[Congressional Record: July 30, 2008 (Senate)]
[Page S7710-S7722]                         


  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 
  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 
  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 
  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 
  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 
  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 

                          (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 


  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 
  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 
  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 
  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 


  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 
  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 
       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 
       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 
  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 
  The majority leader.
  Mr. REID. Mr. President, have the Republicans yielded back their 
  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 
  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 
       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 
       Thank you for your consideration of our views.
         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. 
  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.]


     Nelson (FL)
     Nelson (NE)



                             NOT VOTING--6

  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 
  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.