Cybersecurity Act of 2012--Motion to Proceed--Continued

Floor Speech

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Mr. GRASSLEY. I didn't come to the floor to speak about the farm bill because I did that yesterday. I want to assure the Senator from Colorado that I listened to everything he said, and I agree with him. That was my plea in maybe a little broader context yesterday in asking that the House of Representatives take up the bill. Also, the House brags, legitimately so, about being fiscally conservative, so I agree with what the Senator from Colorado said. This may be the only opportunity--presumably the only opportunity--to pass a farm bill or any bill that saves money from previous programs of previous years. I compliment the Senator from Colorado.

FREEDOM OF SPEECH

Mr. President, I come to the floor to discuss what I consider a disturbing trend that is occurring in this country. A vicious attack is underway on the right to freedom of speech that is protected by the first amendment. It needs to be highlighted, and hopefully it will stop. Free speech is one of the most important rights that Americans enjoy.

Speech on public issues is the way democracy discusses and debates the important questions of the day. Many great political movements in this country's history depended upon this first amendment right, freedom of speech. Even when Martin Luther King was jailed and his supporters subjected to violence, free speech enabled him to change the views and practices of an entire nation. Today too many government officials seek to shut up people who disagree with them rather than debate those people and debate those issues.

There have been a series of recent incidents to which I want to refer. Consider recently that the Senate Committee on the Judiciary in the past month has held two hearings that prove my point. A hearing was held on a bill that would criminalize supposedly deceptive statements in advance of elections. It would allow the government to criminalize political speech based on its content. It would risk government selectively choosing to prosecute its political opponents. t would allow political candidates to make accusations against their political opponents.

So it would chill candidates from speaking.

A few days after our hearing, the Supreme Court's ruling in the Alvarez case confirmed all the free speech problems with that bill. But even after that decision, the Justice Department, to my disappointment, issued a letter in support of the bill. That letter made no mention of any first amendment considerations. I have heard no indication that the committee will not mark up this bill which represents a grave threat to freedom of speech.

This week, the Judiciary Committee's Subcommittee on the Constitution held a hearing on the legislative responses to the Citizens United case. In that decision, the Supreme Court ruled that the first amendment's free speech guarantee protects the rights of corporations and unions to make independent expenditures in support of candidates or on any particular policy issue that they want to speak out on. The ruling has no effect on campaign contributions. There are proposals in this body to amend the Bill of Rights, the first amendment, for the very first time, to allow the government to limit how much candidates can spend on speech and, therefore, the amount of speech that the government will permit. And there are proposed constitutional amendments to prevent corporations and labor unions from spending in elections. To me, this is very serious business that we ought to be raising a red flag about.

It is worth remembering what rule the Obama administration asked the Supreme Court to adopt in Citizens United. The Justice Department argued that the government should be able to ban books that contained even one sentence that expressly advocated the election or defeat of a candidate if those books were published or distributed by a corporation or a union. This administration argued in favor of banning books. In light of the practice of totalitarian regimes of the 20th century, this administration's position on free speech is very astonishing. The Supreme Court quite rightly rejected the argument of the administration on that particular point.

It reminded the news media, which is organized in corporate form for the most part, that the exemption from campaign finance laws is by statute, and one which Congress could remove at any time, threatening freedom of the press. If that were to happen and the Constitution were to allow restrictions on corporate independent expenditures, the guarantee of freedom of the press would be as threatened as freedom of speech.

Then there is another situation, and this deals with the restaurant chain of Chick-fil-A. The owner of that chain is a Christian who has spoken in favor of the value of traditional marriage. The chain has not discriminated against anyone so far as has been reported. The restaurant seeks to expand in Boston and Chicago where presumably it would create new jobs, and in order to get there, it has to meet the permit requirements. However, Mayor Menino of Boston wrote a letter to the company president. He said that because of the owner's ``prejudice statements,'' there would be no place in Boston for the discrimination the company represented. The mayor notified the property owners where the restaurant was to open of his views.

In Chicago, an alderman seeks to deny Chick-fil-A from opening in his ward for the same reason. It is reported that President Obama's former Chief of Staff, now Chicago Mayor Rahm Emanuel, is sympathetic to the alderman's point of view.

Once again, this is a gross violation of first amendment free speech. Government cannot deny a benefit to someone because it disagrees with the applicant's views. This is the fundamental principle of our constitutional democracy.

Voicing support for traditional marriage is not discrimination. That speech is not hate speech. Even if it were, the first amendment protects speech that is unpopular with the government. There is no constitutional speech code that allows banning a hate speech any more than government can ban speech in books.

Finally, the Alvarez decision a few weeks ago affects another first amendment issue pending before this body right now. In the Alvarez case, the Supreme Court struck down the Stolen Valor Act which criminalizes lies concerning winning military medals. It did so on free speech grounds. I know many of my colleagues desire to pass a new law that will accomplish that goal, and if that law is constitutional, I will probably join them in that effort.

Two bills on this subject are now pending in the Senate. Senator Brown of Massachusetts introduced the first bill and then Senator Webb did so after the Alvarez decision. There have been efforts to pass both bills by voice vote.

When the Republicans were asked to move the Webb bill, we were told that all Democrats supported the bill. This is a problem. The Webb bill is clearly unconstitutional based upon the Alvarez decision. It criminalizes some lies about medals that the Supreme Court says Congress cannot criminalize.

For instance, it would prohibit lies in campaigns and in employment, even when those lies would not produce the tangible, material benefit that is necessary to punish them. Yet no Democrat objected to passing the bill without debate. Of course, Republicans could not agree to such a request.

Since he did not have the benefit of the Supreme Court decision when Senator Brown wrote the bill, right now, because of the decision, and he didn't know about it, Senator Brown's bill is also unconstitutional. The difference between his bill and Senator Webb's bill, however, is that Senator Brown now has a substitute amendment that seems to address the problem in a fully constitutional way. But although Democrats want to pass without debate a clearly unconstitutional bill, somehow they object to a clearly constitutional Brown bill.

These games should stop. I am sure all the Members of this body should be willing to support a single constitutional bill that would reenact the prohibition on lying about whether one is entitled to certain military medals.

In short, this country is facing a disturbing increase in government actions that violate the freedom of speech. That is a vital right of our democracy.

Anyone can stand up for speech with which they agree. The test for government officials and the test for free speech is whether they will allow speech with which they might disagree. They may criticize speech, debate the speech, and seek to change minds. But shutting people up, denying them benefits, passing bills that would put people in jail for exercising free speech rights--these are never allowable under our Constitution. It is time for elected officials to pay greater heed to the oath to support the Constitution.

REPORT BY FORMER FBI DIRECTOR WILLIAM WEBSTER ON FORT HOOD ATTACK

Recently, former FBI Director William Webster was asked to investigate how the FBI performed regarding the attack at Fort Hood by MAJ Nidal Hasan.

Major Hasan's attack killed 12 U.S. soldiers, a Defense Department employee, and wounded 42 others. Following the attack, the FBI conducted an internal review and determined that it had information on Major Hasan prior to that attack. As a result, the FBI Director asked Judge Webster to conduct an independent review and investigation of the FBI's handling of the matter. In short, Judge Webster's commission found that the FBI made mistakes that resulted from a number of problems--some operational, some technological.

Some of these mistakes are extremely concerning given that they are basic management failures. For example, the unclassified report states:

Many agents and most [task force officers] did not receive training on [FBI computer systems] and other FBI databases until after the FBI's internal investigation of the Fort Hood shootings.

This is clearly unacceptable.

Other problems highlighted include failing to issue Intelligence Information Reports on Major Hasan to the Defense Department; confusion about which FBI office was investigating the lead; failure to interview Major Hasan; along with information technology limitations.

All in all, the Webster report paints a disturbing picture of the FBI. It shows lack of training, failure to follow leads, and continued computer problems. These are the types of problems that, quite frankly, we thought were corrected following the terrorist attacks of 9/11.

Ultimately, Judge Webster issued 18 recommendations for the FBI to implement to prevent future problems such as these. The FBI agreed with these recommendations and has stated they will take action to implement those recommendations.

That is good news, of course. The FBI must implement these recommendations and do it immediately. However, we have a duty to make sure the FBI implements these recommendations and holds people accountable--in fact, hold the FBI accountable--if they don't. The FBI's failure in this case is inexcusable and shakes public confidence in the FBI's ability to combat homegrown terrorism. Basic management problems and investigative failures can't happen, particularly if national security is at stake. If failures of this magnitude occur on high profile national security cases, it makes one wonder what the FBI is doing on other investigations.

Those responsible for these failures should be held accountable. I intend to follow up with Director Mueller to determine what action was taken against those people who didn't do the job in the right and correct way.

JUSTICE DEPARTMENT INSPECTOR GENERAL REPORT

One more report that can't go ignored is a report released this morning by the Justice Department Office of Inspector General. This report examined improper hiring practices within the Justice Department's Justice Management Division. Shockingly, the inspector general found the Justice Department employees openly and flagrantly violated Federal law.

Let me repeat that these employees violated Federal law and the Department of Justice regulations prohibiting employment of relatives, granting illegal preferences in employment, conflict of interest, and misuse of position. Further, employees who were interviewed by the Office of Inspector General were also found to have made false statements to investigators.

This is an example of the Justice Department run wild. It is troubling to me how employees within the Department colluded and schemed to hire one another's relatives in order to avoid rules against nepotism. It is inexcusable, and I can assure my colleagues that we will be looking into this matter.

This wasn't a one-time event, by the way. In fact, the Office of Inspector General pointed out that similar problems existed in 2008. Despite what the Department called ``aggressive action'' to stop this type of behavior back in 2008, it appears nothing has changed.

At the very least, the Attorney General needs to hold these employees accountable with more than just disciplinary action. Laws were broken and false statements were made. The Department can't simply sweep this under the rug. Employees need to be punished because in this town, if heads don't roll, nothing changes.

I yield the floor.

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