Commerce, Justice, Science and Related Agencies Appropriations Act, 2015 - Motion to Proceed

Floor Speech

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Mr. GRASSLEY. Just last week the majority leader gave his view that tax extenders as an issue is dead in the Senate until the lameduck session. I presume that means we will have a lameduck session. The majority leader blames this on Republicans, the minority in the Senate, but as you all know, the majority leader is uniquely situated under our Senate rules to determine what legislation will be considered on the Senate floor.

The majority leader's excuse that was given for not proceeding to extenders before a lameduck session is that we Republicans are seeking to offer amendments unrelated to tax extenders. Of course, this excuse simply does not fly. Even an introductory report on Senate procedure from the Congressional Research Service will tell all Senators that there is no ``standing rule or general requirement that the amendments offered by Senators on the floor must be germane or relevant to the bill being considered.''

The CRS report states:

The right to offer non-germane amendments is extraordinarily important because it permits Senators to present issues to the Senate for debate and decision without regard to the judgments of the Senate's committees or the scheduling decisions and preferences of its majority leader.

The majority leader has sought to circumvent the open amendment process by blocking amendments by filling the amendment tree. This allows the majority leader to effectively decide what, if any, amendments ought to receive consideration here on the Senate floor. Essentially, this allows the majority leader to impose his own will at the expense of the will of the Senate as a whole. Another way to say it: The majority leader decides what 99 other Senators can offer as amendments.

The real reason the majority leader does not want to bring extenders back is that he is concerned that Members of his party might have to take tough votes in an election year. Of course, in a parliamentary system, this is a poor excuse for putting off considering legislation that has broad bipartisan support, and this extenders bill does have broad bipartisan support. This approach puts politics before constituents.

Delaying tax extenders legislation until the lameduck session has real consequences for our constituents. We know from previous years what has happened when tax legislation is not passed in a satisfactory amount of time. Late action on tax extenders poses significant tax administration burdens that cause headaches and hardships for millions of taxpayers. When we fail to act in a timely manner, tax forms are not ready and refunds are delayed. We owe it to our constituents to see to it that these added complications are not a factor this year. Tax season is already unpleasant enough without our adding to it by failing to do our job in a timely fashion.

While many view tax extenders as benefiting businesses, the truth is the delay of widely used individual tax provisions will impact millions of taxpayers. I will give a few examples.

Three of the most widely used tax provisions are the State and local sales tax deduction, claimed by over 11 million returns in the latest year for which we have statistics--2011; the above-the-line deduction for teachers' expenses, claimed on over 3.8 million tax returns in that year, 2011; and the college tuition deduction, which was claimed on about 2 million tax returns. These 3 provisions alone give us over 16 million reasons--because of 16 million taxpayers being affected--to act now to ensure that we don't subject these taxpayers to needless delays and complications this coming filing season.

These 16 million tax filers should provide more than enough reason for not putting off tax extender legislation until the lameduck, but if you are in need of another reason, think of the small businesses that are anxiously looking on and wondering what we are going to do about the expiration of the enhanced expensing rules under section 179. I am sure I am not the only one hearing from small business owners and from farmers who are putting off purchasing that new truck or tractor because they do not know the fate of this provision. This is bad for economic growth, bad for jobs.

Then there is the lapse in the renewable energy incentives that support millions of jobs not only in my State of Iowa but in many other States across our country. The expiration of these provisions has already hampered the strides made toward a viable, self-sustainable renewable energy and fuel sector. Delaying extension of these important provisions is hurting the economy and costing jobs.

A biofuels organization found that nearly 80 percent of the U.S. biodiesel producers have scaled back production this year. Sixty-six percent of the biodiesel producers have reduced their workforce and anticipate cutting jobs. This is a direct result of the policy uncertainties here in Washington, DC, including the expiration of the biodiesel tax incentive.

The only thing standing in the way of passing the extenders package here in the Senate is decisions made by the majority leader and getting an agreement on a handful of reasonable amendments.

The delay in passing the extenders package is harming a whole range of renewable energy efforts. A letter delivered to every Senator from about 200 clean energy businesses urged quick passage of the bill.

The letter stated:

The lack of timely action to extend these provisions injects instability and uncertainty into the economy and weakens confidence in the employment marketplace. Moreover, the extension of the expired provisions should not be delayed until the end of the year since companies are making decisions right now related to taxes that will have an immediate impact on the economy.

I would encourage all of those who support this bill to urge the majority leader to bring it back and allow for a fair amendment process. Could the Senate majority leader possibly argue that it is more important to protect Senators from tough votes than to move forward on clean energy and job creation? For such an important piece of legislation, there is no legitimate reason for the majority leader to refuse to bring extenders to the floor for an open and honest debate.

It has been quite a while since we have had a relatively open amendment process on major tax legislation. Because of this, many Senators view this bill as their one shot at getting tax priorities they have considered on the floor.

There is no reason that an agreement cannot be reached that will provide opportunities to Members on both sides of the aisle to offer those amendments. As a former chairman and ranking member of the Finance Committee, this Senator knows this can be difficult, but it is more than doable.

I remember when Senator Baucus and I regularly worked out an amendment process on tax bills. Usually this would consist of alternating votes on a block of 10 or so Democratic and Republican amendments so each side was treated fairly. A tax bill that comes to my mind as an illustration of this process is a bill entitled Jumpstart Our Business Strength Act or, as we use the acronym, JOBS.

Like the extenders package, the JOBS Act had broad bipartisan support and ultimately passed the Senate 92 to 5. Though it had bipartisan support, there was no shortage of Members from the other side seeking to offer their amendments. Many of these amendments were in no way related to tax, although the JOBS Act was a tax bill.

As the bill's chief sponsor and floor manager, I had hoped to keep amendments somewhat relevant--at least related to tax. However, the then Democratic minority pushed for votes on everything from overtime laws to trade adjustment assistance to unemployment insurance.

All of these amendments were political in nature. They were intended to make Republicans take tough votes. At the time, then minority leader--now Majority Leader--Reid vigorously defended the right of the minority to get votes on these and other amendments that were entirely nonrelevant and nongermane. We Republicans took those votes because we wanted to get things done. We wanted to get a very important tax bill passed. That is what the American people need right now--new leaders who want to get things done.

Yet today we were told Republicans are unreasonable for even seeking tax amendments to tax legislation. But it is not just Members of the minority who would like to offer amendments. Members on the other side filed nearly as many amendments as Members of the minority, but under the procedure set by the majority leader, even Members of his own party were not able to offer amendments. We could have been debating amendments to an extender bill this week. Instead, we wasted time on other pieces of legislation that were designed to fail, so the other side could score political points.

We were all sent here by our constituents to represent them in the legislative process. So let's legislate, which means debating and offering amendments. A bipartisan bill, such as the tax extenders bill, would be a perfect opportunity to show our constituents our ability to work together and get things done.

I call upon the leadership of the Senate to bring the tax extenders bill back to the floor and to allow for reasonable amendments that permit individual Senators of both parties to have a say in crafting this legislation.

KADZIK NOMINATION

Madam President, I wish to speak about an issue I spoke to earlier this week that I feel is so important I want to remind colleagues of its importance to me and what I think is an important issue for the oversight work of the Senate.

On Monday I explained my opposition to the nomination of Peter Kadzik to be the Assistant Attorney General for Legislative Affairs at the Justice Department.

In my view, the nominee's record demonstrates contempt for congressional oversight. He has made a habit of providing evasive, nonresponsive, and plainly insufficient answers to congressional inquiries over the years. That practice alone disqualifies him from heading up the Legislative Affairs Office. That office has had a chronic problem with credibility in recent years--going back and forth with Mr. Kadzik as well.

Specifically, I am referring to the false denials regarding Operation Fast and Furious, which Mr. Kadzik's predecessor made and eventually had to retract. So it is pretty evident to me that this administration is sending a message to all of us in the Senate by nominating an individual with a track record as abysmal as Mr. Kadzik. That message is this: Expect more of the same. That is quite a message from the self-professed most transparent administration in history which, quite frankly, has not turned out to be so transparent.

But there is a lot more at stake regarding Mr. Kadzik's nomination than restoring credibility to the Legislative Affairs Office--a lot more. As we all know, at the beginning of this year the President boasted that he had ``a pen and a phone'' and that he intended to use it. What he meant, of course, was that he would bypass the legislative process and proceed with aggressive and unilateral executive action.

So in January I called on the Attorney General to disclose the opinions and memoranda from the Justice Department's Office of Legal Counsel, providing the legal justification for this President's unilateral executive action.

Four months later, Mr. Kadzik replied to me in a 1-page response. He said, in short, he would not disclose those legal opinions. But he said if I had additional questions regarding the legality of the President's actions, I should let him know. That was May 20. Well, 11 days later, on Saturday, March 31, we learned that the President had flouted the congressional notification provisions of the National Defense Authorization Act.

This latest example of the administration's flagrant disregard for its legal obligations to submit to congressional oversight has dominated the headlines. I am referring, of course, to the administration's failure to notify Congress of its plan to release the so-called ``Taliban Dream Team'' from Guantanamo last week.

As every Senator knows, the National Defense Authorization Act--a law this President has signed--required the administration to notify key congressional committees at least 30 days before arranging the release of a prisoner from Guantanamo. The law enumerates exactly what that notification needs to address.

Specifically, the administration was legally required to explain to Congress why the release is in the national security interest of our country. The administration was legally required to explain to Congress what action it had undertaken to mitigate the risk of reengagement of such terrorists by re-releasing the detainees.

The law requires these explanations and other disclosures because the Members of this body have an independent responsibility to ensure the national security of the United States. And, of course, we take this responsibility seriously. Each one of us swore an oath to protect and defend the Constitution--the same oath that the President took. Unfortunately, this administration has locked us out of the process that the National Defense Authorization Act requires. I know I need to be more clear for most of you.

The history of section 1035 and the negotiations surrounding it make it plain that Congress included those provisions because it wanted to avoid release of prisoners like this one. So congressional opposition should not exactly come as a surprise to this administration.

This administration broke not only the law but also the promise it made in 2013 when White House Press Secretary Jay Carney promised that the administration ``would not make any decisions about the transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law.'' The administration knows it broke the law. Certain Senators on our Select Committee on Intelligence have even reportedly received apologies from the administration officials for not notifying them.

I don't think apologies are enough, and I don't think this administration takes seriously its legal obligation to consult with us before acting. Take the recent statement made by the Deputy White House Press Secretary on June 9. He said that ``this administration continues to be committed to coordinating with our partners in Congress.'' But the law doesn't require mere ``coordination.'' Coordination under the law is not good enough.

The President is required by law to meet certain obligations, and he recklessly ignores those obligations. The President is required by the Constitution--a document the President claims to know a lot about because he was a constitutional law professor--to ``take care that the laws be faithfully executed.'' Yet we all know by now that this President picks and chooses which laws to enforce.

This is not how our constitutional system is designed. The President is not in power to ignore the law. So ``coordination,'' as the Deputy Press Secretary said, is not good enough. We need compliance with the law. This administration needs to commit--on the record--that going forward it intends to comply with the National Defense Authorization Act so that another one of these stealth detainee releases never happens again.

With the exception of the majority leader, this administration has kept every Member of the Senate and the House in the dark about releasing five of the most dangerous terrorists we were holding at Guantanamo. Even the majority leader was not given the 30-day notice the law requires. So it is clear that not a single Senator was notified in compliance with the law prior to the release of the Taliban Five. It is likewise clear that not a single Senator received an explanation regarding national security and risk mitigation that the law requires in advance of releases.

But the failure to notify us in Congress in accordance with the law does not relieve this administration of its responsibility to justify the releases. There is a lot about this ordeal that is extremely concerning. Part of what is so troublesome is that this administration can't even seem to get its story straight regarding why it ignored the law. The justifications the administration has offered publicly thus far have shifted dramatically from one day to the next day.

I will show how the shift has taken place and the justifications that have been presented to the public.

Shortly, after the release of the Taliban Five on June 1, the administration sent--of all people--National Security Advisor Susan Rice back to the Sunday talk shows--in Benghazi fashion--to explain the administration's rationale.

Adviser Rice told CNN that the ``acute urgency'' of an unspecified ``health condition'' that Sergeant Bergdahl was suffering from had forced the President to act without notifying Congress. We haven't heard much publicly about the acute medical emergency since then. In fact, a number of my colleagues have expressed skepticism at what little information the Pentagon has provided publicly regarding Sergeant Bergdahl's physical condition. But since the administration has said it was an emergency because the terrorists had threatened Bergdahl's life, apparently that was the medical emergency.

But now the story has changed. First, on Monday, following the releases, according to press reports, the White House called the chair of the Senate Select Committee on Intelligence to apologize for its so-called oversight in failing to consult with Congress. So they meant to inform Congress about the releases but didn't because it was an ``oversight.''

Is that the story now? No. It didn't take long for the story to change. The White House then offered a new explanation.

On Tuesday, the Deputy White House Press Secretary said that the release was ``a secret military mission in which disclosures of the mission could put into jeopardy not just the life of Sergeant Bergdahl but also the lives of the American servicemen who were involved in the mission, so discretion on this matter was important.''

Let's think about the new justification--this one I just quoted--let's think about it for a moment. The White House is saying essentially that disclosure of the operational details concerning the physical transfer of Sergeant Bergdahl could have jeopardized the mission. But the White House's justification is totally beside the point. To my knowledge, no Senator has claimed that the administration had a legal obligation under section 1035 to disclose the specific operational details of the transfer to our relevant committees. Section 1035 doesn't even require that. On the contrary, the law requires the administration to explain its rationale for the release in terms of national security and risk mitigation, not operational details.

So this particular justification is, of course, a colossal red herring, and it wasn't the last of the shifting justifications this administration has offered. Listen to the next one.

The administration claimed it simply ran out of time to notify us. On Tuesday the administration reportedly claimed that it knew only 1 day in advance that the transfer would take place and only an hour in advance about where it would happen. And then on Wednesday Defense Secretary Hagel told the House Armed Services Committee that the administration had only 96 hours from the time the deal was made to actually release Sergeant Bergdahl.

Again, both of these justifications miss the point. It is clear that the negotiations preceding the deal were in motion for months. According to the chairman of the Armed Services Committee, the administration reported that it had been engaged in negotiations with the Taliban since January 2014. So the administration had weeks--maybe even months--to communicate to Congress that it was in active negotiations that might result in the exchange deal in the near future. That, of course, never happened.

But even that wasn't the last of the shifting justifications. On Wednesday Defense Secretary Hagel told the House Armed Services Committee that the administration couldn't notify Congress because of the risk of a leak. Secretary Hagel said that the Qatari Government--which apparently was acting as a middleman in these negotiations with the Taliban--threatened to end all negotiations if details of the deal leaked.

It is pretty obvious that this justification doesn't wash either. Press reports indicate that the administration told Congress that anywhere between 80 to 90 members of the executive branch knew about the release of the Taliban five before it happened. That number includes officials in the State Department, the Department of Homeland Security, the White House, and the Department of Defense. If that many individuals--80 or 90 people in this town--are in the loop, the administration's stated concern about a leak just doesn't make any sense. The White House could keep all of those officials in the loop, but somehow it couldn't pick up the phone and call the chair and vice chair of the Senate Select Committee on Intelligence.

Frankly, as we have seen over the last few years, when information is leaked to the press, the leak usually originates in the executive branch and more often than not from the White House itself. So it seems pretty clear that the administration is not being candid with us or with the American people about why it broke the law and locked the representatives of the people of the United States out of the process, contrary to what the law says.

So the bottom line is this: The White House ignored a Federal law that the President signed and that the White House Press Secretary promised it would follow. Yet the White House can't even get its story straight regarding why the law was ignored.

It is for these reasons--getting back to the point about the Office of Legal Counsel and Mr. Kadzik's nomination to be head of the Office of Legislative Affairs--it is for these reasons that I wrote to the Attorney General last week and called on the Office of Legal Counsel to release any and all materials concerning the legal justification for the detainees' release that the Department of Justice provided to the administration. It is the Office of Legal Counsel's job to look at every Presidential action and Executive order and decision to see if it complies with the law. And then it is my approach that if some lawyers are telling the President what he can legally do or not do, constitutionally do or not do, according to the Constitution, why shouldn't the American people know about it?

So this all becomes more important with each passing day, as the White House keeps offering new explanations for why it broke the law.

We know the Justice Department provides legal advice on this question to the Defense Department because that is one of the very first things the administration said publicly about the deal. On June 1 Susan Rice told CNN that the Defense Department consulted with the Justice Department before the decision to move forward was made. We need to know about the nature of that consultation. We need to know what legal justification the Department of Justice provided that would permit the administration to ignore its legal duties to notify Congress and to inform us of the reasons for the release. And, importantly, we need to know what specific facts on which the Justice Department based its legal analysis.

In other words, with all of these shifting explanations we have been hearing about the factual basis for the decision, which one of those many was provided to the Justice Department? Did they tell the Justice Department: We don't have time to tell Congress. If so, did they tell them that these negotiations had been ongoing for months, as they appear to have been? Did these executive branch people tell the Justice Department that Sergeant Bergdahl was, as Susan Rice claims, suffering from an acute condition that required the administration to take immediate action? Did the Justice Department take the view

that the administration did not have to comply with the law because of the President's powers under article II of the Constitution, notwithstanding the fact that the White House had already promised it would comply or was none of this even considered? Was all of this just an ``oversight,'' as the White House apparently told the chair of the Senate Select Committee on Intelligence or was it that they didn't have to comply because they didn't trust the members of the select committee to keep a secret or should we expect that yet another justification will be forthcoming?

The bottom line is that Susan Rice went on CNN and said the Justice Department was consulted. But we don't know whether there was a written opinion provided by the Office of Legal Counsel and, if there was, what it concluded and what facts that conclusion was based on.

The General Counsel of the Defense Department testified yesterday that the administration had received legal advice from the Office of Legal Counsel in the form of an email chain. The administration needs to provide us with whatever written advice it received before it decided to contravene Federal law.

Given their failure to respond to my previous requests and considering Mr. Kadzik's track record in this regard, I am not optimistic. As I have stated previously, Mr. Kadzik's nomination embodies this administration's philosophy that it is OK to ignore its obligations with respect to congressional oversight--a constitutional responsibility of the legislative branch of government, by the way.

Let me conclude by saying that this nominee's record is emblematic of the administration's sorry record in complying with congressional oversight. And, of course, both have been abysmal.

If this administration is serious about honoring its legal obligations, the Attorney General would direct Mr. Kadzik to disclose the Office of Legal Counsel's legal reason for why the administration was entitled to ignore the law's requirement to notify Congress. No Senator should cast a vote on this nomination before Mr. Kadzik provides that legal reasoning to us.

If not now, when are all Senators--Republican and Democrat alike--going to take a stand against this President's unilateral decision to ignore the Congress and his obligations under law? If not now, when will Members of this body stand together in defense of our legislative prerogatives and assert our rights as part of a coequal branch of government under the Constitution?

In this Senator's view, a vote for this nominee is a vote endorsing this administration's contempt for our oversight authority and will lend support to the deal that released the Taliban five without adhering to the law. As my colleagues know, I will vote against this nominee. I encourage my colleagues to vote against this nominee as well.

I yield the floor and suggest the absence of a quorum.

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