Emergency Security Supplemental to Respond to January 6th Appropriations Act, 2021

Floor Speech

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Mr. LEE. Mr. President, the word ``republic'' means public thing in Latin.

We bring our different perspectives and our different identities together respectfully to make decisions for an entire Nation. The United States is a nation with diverse, varied beliefs, different cultural origins, and different politics from the different regions and different States that we represent. It has been this way from the very beginning.

As much as some of us imagine otherwise, from the very outset of our Republic, there were immense, regional differences. Depending on which State someone represented, they might have different views.

Now, our Republic--and, for that matter, any republic ever in the history of republics--has relied on the willingness of the citizenry to be kind, for individuals who play a role in that Republic to be kind and respectful and decent to each other, even when--especially when--we disagree with each other. Our Founders knew that, and they enshrined it into our Constitution.

As much as anything, they assumed it, and it was on that set of assumptions that the norms enshrined in the Constitution became possible, because without them they would not be. Without them none of this would work.

You see, the only way a republic can possibly function now or 250 years ago or 250 years from now is that it always has to follow a somewhat similar formula. The only way it can function is when citizens and leaders are gracious to those with whom they disagree and grant the freedom necessary to allow others to make choices, even if those choices might be things that they disagree with.

We have witnessed the degradation of American political discourse for some time now. It has been a sad, tragic reality unfolding, but it is not an inexorable conclusion. It is not one from which we cannot depart. But we must make a choice to do better and to choose a better path.

We received a bulletin earlier today--a bulletin from the Capitol Police--indicating that all visitors and all House staffers and, in fact, all House Members are required to wear masks indoors or be denied entry or forced to leave the premises. And at least in the case of staff and visitors, if they fail to comply, they will be arrested-- arrested for unlawful entry. Conviction for a violation of this rule will, according to the bulletin, be punished by a fine of not more than $1,000, imprisonment for not more than 6 months, or both. The Senate, which happens to be housed in the same building as the House, is not subject to these same requirements.

But is this decision based on science or is it based on the will and whim of the Speaker of the House of Representatives? Whatever the reason, the arrest of peaceful House staffers shows the total loss of political grace in the House of Representatives.

I cannot fathom a legitimate reason to arrest a person in this building for not wearing a mask. I cannot fathom a legitimate reason for arresting anyone based on a failure to wear a mask.

Members are not treated as the legitimate representatives of their constituents, as in fact they are, under our system of government, when they are subjected to this kind of manipulation and when they are subjected to this type of oppressive order. Staff, under this type of oppressive directive, aren't treated as hard-working, dedicated Americans, which truly they are. Instead, everyone who doesn't comply is deemed the enemy of the current House of Representatives. There is no room for disagreement or dissent.

It is tragic, indeed, to see a key deliberative body where dissent and debate are supposed to be tolerated and appreciated and decided and have been not just for decades but for centuries--to see that turned into a place where disagreement and dissent are disdained and punished by arrests.

Congress works on collegiality and respect. We need to get back to those basics.

Regardless of what you might think about the coronavirus, about the vaccine, about masks, there is never a good reason to arrest someone for not wearing a mask.

This decision falls into the larger context of the Centers for Disease Control's recent flip-flop on masks and the Biden administration's worrying push toward masks and vaccination mandates.

The CDC issued updated recommendations earlier this week, stating at its outset that masks should be worn indoors in areas of ``substantial or high transmission,'' even by individuals who have been fully vaccinated.

Now, this new guidance claims that ``[e]merging evidence suggests that fully vaccinated persons who do become infected with the Delta variant are at risk for transmitting it to others.'' But one glaring thing is missing from that conclusion: evidence backing up the CDC's claims.

In fact, the CDC didn't publish any new research on the effectiveness of the COVID vaccines against the newer variants when it issued its latest edict. The CDC's website simply cites ``unpublished data'' from its own COVID-19 Response Team when it makes this new, rather significant, rather jarring, rather impactful, and rather unwise claim.

The CDC is undermining its own credibility and, thus, I believe placing public health and safety at risk by going back and forth on recommendations and failing to be upfront about whether there is any actual reliable scientific evidence to support or compel those recommendations.

In fact, even when asked questions by Members of Congress, the CDC is failing to respond. This is not hyperbole; this is not conjecture; this is based on my own personal experience. I will point to the fact that on April 24, more than 3 months ago, I sent a letter to the Centers for Disease Control asking a very simple question, a simple question that I would hope anyone here would want to be asked. I wanted to know why is it, when there are so many of our peer nations around the world that don't require masks to be worn on airplanes, for example, by children as young as 2, as we do in the United States--you know, many of our peer nations, a mask requirement may not kick in until 10 or 11 years old or, in some cases, 5 or 6 years old. But, here, the CDC has said that it has got to kick in at 2 years old. I would ask the question: Did any of these people who made this recommendation, who made that conclusion that 2-year-olds should have to travel with a mask, have they ever known an actual 2-year-old? Have they ever raised a child? Have they ever traveled on an airplane? Have they ever traveled in a car, in a bus, on a train, in the rain, anywhere with an actual child? This doesn't work.

Now, when you add that to the fact that children react to the virus differently than adults do--and that is putting it mildly--when you add that to the fact that this creates other problems for children, not just for those handling them but for the kids themselves, it makes it especially important to know why.

Now, my letter wasn't attempting to make any case. My letter was simply trying to obtain information. You see, because when the CDC makes these sweeping recommendations, and sometimes they like to make them feel easier by calling them recommendations, when, in fact, they precipitate a whole host of things that feel a whole lot more binding than recommendations. You see, because if you get on an airplane or a bus or a train or you go to a bus depot or a train station or an airport, and you have got a 2-year-old who won't wear a mask, as any red-blooded American 2-year-old will not do, you are told that you are subject to arrest and that you are violating Federal law if you do that. So it is not unreasonable to ask that they pony up with information. If they are going to make recommendations, they should explain to us what those recommendations are.

So I asked them what scientific proof is there that a 2-year-old needs to wear a mask?

Well, I sent that on April 24. I didn't hear anything on April 25 or April 26 or the 27th or the 28th, 29th, or 30th, or any of the days of the months of May or June or July, and we are almost to the end of the month of July. They didn't respond to this. I don't know why. Maybe they are really busy doing other stuff. Maybe they are really busy figuring out where they are going to flip-flop next and where they are going to issue their next edict that the American people are expected to follow, all in the name of it being science, that we have to defer to blindly, without any evidence. But this isn't acceptable, and it doesn't inspire confidence, nor does it inspire confidence for an Agency that makes these sorts of recommendations that have a really significant impact to flip-flop and not justify its own analysis, not provide even a scintilla of scientific proof for what it did.

So let's get back to its more recent flip-flop. The fact that it has flip-flopped this week, coupled with the fact that it hasn't backed up its other claims over the last few months, is understandably troubling to many of us, especially so, when you consider the fact that in my personal experience, I have been vaccinated. I chose to get the vaccine. I respect those who have chosen not to.

Many of those I have known who have been reluctant to get the vaccine, who eventually got the vaccine, most of them, I would say, ended up getting it when they realized that certain aspects of life could be made mor predictable and more convenient if they did get the vaccine.

Many people, when they walked into a hotel lobby or a restaurant or a grocery store or at Costco or at Sam's Club, if they would see signs saying that vaccinated persons need not wear masks, they would realize there is some benefit there; that if they got the vaccine, they could walk in there and say, well, I don't have to wear the mask.

Now, obviously, we don't ever want to get to the point where somebody has to wear an arm band to prove whether they have been vaccinated or not. In fact, it would be an absolutely horrifying experiment that we should not attempt. But the fact is, that when people see that there might be some benefit, they are more likely to do it. If they see that something different will happen in their life if they get the vaccine, they are more likely to get it.

But when you are constantly moving the goalpost, you are saying: ``Here are the benefits of the vaccine. Oh, psych, just kidding. We are moving along. We are going to take those away,'' people are not going to get it. So if you want more people to get vaccinated, you darn well better have the CDC getting its act together, providing scientific evidence for what the CDC is recommending and what it is not.

So, look, I am still waiting for answers from the CDC on my April 24 letter. And I am still waiting for answers from the CDC when it comes to scientific evidence supporting their most recent flip-flop. But while we wait for those answers, and that clock is ticking--I don't know whether we need to start humming the tune to ``Jeopardy,'' but they do need to provide those answers. And while we wait for those answers, here are a few principles that I think might help guide some of our discussions:

Our government needs to trust Americans to make these decisions, some of the most personal decisions that a human being can make for themselves. We need to trust the people's representatives in Congress to make decisions regarding the law. We need to be able to trust each other, to be decent, and to be kind when we disagree.

We have to learn from our own history, from our own nature as individuals, and from the history that we have experienced as a nation. We cannot stand by while those in power simply decide on their own whim that they are going to arrest political opponents for disagreeing.

At what point did we decide that it was OK to cross that threshold? I get it. We always need to be able to disagree without being disagreeable. Sometimes that is really hard. Sometimes all of us fall a little short of that mark. But I think all of us should be able to agree that we shouldn't arrest those who disagree with us merely because they disagree with us. That is wrong. We are better than that.

This time calls for more political understanding and hardy, legitimate debate, not blind mandates and manipulation.

We have to remember that, at its heart, at its core, government is not deity. It is neither omniscient nor omnipotent. Government doesn't have eyes to see you. It doesn't have arms with which to embrace you. It doesn't have a heart with which to love you. Government is force. It is the official use of coercive force.

Now, we need that. We need that to protect safety, to make sure that we don't hurt each other; that we are not harmed by others; that we don't take each other's possessions. But we have to be very careful how we operate it because otherwise force is just force. And if we start arresting everyone with whom we disagree, we are not going to be able to do the things we need to do, which is to make sure that government is there to prevent people from hurting each other and taking each other's things.

We need to be kind to our neighbors, even when--especially when--we disagree. We need to be helpful and caring to those around us, even if they vote, feel, believe, or even act very differently than we do. We must not allow for arrests and mandates to Members of Congress and their staffs without providing sufficient evidence.

And, yes, all of this stuff goes both ways. We all need to be respectful of each other's opinions. But, look, we are not talking here about activity that, by its very nature, is so harmful that it warrants the use of blunt political force in the form of an arrest.

I cannot fathom a circumstance in which it is ever appropriate to arrest another human being for not wearing a mask, COVID or no COVID. That is not arrest material.

In Congress and across the country, what we need now is a return to American graciousness. Our way of life and our precious Republic are at stake.

Thank you.

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Mr. LEE. Mr. President, as we have undertaken this conversation, I can't help but reflect on the fact that we are here in a representative body. We are here in order to have an exchange of ideas. We are here to engage in political speech, not the kind of political speech that people think of when they think of the word ``politics,'' where they think of something necessarily unpleasant. You know, when people hear the word ``political'' or ``politics,'' they think of the two great roots of the word ``politics.'' You have poly, which means many; and ticks, which are blood-sucking parasites. And they assume if it is political, it is unpleasant.

But I am using the word ``political'' here in a different sense, the sense that refers to the body politic. It refers to the fact that we are doing the people's business. The exchange of information, of ideas is essential to everything we do.

Then it occurs to me that the mask discussion does carry a deeper meaning here, a deeper meaning that takes into account the fact that when we communicate--sometimes with words, sometimes without words, sometimes in print, sometimes with the spoken word, sometimes without any words at all--we are engaging in activity that is protected by the First Amendment.

Now, this is important to note in a wide swath of areas. It is important for how we worship or decline to do the same. It is important in how we express our viewpoints in our news, in our entertainment, media. In every aspect of our lives, it is important.

It is regarded as especially important in a body politic that people be able to express their feelings about government and about the role of government. It is also especially important here that people be able to speak and otherwise communicate in a way that is clear and unvarnished, unfiltered.

In fact, we go so far even as to protect Members of Congress from liability in what they would say on the floor of the Senate or the House of Representatives. We do that because we feel that a full, frank, informed discussion is important. We don't want Members being threatened with some sort of action, civil or criminal, based on things that they would utter here.

So freedom of speech is important for all citizens. It is also important to make sure that that freedom of speech is protected here.

It occurs to me that with the question of masks, the decision whether to wear a mask is not only deeply personal, but it is also, in this context, quite arguably expressive. Even before you utter a single word and regardless of whether you utter a single word, in many respects, your decision to wear a mask or not wear a mask is, itself, a form of expression. And as a form of suppression, it is protected.

In a long line of cases, the Supreme Court of the United States has identified conduct that is expressive and therefore protected by the First Amendment, notwithstanding the fact that it doesn't necessarily involve words.

When you merge that with another line of analysis under First Amendment jurisprudence, we remember the fact that it is a problem whenever government suppresses speech in one way or another. It is especially problematic when the government tries to compel speech. When the government tries to direct an individual that he or she must utter certain words in order to be compliant with the dictates of the government, that implicates the compelled speech doctrine, and the compelled speech doctrine is an especially rigid one. It is an especially rigid one with very good reason.

You don't want to force people to say stuff. That is the not government's role. That is the whole idea behind the First Amendment, is that the government needs to stay out of our headspace. It needs to stay out of where we worship; it needs to stay out of our relationship with God; it needs to stay out of printing presses; and it needs to stay out of what we say.

Sometimes what we say can consist of things that don't even involve words, something as simple as whether or not to wear a mask. In addition to all of the other public policy reasons, in addition to all the problems with having a CDC issuing these sweeping mandates and edicts without bothering to back up those edicts with scientific justification--even after months and months of receiving inquiries from Members of the U.S. Senate that they do so--separate and apart from all of those issues, I think it is important for us to look at the speech element, the expressive conduct that is inherent in whether or not you wear a mask, and whether or not by compelling people to wear a mask, you are compelling people to engage in state-sponsored speech. You are telling them that they must send a message, a message with which they may well disagree.

Now, if I am wrong on this, if this is strictly a medical issue, then it will be backed up by scientific medical evidence. That is the nature of the problem that I have with the CDC's mandate, its ever-fluctuating mandate, its mandate that, as recently as a few days ago, flip-flopped yet again. If, in fact, it were medical and scientific, it would be backed up as such, but it is not.

This is a form of compelled speech, not as we traditionally understand it because compelled speech usually involves the utterance of specific words. But we know that speech can be protected, even if it doesn't involve words, if it is a type of expressive conduct, which wearing a mask is, especially if as here. We don't have scientific evidence making it a medical issue.

So I would ask the Speaker of the House: Are you really going to arrest people for not saying what you want them to say? That is not OK. If it would never be OK for you to arrest people for not saying words that you have prescribed for them, why is it OK for you to compel them to engage in expressive conduct now amounting to speech? It is not.

Make no mistake, this isn't medical. This isn't scientific. If it were, we would have evidence of such. We don't

In light of that, separate and apart from all the other problems-- problems that inhere in our form of government, problems that inhere in the fact we do, in fact, have three distinct branches of our Federal Government, that most laws are not Federal laws to begin with. Most laws originate in the States and in the localities. Most laws are not Federal, and they should never be.

But for those things that should be Federal laws, we have got one and only one branch of government that makes laws. It is no coincidence that the very first clause of the very first section of the very first article of the Constitution provides:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.

Article I, section 7 then goes on to outline the formula contemplated in article I, section 1. In article I, section 7, it says that you can't make a law under our form of government--at least not a Federal law--without passage in the House of Representatives and passage in the Senate and presentment to the President of the United States.

In many respects, these recommendations issued by the CDC end up carrying the force of generally applicable Federal law. That is wrong. And in many, many respects, that is on us. We have done a horrible job over the last few years--I would say over the last few decades--I would say over the last 80, 85 years, really. I won't lay the blame entirely at the feet of either party. In fact, this has happened under the control of different parties. It has happened with Senates and Houses of Representatives and White Houses of every conceivable partisan combination. We have seen the de facto outsourcing of our lawmaking authority to unelected, unidentifiable bureaucrats; men and women who, while well-educated, well-intentioned, hard-working, and highly specialized, don't work for the people. They don't work for you. You do not have the ability to elect them or unelect them.

You don't have the authority to replace them. That is why it is so dangerous for us to give them this sweeping authority. And even where they don't technically have authority that extends very far--and in this case, it is far too far, as evidenced by the fact that anytime you get on an airplane or other mode of public transportation, you are told that, under penalty of Federal law, you must wear a mask.

But I would ask, where is the act of Congress providing that? In what year did the Congress of the United States pass through the House and through the Senate and submit to the President of the United States for signature or veto a law stating that you must wear a mask on a plane or a train or a bus or in a bus depot or in a train station or in an airport under penalty of Federal law? There is no such law. You will not find it.

Now, you will find some other stuff in which we delegated far too much authority and given broad authority to the executive branch--to people like the CDC--to issue regulations. But as a matter of proper form, whenever they exercise that power, it is not appropriate for that to take effect by itself. It is not really a law in the constitutional sense of the word unless Congress has enacted it.

We have given them far too much power anyway. That is on us. We shouldn't do that. That is why I have been calling for years for reforms to this; why I have been calling for years for reforms, including but not limited to the REINS Act, which would require for any economically significant Federal regulation, before it takes effect, it must be passed by both Houses of Congress and presented to the President for signature or veto. It is why I have introduced the Global Trade Accountability Act, which would do for trade policy what the REINS Act does for regulatory policy. It is why we need to reform so many aspects of our laws, where we, as a practical matter, made the unelected and the unaccountable the supreme lawgivers, the lawmakers, law interpreters, and law enforcers.

This is not just something that can lead to tyranny; it is the very definition of tyranny, as every signer of the U.S. Constitution understood well. It is why they went to great lengths to separate out these three branches of government.

In addition to those problems with these edicts not based on science or medicine but based on political considerations that are ever- changing--it is why they are so sweeping. It is why they are so troubling.

But they are maybe even more troubling, still, for the additional constitutional reason that, at the end of the day, to whatever degree these are not rooted in medical science and fact--which I believe they are not or at least the CDC hasn't established as much, and they really do amount to something compelling expressive conduct, the suppression of an official orthodoxy mandated by the government--we shouldn't accept this. We shouldn't accept any affirmative legal obligation placed on those we represent, to whom and for whose been we have sworn an oath to uphold, protect, and defend the Constitution of the United States, which requires us to make any law we force on the American people. We have an obligation to them, a solemn obligation to make sure they are not subject to laws made by those not of their own choosing.

It is these very features that James Madison had in mind when he authored Federalist No. 62. When he wrote, and I am paraphrasing a little bit here: It will be of little benefit to the American people that their laws may be written by men of their own choosing if those laws be so voluminous, complex, and ever-changing, if they can't reasonably understand what the law means and predict what it will say from one day to the next.

Today--this week even--we have seen the law be so unpredictable and ever-changing, that we can't expect what the law says from one day to another. But even worse, contrary to what Madison assumed would always be the case because the Constitution required it, the laws aren't even being written by men and women of our own choosing but instead by unelected, unaccountable bureaucrats who, despite how well-educated, well-intentioned, hard-working, and highly-specialized they may be, don't work for you, nor do they have authority under this document, to which we have all sworn an oath, to make laws.

That is our power. Shame on us if we relinquish to them the power that only we can exercise, that is, itself, nondelegable. Shame on us, further, if we allow those same people who, lacking the authority to legislate in the first instance, then transgress another affirmative constitutional command by compelling compliance with official government-mandated orthodoxy.

This cannot be. This cannot stand. I will not stand for it, and I will continue to draw attention to this issue until we have resolved the problem.

Thank you.

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