[Congressional Record: July 30, 2008 (Senate)]
[Page S7710-S7722]
FREE FLOW OF INFORMATION ACT OF 2007--MOTION TO PROCEED
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 2035, which the
clerk will report by title.
The assistant legislative clerk read as follows:
Motion to proceed to the bill (S. 2035) to maintain the
free flow of information to the public by providing
conditions for the federally compelled disclosure of
information by certain persons connected with the news media.
The PRESIDING OFFICER. Under the previous order, the hour prior to
the cloture vote will be equally divided and controlled by the two
leaders or their designees, with Senators permitted to speak for up to
10 minutes each, with the final 20 minutes under the control of the two
leaders, with the majority leader controlling the final 10 minutes
prior to the vote, and with 10 minutes of the majority time under the
control of Senator Leahy of Vermont.
The Senator from New York.
Mr. SCHUMER. Mr. President, I rise to speak in support of S. 2035,
the Free Flow of Information Act.
This legislation is truly a product of bipartisan effort during this
Congress. Senator Specter and I have worked closely together to craft a
careful bill that protects both the freedom of the press and the safety
of our citizens.
In a free and democratic country, we should be able to do both, and
this bill does.
Other Senators--including Senators Lugar, Dodd, and Graham--have been
instrumental in moving the bill to this point, and I wanted to thank
our chair, Senator Leahy, for being not only a sponsor of the bill but
somebody who helped bring it to the floor.
S. 2035--a product of lengthy compromise and negotiation--is ripe for
passage. In fact, it is long overdue.
There is now overwhelming support for a Federal law that gives a
qualified--I repeat, qualified--privilege to allow journalists to honor
promises of confidentiality to their sources unless a judge finds that
compelling disclosure better serves the public interest.
How widespread is support for this legislation?
The presumptive Democratic Presidential nominee, Barack Obama,
supports this bill. The presumptive Republican nominee, John McCain,
supports this bill. Forty-two State attorneys general--both Democratic
and Republican--support this bill. The Senate Judiciary Committee, as
evidenced by a vote of 15 to 4, supports this bill. The House of
Representatives, as evidenced by a vote of 398 to 21, supports a
similar bill. And, of course, over 100 newspaper editorials support
this bill.
Conservative voices, such as former Solicitor General Ted Olson and
the editorial page of the Washington Times, support this bill, as well
as the Washington Post. So it does have broad support.
Given some of the ill-founded handwringing by the current
administration over this bill, it is worth listening to what former
Justice officials such as Mr. Olson say. Here is what Ted Olson
recently wrote:
A free society depends on access to information and on a
free and robust press willing to dig out the truth. This
requires some ability to deal from time to time with sources
who require the capacity to speak freely but anonymously. . .
. [The Free Flow of Information Act] is well balanced and
long overdue, and it should be enacted.
That is Ted Olson, so it is surprising the administration is opposed
to the bill. There is similar support from both liberal and
conservative sides.
Here is how the conservative Washington Times put it:
A sound shield law guards not ``the media'' but something
much more vital--the public's right to know . . . A measured
law would not shield sources who perpetrate demonstrable and
articulable harm to the country's national security
interests. But it would rightly shield most others. Such a
bill awaits Senate action now. It should be passed.
That is from an editorial of July 25, 2008.
Unfortunately, given the broad and bipartisan support of this
legislation, a minority of critics have taken to attacks that are
overwrought and overstated.
Every criticism is either wrong or is effectively addressed in the
substitute bill, which I spoke about last night on the floor and is in
the Record as of last night, so my colleagues can see it. Senator
Specter and Senator Lugar and I have worked to meet every one of these
objections.
Fundamentally, critics have suggested the bill would represent a
radical change in the law. Nothing is further from the truth. It even
tracks this Justice Department's own guidelines. All we are saying is
that given recent events and Government actions, a judge should be the
final arbiter when it comes to subpoenas to journalists for sensitive
information. It is not an absolute law. It doesn't say ``never.'' It
doesn't say ``always.'' Some on the press side wanted ``always.'' Some
on the administration side wanted ``never.'' It is a careful, balancing
test. Moreover, a majority of Federal circuits now recognize some
privileges for journalists in, of course, 49 States, plus the District
of Columbia recognizes those protections.
However, because of some of the recent comments about the bill,
Senator Specter and I have undertaken to address a series of other
concerns, and should we move to proceed, the substitute measure will be
on the floor. I outlined last night on the floor the changes that I
think meet the concerns of the critics in two places in particular:
one, making sure classified information does not get out and is
protected, and, two, the definition of who is a journalist so we make
sure that those who just casually criticize or whatever do not get the
protection, as would professional journalists.
So the text of the substitute is here, and I hope my colleagues--I
hope we will move to this. I know we have disputes on other issues, but
this is the Senate working: broad, bipartisan, carefully thought out
legislation that can move forward with an overwhelming vote. I hope we
will move forward today.
On the other bill coming before us, the extenders bill, just one
point before I yield the floor.
If you care about reducing gasoline prices, the bill on the floor
today, with tax incentives for alternative energy,
[[Page S7711]]
will do far more than any amount of drilling to free our dependence on
foreign oil and to reduce prices. I hope my colleagues will support
that bill as well.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Mr. CORNYN. Mr. President, I appreciate the comments of the Senator
from New York on the so-called media shield bill. Let me address those
briefly before I talk for a moment about the extenders, and then what I
wish to spend most of my time on is the subject we have been talking
about but, frankly, not doing enough about during the last 2 weeks;
that is, bringing down the price of gasoline at the pump for the
American people.
The problem that I continue to have, as the distinguished Presiding
Officer knows as a member of the Judiciary Committee, we discussed in
the Judiciary Committee whether it is appropriate for the Congress to
designate members of the media who would be the beneficiaries of a
media shield while saying that there are other people who are engaged
in the free flow of public information, such as bloggers, who would
not.
I remember when William Safire, the distinguished journalist,
testified before the Judiciary Committee and someone asked him about
bloggers. He said he considers them the new pamphleteers, modern-day
pamphleteers. In other words, they could be writing things just as
importantly as Thomas Payne might have written at the time of the
country's founding, and yet the legislation the Senator from New York
talked about would do nothing to provide them the benefits of a media
shield, and there would be--in effect, Congress would be deciding who
is a legitimate journalist and who is not. I, for one, am not
comfortable with the Federal Government in essence licensing
journalists and ignoring the new media, which is the source of a lot of
information, and treating them in a discriminatory manner.
[...]
Mr. KYL. Mr. President, would my colleague from Texas be willing to
answer a couple of questions I would like to pose to him?
Mr. CORNYN. I would, Mr. President.
Mr. KYL. Mr. President, the first question I have for my colleague is
this: The Senator from Texas and I both serve on the Judiciary
Committee, which considered this so-called media shield legislation
some months back.
Does my colleague recall that when the bill was brought to the
committee, it was brought with the suggestion that it was pretty
perfect as written and that we shouldn't change a comma of it or we
would be roundly criticized by editorial boards around the country? In
point of fact, I was.
Does my colleague recall--and maybe you can refresh my recollection.
My recollection is that we adopted 10 or 12 pretty serious amendments
to that legislation in an effort to try to improve it and that most of
the amendments that were adopted were overwhelmingly in their support.
Is my recollection correct on that?
Mr. CORNYN. Mr. President, I believe the Senator from Arizona is
correct. There was a lot of activity at the Judiciary Committee level
to try to improve this bill on a bipartisan basis. I believe his
recollection is correct.
Mr. KYL. Mr. President, the second question: When we passed that bill
out of the committee, there were explicit assurances that we would
continue to work on it because of the recognition that it was not, in
my words, ready for prime time, but it was clearly in need of
additional work. It is complicated. We would continue to work on it, A;
and B, is it also correct that the Senator from Texas, as well as
others, including my staff and myself, have been engaged in a lot of
discussions since then, including, as the Senator from Texas noted,
trying to figure out how to define who is a journalist and who would be
protected?
Mr. CORNYN. Mr. President, the Senator is correct again. This has
been a challenging issue because, frankly, the very nature of
communications has changed dramatically. I mentioned the bloggers,
which are sort of a new innovation. There is nothing in this bill that
would prevent someone--let's say a jihadist or someone let's say from
al-Jazeera or those who pretend to promote some of the activities that
are directed against our own citizens or against our allies--from
posing as a journalist and thus gaining the protection against
testifying or cooperating with a grand jury that any average citizen in
the country would have to do. So there remain problems we have not been
able to work through.
Mr. KYL. Mr. President, if I could just pose two other quick
questions.
So would my colleague from Texas agree that at such point in time as
this legislation is brought to the Senate floor, we are going to need
to continue to make improvements on it that will, first, necessitate
debate and amendments? Also, would my colleague agree that it would be
a huge mistake to try to bring this bill to the floor under a scenario
in which we are pushed up against the recess, we are trying to do an
energy bill, we are trying to do a tax extender bill, and that it would
take far too much time in terms of amendments; that presumably, if
cloture were invoked and this bill were to be brought up, the
parliamentary procedure would be such that we wouldn't be able to offer
any amendments, and that would be a mistake in the way this bill would
be considered? Would my colleague agree with that?
Mr. CORNYN. Mr. President, I agree with the Senator from Arizona. My
understanding is that because of the delays, because the majority
leader has basically refused to allow us to go to the energy package we
proposed which we believe will actually bring down the price of
gasoline at the pump, we find ourselves up against an adjournment on
Friday, which I believe the majority leader has addressed, with two
very important issues we need to address: lowering gas prices at the
pump and then the tax extenders bill. The tax extenders would provide
tax credits and support for things such as renewable energy and the
like, which I support and which I hope we will pass as well. So I don't
know how we can do justice to the media shield bill and give it the
kind of debate and the amendment process it deserves in this compressed
timetable.
Mr. KYL. Mr. President, just one final quick question. Is my
colleague from Texas also aware of an editorial in the USA Today
magazine on Monday, July 28, by the DNI--the Director of National
Intelligence, Mike McConnell--who joined with the Secretary of Defense,
the Secretary of Energy, the Secretary of Homeland Security, the
Secretary of the Treasury, and, as he put it, every senior intelligence
community leader in expressing his strong belief that this bill will
greatly damage our ability to protect national security information?
Mr. CORNYN. Mr. President, I did read that op-ed piece with great
interest myself when it was published in USA Today, and I hope we can
make that part of the Record following my remarks.
Mr. KYL. Mr. President, if my colleague will indulge me for another
10 seconds, I hope that on the basis of this information, our
colleagues would agree that whatever the view on the energy
legislation, we should not be turning to the media shield legislation,
[[Page S7712]]
and, in point of fact, if we are going to do something about gas
prices, we need to keep our eye on that ball and get that work done
before we leave here on Friday.
Mr. President, I ask unanimous consent to have the op-ed piece I
referred to printed in the Record at this point.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From USA Today, July 28, 2008]
Bill Wrongly Shields Press; Those Who Leak Classified Data Should Be
Punished
(By Mike McConnell)
The Senate is considering a proposal that would bestow a
``privilege'' on reporters, shielding them from revealing
confidential sources of important national security
information, even when their sources have broken the law by
disclosing classified information. The intelligence community
recognizes the critical role that the news media plays in our
democratic society. However, this bill would upset the
balance established by current law, crippling the
government's ability to investigate and prosecute those who
harm national security.
I have joined the attorney general, the secretaries of
Defense, Energy, Homeland Security and Treasury, and every
senior intelligence community leader in expressing the
belief, based on decades of experience, that this bill will
gravely damage our ability to protect national security
information. Unauthorized disclosure of classified
information disrupts our efforts to track terrorists,
jeopardizes the lives of intelligence and military personnel
and inhibits international cooperation critical to detecting
and preventing threats. Those who illegally disclose
information recklessly risk our national security and breach
a sacred public trust.
It is a delicate balance to protect national security
information from improper disclosure, while respecting the
rights of the press to publish information it deems of public
interest. This legislation upsets that balance by shielding
those who illegally leak national security information and
increasing the likelihood of destructive revelations in the
future. The bill forces the government to meet ill-defined
standards that require the disclosure of additional sensitive
information. It also cedes critical judgments about harm to
national security from national security professionals,
charged with protecting the country, to the subjective
determination of individual judges.
We do not see the problem that this bill is meant to
address. All evidence indicates that the free flow of
information has continued unabated in the absence of a
federal reporter's privilege. Indeed, prosecutions in this
area are exceedingly rare, and the longstanding policy of the
Department of Justice strictly limits circumstances in which
prosecutors may seek information from journalists. We must
retain the ability to bring to justice those who break the
law and cause irreparable harm to the United States and its
citizens.
[...]
Mr. DURBIN. Mr. President, the Free Flow of Information Act is a
bipartisan bill that goes a long way towards protecting the freedom of
the press and the public's right to information without compromising
national security or the work of law enforcement. It strikes the right
balance between these competing priorities, and it deserves this body's
support. I want to commend Senator Specter and Senator Schumer, the
authors of this legislation, which I am proud to cosponsor.
During the last 30 years, many of our most important news stories
were revealed to us by reporters who obtained their information from
confidential sources. Often, these stories exposed government and
corporate waste, fraud and abuse. Let me give you a few examples of
what these confidential sources enabled journalists to report to the
public: the President's warrantless surveillance program; the unsafe
and deteriorating conditions at Walter Reed Army Medical Center; the
treatment of Iraqi prisoners at Abu Ghraib; the Enron accounting fraud
scandal; the rampant abuse of steroids in major league baseball; and
the government's misleading statements to the American people about the
Vietnam war, as documented in the Pentagon Papers.
These and other major stories led to important reforms in the
government and in industry. If confidential sources had not trusted
reporters and come forward with this information, these stories would
not have come to light when they did. We are a better and stronger
country because of these stories.
Unfortunately, the relationship of trust between reporters and
confidential sources has come under attack since September 11.
Increasingly, Federal prosecutors, special prosecutors and civil
litigants are issuing subpoenas to reporters for their confidential
sources.
In the last 4 years alone, journalists have received at least 35
Federal subpoenas for confidential information. During this period,
Federal courts have held 13 journalists in contempt for refusing to
disclose their confidential sources.
Since 2000, four journalists--Judith Miller, Jim Taricani, Josh Wolf
and Vanessa Leggett--have been imprisoned for 19 months in total for
refusing to disclose their confidential sources.
Earlier this year, a Federal judge ordered a reporter to disclose a
confidential source and threatened her with fines of $5,000 per day if
she did not.
This has created a chilling effect on the flow of information between
confidential sources and reporters.
The media shield bill would address this problem by creating a
Federal qualified privilege for communications between confidential
sources and reporters.
It allows the government and private litigants to compel the
disclosure of confidential information only if they persuade a Federal
judge that: they have exhausted the alternative sources of that
information; the information is essential to their case; and
nondisclosure would on balance be contrary to the public interest.
The bill makes it easier for the government to overcome the privilege
in criminal cases.
It also creates sensible exceptions that ensure that this qualified
privilege does not compromise national security or the work of law
enforcement agencies. In particular, the privilege does not apply to:
confidential information that relates to criminal conduct by a
journalist; confidential information that is necessary to stop or
prevent an act of terrorism, death or substantial bodily harm, a
kidnapping, or an act that involves child pornography or the sexual
exploitation of a child; or confidential information that would harm
national security.
The qualified privilege and the exceptions for national security and
law enforcement concerns reflect the serious and careful effort by
Senators Specter and Schumer to take into account the perspectives of
journalists on the one hand and law enforcement on the other. The
product is a bill that strikes the right balance.
I am pleased that the managers' amendment includes language that I
authored on who should be protected by the privilege. In the fast-
changing media world, the notion of who qualifies as a journalist is
evolving quickly. Journalists are no longer just the reporters who work
for newspapers, magazines or television or radio stations. It is
increasingly common for Internet bloggers and citizen-journalists to
report breaking news stories that shape our Nation's most important
debates. However, not everyone with a laptop and an internet connection
should be protected by the important privilege created by this bill.
The privilege will now apply to reporters who are regularly engaged
in investigative journalism. It will protect reporters who are in a
position to develop and rely on confidential sources for their stories,
whether they report in the television, radio, print or online world.
Specifically, it will cover journalists who regularly: report on
local, national or international events of public importance; do the
things that constitute good investigative journalism, meaning
conducting interviews, collecting information and making observations
on the scene of an event, or collecting original documents and
statements; and collect this information for the purpose of bringing it
to the public's attention.
This definition, like the rest of the bill, protects the relationship
between reporters and confidential sources, but ensures that Federal
agencies are able to get the information they need to prevent harm to
national security and advance urgent law enforcement investigations. In
short, it strikes the right balance between journalistic integrity and
the public's right to seek justice.
Forty-nine States and the District of Columbia give journalists at
least a partial shield against compulsory disclosures. This bill fills
the gap at the federal level and gives investigative journalists a
qualified shield in federal court. I am proud to be a cosponsor of this
legislation and urge my colleagues to support it.
Mr. DODD. Mr. President, I rise in support of the Free Flow of
Information Act. This bill would protect journalists from being forced
to reveal their confidential sources not as an end in itself but as a
means to a well-informed public.
I applaud the tireless efforts of those who have made this possible,
including our colleagues in the other body who have shown their strong
commitment to this issue. As far back as 2004, I introduced similar
legislation which was called the Free Speech Protection Act. Since that
time, I have worked closely with the senior Senator from Indiana, Mr.
Lugar, and earlier this Congress we introduced legislation that would
have provided more protection to journalists. Companion legislation
passed the House 398 to 21.
I was also pleased to cosponsor Senators Specter and Schumer's
legislation, which passed the Judiciary Committee earlier this
Congress. Over the last several months, we have worked to
[[Page S7716]]
bring this important issue to the attention of Congress and the Nation.
And while this bill does not include everything I had hoped for, I
recognize that in this body, we do not get to write or pass these bills
by ourselves. We have to reach out and work together that is how we
advance or in this case protect our more cherished principles. I thank
both of my colleagues for their diligence and commitment to the first
amendment.
Indeed, though I recognize this fight will not likely be over today,
in the 4 years we have been working together on this legislation, we
are closer than ever to acting on this bill.
I hardly have to recite the litany of abuses that have been exposed
because journalists called the powerful to account nor must I remind my
colleagues how many of those exposures relied on confidential sources.
Without confidential sources, would we still know about the abuse of
power in the Watergate era?
Without confidential sources, would Enron still be profiting from
defrauding its investors?
How long would torture at Abu Ghraib have persisted, if proof of
these abhorrent crimes had not been provided to the press?
The most meaningful check on abuses such as these is the free flow of
information. Thomas Jefferson said it best: If I had to make a choice,
to choose the government without the press or to have the press but
without the government, I will select the latter without hesitation.
Jefferson clearly understood that a free government cannot possibly
last in the absence of a free press.
But today, we find this cornerstone of self-governance facing a new
threat--one that comes not from the dictates of a dangerous government,
but for the best of intentions.
As we have heard time and again in recent years, in a spate of cases,
prosecutors have used subpoenas, fines, and jail time to compel
journalists to reveal their anonymous sources.
Judith Miller of the New York Times was famously jailed for 85 days
for refusing to reveal a source.
Two San Francisco Chronicle reporters were found in contempt of court
for refusing to identify sources and hand over material related to the
BALCO steroids investigation.
A Rhode Island journalist was sentenced to home arrest on similar
charges.
In 2005, some two dozen reporters were subpoenaed or questioned about
confidential sources.
Their offense, Mr. President? Journalism.
As one prominent magazine editor told Congress because of what has
happened: ``Valuable sources have insisted that they no longer trusted
the magazine and that they would no longer cooperate on stories. The
chilling effect is obvious.''
Experience has shown us that the most effective constraint on free
speech need not be blatant censorship. It only takes a few cases like
Ms. Miller's and the San Francisco Chronicle's before the news begins
censoring itself. We can only speculate as to how many editors and
publishers put the brakes on a story out of fear that one of their
reporters could be caught in a spider web of subpoenas, charges of
contempt, and prison.
When we minimize the impact of confidential sources, serious
journalism is crippled. We will find our papers full of stories more
and more palatable to the powerful and secretive. No one argues that
that is the intention of those prosecuting these cases I think
prosecutors simply want to do their jobs. But few deny that it could,
in time, be the effect.
When journalists are hauled into court and threatened with
imprisonment if they don't divulge their sources, we enter dangerous
territory for a democracy. The information we need to remain sovereign
will be tarnished and the public's right to know will be threatened.
And I would submit to you that the liberties we hold dear will be
threatened as well.
That is exactly why we need a Federal reporter shield. Forty-nine
States as well as the District of Columbia have already adopted shield
laws or other legal protections for reporters trying to safeguard their
sources. The Free Flow of Information Act simply extends that widely
recognized protection to the federal courts.
This bill will allow journalists the opportunity to argue before a
court that they should not have to reveal sources and this can include
bloggers. This is an important step the Federal Government can take to
ensure that the free flow of information is protected.
That is why I have such a difficult time understanding our Director
of National Intelligence's recent comments regarding this bill. In an
opinion piece in USA Today earlier this week, Admiral McConnell writes:
The intelligence community recognizes the critical role
that the news media plays in our democratic society. However,
this bill would upset the balance established by current law,
crippling the government's ability to investigate and
prosecute those who harm national security.
I find that very hard to believe. Every time the Congress seeks to
balance the need for security with our rights as Americans, this
administration says ``we can't have both--it's one or the other. You
either can be safe or give up rights.''
As I have said before--it is a false choice.
And it is a mischaracterization of what this bill does. The reporter
shield is not absolute--nor should it be. The public's need to know
must and will be weighed against other goods, which is precisely why
the bill establishes a balancing test that will weigh the Government's
interest in disclosure and the public interest in gathering news and
maintaining the free flow of information.
In other words, we are balancing our right to know with our need for
security, whether physical or economic.
This bill makes clear that secrecy is as necessary in extreme
circumstances as it is dangerous on the whole.
Ultimately, it comes down to what makes us most secure in the long
run. As men and women on both sides of the aisle understand, a
prosecution, whatever its individual merits, sacrifices something
higher when it turns on reporters--and so those merits must be balanced
against the broader harms such a prosecution can work.
If a free press inexorably creates a free government, as Jefferson
suggested, then the agents of that free government--prosecutors
included--owe a high debt to journalism. When prosecutors threaten
journalism, they have begun to renege on that debt.
So, Mr. President, I am proud to support this valuable legislation--
it is a critical first step toward rebalancing the pursuit of justice
and the diffusion of truth. I thank my colleagues again for their
leadership.
[...]
Mr. LEAHY. I thank the distinguished Presiding Officer.
Mr. President, I said on the Senate floor yesterday that I support
the Free Flow of Information Act, S. 2035. Senator Specter, the
distinguished ranking member of the Judiciary Committee, was exactly
right when he said in his remarks last night that ``this bill is long
past due.'' After months and months of needless delay by the Senate
minority, I hope we will finally be permitted to consider this
important legislative effort this morning. This is legislation that
passed overwhelmingly in the other body. If the Republicans would allow
it, it would pass overwhelmingly in this body.
The Senate minority's delay tactics are nothing new. Since the
beginning of this Congress, we have witnessed all manner of
obstructionism by a minority of Republican Senators using filibuster
after filibuster, the most ever in the history of this country for that
period of time. They use these filibusters to thwart the will of the
majority of the Senate to conduct the business of the American people.
Republican filibusters prevented Senate majorities from passing the
climate change bill. Republicans blocked us from passing the Employee
Free Choice Act. Republicans blocked the Lilly Ledbetter Fair Pay Act.
Republicans blocked the DC Voting Rights Act. Republicans blocked the
Renewable Fuels, Consumer Protection, and Energy Efficiency Act of
2007. Republicans blocked the Renewable Energy and Job Creation Act of
2008. Republicans blocked the Medicare Improvements for Patients and
Providers Act of 2008. Republicans blocked the Consumer-First Energy
Act. Most recently, Republicans blocked the Warm in Winter and Cool in
Summer Act. That was designed to bring much needed relief to poor
families who struggle to heat and cool their homes in times of soaring
gas prices, matters that have become literally life or death for some
of these people.
Republican filibusters blocked the Advancing American's Priorities
Act which includes 35 stalled legislative matters including--and these
were blocked by the Republicans--the Emmett Till Unsolved Civil Rights
Crime Act, the Runaway and Homeless Youth Act, and Republicans blocked
several bills to help law enforcement cope with mentally ill offenders
and to protect our children from the scourge of drugs, child
pornography, and child exploitation. Republicans blocked all those
bills. It would be a lot more if we also list all those bills President
Bush has vetoed since the beginning of this Congress.
Here are the measures blocked by the Republicans and the President:
legislation to fund stem cell research and fight deadly and
debilitating diseases. Republicans blocked to extend and expand the
successful State Children's Health Insurance Program. Republicans
blocked a program that would have provided health insurance to more of
the millions of American children without it. They blocked setting a
timetable for bringing American troops home from Iraq. They blocked an
attempt to ban waterboarding and help restore America as a beacon for
the rule of law.
The Free Flow of Information Act should not be added to the long list
of legislative victims of Republican obstructionism. It is time for
Senate Republicans to climb down from the barricades and work with us
to improve the lives of the American people.
Time is running short in this Congress. It is past time to end the
partisan gamesmanship and to make progress. That is what I have been
trying to do throughout this Congress. I hope, after 18 months of
unnecessary obstruction, all Senators are finally ready to join us in
getting our work done. We have a historic window of opportunity to
enact a Federal statutory shield law to protect Americans' right to
know.
I thank Majority Leader Reid for his willingness to bring the matter
before the Senate. I worked with him to find an opportunity for Senate
action since the Judiciary Committee reported this bill last October,
and I appreciate his support.
Senator Specter and I wrote to him and the Republican leader in March
urging consideration of this bipartisan measure. Before that, I had
written and spoken with the majority leader about this legislation.
Our bill has 20 Senate cosponsors. The claim made yesterday by a
Republican Senator that this bill is not ready for the Senate's
consideration is simply unfounded. The Judiciary Committee has been
working on a bipartisan basis for the past year to reach
[[Page S7718]]
consensus on Federal shield legislation. In addition, the Judiciary
Committee held three separate hearings on this bill during the 109th
Congress. I hope that the Republican cosponsors of this bill will join
us in moving to the bill and that they will bring along the seven or
eight Republicans needed to defeat another Republican filibuster and
allow us to make progress.
A free and vibrant press is essential to a free society in our
country or any country. That has been demonstrated over and over again
during the past 8 years. That is why I cosponsored the Senate version
of this bill and worked hard for a meaningful reporters' shield law
this year. That is why I made sure that for the first time ever, for
the first time in history, the Senate Judiciary Committee reported a
media shield law to protect the public's right to know. I was glad to
see that this bill was favorably reported by a strong bipartisan 15-to-
4 vote.
I thank the leaders in the Senate who worked hard on the Federal
reporters' shield law--Senators Schumer, Specter, Dodd, and Lugar as
well as the dozens of media groups that support this measure.
All of us, whether Republican, Democratic, or Independent, have an
interest in enacting a balanced and meaningful shield bill to ensure
the free flow of information to the American people. Forty-nine States
and the District of Columbia currently have codified or common law
procedures to protect confidential information sources. But even with
these State law protections, the press remains the first stop, rather
than the stop of last resort, for our government and private litigants
when it comes to seeking information.
Our time to act is now. Our opportunity to act is now. The Washington
Times editorialized on July 25, ``[a] sound shield law guards not `the
media' but something much more vital--the public's right to know.''
I urge that all Senators do the right thing and end this unnecessary
and counterproductive filibuster.
I ask unanimous consent to have printed in the Record the Washington
Times editorial in support of this bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Times, July 25, 2008]
The right To Know
The great swinging pendulum of press liberty and government
secrecy has lurched too far in one direction. It is time for
a correction. Congress should pass and President Bush should
sign a reasonable, measured shield law to push the pendulum
back in the direction of the First Amendment and the
legitimate powers of the Fourth Estate.
A sound shield law guards not ``the media'' but something
much more vital--the public's right to know. Guarding that
right often requires confidential sources deep inside
government. A measured law would not shield sources who
perpetrate demonstrable and articulable harm to the country's
national-security interests. But it would rightly shield most
others. Such a bill awaits Senate action now. It should be
passed.
We endorse the Free Flow of Information Act in full
knowledge of the genuine conflicts between national security
and press freedoms in the toughest cases. We are also among
the first to note it when media outlets abuse their
privileges. We regarded the New York Times revelation of
federal terrorist surveillance, for instance, as a wanton act
of damage to a vital and completely legal national security
program. But no realist and no proponent of limited
government can watch the epidemic of American journalists
subpoenaed, questioned, held in contempt or jailed--more than
40 in recent years--without wondering when the slow march of
the Fourth Estate into an investigative arm of government
reaches its ugly apotheosis. It is possible to have both
liberty and security--indeed, that is the American way. Part
of the answer lies in assuring sources who risk all to convey
information vital to the public interest that the newsman who
offers confidentiality will not be forced to divulge--unless
a high crime with real national-security import has been
committed.
The simple, constitutionalist reading of the First
Amendment--``Congress shall make no law . . . abridging the
freedom of speech, or of the press''--does not countenance
the stripping of the core functions of the free press. It
must end.
Yesterday, reporter Bill Gertz of The Washington Times
appeared before a federal judge in California expecting to
face questions he should not have to answer. U.S. District
Judge Cormac Carney, a Bush appointee, declined to force Mr.
Gertz to divulge his sources in a 2-year-old Chinese
espionage story. ``Today's ruling is an important victory for
our entire industry, the first in a long time to recognize a
reporter's rights to keep confidential sources,'' said
Executive Editor John Solomon. Press reports had indicated an
intent to probe Mr. Gertz on the notoriously amorphous
subject of newsworthiness. The subtext: What details of the
story did Mr. Gertz consider newsworthy, and when did he
consider them? On sources' identities: What promises of
confidentiality did he make, and why did he make them? This
would have been extremely chilling.
The truth is that not all classified information is created
equally. We live in an era of gross overclassification of
government data--much of which belongs rightfully to the
public but is kept secret for reasons of bureaucracy,
territoriality, undue risk aversion or sheer inertia.
Responsible media outlets can--and do--exercise discretion.
More than three-quarters of the nation's attorneys general
have called for the passage of a federal shield law. Attorney
General Michael Mukasey opposes it on national security
grounds. Mr. Bush has previously threatened a veto. It is
time to let this pendulum swing back.
Mr. LEAHY. Mr. President, we have found, especially in this
administration, time and again that when crimes have been committed,
when scandals have erupted, it is not because the Congress found them
out, it is because the press found them out.
Abu Ghraib, one of the worst scandals in the history of this country,
something that hurt us throughout the world--we didn't find out about
it because questions were asked in this body or the other body; we
found out because the press found it out. We found out through the
press and subsequently through our own investigations the scandals of
politicizing law enforcement by this administration through the
prosecutors' offices.
If we do not have the ability for our press to seek out these things,
then we are all hurt. Any administration, Republican or Democratic, is
going to be perfectly willing to give us all the press releases in the
world saying all the wonderful things they have done. What I have
found--and I have been through six administrations--is that they rarely
want to talk about when they make a mistake. That is what we need a
free press for.
My parents had a small newspaper in Waterbury, VT. I grew up in a
family who revered the first amendment, revered it for the right to
know, for the public's right to know. What has set this Nation apart
from virtually any other nation on Earth is that our press is free, our
press is open, our press can ask questions, and our press can point out
mistakes--whether it is mistakes of Members of Congress or mistakes of
the administration.
We need this shield law. Let's not use any more excuses for one more
filibuster. If you really believe in having the shield law, vote for
it. If you are against it, vote against it. But don't hide behind some
parliamentary maneuver of a filibuster.
Mr. President, I reserve the remainder of my time.
Mr. SPECTER. Mr. President, how much time remains?
The ACTING PRESIDENT pro tempore. The Senator's time has expired.
Mr. SPECTER. How much time remains on this side of the aisle?
The ACTING PRESIDENT pro tempore. There is 7 minutes 47 seconds
remaining.
Mr. SPECTER. Mr. President, I ask for 3 minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I am using this time even though my
position differs from what I believe will be the Republican caucus
position, and I have asked for only 3 minutes. I will support cloture
on this issue because I am a prime sponsor of the bill. I do not like
displacing the pending legislation on the oil speculators bill, but I
believe if we are to move forward on that measure, we will do so in any
event regardless of what happens here.
I have supported the Republican caucus position in opposing advancing
legislation where we have been denied the opportunity to offer
amendments, but that is not an issue on a motion to proceed.
I believe this bill is of enormous importance, and if we do not act
on it now, it will not be acted on for the balance of the Congress, and
who knows what will happen next year.
I spoke at length on the merits of this subject yesterday, and the
essence of my position is that reporters have been intimidated--a
chilling effect--by the subpoenas which have been issued. The record
shows a tremendous number of subpoenas have been issued, and
[[Page S7719]]
there have been incarcerations of reporters. I will put in the record
the details of one of those involved, Judith Miller of the New York
Times, who spent 85 days in jail and whom I personally visited.
There is no doubt about the extremely high value in our society of a
free press and an investigative press for the disclosure of corruption,
malfeasance, and wrongdoing at all levels in public life and in private
life. I think Jefferson expressed it best when he said if he had to
choose between government without newspapers or newspapers without
government, he would choose newspapers without government. So I believe
this is a very important matter to go forward.
I didn't want to use time on Senator McConnell's watch, if anybody
objected to it, but there is no other Republican on the floor, and I
have used only 3 minutes, leaving the remaining 4 minutes and some
seconds to anybody else who chooses to speak.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Idaho.
Mr. CRAIG. Mr. President, I understand there are no further
Republican speakers, so I yield back the remainder of our time.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The majority leader.
Mr. REID. Mr. President, have the Republicans yielded back their
time?
The ACTING PRESIDENT pro tempore. That is correct.
Mr. REID. Mr. President, not long ago I had a meeting with
representatives from the San Francisco Chronicle. Among those at the
meeting was a sportswriter named Lance Williams. Lance Williams covered
football games and baseball games and basketball games. Some of them
were high school level. He was not an investigative reporter. But one
day this young reporter was contacted by a man who said: I can give you
one of the biggest stories this country has seen in a long time, but
you have to give me your word that you are not going to give them my
name. I can give you a lot of places to go, I can even give you some
grand jury testimony, but you have to protect me because I could be in
danger, my physical well-being.
So Lance Williams talked to his people at the paper, his bosses,
because that was his obligation, and overnight Lance Williams became an
investigative reporter, not a sports reporter. In his investigation he
found that these leads took him down a very disturbing road, a road
that ended with evidence and a book that was published, ``The Game of
Shadows,'' which exposed the rampant use of steroids in sports that we
now know so much about, including such sports names as Barry Bonds.
After he released this information, he was subpoenaed by the
Government to release the identity of his informant who had leaked to
him a lot of things, including, as I mentioned, grand jury testimony.
Well, this was an interesting day for him because Lance had never been
in a predicament like this before. Again, as I said, he had covered
ball games. Nothing like this before. He suddenly was faced with the
knowledge that he may have to go to jail for stories he had written and
information he had released. But he decided not to release the name. He
thought it was the right thing to do. He had given his word. He said he
would sooner go to prison than release the name of that confidential
informant.
On the same day I met him, I met with his lawyer, the lawyer for the
San Francisco Chronicle. The lawyer told me that although the Lance
Williams controversy had been the most famous in recent cases she had
dealt with, in the last 3 years that newspaper had been served with 207
subpoenas by Federal, State, and local prosecutors requiring
confidential information about sources. That uncertainty--207 subpoenas
to the Hearst Communications Company--puts the media in a very
difficult position and places a burden on them and reduces the
likelihood that whistleblowers will come forward with information.
Forty-nine States and the District of Columbia already have laws to
protect the relationship between journalists and their sources, so it
is long past the age when the Federal Government should follow suit.
The first amendment we have in our constitution, the right to a free
press, a press able to pursue charges of wrongdoing in our government
and society and basically to write whatever they want to write, is a
critical pillar of our democracy. The first amendment separates us from
other nations and governments. The State attorneys general of 41 States
called upon Congress to pass a national media shield law, and today we
have the opportunity to proceed to act in that regard by voting to
proceed to the Free Flow of Information Act.
Mr. President, the National Association of Attorneys General sent a
letter, which says, among other things, in the last paragraph:
By exposing confidences protected under State law to
discovery in Federal courts, the lack of a corresponding
Federal reporter's privilege law frustrates the purposes of
the State recognized privileges and undercuts the benefit to
the public that the States have sought to bestow through
their shield laws. As the States' chief legal officers,
attorneys general have had significant experience with the
operation of these State law privileges; that experience
demonstrates that recognition of such a privilege does not
unduly impair the task of law enforcement or unnecessarily
interfere with the truth-seeking function of the courts. The
sponsors of S. 2035 have sensibly sought to strike a
reasonable balance between these important interests, as the
States have done, and we are confident that the legitimate
concerns for national security and law enforcement can be
addressed in the court procedures for evaluating a claim of
privilege. We urge you to support the Flee Flow of
Information Act.
Mr. President, I ask unanimous consent to have printed in the Record
the full content of the letter from which I have just quoted.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Association of
Attorneys General,
Washington, DC, June 23, 2008.
Hon. Harry Reid,
Majority Leader, U.S. Senate,
Washington, DC.
Hon. Mitch McConnell,
Minority Leader, U.S. Senate,
Washington, DC.
Dear Senators Reid and McConnell: We, the undersigned
Attorneys General, write to express our support for the Free
Flow of Information Act (S. 2035). The proposed legislation
would recognize a qualified reporter's privilege, bringing
federal law in line with the laws of 49 states and the
District of Columbia, which already recognize such a
privilege. The Senate Judiciary Committee reported S. 2035
favorably on October 4, 2007, by a vote of 15-4. The House
passed a similar reporter's privilege bill, H.R. 2102, by a
vote of 398-21.
Justice Brandeis famously referred to the important
function the states perform in our federal system as
laboratories for democracy, testing policy innovations. See
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting). Reporter shield laws, which have
been adopted--through either legislation or judicial
decision--by every state but one, must now be viewed as a
policy experiment that has been thoroughly validated through
successful implementation at the state level.
The reporter's privilege that is recognized by the laws of
50 United States jurisdictions rests on a determination that
an informed citizenry and the preservation of news
information sources are vitally important to a free society.
By affording some degree of protection against the compelled
disclosure of a reporter's confidential sources, these state
laws advance a public policy favoring the free flow of
information to the public. An overwhelming consensus has
developed among the states in support of this public policy,
and United States Justice Department guidelines, on which the
current legislation is largely modeled, likewise recognize
the interest in protecting the news media from civil or
criminal compulsory process that might impair the news
gathering function. Nevertheless, the federal courts are
divided on the existence and scope of a reporter's privilege,
producing inconsistency and uncertainty for reporters and the
confidential sources upon whom they rely.
By exposing confidences protected under state law to
discovery in federal courts, the lack of a corresponding
federal reporter's privilege law frustrates the purposes of
the state-recognized privileges and undercuts the benefit to
the public that the states have sought to bestow through
their shield laws. As the states' chief legal officers,
Attorneys General have had significant experience with the
operation of these state-law privileges; that experience
demonstrates that recognition of such a privilege does not
unduly impair the task of law enforcement or unnecessarily
interfere with the truth-seeking function of the courts. The
sponsors of S. 2035 have sensibly sought to strike a
reasonable balance between these important interests, as the
states have done, and we are confident that the legitimate
concerns for national security and law enforcement can be
addressed in the court procedures for evaluating a claim of
privilege.
We urge you to support the Free Flow of Information Act and
to enact legislation
[[Page S7720]]
harmonizing federal law with state law on this important
subject.
Thank you for your consideration of our views.
Sincerely,
Douglas Gansler, Attorney General of Maryland; Rob
McKenna, Attorney General of Washington; Terry Goddard,
Attorney General of Arizona; Dustin McDaniel, Attorney
General of Arkansas; Edmund G. Brown Jr., Attorney
General of California; John Suthers, Attorney General
of Colorado; Richard Blumenthal, Attorney General of
Connecticut; Joseph R. Biden III, Attorney General of
Delaware; Bill McCollum, Attorney General of Florida;
Thurbert E. Baker, Attorney General of Georgia.
Alicia G. Limtiaco, Attorney General of Guam; Mark J.
Bennett, Attorney General of Hawaii; Lawrence Wasden,
Attorney General of Idaho; Lisa Madigan, Attorney
General of Illinois; Tom Miller, Attorney General of
Iowa; Stephen N. Six, Attorney General of Kansas; Jack
Conway, Attorney General of Kentucky; James D.
``Buddy'' Caldwell, Attorney General of Louisiana; G.
Steven Rowe, Attorney General of Maine; Michael Cox,
Attorney General of Michigan.
Lori Swanson, Attorney General of Minnesota; Jim Hood,
Attorney General of Mississippi; Jeremiah Nixon,
Attorney General of Missouri; Mike McGrath, Attorney
General of Montana; Jon Bruning, Attorney General of
Nebraska; Catherine Cortez Masto, Attorney General of
Nevada; Kelly A. Ayotte, Attorney General of New
Hampshire; Gary King, Attorney General of New Mexico;
Andrew Cuomo, Attorney General of New York; Roy Cooper,
Attorney General of North Carolina.
Wayne Stenehjem, Attorney General of North Dakota; Nancy
Hardin Rogers, Attorney General of Ohio; W. A. Drew
Edmondson, Attorney General of Oklahoma; Hardy Myers,
Attorney General of Oregon; Tom Corbett, Attorney
General of Pennsylvania; Henry McMaster, Attorney
General of South Carolina; Lawrence E. Long, Attorney
General of South Dakota; Robert E. Cooper, Jr.,
Attorney General of Tennessee; Mark Shurtleff, Attorney
General of Utah; William H. Sorrell, Attorney General
of Vermont; Darrell V. McGraw Jr., Attorney General of
West Virginia.
Mr. REID. Mr. President, for all of those who are, as I am, concerned
with providing law enforcement with the tools they need to keep us
safe, it is important to note that this legislation strikes the
appropriate balance between the public's right to know and law
enforcement's need for information. It is based largely upon existing
internal Department of Justice guidelines and provides for a qualified
privilege for journalists who are subpoenaed to testify about their
confidential sources, unless the government can show there is no
reasonable alternative source of the information and the information is
critical to the case.
This legislation includes exceptions for harm to national security,
acts of terrorism, death, kidnapping, or other bodily harm. This is a
balanced piece of legislation, and it carefully considers the needs of
the media and law enforcement. It is bipartisan and provides what both
sides want most of all: clear guidelines and certainty.
In doing so, it offers us the opportunity to strengthen our public
safety and national security while firmly defending the right to a free
and open press.
[...]
Cloture Motion
The PRESIDING OFFICER. 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 motion to
proceed to Calendar No. 434, S. 2035, the Free Flow of
Information Act.
Harry Reid, Charles E. Schumer, Debbie Stabenow,
Christopher J. Dodd, Maria Cantwell, Richard Durbin,
Barbara A. Mikulski, Frank R. Lautenberg, Bernard
Sanders, Robert Menendez, Patty Murray, Barbara Boxer,
Ron Wyden, Ken Salazar, Bill Nelson, Daniel K. Inouye,
Amy Klobuchar.
The PRESIDING OFFICER. By unanimous consent the mandatory quorum call
is waived.
The question is, Is it the sense of the Senate that debate on the
motion to proceed to S. 2035, a bill to maintain the free flow of
information to the public by providing conditions for the federally
compelled disclosure of information by certain persons connected with
the news media 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 Massachusetts (Mr.
Kennedy), the Senator from Missouri (Mrs. McCaskill), the Senator from
Illinois (Mr. Obama), and the Senator from West Virginia (Mr.
Rockefeller) are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Arizona (Mr. McCain) and the Senator from Mississippi (Mr.
Wicker).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 51, nays 43, as follows:
[Rollcall Vote No. 191 Leg.]
YEAS--51
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Collins
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Hagel
Harkin
Inouye
Johnson
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Salazar
Sanders
Schumer
Smith
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--43
Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Coleman
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Graham
Grassley
Gregg
Hatch
Hutchison
Inhofe
Isakson
Kyl
Martinez
McConnell
Murkowski
Reid
Roberts
Sessions
Shelby
Snowe
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
NOT VOTING--6
Kennedy
McCain
McCaskill
Obama
Rockefeller
Wicker
The PRESIDING OFFICER. On this vote the yeas are 51, the nays are 43.
Three-fifths of the Senators duly chosen and sworn not having voted in
the affirmative, the motion is rejected.
Mr. REID. Mr. President, I enter a motion to reconsider the vote by
which cloture was not invoked on the media shield bill.
The PRESIDING OFFICER. The motion is entered.
Mr. REID. For the knowledge of all Members here now, we are now still
on the motion to proceed to the media shield bill; the one that cloture
was not invoked on. So that is what we are going to be on for the
foreseeable future.
We have a couple matters that are possible that we can move forward
on. That will be up to the minority as to when and where we will do
that. We have the consumer product safety bill, we have also the work
that has been done on the higher education bill.
I am going to file cloture before we leave on the motion to proceed
to the Defense authorization bill. As I told the distinguished
Republican leader today, if there is some serious negotiations on the
extenders, Senator Baucus is ready to do this.
But as a notice to everyone, as I said in my statement before the
vote, there is a new sheriff in town by the name of Pelosi. The House
will not allow matters to be passed without being paid for. I agree
with her. We have far too long not paid for things.
We have a situation now where we have had 8 years of buying red ink
by the trainload. We have now a situation where the deficit this year
will be about half a trillion dollars. The only thing we have heard,
and Senator Baucus heard yesterday on the tax extenders, is what the
Republicans want to do: We want to have some more things, but we do not
want to pay for any of it.
The Speaker has sent a letter to me signed by 220 Members of the
House of Representatives, saying these matters have to be paid for.
What we did in this work done by Senator Baucus, there were matters
that rightfully should not be paid for, such as disaster assistance.
As we have indicated in the past, even though the House does not like
it, and we do not particularly like it, the AMT in this bill is not
paid for. So other than that, things are paid for and paid for in a
very responsible way.
The tax extender package includes some things that would change
energy in this country as we have known it for 100 years.
It would change from a situation now where everything is done with
fossil fuel to a situation that T. Boone Pickens and others envision,
where we would be depending on the Sun, the wind, geothermal, biomass.
This is real. There are people during the last 4 months who have been
laid off, working on these alternative energy projects, renewable
energy projects. There are people who could go to work tomorrow on
these projects. Remember, these are all American jobs, jobs that can't
be exported anyplace else.
As I said to the Republican leader today, the August schedule is in
his hands. I have told those assembled here
[[Page S7722]]
today what we have to do. I told Senators what we have to do. I am
tremendously disappointed that the tax extenders were not passed. I was
just given a note by the chairman of the Environment and Public Works
Committee about something that also is in this bill that would create
lots of jobs, at least 150,000 high-paying jobs, and that is to
replenish the money from the highway trust funds. Those moneys are not
going to be there, which will cause people not only to not have jobs,
but it will stop projects from going forward that are already in
progress.
The schedule in August is up to the Republican leader. As I have said
before on a number of occasions, we basically have finished what we
have to do this work period. We have tried mightily during the last 18,
19 months to get things done. We have had to deal with about 90
filibusters. Whatever the number is, we increased it by one today. We
will see what happens on the legislation dealing with higher education
and see what is going to happen with the Republicans as it relates to
the consumer product safety legislation. That may add two more
filibusters. Of course, we have the Defense authorization bill to which
we wish to proceed. We will have a vote on that on Friday. It is up to
the minority to determine what we will do on that.
As I have indicated on a number of occasions, we have the conventions
coming up in August, which is important to every Senator. We have other
important items we have been working on that need to be done at home.
We can't do them in Washington. But we await word from Republicans, if
they are going to negotiate seriously on the tax extenders. Other than
that, I have stated, I believe pretty clearly, where we are.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. I wish to note that the energy tax extenders would have been
law as of 7 a.m. this morning if they had not been taken out of the
housing bill by the Democratic majority. We should be aware of the fact
that one of the reasons why this issue remains is the strategy from the
majority on the housing bill.
Mr. REID. Understand, though, that is the whole problem. They don't
want to pay for anything. The bill that is before the Senate is paid
for. What he is talking about is the flimflam where you pass all these
things and don't pay for them. That is why we have a staggering deficit
that during this administration has gone up more than $3 trillion. When
George Bush took office, over 10 years there was a surplus of about $10
trillion. That is long since gone. I appreciate very much the statement
of my friend from Arizona, but the fact is, that is what we are talking
about here. They don't want to pay for anything. The tax extenders in
our package are paid for, as they should be. The American people should
not be burdened and leave a legacy looking forward of their children,
grandchildren, and great-grandchildren buried by Bush deficits.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. I note that 88 Senators voted in favor of that approach
dealing with this subject.
Mr. REID. I appreciate the statement of my friend from Arizona. I
believe in these extenders so strongly that even though I would much
rather have them paid for, we all know the debt has to stop someplace.
As I indicated, the House of Representatives, to their credit, will not
accept these not being paid for. That is the way it should be. We
should not be running up massive deficits that the Bush
administration--first year, second year, third year, fourth year, fifth
year, seventh year, and now in the eighth year--is willing to accept.
The war in Iraq, $5,000 a second; it doesn't matter.
We are where we are, but I am very disappointed that we are where we
are. As I said, my Senators are waiting to hear from the Republican
leader what he wants to do the rest of this week and into the future.
____________________
