association, Discovery Institute,
Distributed Computing Industry Association (DCIA).
Dropbox, eBay, Electronic Frontier Foundation, Engine,
Evernote, Facebook, First Amendment Coalition, Foursquare,
FreedomWorks, Future of Privacy Forum, Gen Opp, Golden Frog,
Google, Hewlett-Packard, Information Technology Industry
Council (ITI), Internet Association, Internet Infrastructure
Coalition (I2Coalition), Intuit, Less Government, Liberty
Coalition, LinkedIn, NetChoice, New America's Open Technology
Institute, Newspaper Association of America, Oracle,
Personal, R Street, ServInt, SIIA: Software & Information
Industry Association, Snapchat, Sonic, Taxpayers Protection
Alliance, TechFreedom, TechNet, The Constitution Project, The
Federation of Genealogical Societies, Tumblr, Twitter, U.S.
Chamber of Commerce, Venture Politics, Yahoo.
Mr. LEAHY. I am also pleased that Senators Shaheen, Moran, Cornyn,
Merkley, Gardner, and Blumenthal have joined this effort with Senator
Lee and I. I commend them because we do have an opportunity this year
to make progress on bipartisan, commonsense legislation to protect the
privacy of Americans' email and update our laws to keep pace with
technology. And I also congratulate our House partners, Representatives
Yoder and Polis, who are introducing this legislation today in the
House of Representatives with 228 cosponsors from both parties.
In the last Congress, the Senate Judiciary Committee unanimously
supported this bill, Republicans and Democrats alike. We have continued
the hard work of building a broad bipartisan coalition in support of
this bill. Now is the time to act swiftly to bring our privacy
protections into the digital age.
I will continue to work with Senator Lee, Senator Cornyn, Senator
Moran, Senator Shaheen, Senator Merkley, Senator Gardner, and Senator
Blumenthal on this issue because while I am proud to have them as
cosponsors, I am also proud that we are doing the right thing
______
By Mrs. FEINSTEIN (for herself, Ms. Ayotte, Mrs. Gillibrand, Mrs.
Boxer, Ms. Heitkamp, Ms. Baldwin, Mr. Brown, Ms. Mikulski, Ms.
Stabenow, Mrs. Capito, Mrs. Shaheen, Mr. Casey, Ms. Hirono,
Mrs. McCaskill, Ms. Warren, and Ms. Cantwell):
S. 370. A bill to require breast density reporting to physicians and
patients by facilities that perform mammograms, and for other purposes;
to the Committee on Health, Education, Labor, and Pensions.
Mrs. FEINSTEIN. Mr. President, even though we have made great strides
in the treatment and diagnosis of breast cancer, this disease continues
to be the second leading cause of death for women in the United States.
When women receive their mammography report and it comes out normal,
they usually move on with their day thinking everything is just fine.
This may be the case, but for women with dense breast tissue this
``normal'' report doesn't capture the whole picture. This is because
cancer may still be present and missed on their mammogram because it is
obscured by dense breast tissue.
It is vital for women to be told this simple, yet potentially life-
saving, information about their own health so they can discuss with
their doctor if additional screening makes sense for them. That could
be the difference between catching breast cancer early and surviving,
or waiting until its too late because you were never told your full
medical information.
Even though there is a risk for cancer being missed, when women
receive their mammogram report there is currently no federal
requirement to include notice that they have dense breast tissue. This
is the case even though the radiologist makes that determination upon
reading the mammogram
This bill is a simple solution. It requires that women be informed on
the mammogram report, that they already receive, if they have dense
breast tissue, and that they may want to talk with their doctor if they
have questions and if they might benefit from additional screening.
Withholding this kind of medical information from women just doesn't
make any sense.
This bill doesn't change any state laws. It sets a minimum Federal
standard, so any state that wants to have additional reporting
requirements may do so. The bill also requires the Department of Health
and Human Services to focus on research and improved screening for
patients with dense breast tissue. Early detection is the key to
beating cancer. Every patient deserves access to their own information,
especially when it may be what saves their life.
I want to thank Senator Ayotte for working with me on this bill. I
urge my colleagues to join us, and Senators Gillibrand, Boxer,
Heitkamp, Baldwin, Brown, Mikulski, Stabenow, Capito, Shaheen, Casey,
Hirono, McCaskill, and Warren in cosponsoring the Breast Density and
Mammography Reporting Act. This bill is supported by organizations
including the American Cancer Society Cancer Action Network, Are You
Dense Advocacy, Breast Cancer Fund, and Susan G. Komen.
I look forward to working with my colleagues on this important issue.
______
By Mr. CARDIN (for himself, Ms. Collins, Ms. Baldwin, Mr.
Cochran, Mr. Blumenthal, Mr. Kirk, Mr. Carper, Ms. Murkowski,
Mr. Casey, Mr. Portman, Ms. Cantwell, Mr. Coons, Mr. Heinrich,
Ms. Hirono, Mr. King, Mr. Leahy, Mr. Markey, Mr. Menendez, Mr.
Merkley, Ms. Mikulski, Mr. Murphy, Mr. Sanders, Mr. Schumer,
Mr. Wyden, and Ms. Klobuchar):
S. 375. A bill to amend the Internal Revenue Code of 1986 to provide
a reduced rate of excise tax on beer produced domestically by certain
qualifying producers; to the Committee on Finance.
Mr. CARDIN. Mr. President, I am pleased to rise today with my friend
and colleague, the senior Senator from Maine, Senator Collins, to re-
introduce the Small Brewer Reinvestment & Expanding Workforce Act of
2015, otherwise known as the Small BREW Act. Our esteemed former
colleague, Senator Kerry, now Secretary of State, introduced this bill
in the 112th Congress. I was honored to take up the mantel in the 113th
Congress.
The Small BREW Act of 2015 would reduce the excise tax on America's
craft brewers. Under current Federal law, brewers producing 2 million
or fewer barrels annually pay $7 per barrel on the first 60,000 barrels
they brew, and $18 per barrel on every barrel thereafter, one barrel =
31 gallons. The Small BREW Act would create a new excise tax rate
structure that helps
[[Page S776]]
start-up and small breweries and reflects the evolution of the craft
brewing industry. The rate for the smallest packaging breweries and
brewpubs would be $3.50 per barrel on the first 60,000 barrels. For
production between 60,001 and 2 million barrels, the rate would be
$16.00 per barrel. Thereafter, the rate would be $18.00 per barrel.
Breweries with an annual production of 6 million barrels or less would
qualify for these recalibrated tax rates.
The small brewer threshold and tax rate were established in 1976 and
have never been updated. Since then, the largest multinational producer
of beer has increased its annual production from 45 million barrels to
97 million barrels domestically and 325 million barrels globally. To
put the matter in perspective, the biggest domestic craft brewer
produces 2.7 million barrels of beer annually. Raising the ceiling that
defines small breweries from 2 million barrels to 6 million barrels
more accurately reflects the intent of the original differentiation
between large and small brewers in the U.S. Because of differences in
economies of scale, small brewers have higher costs for raw materials,
production, packaging, and market entry compared to larger, well-
established multi-national competitors. Adjusting the excise tax rate
would provide small brewers with an additional $67 million each year
they could use to start or expand their businesses on a local,
regional, or national scale.
This past November, the Joint Committee on Taxation, JCT, estimated
the bill would cost $253 million through 2019 and $641 million over 10
years. A March 2013 study on the costs and benefits of the Small BREW
Act bill which then-Harvard University economist John Friedman prepared
on behalf of the Brewers Association, BA, indicates that the bill would
directly reduce the excise tax revenue the Federal Government collects
by $67.0 million the first year after enactment. But Professor Friedman
notes that such a loss would be offset in large part by $49.1 million
in new payroll and income taxes collected on increased economic
activity. Professor Friedman believes that demand for craft beer will
continue to increase and the Federal Government would collect an
additional $1.1 million in excise taxes from the increased sales. The
net revenue loss, therefore, would be $16.9 million the first year
after enactment. The total net revenue loss over 5 years would be $95.9
million. The bill would lead to the creation of 5,230 new jobs in the
first 12-18 months after passage and the cost of each new job in
foregone revenue would be just $3,300.
While some people may think this is a bill about beer, it is really
about jobs. Blue collar jobs and white collar jobs. Small brewers are
small business owners in communities in each and every State across the
country. Roughly 75 percent of Americans now live within 10 miles of a
brewery. Nationally, small and independent brewers employ over 110,000
full- and part-time employees, generate more than $3 billion in wages
and benefits, and pay more than $2.3 billion in business, personal and
consumption taxes, according to the BA. As the craft beer industry
grows so, too, does the demand for American-grown barley and hops and
American-made brewing, bottling, canning, and other equipment. That
demand creates more good jobs.
Maryland is home to 43 craft brewers, up from 34 in 2013, with 24
more in the planning stages. The existing breweries and brew-pubs
employ roughly 600 people who were directly involved in producing craft
beer in the State last year, and another 700 to 1,400 part-time workers
including brew-pub restaurant staff and associated employees. In 2012,
the Brewers Association determined that the economic impact of the
craft brewing industry on the State was $455 million and that the
industry created a total of 5,422 ``full-time equivalent'', FTE, jobs
in Maryland, including indirect and induced jobs, paying over $185
million in wages. Based on 2013 production figures, the Small BREW Act
would provide Maryland's small brewers with roughly $570,000 to
reinvest in their growing businesses and hire more workers.
Small brewers have been anchors of local communities and America's
economy since the start of our history. Indeed, there is a Mayflower
document published in 1622 that explains why the Pilgrims landed at
Plymouth Rock which states, ``For we could not now take time for
further search or consideration: our victuals being much spent,
especially our beer.'' Presidents from George Washington to Barack
Obama have been homebrewers. Going back much further, the oldest extant
recipe is for beer. And many people would argue that our thirst for
beer is what drove man from being a hunter-gatherer to a crop
cultivator since the earliest domesticated cereal grains were various
types of barley better suited for beer production than making bread.
Saint Arnulf of Metz, also known as St. Arnold, who lived from roughly
582 to 640 AD, is known as the ``Patron Saint of Brewers'' because he
recognized that beer, which is boiled first, contains alcohol and is
slightly acidic, was much safer to consume than water. French chemist
and microbiologist Louis Pasteur, 1822-1895, who discovered yeast and
propounded the germ theory that is the basis of so much of modern
medicine, worked for breweries for much of his career. The pH scale,
the standard measurement of acidity, was developed by the head of
Carlsberg Laboratory's Chemical Department in 1909. Dr Soren Sorensen,
1868-1939, developed the pH scale during his pioneering research into
proteins, amino acids and enzymes--the basis of today's protein
chemistry. So it is fair to say that civilization and beer go hand-in-
hand.
In addition to making high-quality beers, craft brewers such as
Maryland's Flying Dog, Union Craft, Ruddy Duck, Baying Hound, Heavy
Seas, and The Brewers Art create jobs and reinvest their profits back
into their local economies. The Federal Government needs to be
investing in industries that invest in America and create real jobs
here at home. With more than 3,200 small and independent breweries and
brew-pubs currently operating in the United States--and many more being
planned--now is the time to take meaningful action to help them and our
economy grow. An article in today's New York Times entitled ``Betting
on the Growth of Microbreweries'' quotes BA economist Dr. Bart Watson
as saying, ``Brewery after brewery is looking for ways to grow because
when you talk to these companies, the biggest constraint is capacity.
They're selling beer as fast as they can make it.'' Let us help them
grow.
I am proud to announce that Senators Baldwin, Blumenthal, Cantwell,
Carper, Casey, Cochran, Coons, Heinrich, Hirono, King, Kirk, Klobuchar,
Leahy, Markey, Menendez, Merkley, Mikulski, Murkowski, Murphy, Portman,
Sanders, Schumer, and Wyden have all signed on as original co-sponsors
of the Small BREW Act, and I encourage the rest of my Senate colleagues
to consider joining us in this worthwhile legislative endeavor.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 375
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Small Brewer Reinvestment
and Expanding Workforce Act'' or as the ``Small BREW Act''.
SEC. 2. REDUCED RATE OF EXCISE TAX ON BEER PRODUCED
DOMESTICALLY BY CERTAIN QUALIFYING PRODUCERS.
(a) In General.--Paragraph (2) of section 5051(a) of the
Internal Revenue Code of 1986 is amended--
(1) by redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D), respectively, and
(2) by striking subparagraph (A) and inserting the
following new subparagraphs:
``(A) In general.--In the case of a brewer who produces not
more than 6,000,000 barrels of beer during the calendar year,
the per barrel rate of tax imposed by this section shall be--
``(i) $3.50 on the first 60,000 qualified barrels of
production, and
``(ii) $16 on the first 1,940,000 qualified barrels of
production to which clause (i) does not apply.
``(B) Qualified barrels of production.--For purposes of
this paragraph, the term `qualified barrels of production'
means, with respect to any brewer for any calendar year, the
number of barrels of beer which are removed in such year for
consumption or sale and which have been brewed or produced by
such brewer at qualified breweries in the United States.''.
(b) Conforming Amendments.--
(1) Subparagraph (C) of section 5051(a)(2) of such Code, as
redesignated by this section, is amended--
[[Page S777]]
(A) by striking ``2,000,000 barrel quantity'' and inserting
``6,000,000 barrel quantity'', and
(B) by striking ``60,000 barrel quantity'' and inserting
``60,000 and 1,940,000 barrel quantities''.
(2) Subparagraph (D) of such section, as so redesignated,
is amended by striking ``2,000,000 barrels'' and inserting
``6,000,000 barrels''.
(c) Effective Date.--The amendments made by this section
shall apply to beer removed during calendar years beginning
after the date of the enactment of this Act.
______
By Mr. GRASSLEY (for himself, Mr. Blunt, Mr. Cruz, Mr. Hatch, Mr.
Paul, Mr. Cornyn, Mr. Rubio, Mr. Inhofe, Mrs. Fischer, Mr.
Flake, Mr. Lee, Mrs. Capito, and Mr. Gardner):
S. 378. A bill to impose certain limitations on consent decrees and
settlement agreements by agencies that require the agencies to take
regulatory action in accordance with the terms thereof, and for other
purposes; to the Committee on the Judiciary.
Mr. GRASSLEY. Mr. President, I rise today to introduce an important
piece of regulatory reform legislation.
A study released this past fall by the National Association of
Manufacturers estimates that U.S. Federal Government regulations
imposed over $2 trillion in compliance costs on American businesses in
2012. This is an amount equal to 12 percent of our Nation's GDP.
The study also demonstrated--and this should come as no surprise--
that the cost of complying with all those regulations falls
disproportionately on small businesses. Small manufacturing firms, in
particular, grapple with regulatory compliance costs that are more than
three times those felt by the average company in the United States.
It is no wonder why many American businesses are shuttering or moving
their entire operation overseas. And how many folks dreamed of starting
a small business but ultimately decided against taking the risk because
of the overwhelming burden and uncertainty of our regulatory state?
We have to do better.
Small businesses are fed up with excessive Federal regulation, and
they are making sure we know about it. A November 2014 survey conducted
by the National Federation of Independent Business asked small business
owners across the country to rank the ten most pressing problems they
face. Overwhelmingly, the top two answers from small business owners
were taxes and complying with government red tape. I am happy to say
that this Congress intends to confront these issues head-on.
The Federal Government needs to do everything possible to promote an
environment that will allow private sector employers to create jobs. To
accomplish that, common sense would tell us that the government needs
to remove barriers to job creation rather than put up new ones.
Unfortunately, the Obama administration has proven time and again
that it would rather push forward with its interest-driven regulatory
agenda than ease the heavy burden upon our economy and our
entrepreneurs.
To make matters worse, this administration is pursuing new
regulations through litigation tactics that take an end-run around the
laws enacted by Congress to ensure transparency and accountability in
the regulatory process. This strategy has come to be known as sue-and-
settle, and regulators have been using it to speed up rulemaking and to
keep the public, industries, and even the States away from the table
when regulatory decisions are negotiated behind closed doors.
Sue-and-settle cases typically follow a similar pattern. First, an
interest group files a lawsuit against a Federal agency, claiming that
the agency has failed to take a certain regulatory action by a
statutory deadline. Through the complaint, the interest group seeks to
compel the agency to take action by a new, often-rushed deadline. The
plaintiff-interest group frequently will be one that shares a common
regulatory and policy agenda with the agency that it sues, such as when
an environmental group sues the Environmental Protection Agency, EPA.
Next, the agency and interest group enter into friendly negotiations
to produce either a settlement agreement or consent decree behind
closed doors that commits the agency to satisfying the interest group's
demands. The agreement is then entered by a court, binding executive
discretion to undertake a regulatory action. And noticeably absent from
these negotiations are the very parties who will likely be most
impacted by the new regulation.
Sue-and-settle tactics by advocacy groups and complicit government
agencies have severe consequences on transparency, public
accountability, and ultimately on the quality of the resulting public
policy.
Such tactics undermine congressional intent by shutting out affected
parties, such as industries and even the States that are charged with
implementing new regulations.
The Administrative Procedure Act, APA, which has been characterized
as the citizens' ``regulatory bill of rights,'' was enacted to ensure
transparency and public accountability in our Federal rulemaking
process. A central aspect of the APA is the notice-and-comment process,
which requires agencies to notify the public of proposed regulations
and to respond to comments submitted by interested parties.
Rulemaking driven by sue-and-settle tactics, however, frequently
results in reprioritized agency agendas and truncated deadlines for
regulatory action. This renders the notice-and-comment requirements of
the APA a mere formality, depriving regulated entities, the States and
the public of sufficient time to have any meaningful input on the final
rules. The resulting regulatory action is driven not by the public
interest, but by special interest priorities, and often comes as a
complete surprise to those most affected by it.
Sue-and-settle litigation also helps agencies avoid accountability.
Instead of having to answer to the public for controversial regulations
and policy decisions, agency officials are able to simply point to a
court order entering the agreement and maintain that they were required
to take action under its terms.
Further, the abuse of consent decrees as a method for taking
regulatory action can have lasting negative impact on the ability of
future administrations to adapt the Federal regulatory scheme to
changing circumstances. Not only does this raise serious concerns about
bad public policy; it also puts into question the constitutional impact
of one administration's actions binding the hands of its successors.
Sue-and-settle, and the consequences that come with such tactics, is
not a new phenomenon. Evidence of sue-and-settle tactics and closed-
door rulemaking can be found in nearly every administration over the
previous few decades.
But there has been an alarming increase in sue-and-settle tactics
under the Obama administration. A study by the U.S. Chamber of Commerce
shows that just during President Obama's first term, 60 Clean Air Act
lawsuits against the EPA were resolved through consent decrees or
settlement agreements, an increase from 28 during President George W.
Bush's second term.
Since 2009, sue-and-settle cases against the EPA have imposed at
least $13 billion in annual regulatory costs.
In November 2010, environmental advocacy groups filed a complaint
against the EPA under the Clean Water Act to compel the agency to
revise wastewater regulations. Interestingly, the same day that the
complaint was filed, the plaintiff-advocacy groups filed a proposed
consent decree already signed by the EPA and requiring prompt
regulatory action. As is characteristic of sue-and-settle cases,
potentially affected parties were kept out of the lawsuit and
negotiations. Such a scenario should raise serious concerns over how
truly adversarial these lawsuits really are.
In another case, environmental advocacy groups filed suit against the
EPA to compel the agency to issue new air quality standards for
pollutants from coal and oil-fired power plants. The plaintiff-advocacy
groups alleged that the EPA had violated its statutory duty to issue
new standards.
An industry group intervened in the case to represent utility
companies but was ultimately left out of subsequent negotiations
between the plaintiffs and the EPA, which resulted in a consent decree.
The industry group challenged the consent decree on numerous grounds,
including the rulemaking timeframe established under the decree
[[Page S778]]
which was arguably too short to allow the public to participate fully
in the rulemaking process.
Nevertheless, the court approved and entered the consent decree, with
the judge concluding that ``[s]hould haste make waste, the resulting
regulations will be subject to successful challenge. . . If EPA needs
more time to get it right, it can seek more time.''
The resulting rule, despite its opaque promulgation, was estimated by
the EPA to cost $9.6 billion annually by 2015. And according to
estimates by the American Coalition for Clean Coal Electricity, the
rule promulgated under the consent decree would contribute to a loss of
1.44 million jobs in the U.S. between 2013 and 2020.
The EPA could have done things right the first time by crafting a
sensible, workable rule that protects the environment without causing
unnecessary job losses or higher electricity prices for hard-working
American families. But as a result of backroom, sue-and-settle tactics,
we were left with a controversial regulation that fails to properly
take into account the impact on affected parties and that remains the
subject of litigation to this day.
The EPA, it seems, has turned a blind eye to the calls for more
transparency and public accountability in our Federal rulemaking
process. In February 2014, EPA's General Counsel issued a statement
declaring:
The sue and settle rhetoric, strategically mislabeled by
its proponents, is an often-repeated but a wholly invented
accusation that gets no more true with frequent retelling.
I think many would take issue with that assessment. In fact, the
Environmental Council of the States, or ECOS--a national non-profit,
non-partisan association made up of State and territorial environmental
agency leaders--adopted a resolution entitled ``The Need for Reform and
State Participation in EPA's Consent Decrees which Settle Citizen
Suits,'' stating, among other things:
[S]tate environmental agencies are not always notified of
citizen suits that allege U.S. EPA's failure to perform its
nondiscretionary duties, are often not parties to these
citizen suits, and are usually not provided with an
opportunity to participate in the negotiation of agreements
to settle citizen suits[.]
ECOS further resolved that:
[G]reater transparency of citizen suit settlement
agreements is needed for the public to understand the impact
of these agreements on the administration of environmental
programs[.]
I agree.
Clearly, the EPA has no intention of acknowledging the use or
consequences of sue-and-settle tactics. And unfortunately, I think this
sentiment is shared by other executive branch agencies today.
That is why today I am introducing the Sunshine for Regulatory
Decrees and Settlements Act of 2015. Senators Blunt, Hatch, Cruz, Paul,
Cornyn, Rubio, Inhofe, Fischer, Flake, Lee, Capito and Gardner are
cosponsors of this important bill, and I thank them for their support.
In the House, Representative Doug Collins of Georgia is introducing a
companion bill.
By enacting reasonable, pro-accountability measures, the Sunshine
bill aims to address many of the problems I have outlined so far.
This bill provides for greater transparency by shedding light on sue-
and-settle tactics. It requires agencies to publish sue-and-settle
complaints and notices of intent-to-sue in a readily accessible manner.
The bill requires agencies to publish proposed consent decrees and
settlement agreements at least 60 days before they can be filed with a
court. This provides a valuable opportunity for affected parties to
weigh-in, which will increase public accountability in the rulemaking
process. It will also prevent those scenarios where lawsuits are filed
on the same day as previously negotiated agreements, a practice that
effectively blocks any meaningful participation by affected parties.
The bill also makes it easier for affected parties such as States and
business owners to take part in both the lawsuit and settlement
negotiations to ensure that their interests are properly represented.
It requires the Attorney General or, if appropriate, the head of the
defendant-agency, to certify to the court that he or she has personally
approved certain proposed consent decrees or settlement agreements
that, for example, convert a discretionary authority of an agency into
a non-discretionary duty to act. It requires that courts consider
whether the terms of a proposed agreement are contrary to the public
interest.
The bill promotes greater transparency by requiring agencies to
publicly post and report to Congress information on sue-and-settle
complaints, consent decrees and settlement agreements.
Finally, the bill resolves key constitutional concerns by making it
easier for succeeding administrations to modify the effect of a prior
administration's consent decrees. It does so by providing for de novo
review of motions to modify existing consent decrees due to changed
circumstances.
The Sunshine for Regulatory Decrees and Settlements Act will shed
light on the problem. It will help rein in backroom rulemaking,
encourage the appropriate use of consent decrees and settlements, and
reinforce the procedures laid out decades ago to ensure a transparent
and accountable regulatory process.
I urge my colleagues to work with me and support this important
legislation.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 378
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sunshine for Regulatory
Decrees and Settlements Act of 2015''.
SEC. 2. DEFINITIONS.
In this Act--
(1) the terms ``agency'' and ``agency action'' have the
meanings given those terms under section 551 of title 5,
United States Code;
(2) the term ``covered civil action'' means a civil
action--
(A) seeking to compel agency action;
(B) alleging that the agency is unlawfully withholding or
unreasonably delaying an agency action relating to a
regulatory action that would affect the rights of--
(i) private persons other than the person bringing the
action; or
(ii) a State, local, or tribal government; and
(C) brought under--
(i) chapter 7 of title 5, United States Code; or
(ii) any other statute authorizing such an action;
(3) the term ``covered consent decree'' means--
(A) a consent decree entered into in a covered civil
action; and
(B) any other consent decree that requires agency action
relating to a regulatory action that affects the rights of--
(i) private persons other than the person bringing the
action; or
(ii) a State, local, or tribal government;
(4) the term ``covered consent decree or settlement
agreement'' means a covered consent decree and a covered
settlement agreement; and
(5) the term ``covered settlement agreement'' means--
(A) a settlement agreement entered into in a covered civil
action; and
(B) any other settlement agreement that requires agency
action relating to a regulatory action that affects the
rights of--
(i) private persons other than the person bringing the
action; or
(ii) a State, local, or tribal government.
SEC. 3. CONSENT DECREE AND SETTLEMENT REFORM.
(a) Pleadings and Preliminary Matters.--
(1) In general.--In any covered civil action, the agency
against which the covered civil action is brought shall
publish the notice of intent to sue and the complaint in a
readily accessible manner, including by making the notice of
intent to sue and the complaint available online not later
than 15 days after receiving service of the notice of intent
to sue or complaint, respectively.
(2) Entry of a covered consent decree or settlement
agreement.--A party may not make a motion for entry of a
covered consent decree or to dismiss a civil action pursuant
to a covered settlement agreement until after the end of
proceedings in accordance with paragraph (1) and
subparagraphs (A) and (B) of paragraph (2) of subsection (d)
or subsection (d)(3)(A), whichever is later.
(b) Intervention.--
(1) Rebuttable presumption.--In considering a motion to
intervene in a covered civil action or a civil action in
which a covered consent decree or settlement agreement has
been proposed that is filed by a person who alleges that the
agency action in dispute would affect the person, the court
shall presume, subject to rebuttal, that the interests of the
person would not be represented adequately by the existing
parties to the action.
[[Page S779]]
(2) State, local, and tribal governments.--In considering a
motion to intervene in a covered civil action or a civil
action in which a covered consent decree or settlement
agreement has been proposed that is filed by a State, local,
or tribal government, the court shall take due account of
whether the movant--
(A) administers jointly with an agency that is a defendant
in the action the statutory provisions that give rise to the
regulatory action to which the action relates; or
(B) administers an authority under State, local, or tribal
law that would be preempted by the regulatory action to which
the action relates.
(c) Settlement Negotiations.--Efforts to settle a covered
civil action or otherwise reach an agreement on a covered
consent decree or settlement agreement shall--
(1) be conducted pursuant to the mediation or alternative
dispute resolution program of the court or by a district
judge other than the presiding judge, magistrate judge, or
special master, as determined appropriate by the presiding
judge; and
(2) include any party that intervenes in the action.
(d) Publication of and Comment on Covered Consent Decrees
or Settlement Agreements.--
(1) In general.--Not later than 60 days before the date on
which a covered consent decree or settlement agreement is
filed with a court, the agency seeking to enter the covered
consent decree or settlement agreement shall publish in the
Federal Register and online--
(A) the proposed covered consent decree or settlement
agreement; and
(B) a statement providing--
(i) the statutory basis for the covered consent decree or
settlement agreement; and
(ii) a description of the terms of the covered consent
decree or settlement agreement, including whether it provides
for the award of attorneys' fees or costs and, if so, the
basis for including the award.
(2) Public comment.--
(A) In general.--An agency seeking to enter a covered
consent decree or settlement agreement shall accept public
comment during the period described in paragraph (1) on any
issue relating to the matters alleged in the complaint in the
applicable civil action or addressed or affected by the
proposed covered consent decree or settlement agreement.
(B) Response to comments.--An agency shall respond to any
comment received under subparagraph (A).
(C) Submissions to court.--When moving that the court enter
a proposed covered consent decree or settlement agreement or
for dismissal pursuant to a proposed covered consent decree
or settlement agreement, an agency shall--
(i) inform the court of the statutory basis for the
proposed covered consent decree or settlement agreement and
its terms;
(ii) submit to the court a summary of the comments received
under subparagraph (A) and the response of the agency to the
comments;
(iii) submit to the court a certified index of the
administrative record of the notice and comment proceeding;
and
(iv) make the administrative record described in clause
(iii) fully accessible to the court.
(D) Inclusion in record.--The court shall include in the
court record for a civil action the certified index of the
administrative record submitted by an agency under
subparagraph (C)(iii) and any documents listed in the index
which any party or amicus curiae appearing before the court
in the action submits to the court.
(3) Public hearings permitted.--
(A) In general.--After providing notice in the Federal
Register and online, an agency may hold a public hearing
regarding whether to enter into a proposed covered consent
decree or settlement agreement.
(B) Record.--If an agency holds a public hearing under
subparagraph (A)--
(i) the agency shall--
(I) submit to the court a summary of the proceedings;
(II) submit to the court a certified index of the hearing
record; and
(III) provide access to the hearing record to the court;
and
(ii) the full hearing record shall be included in the court
record.
(4) Mandatory deadlines.--If a proposed covered consent
decree or settlement agreement requires an agency action by a
date certain, the agency shall, when moving for entry of the
covered consent decree or settlement agreement or dismissal
based on the covered consent decree or settlement agreement,
inform the court of--
(A) any required regulatory action the agency has not taken
that the covered consent decree or settlement agreement does
not address;
(B) how the covered consent decree or settlement agreement,
if approved, would affect the discharge of the duties
described in subparagraph (A); and
(C) why the effects of the covered consent decree or
settlement agreement on the manner in which the agency
discharges its duties is in the public interest.
(e) Submission by the Government.--
(1) In general.--For any proposed covered consent decree or
settlement agreement that contains a term described in
paragraph (2), the Attorney General or, if the matter is
being litigated independently by an agency, the head of the
agency shall submit to the court a certification that the
Attorney General or head of the agency approves the proposed
covered consent decree or settlement agreement. The Attorney
General or head of the agency shall personally sign any
certification submitted under this paragraph.
(2) Terms.--A term described in this paragraph is--
(A) in the case of a covered consent decree, a term that--
(i) converts into a nondiscretionary duty a discretionary
authority of an agency to propose, promulgate, revise, or
amend regulations;
(ii) commits an agency to expend funds that have not been
appropriated and that have not been budgeted for the
regulatory action in question;
(iii) commits an agency to seek a particular appropriation
or budget authorization;
(iv) divests an agency of discretion committed to the
agency by statute or the Constitution of the United States,
without regard to whether the discretion was granted to
respond to changing circumstances, to make policy or
managerial choices, or to protect the rights of third
parties; or
(v) otherwise affords relief that the court could not enter
under its own authority upon a final judgment in the civil
action; or
(B) in the case of a covered settlement agreement, a term--
(i) that provides a remedy for a failure by the agency to
comply with the terms of the covered settlement agreement
other than the revival of the civil action resolved by the
covered settlement agreement; and
(ii) that--
(I) interferes with the authority of an agency to revise,
amend, or issue rules under the procedures set forth in
chapter 5 of title 5, United States Code, or any other
statute or Executive order prescribing rulemaking procedures
for a rulemaking that is the subject of the covered
settlement agreement;
(II) commits the agency to expend funds that have not been
appropriated and that have not been budgeted for the
regulatory action in question; or
(III) for such a covered settlement agreement that commits
the agency to exercise in a particular way discretion which
was committed to the agency by statute or the Constitution of
the United States to respond to changing circumstances, to
make policy or managerial choices, or to protect the rights
of third parties.
(f) Review by Court.--
(1) Amicus.--A court considering a proposed covered consent
decree or settlement agreement shall presume, subject to
rebuttal, that it is proper to allow amicus participation
relating to the covered consent decree or settlement
agreement by any person who filed public comments or
participated in a public hearing on the covered consent
decree or settlement agreement under paragraph (2) or (3) of
subsection (d).
(2) Review of deadlines.--
(A) Proposed covered consent decrees.--For a proposed
covered consent decree, a court shall not approve the covered
consent decree unless the proposed covered consent decree
allows sufficient time and incorporates adequate procedures
for the agency to comply with chapter 5 of title 5, United
States Code, and other applicable statutes that govern
rulemaking and, unless contrary to the public interest, the
provisions of any Executive order that governs rulemaking.
(B) Proposed covered settlement agreements.--For a proposed
covered settlement agreement, a court shall ensure that the
covered settlement agreement allows sufficient time and
incorporates adequate procedures for the agency to comply
with chapter 5 of title 5, United States Code, and other
applicable statutes that govern rulemaking and, unless
contrary to the public interest, the provisions of any
Executive order that governs rulemaking.
(g) Annual Reports.--Each agency shall submit to Congress
an annual report that, for the year covered by the report,
includes--
(1) the number, identity, and content of covered civil
actions brought against and covered consent decree or
settlement agreements entered against or into by the agency;
and
(2) a description of the statutory basis for--
(A) each covered consent decree or settlement agreement
entered against or into by the agency; and
(B) any award of attorneys fees or costs in a civil action
resolved by a covered consent decree or settlement agreement
entered against or into by the agency.
SEC. 4. MOTIONS TO MODIFY CONSENT DECREES.
If an agency moves a court to modify a covered consent
decree or settlement agreement and the basis of the motion is
that the terms of the covered consent decree or settlement
agreement are no longer fully in the public interest due to
the obligations of the agency to fulfill other duties or due
to changed facts and circumstances, the court shall review
the motion and the covered consent decree or settlement
agreement de novo.
SEC. 5. EFFECTIVE DATE.
This Act shall apply to--
(1) any covered civil action filed on or after the date of
enactment of this Act; and
(2) any covered consent decree or settlement agreement
proposed to a court on or after the date of enactment of this
Act.
______
By Mr. HATCH (for himself, Mr. Cornyn, Mr. Lee, Mr. McCain,
[[Page S780]]
Mr. Enzi, Mr. Scott, Mr. Johnson, Mr. Inhofe, Mr. Blunt, Mr.
Moran, Mr. Isakson, Mr. Gardner, Mr. Hoeven, Mr. Barrasso, Mr.
Crapo, Mr. Wicker, Mr. Vitter, Mr. Heller, Mr. Alexander, Mr.
Toomey, Mr. Boozman, Ms. Ayotte, Mr. Thune, Mr. Kirk, Mr.
Roberts, Mr. Portman, Mr. Cruz, Mr. Graham, Mr. Cassidy, Mr.
Rubio, Ms. Murkowski, Mrs. Fischer, Mr. Flake, Mr. Risch, Mr.
Perdue, Mr. Cochran, Mr. Lankford, Mr. Burr, Mrs. Capito, Mr.
Sullivan, Mr. Daines, Mr. Rounds, Mr. McConnell, Mr. Grassley,
Mr. Coats, Mrs. Ernst, Mr. Tillis, Mr. Cotton, Ms. Collins, Mr.
Shelby, Mr. Corker, Mr. Paul, Mr. Sessions, and Mr. Sasse):
S.J. Res. 6. A joint resolution proposing an amendment to the
Constitution of the United States relative to balancing the budget; to
the Committee on the Judiciary.
Mr. HATCH. Mr. President, today I am introducing a resolution
proposing a constitutional amendment to require that Congress and the
President handle the American people's money more responsibly and
balance the Nation's debt and budget. Like the last two Congresses, the
entire Republican Conference has cosponsored this proposal.
I know the Constitution sets a high threshold for Congress to propose
an amendment, but it is critical we do so for three reasons:
First, piling up more debt year after year is imposing greater and
greater harm to our economy and to our society. Last week,
Congressional Budget Office Director Douglas Elmendorf testified before
the House Budget Committee, noting that the national debt is expected
to swell by another $7.6 trillion--trillion with a T--over the next 10
years. He said:
Such large and growing national debt would have serious
negative consequences, including increasing Federal spending
for interest payments; restraining economic growth in the
long term; giving policymakers less flexibility to respond to
unexpected challenges; and eventually heightening the risk of
a fiscal crisis.
He is the Director of the Federal budget office and he said that on
January 21, 2015. Just think about that. And he is a Democrat. He has
been a very good budget director, as far as I am concerned, and I have
enjoyed looking at his analyses over the years.
Our Nation is on an unsustainable path and we simply cannot wait any
longer to make responsible decisions for our future.
Second, Washington will not keep our fiscal house in order unless
required to do so by the Constitution. Congress has pretended that good
intentions alone would keep our checkbook balanced. Congress has tried
putting limits in place by legislation or other rules. Congress has
stuck its head in the sand or at other times cried that the sky would
fall if we really did get our fiscal act together. Over many decades we
have demonstrated that nothing short of a constitutional requirement
will work.
Third, the American people have the right to set rules for how
Washington handles their money. The Constitution is a rulebook for
government and it belongs to the American people. Proposing an
amendment does not add it to the Constitution but only sends it to the
States for debate and consideration. And while it takes two-thirds of
Congress to propose an amendment to the Constitution, it takes three-
fourths of the States to ratify it. That high level of national
consensus may or may not exist, but the American people deserve the
opportunity to find out.
On June 7, 1979, nearly 36 years ago, I stood on this floor when I
introduced Senate Joint Resolution 86, my first balanced budget
amendment. In today's dollars the budget deficit that year was $95
billion and the national debt was $2.6 trillion, which was about 30
percent of our gross domestic product. I said then that only in
Washington could this situation be described as anything less than
obscene.
The more things change, the more they stay the same. I concede a few
things have changed since 1979. For example, the deficit for the
current fiscal year is six times higher than it was in 1979, and the
national debt is seven times as large. To put that number in
perspective, the national debt is now larger than our entire economy.
The situation is not only getting worse, it is getting worse faster
than ever. More than 40 percent of the national debt accumulated since
our founding has piled up under President Obama, and he has 2 more
years in office. While those things have changed, and changed for the
worse, the choice before us remains the same.
Some of my colleagues might disagree with the CBO Director and think
that piling up trillions and trillions of dollars in debt is no big
deal; that these are just numbers in the air with no impact on the real
world. Perhaps they think our large and growing national debt won't
have any negative consequences, won't impede economic growth, won't
restrain policymakers' flexibility to respond to challenges, and won't
heighten the risk of the fiscal crisis. Some of my colleagues might
believe we have no obligation to handle the American people's money
responsibly or perhaps they believe this money belongs to government
and not the American people at all.
Some of my colleagues might insist, despite decades of demonstrated
failure, that Congress can somehow get its fiscal act together on its
own. One definition of insanity is doing the same thing over and over
and expecting different results.
Some of my colleagues might say the American people should not be
able to set fiscal rules for the government they elect. Perhaps they
think the Federal Government should control the Constitution, not the
other way around.
I say to my colleagues who think those things: I can understand why
you would oppose sending this balanced budget amendment to the States
for consideration.
But now a word to my other colleagues: If you think this growing
mountain of debt is dangerous and must be stopped, if you believe we
have exhausted every other means of stopping it, and if you say the
American people have the right to decide how their government should
operate, then I invite you to support this joint resolution, S.J. Res.
6.
The Senate has on four separate occasions voted on a balanced budget
amendment since I introduced that proposal in 1979. You can see it on
this chart. We actually passed one in 1982 when the national debt was
$2.5 trillion. But the House, controlled by Democrats at the time, did
not take it up.
The Senate voted on another balanced budget amendment in 1994 when
the national debt was $6.9 trillion. It fell a few votes short.
Three years later, when the national debt was $7.9 trillion, we came
within a single vote of passage in 1997.
And in 2011, the fourth from the left there on the chart, we voted on
the last balanced budget amendment I introduced. At that time, the
national debt had grown to $15.1 trillion, and it is almost $3 trillion
higher today.
CBO tells us not only that the national debt will swell by an
additional $7.6 trillion in the next 10 years, but that interest on
that debt will be a larger and larger portion of the budget. The low
interest rates we see today, after all, will not last forever.
CBO warns that, on our current path, interest costs alone will
quadruple from $200 billion today to nearly $800 billion in 10 years.
In only 6 years, if we do not change course, spending on interest will
surpass either defense or nondefense spending. Every dollar spent to
service debt cannot be spent protecting our country or helping our
citizens. This is the fiscal equivalent of fiddling while Rome burns.
The debt keeps growing, the danger keeps building, while Congress keeps
pretending and stalling.
What if we had sent a balanced budget amendment to the States in the
1970s, 1980s, or even 1990s? How different would the budget process be
today?
When I spoke here in June 1979, I offered two additional reasons for
adopting a balanced budget amendment.
First, I said a fixed spending ceiling ``requires that Congress think
in order of budget priorities.''
Second, I said:
In my mind, a balanced budget or spending limitation
amendment offers the potential to impose new limits upon the
National Government, replacing those that have largely been
eroded over the years.
[[Page S781]]
That is why the American people have never been able to use their
Constitution to set fiscal rules for Washington--because doing so would
set limits the national government does not want. But our liberty
depends on setting and enforcing such limits.
I will repeat what I said here in 1979:
This is certainly not a trivial objective. Rather, it goes
to the heart of what our system of government is going to be
in the future.
That is the choice before us, and before the American people.
I have to say that if we look at the current budget, it is a fraud
the President has submitted. It is pathetic. And even with that current
budget, saying they are going to save us money, we are about a half
trillion dollars in debt--in further debt, I might add. It is piling up
in irreducible ways. It is something we have to do something about. We
can no longer sit around and pretend that, somehow, Congress is going
to take care of it, when Congress doesn't have the will to take care of
it. A balanced budget amendment is an important part of changing that.
I will speak later on the actual amendment and what it says and what
it means and how it will work. I believe it is an appropriate way of
bringing this country under control and getting us to live within our
means. It will take time even if we start today. But we are not
starting today.
This administration cannot get anywhere near what it wants in this
budget without a huge tax increase. We have had tax increase after tax
increase after tax increase, and it never makes a dip in the Federal
debt. We have to wake up around here and start doing some things right,
or this country--the greatest country in the world--will not be able to
remain so. But it has to.
If we look at the rest of the world--we are in terrible shape
throughout the rest of the world. There is no other country in this
world that can lead like ours can--except for evil. There are countries
that can really lead, but they would lead for evil. We have got to stop
that. And the only way we can is to have a nation that lives within its
means, does what is right, and balances its budget. It is going to take
years, if we pass this amendment, to balance the budget. If the
amendment gets passed and then is supported by three-quarters of the
States--38 States--this amendment will do the job.
Whatever we do, it is going to be tough. But that is better than a
profligacy that is continuing to go along under all kinds of phony
arguments that, when we look back on them, are really phony. They act
as though they are really trying to do something about this, while
spending us into bankruptcy, and more and more causing us to not be
able to live within our means.
We have got to change this, and I am convinced the only way we will
is with a balanced budget amendment to the Constitution. It is the only
way we can find enough people in this country who respect the
Constitution to cause the result that we live--or at least start
living--within our means.
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