August 2, 2012 CONGRESSIONAL RECORD — SENATE S5921 

(i) by striking ‘‘5401 or 5508’’ and inserting 

‘‘5401, or 5508 or yarn of heading 5402 used as 

sewing thread,’’; and 

(ii) by inserting ‘‘or yarn’’ after ‘‘only if 

such sewing thread’’. 

(H) The chapter rules to chapter 63 are 

amended by inserting after chapter rule 2 the 

following: 

‘‘Chapter rule 3: Notwithstanding chapter 

rule 2 to this chapter, a good of this chapter 

shall be considered originating regardless of 

the origin of sewing thread or yarn of heading 5402 used as sewing thread described in 

chapter rule 2 to this chapter, provided the 

thread or yarn is listed in U.S. note 20 to 

subchapter XXII of chapter 98 and the good 

meets all other applicable requirements for 

preferential tariff treatment under this 

note.’’. 

(3) EFFECTIVE DATE.— 

(A) IN GENERAL.—The amendments made 

by this subsection apply to goods of a 

CAFTA–DR country that are entered, or 

withdrawn from warehouse for consumption, 

on or after the date that the Trade Representative determines is the first date on 

which the equivalent amendments to the 

rules of origin of the Agreement have entered into force in all CAFTA–DR countries. 

(B) PUBLICATION OF DETERMINATION.—The 

Trade Representative shall promptly publish 

notice of the determination under subparagraph (A) in the Federal Register. 

SEC. 3. EXTENSION OF AND RENEWAL OF IMPORT 

RESTRICTIONS UNDER BURMESE 

FREEDOM AND DEMOCRACY ACT OF 

2003. 

(a) EXTENSION OF BURMESE FREEDOM AND

DEMOCRACY ACT OF 2003.—Section 9(b)(3) of 

the Burmese Freedom and Democracy Act of 

2003 (Public Law 108–61; 50 U.S.C. 1701 note) is 

amended by striking ‘‘nine years’’ and inserting ‘‘twelve years’’. 

(b) RENEWAL OF IMPORT RESTRICTIONS.— 

(1) IN GENERAL.—Congress approves the renewal of the import restrictions contained in 

section 3(a)(1) and section 3A (b)(1) and (c)(1) 

of the Burmese Freedom and Democracy Act 

of 2003. 

(2) RULE OF CONSTRUCTION.—This section 

shall be deemed to be a ‘‘renewal resolution’’ 

for purposes of section 9 of the Burmese 

Freedom and Democracy Act of 2003. 

(c) EFFECTIVE DATE.—This section and the 

amendment made by this section shall take 

effect on the date of the enactment of this 

Act or July 26, 2012, whichever occurs first. 

SEC. 4. TIME FOR PAYMENT OF CORPORATE ESTIMATED TAXES. 

Notwithstanding section 6655 of the Internal Revenue Code of 1986— 

(1) in the case of a corporation with assets 

of not less than $1,000,000,000 (determined as 

of the end of the preceding taxable year), the 

amount of any required installment of corporate estimated tax which is otherwise due 

in July, August, or September of 2017 shall 

be 100.25 percent of such amount; and 

(2) the amount of the next required installment after an installment referred to in 

paragraph (1) shall be appropriately reduced 

to reflect the amount of the increase by reason of such paragraph. 

SEC. 5. EXTENSION OF CUSTOMS USER FEES. 

Section 13031(j)(3) of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 

U.S.C. 58c(j)(3)) is amended— 

(1) in subparagraph (A), by striking ‘‘August 2, 2021’’ and inserting ‘‘October 22, 2021’’; 

(2) in subparagraph (B)(i), by striking ‘‘December 8, 2020’’ and inserting ‘‘October 29, 

2021’’; and 

(3) by striking subparagraphs (C) and (D). 

The PRESIDING OFFICER. The majority leader is recognized. 

UNANIMOUS CONSENT AGREEMENT—EXECUTIVE CALENDAR 

Mr. REID. Mr. President, I ask unanimous consent that at 12:50 p.m. today, 

the Senate proceed to executive session 

to consider Calendar No. 651; that there 

be an hour of debate equally divided in 

the usual form; that upon the use or 

yielding back of that time, the Senate 

proceed to vote with no intervening action or debate on Calendar No. 651, 

Judge Drain of Michigan, at least a 

judge-to-be in Michigan. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

f 

VETERANS JOBS CORPS ACT OF 

2012—MOTION TO PROCEED—Continued 

Mr. LIEBERMAN. Mr. President, I 

suggest the absence of a quorum. 

The PRESIDING OFFICER. The 

clerk will call the roll. 

The assistant legislative clerk proceeded to call the roll. 

The PRESIDING OFFICER (Mrs. 

HAGAN). The Senator from Ohio. 

Mr. BROWN of Ohio. Madam President, I ask unanimous consent that the 

order for the quorum call be rescinded. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. BROWN of Ohio. Madam President, I ask unanimous consent to speak 

as in morning business for up to 20 

minutes. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

WALL STREET REFORM

Mr. BROWN of Ohio. Madam President, I rise to discuss the troubling 

state of our financial system and the 

unfinished business of Wall Street reform. I am here to talk specifically 

about too-big-to-fail banks. 

Decades of deregulation and laissez 

faire economic policies helped the six 

largest U.S. banks grow from 18 percent of gross domestic product only 25 

years ago to 68 percent of gross domestic product in 2009. So it went from 18 

percent in the mid-1990s to 68 percent 

of GDP in 2009. 

We know what happened next. During 

the financial crisis, these six 

megabanks collected $1.2 trillion—just 

to understand that figure, if we can— 

$1.2 trillion is $1,200 billion and $1 billion is $1,000 million. The six 

megabanks collected $1.2 trillion in 

Federal taxpayer-funded support from 

the Treasury, from the FDIC, and from 

the Federal Reserve. 

Two years after we passed the DoddFrank Wall Street Reform Act—and I 

supported it because it took many important steps—I am concerned we are 

not seeing reform, nearly sufficient 

enough reform, in the financial sector. 

As we uncover more and more risky, 

fraudulent, and illegal activities, it 

seems far too clear that the American 

people absolutely see this and believe 

Wall Street is back to business as 

usual. 

Since 2010, we have learned about a 

number of things. I am just going to 

rattle off seven or eight significant, serious problems. Some are illegal, some 

are accusations, some are alleging significant systemic problems—all troubling issues that have happened just in 

the last couple years: Investor lawsuits 

and SEC enforcement actions over 

mortgage-backed securities; municipalities being sold overpriced credit derivatives, bankrupting some of those 

municipalities, and think of the hardship that causes these communities; 

the forging of foreclosure documents 

and mortgage securities legal documents by five of the Nation’s largest 

servicers, leading to $25 billion in penalties—$25 billion in penalties—from 

these servicers forging foreclosure documents and mortgage security legal 

documents—$25 billion in penalties; the 

Nation’s largest bank halting all consumer debt collection lawsuits due to 

concerns about poorly maintained and 

inaccurate paperwork; the Nation’s 

largest bank losing $5.8 billion so far— 

so far—on large, complex derivative 

trades that regulators either missed or 

didn’t understand or ignored; suspicions that 16 global banks, including 

the three largest U.S. banks, manipulated LIBOR—the London Interbank 

Overnight Rate—that is used as a 

benchmark for mortgages, credit cards, 

student loans, and even for derivatives—financial instruments that affect almost everybody in our country. 

Continuing with the list of problems 

since 2010: a criminal bid-rigging trial 

exposing illegal practices by many 

Wall Street banks in arranging bids so 

banks could underpay for municipal 

bonds; former employees of the Nation’s largest bank alleging the company urged them to steer clients to 

their own mutual funds because they 

were more profitable to the bank, even 

though they paid investors lower returns than other funds, while their clients presumably were trusting them to 

act in their best interests; the Federal 

Energy Regulatory Commission investigating whether the biggest U.S. bank 

manipulated prices in the energy markets, forcing consumers to pay more; a 

$175 million settlement by the Nation’s 

fourth largest bank for discriminatory 

lending practices in housing markets 

that include Cleveland and many other 

cities. One can walk through these 

neighborhoods and see what foreclosures have done to them, see what 

rigging, what other dysfunctional 

servicers’ behavior or illegal activities 

have done to these communities and to 

these families. 

Putting the numbers aside and the 

political speech aside, imagine for a 

moment that a parent of 12- and 13- 

year-old daughters has to sit down with 

them and say: Sorry, but dad lost his 

job a few months ago and now we are 

losing our home. 

Where are we going to move, Mom? 

I don’t know. 

What school am I going to go to? 

I don’t know yet. We have to figure 

that out. 

Imagine the personal hurt and hardship caused by a lot of these things to 


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S5922 CONGRESSIONAL RECORD — SENATE August 2, 2012 

a whole lot of families in Cleveland and 

Mansfield and Cincinnati and Dayton. 

More problems since 2010: Regulators 

are investigating whether the rate that 

establishes municipal bond prices is 

susceptible to manipulation. 

These are just 11 examples, all of 

them huge separately and in the aggregate devastating, potentially—certainly devastating to many individuals 

and potentially devastating in a huge 

way to our economy as a whole. The 

list goes on and on and on. 

Some experts say we can’t—when we 

talk about potentially forcing these 

banks to divest themselves because of 

their size, some experts say our banks 

need to compete. They say: No, our 

banks need to compete with the banks 

in other countries. But then does anyone truly believe—do any of these 

bankers on Wall Street or bankers in 

my State who have acted, frankly, 

more responsibly—the community 

banks and the credit unions and the regional banks—does anybody truly believe we should follow the European 

model where never-ending bank bailouts have become the norm? 

We know the world’s largest bank, 

HSBC, at $2.55 trillion, helped launder 

money from Mexican drug traffickers 

and Middle Eastern terrorists. As we 

know by now—all over the newspapers—the eighth largest bank in the 

world, the $2.4 trillion Barclays—the 

city where the Olympics are being 

held—was the first bank caught manipulating the LIBOR rate, not exactly 

models we should emulate. 

Financial reform is supposed to reduce industry concentration. It is supposed to end too big to fail. But the financial sector is even more concentrated now than it was before the financial crisis. 

My colleagues will remember what I 

said at the outset. In 1995, 18 percent of 

GDP was the assets of these banks. The 

six largest banks had 18 percent of GDP 

in 1995. By 2009, it was 68 percent, and 

it is even worse today—the top 10 

banks’ assets, 6 percent in 2006, now 77 

percent at the end of 2010 and growing, 

presumably, as a result of mergers during the financial crisis. Three of the 

four largest megabanks have grown by 

an average of more than $500 billion— 

grown by an average of more than $500 

billion. They are in the vicinity of $800 

billion and $1 trillion and $1.5 trillion 

and $2 trillion in assets. 

The six biggest U.S. banks have combined assets that are twice as large as 

the rest of the top 50 U.S. banks put together. Think about that. The six largest U.S. banks, their assets total this; 

and the next largest 50 U.S. banks—big 

banks, to be sure; hundreds of billions 

in assets—total even less than the six 

largest. 

According to Robert Wilmers, the 

CEO of M&T Bank, the six biggest 

banks in the United States account for 

35 percent of all U.S. deposits, 53 percent of U.S. banking assets, 56 percent 

of all mortgages, and 93 percent—93 

percent—of trading revenues. 

This is just six banks that wheel such 

immense power in our economy. The 

message to the markets is clear: These 

trillion-dollar megabanks are too big 

to manage, they are too big to regulate, and they continue to be too big to 

fail. We still have work to do. 

For all of its benefits—including a 

new consumer protection agency and 

oversight of derivatives—the DoddFrank legislation relies upon regulators to get it right this time. 

But given their track record—sometimes being too close to the people 

they regulate, so-called regulatory capture; sometimes there just are not 

enough of them; other times they may 

not have the expertise to be able to 

chase around some of the smartest, 

best educated, most experienced banking executives who know how to game 

the system. Also, as I said, as to these 

regulators, we simply do not have 

enough of them. 

That is why I am skeptical. That is 

why we need to go beyond the central 

provisions of Dodd-Frank that increase 

capital, that establish living wills, that 

establish a process for orderly liquidations. Those are all good things. But, 

clearly—I just mentioned these 10 or 11 

or 12 problems; those are just the biggest ones—clearly, those are not 

enough. 

Members of Congress in both political parties agree that banks need to 

have much more capital to cover their 

losses—much more of a financial capital cushion. We agree institutions 

should issue more stock, should restrict dividends, should retain their 

earnings to build bigger buffers. But 

while countries such as Switzerland are 

considering 19 percent capital requirements—a ratio of about 5 to 1—U.S. 

regulators are staying within the Basel 

III international capital standards, 

which FDIC Director Tom Hoenig has 

said simply will not prevent another financial crisis. 

There is also a living will process 

that is intended to make it easier to 

resolve large, complex institutions. We 

talked a lot about that in Dodd-Frank. 

Institutions are supposed to tell regulators how they can be dismantled to 

protect the financial system as a whole 

and to protect Middle America when 

they get into financial trouble. But the 

proof will be in the results. 

So far regulators have yet to begin a 

process of simplifying the six largest 

banks that have a combined 14,420 subsidiaries. Six banks have 14,420 subsidiaries. 

I mention that number because, 

Madam President, as you think about 

every look at these six banks, every 

quantifying number I try to give, every 

observation of these six banks, every 

delineation of what these six banks do 

and what they are, this speaks of these 

huge, these behemoth banks that are 

too big to fail—these six banks. They 

are too big to regulate, and they are 

too big to manage. 

There is title II Orderly Liquidation 

Authority. I have heard my colleagues, 

including the ranking member on my 

subcommittee, Senator CORKER from 

Tennessee, who coauthored title II, 

note that the FDIC and Treasury could 

keep failing banks on life support rather than liquidate them. Is that what we 

want when we think of too big to fail, 

too big to manage, too big to regulate? 

I have talked to regulators who have 

privately told me and told Graham 

Steele of my staff that they believe our 

banks are still too big to be allowed to 

fail because the collapse of banks that 

size could potentially crush the economy. 

We remember the fear in the voices 

of some of the top people in the Bush 

administration when they talked to us 

in the fall of 2008 about what was happening to our financial system. I do not 

think we have answered those fears 

nearly well enough. 

This is not capitalism the way it 

should be. It is not right. Some of my 

colleagues think the answer to too big 

to fail requires repeal of Dodd-Frank— 

this is about as silly as it gets—and a 

return to the same unfettered free market approach that Alan Greenspan 

championed for decades and that led us 

into this mess—except Alan Greenspan 

does not even think we should have 

that again, even though he was the No. 

1 cheerleader, he and the Wall Street 

Journal editorial board, for an unfettered, unregulated Wall Street. He is, 

to his credit—and I do not give him 

credit for much in most of the last 10 

years—but, to his credit, he has acknowledged that, yes, indeed, he was 

wrong; that this unfettered, unregulated Wall Street capitalism simply did 

not work for our country. He acknowledges doing that again would be a recipe for financial crises and bailouts as 

far as the eye could see. 

Instead, we must face the reality 

that too big to fail is simply too big, 

and we must enact the SAFE Banking 

Act because too big to fail and too big 

to manage and too big to regulate has 

become the norm, especially among 

these large six behemoth institutions. 

The SAFE Banking Act, my legislation, would place reasonable limits on 

the share of deposits and the volatile 

nondeposit liabilities that any one institution could take on. It would require the largest financial companies 

to fund themselves with more of their 

own shareholders’ equity and less leverage. It would put an end to the government’s implicit and explicit support 

for megabanks—specifically, the six 

largest Wall Street institutions that, 

as I spelled out earlier, are in a class 

by themselves. 

Remember those numbers. The six 

largest banks: 35 percent of all deposits, 53 percent of all U.S. banking assets, 56 percent of all mortgages, 93 

percent of trading revenues. Those six 

institutions have that kind of power in 

the economic marketplace in large 

part because of actions here. 

Regulators and banking leaders are 

increasingly voicing support for this 

bill. 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE S5923 

Former Federal Reserve Chairman 

Paul Volcker recently said the 

J.P.Morgan episode might be an illustration that these banks are too big to 

manage. 

Former FDIC Chairman Sheila Bair 

says shareholders and regulators could 

force banks to break up, but this legislation would be the most direct way to 

do it. 

Richard Fisher, the president of the 

Federal Reserve Bank of Dallas, and 

James Bullard, president of the Federal 

Reserve Bank of St. Louis, agree that 

more needs to be done to address the 

problem of too-big-to-fail banks. 

Last week, the architect of the toobig-to-fail banking model, former 

Citigroup CEO Sandy Weill, said the 

biggest banks should be broken up. 

Increasingly, this is not a partisan 

issue. The ranking member of the 

Banking Committee, Republican Senator SHELBY from Alabama, supported 

the SAFE Banking Act when it was a 

floor amendment, when it was the 

Brown-Kaufman floor amendment. 

I have heard from more and more of 

my colleagues on both sides of the aisle 

that they might have voted against it 

a couple years ago as a floor amendment, but things have gotten worse. 

The idea is sounding better and better 

to them. 

This legislation would protect taxpayers by putting megabank shareholders on the hook for losses and ending bailouts for good. 

At a time of increasing fiscal restraint, our Nation can ill-afford to 

waste precious taxpayer dollars bailing 

out our largest banks in their recklessness. 

My legislation would benefit the 

community banks that are at an unfair 

competitive disadvantage because 

megabanks have access to cheaper 

funding based upon the perception that 

the government stands behind them. 

Studies estimate this support gives 

megabanks a 70 to 80 basis point funding advantage. Madam President, 70 to 

80 basis points means three-fourths, 

four-fifths of a percent on interest advantage, if you will—a subsidy encouraged, provided, for that matter, by the 

expectation of taxpayer support of up 

to $60 billion per year. 

So if you are one of the six big banks, 

you can borrow money in capital markets at a lower cost than if you are a 

community bank in Carey, OH, or a 

community bank in Sandusky or a 

mid-sized bank in Columbus or Akron, 

OH, because the market knows we will 

not let those six biggest banks fail. So 

their lending is a little less expensive 

because there is a lot less risk. 

My legislation will benefit investors, 

as many experts agree that the sum of 

the parts of the largest megabanks is 

more valuable than the banks as a 

whole. So under our legislation, when 

they begin—these six megabanks, with 

assets from $800 billion to $2.2 trillion— 

when they begin to divest themselves, 

there is a reasonably good chance they 

will be worth more in the aggregate 

than they were in the whole. 

It will benefit Main Street families 

and businesses because increased competition will result in better prices, 

and fraudsters will be punished with 

the full force of the law. Just about the 

only people who will not benefit from 

my plan are a few Wall Street executives who, frankly, have done just fine 

in the last 10 years. 

We simply cannot wait any longer for 

regulators to act. Wall Street has been 

allowed to run wild for years. Their 

watchdogs are either not up to the job 

or, in some cases, complicit in their activities. 

How many more scandals will it take 

before we acknowledge that we cannot 

rely on regulators to prevent subprime 

lending, dangerous derivatives, risky 

proprietary trading, and even fraud and 

manipulation? 

Even if the regulators wanted to do 

the job—and I think they do—it would 

require 70,000 examiners to examine a 

trillion-dollar bank with the same 

level of scrutiny as a community bank. 

The regulation of the community 

banks is plenty, but when its comes to 

the six largest banks, we are not even 

close. Again, they are too big to fail, 

they are too big to manage—look at 

what has happened, those examples I 

gave—and they are too big to regulate. 

We cannot rely on the market to fix 

itself. The six largest Wall Street 

megabanks are essentially an oligopoly 

and a cartel, making true competition 

impossible. 

Megabanks’ shareholders and creditors have no incentive to end too big to 

fail because they get paid out when 

banks are bailed out. They get paid out 

when banks are bailed out. And banking laws prevent meaningful management shakeups because any hostile 

takeover effort would require Federal 

Reserve approval. 

That is why it is time for Congress to 

act in the interests of the American 

public. It is time to restore the public’s 

confidence in our financial markets. It 

is not there now, to be sure. It is time 

to put an end to Wall Street welfare 

and government subsidies. We have 

seen far too much of that. It is time to 

enact the SAFE Banking Act. 

I yield the floor. 

The PRESIDING OFFICER. The Senator from Rhode Island. 

Mr. WHITEHOUSE. Madam President, I see the Senator from North Dakota on the Senate floor, and I wonder 

if he seeks recognition. He is my chairman on the Budget Committee. I am 

inclined to give him precedence. 

The PRESIDING OFFICER. The Senator from North Dakota. 

Mr. CONRAD. Madam President, 

through the Chair, I would say to my 

colleague, I do have a matter that is a 

parliamentary inquiry that is a matter 

that is important for us to resolve. I do 

not want to intrude on the Senator’s 

time. 

Mr. WHITEHOUSE. Madam President, may I suggest that the Senator 

proceed, and it would be helpful to me 

if he could give me an indication, first, 

of how long he might be and, second, 

that we enter into a unanimous consent agreement that I be recognized 

following his remarks. 

Mr. CONRAD. No more than 4 minutes. 

Mr. WHITEHOUSE. Perfect. 

The PRESIDING OFFICER. Without 

objection, it is so ordered. 

Mr. WHITEHOUSE. I thank the Senator. 

The PRESIDING OFFICER. The Senator from North Dakota. 

PARLIAMENTARY INQUIRY—FISCAL YEAR 2013

BCA SEQUESTRATION

Mr. CONRAD. Madam President, I 

come to the floor today to clear up 

some confusion with respect to the 

Budget Control Act of 2011. Some have 

suggested that the Budget Control Act 

indirectly authorized the Senate to use 

a fast-track process to modify the 

across-the-board cuts scheduled to go 

into effect next year due to failure of 

the Joint Select Committee on Deficit 

Reduction. 

Madam President, if that claim were 

true, it would result in a fundamental 

change in Senate procedures and prerogatives. However, it is clear in looking at both the statutory language and 

Congress’s intent in passing the Budget 

Control Act that this claim is completely without merit. 

First, let’s look at what the law actually says. The key provision at issue 

is section 258A of the Deficit Control 

Act of 1985. Section 258A would allow 

the majority leader to introduce a 

joint resolution to modify or provide 

an alternative to a sequestration 

order—and I quote—‘‘issued under Section 254.’’ That joint resolution could 

not be filibustered and would pass the 

Senate with a simple majority vote. 

The sequestration orders under section 

254 were put in place two decades ago 

to enforce deficit targets and discretionary spending limits that have long 

since expired. 

A sequestration order under the 

Budget Control Act is not an order 

issued under section 254. The Budget 

Control Act created a new sequestration process under a completely different section of the law: section 251A. 

Section 251A explicitly authorized a 

new set of Presidential sequestration 

orders in fiscal year 2013 for both discretionary and direct spending, and did 

so without any reference at all to the 

old section 258A procedures. The statutory language is clear, therefore, that 

these old procedures do not apply to sequestration under the Budget Control 

Act. 

It is also clear that Congress never 

intended for section 258A procedures to 

apply. There was no discussion of this 

issue on the floor of either House. 

There was no discussion of this in the 

Budget Control Act negotiations between congressional Republicans and 

the White House, and there was no discussion of this among Democratic Senators. Moreover, the Budget Control 

Act and the Deficit Control Act of 1985 

are completely separate budget enforcement mechanisms enacted 26 


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S5924 CONGRESSIONAL RECORD — SENATE August 2, 2012 

years apart and under entirely different circumstances. 

Simply put, there is zero evidence of 

any congressional attempt to apply the 

258A procedures to the Budget Control 

Act sequestration. In order to confirm 

this for the RECORD, I would like to 

pose a parliamentary inquiry to the 

Presiding Officer. 

Madam President, is it correct that 

section 258A of the Deficit Control Act 

of 1985 does not apply to the fiscal year 

2013 sequestration? 

The PRESIDING OFFICER. The Senator is correct. 

Mr. CONRAD. I thank the Chair. I 

think it is an important decision to get 

affirmed publicly so that we might proceed and not be engaged in distractions. 

I thank the Chair. 

I yield the floor. 

The PRESIDING OFFICER. The Senator from Rhode Island. 

NIH FUNDING

Mr. WHITEHOUSE. Madam President, last spring Cathy Hutchison 

picked up a cup of coffee and took a 

sip. Now, why have I come to the floor 

of the Senate to talk about Cathy 

Hutchison picking up a cup of coffee 

last spring and taking a sip? Because 15 

years earlier, Cathy Hutchison was 

working in her garden when she suffered a stroke that left her paralyzed. 

Cathy did not just lose the ability to 

use her arms and legs, she also lost the 

ability to speak. I am sorry to say this 

condition is not unique to Cathy. It 

happens regularly enough that there is 

a medical term for it, locked-in syndrome. That is how Cathy lived for 

nearly 15 years: alert and mentally 

sharp but unable to move or speak, a 

prisoner in her own body. 

All of this changed last spring when, 

for the first time in nearly 15 years, 

Cathy picked up that cup of coffee and 

took a sip. Cathy Hutchison is a patient enrolled in a clinical trial at 

Brown University in Providence, RI. 

They are testing a neural interface device known as BrainGate. 

BrainGate works by placing a small 

sensor on the brain. The sensor is connected to a computer that interprets 

the brain’s signals to control a specially designed robotic arm. The university researchers asked Cathy to 

imagine that she was moving her arm 

in different directions. Then they monitored which neurons fired for those 

corresponding movements, all in her 

imagination. 

Using this brain wave information, 

researchers attached a robotic arm to 

the computer. The computer translated 

the electrical impulses detected by the 

sensor in Cathy’s brain back into commands to tell the arm what to do. 

Cathy communicates through a device that allows her to type using the 

movement of her eyes, and she typed 

that she was ‘‘ecstatic’’ about the new 

technology and hopes it can be expanded to one day allow her to walk 

again. 

The BrainGate team is also working 

to determine if this technology can ultimately be used to help individuals 

paralyzed by stroke or injury to regain 

greater independence. BrainGate is an 

example of what is possible when the 

best minds in science and engineering 

come together for the common good. 

Researchers from Brown University, 

the Department of Veterans Affairs, 

Massachusetts General Hospital, and 

the German Aerospace Center collaborated on this project. Their efforts 

were supported by a grant from the National Institutes of Health, as well as 

funding from the Veterans’ Administration, and several private foundations. BrainGate is just one of the most 

recent in a long list of medical breakthroughs that are made possible by our 

National Institutes of Health. The NIH 

is the cornerstone of our commitment 

to medical research for the benefit of 

humanity. 

Research supported by the NIH has 

led to medical advances that have 

saved and improved countless lives 

while making America the world leader 

in discovery and innovation. More than 

80 Nobel prizes have been awarded for 

research supported by the National Institutes of Health. 

In Rhode Island, Brown University 

has received NIH grants to support cutting-edge research on a multitude of 

diseases, including cancer, dementia, 

and muscular dystrophy. In fact, the 

scope of projects at Brown that receive 

NIH support is so diverse that the university describes its NIH-backed research as covering everything from autism to Alzheimer’s. Yet there are 

those in Congress who have suggested 

cutting the NIH’s budget. 

Let’s be clear about what cutting the 

NIH’s budget means. It means cutting 

off funding for research that has provided Cathy Hutchison her first taste 

of physical independence in 15 years. It 

means telling the millions of Americans suffering from cancer that they 

have to wait longer for lifesaving research. It means suffocating a vibrant 

area of innovation and job creation. 

Cutting the NIH budget has ripple effects far beyond just one Federal agency. Quite simply, it will hurt job 

growth. Medical research is one of the 

fastest growing fields nationwide. In 

Rhode Island and across the country, 

cities are undergoing a renaissance 

sparked by the growth of high-paying 

careers in medical research. 

I have heard friends on the other side 

of the aisle talk at length about how 

we need to do more to create jobs. 

Well, I could not agree more. Now is no 

time to put jobs at risk by cutting 

back on the research funding that 

makes them possible. I know the Appropriations Committee recently reported a bill to the floor that would increase the NIH budget by $100 million 

for the coming fiscal year. I applaud 

my colleagues on the Appropriations 

Committee for their commitment to 

this vital agency, and I hope we will 

soon be able to vote on their measure. 

But there is something looming on the 

horizon that will render this $100 million increase all but meaningless. I am 

talking, of course, about sequestration, 

under which it is estimated that NIH 

will face not a $100 million increase but 

a $2.4 billion cut. 

I know a lot of my colleagues have 

discussed the effect that the sequester 

will have on defense spending, but it is 

important to remember that 50 cents 

out of every dollar of cuts that will 

occur under sequester will come out of 

nondefense spending, including specifically the NIH. 

‘‘Devastating’’ is the word that keeps 

being used when people are asked how 

sequester would affect our National Institutes of Health. That is how NIH Director Dr. Francis Collins described the 

effect of a nearly 8-percent cut to the 

agency’s budget. Those who are familiar with science know how important it 

is in ongoing experiments that there be 

a consistent data set through the period of the research. 

When we interrupt research for financial reasons, we can damage the value 

of research conducted in other years. I 

agree with my colleagues that we must 

reduce our long-term deficit, but when 

we cut funding that creates jobs and 

leads to lifesaving medical breakthroughs we are pursuing policies that 

are the epitome of penny-wise but 

pound-foolish. 

I hope we in the Senate can work together to find sensible solutions that 

reduce the deficit while maintaining 

our longstanding commitment to medical research and innovation. We owe 

that much to Cathy and to the millions 

of Americans whose futures will be 

brighter thanks to the research and 

jobs made possible by our American 

National Institutes of Health. When 

Cathy Hutchison interacts with the 

BrainGate program, it is hard not to 

get the sense that we are looking into 

the future, a future where people like 

Cathy will know that disease or injury 

will not transform their bodies into a 

prison. 

It was Arthur C. Clarke who said 

‘‘any sufficiently advanced technology 

is indistinguishable from magic.’’ For 

Cathy, for the BrainGate research 

team, and indeed for anyone who may 

one day benefit from this remarkable 

technology, that sip of coffee last 

spring taken by Cathy Hutchison was a 

moment of magic. Let’s commit ourselves to providing Cathy, the 

BrainGate team, and all of those who 

are relying on us in this body to provide the support they need to keep 

making magical moments like this 

possible. 

I yield the floor. 

The PRESIDING OFFICER. The Senator from Colorado. 

PRODUCTION TAX CREDIT

Mr. UDALL of Colorado. Madam 

President, I am here again on the Senate floor, as I have been on 14 previous 

occasions, to urge all of us, to urge my 

colleagues in the Senate and, of course, 

our colleagues down through the Rotunda in the House to extend the production tax credit for wind. It is also 

known by its shorthand as the PTC. 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE S5925 

The reason I am here on the floor, as 

I have said many times before, this is 

about jobs. If we do not extend the production tax credit as soon as possible, 

we will lose good-paying American 

jobs. It is that simple. It is that 

straightforward. 

I am going to keep speaking on the 

floor of the Senate until my colleagues 

decide to act, until Congress decides to 

take the necessary action to extend the 

production tax credit and protect 

American jobs. I want to underline 

that. We are going to protect American 

jobs and help secure our energy future 

in the 21st century where clean energy 

will be a dominant part of the mix. 

It has been a treat to come to the 

floor to do this on one hand because I 

am touring the country. I focus on a 

State when I come to the floor. Today 

I want to focus on the great State of 

Oregon, where the wind industry is a 

major part of their economy, and 

where the PTC’s positive ripple effects 

have been felt statewide. 

In short, Oregon is a national leader 

in wind power. I want to share some of 

the statistics to make the case. According to the American Wind Energy 

Association, Oregon ranks sixth in 

power derived from wind. The wind energy industry supports roughly 3,000 

jobs in Oregon. That number is poised 

to grow but only if we extend the production tax credit. 

As we look at the map of Oregon, we 

can see that Oregon has installed extensive wind power projects along the 

Colombia River Valley in the northern 

part of the State. The Colombia basically delineates the State of Oregon 

from the State of Washington on the 

right here along its northern boundary. 

There are enough projects there producing enough power so that 700,000 

homes would have electricity from 

those wind-power projects. 

The Biglow Canyon Wind Farm is the 

ninth largest wind farm in the Nation. 

And Oregon’s Second Congressional 

District, which is a very big district, 

much like the Western Slope district, 

Colorado’s Third District, ranks fourth 

in the United States for installed wind 

capacity. Over the last decade, one 

county alone, a relatively small county, Sherman County, has seen over $18 

million in revenues coming into that 

county due to the simple presence of 

the wind energy industry. 

That money has helped Sherman 

County do impressive things. They 

have created jobs and improved their 

infrastructure, including building a 

new public school and library, supporting the Sherman County History 

Museum, and installing solar panels on 

county property. A hybrid system is in 

use using renewable energy with those 

solar panels. Those are impressive 

achievements. 

Oregon’s wind energy potential is 

tremendous. Currently there are plans 

to more than triple the amount of 

power that Oregon gets from wind. 

That would mean a total of 9,000 

megawatts of electricity. That would 

power over 2 million homes. Moreover, 

such a move, such an investment, 

would create thousands of jobs. 

I want to go back to my main point. 

The wind production tax credit has 

been a major driver of this growth in 

the last decade, encouraging some wind 

energy producers to invest in Oregon 

and the rest of our country. The PTC 

has encouraged American innovation, 

and innovation is how we will grow our 

economy. It has supported American 

companies in the wind energy sector. I 

know the Presiding Officer knows 

this—and I look forward to the opportunity to talk about her State of North 

Carolina in the future. The PTC has enticed foreign companies to bring their 

operations—jobs—to the United States. 

Because of the PTC, these companies 

are building factories and offices in the 

United States. 

I want to talk about Vestas, a Danish 

company that has a significant manufacturing presence in Colorado—four 

different plants. Last Saturday, I was 

at a Vestas plant in Pueblo. They support many jobs in Colorado. Vestas 

also has a strong presence in Oregon. 

In fact, their U.S. headquarters is located in one of the most livable cities 

in the world, that being Portland. Vestas has made a real statement about 

the potential here in the United States. 

Again, the point I am making is it is 

clear to me and a large, growing, and 

bipartisan group of colleagues in both 

Houses of Congress, including both of 

my colleagues from Oregon, Senators 

MERKLEY and WYDEN, that extending 

the production tax credit is the right 

thing to do. It is the right thing to do 

for our future, for our economy, and for 

our environment. Without the PTC—if 

you look at the other side of this success story—the sustained growth of the 

wind industry in recent years will 

slow—it already has—and possibly 

halt, and we actually may see goodpaying American jobs being lost to 

China and other countries. Why would 

we want that to happen? We cannot let 

that happen. The continued uncertainty is not right and not fair when it 

comes to our U.S. wind industry and 

the people who work in that sector. 

Last Saturday, I heard from the 

workers at the Vestas plant in Pueblo 

that they didn’t know whether they 

were going to have jobs in a few 

months. The looks on their faces alone 

should motivate all of us to get the 

wind production tax credit extended. 

This is also an opportunity for us in 

Congress to show the American public 

that we are not as dysfunctional as a 

Congress as the public believes. This is 

a chance to support economic growth 

and American manufacturing right 

here in our country. The American people expect us to produce results, and we 

can only do so by working together. 

I fear that the wind production tax 

credit has become a political football. 

We have a chance to show the American public, who are sick of campaign 

year rhetoric and politics, business as 

usual and partisanship, that we can 

rise above that. I reiterate that this is 

a perfect opportunity for us because 

this is not a partisan issue. It has widespread support from both parties across 

our country. I have been highlighting 

that fact over the last few weeks. 

What can we do? We ought to understand that the production tax credit 

equals jobs. We ought to pass it as soon 

as possible. As I wind down, I note that 

the Senate Finance Committee is 

meeting right now to consider a tax extenders package. I know many colleagues on the Senate Finance Committee, including Oregon’s senior Senator RON WYDEN, are working to include the PTC in the package. I add my 

voice to those who are already in place, 

urging the Finance Committee to pass 

an extension of the PTC today as a 

part of the tax extenders package, and 

then let’s move the full Senate to the 

point where we can pass the PTC as 

soon as possible. Why? Because we are 

protecting American jobs and we are 

preparing the ground for additional job 

creation that is crucial, growing, and 

exciting in the 21st century to the wind 

energy industry. 

I thank the Chair for what her State 

is doing for wind power. I look forward 

to talking about North Carolina. 

With that, I yield the floor. 

The PRESIDING OFFICER. The Senator from Rhode Island. 

Mr. WHITEHOUSE. Madam President, I am delighted to follow the distinguished Senator from Colorado and 

commend him for his persistence and 

his passion on preserving the wind production tax credit. We have, as he will 

recall from our previous discussions together on the floor, facilities that we 

hope to have going up offshore of 

Rhode Island very soon that will provide a local source of energy for us, reduce our reliance on imported oil, and 

create significant and well-paying jobs 

at home. So I am glad to be his 

wingman in this pursuit and thank him 

for his leadership. 

CLIMATE CHANGE

Madam President, yesterday marked 

the end of what is expected to be one of 

the top five warmest months on record. 

The USDA recently declared nearly 

1,400 counties in 31 States, including, I 

am sure, many in Colorado, disaster 

areas as a result of the ongoing 

drought. NASA and NOAA declared the 

last decade the warmest on record. In 

2011, we faced 14 weather-related disasters that totaled more than $1 billion 

in damage each. We already have several more that have occurred in 2012. 

I have come to the floor today to discuss the science of climate change. Virtually all respected scientific and academic institutions have agreed that 

climate change is happening, and that 

human activities are the driving cause 

of this change. A letter to Congress 

from a great number of those institutions in October 2009 stated that: 

Observations throughout the world make 

it clear that climate change is occurring, 

and rigorous scientific research demonstrates that the greenhouse gases emitted 


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S5926 CONGRESSIONAL RECORD — SENATE August 2, 2012 

by human activities are the primary driver. 

These conclusions are based on multiple 

independent lines of evidence, and contrary 

assertions are inconsistent with an objective 

assessment of the vast body of peer-reviewed 

science. 

If I were to translate that last phrase 

into layman’s terms, it would basically 

mean if you are saying anything different, we should be looking for your 

motives. 

This letter was signed by the heads of 

the following organizations: the American Association for the Advancement 

of Science, American Chemical Society, American Geophysical Union, 

American Institute of Biological 

Sciences, American Meteorological Society, American Society of Agronomy, 

American Society of Plant Biologists, 

American Statistical Association, Association of Ecosystem Research Centers, Botanical Society of America, 

Crop Science Society of America, and a 

great many others. 

These are highly esteemed scientific 

organizations, and they don’t think the 

jury is still out on climate change. 

They recognize that, in reality, the 

verdict is in, and it is time to act. 

Over the weekend, Dr. Richard Muller, professor of physics at the University of California-Berkeley, and also director of the Berkeley Earth Surface 

Temperature Project, and a former 

MacArthur Foundation Fellow—a socalled genius grant award winner—revealed in a New York Times op-ed how 

he has become a converted climate 

skeptic. He cites findings from his research, which ironically was partially 

funded by the Koch brothers, that the 

Earth’s land temperature has increased 

by 21⁄2 degrees Fahrenheit in the past 

250 years and 11⁄2 degrees over the past 

50 years. He states: 

Moreover, it appears likely that essentially all of this increase results from the 

human emission of greenhouse gases. 

Unfortunately, human emission of 

greenhouse gases is on the rise. In 2011, 

the famed Mauna Loa Observatory documented the biggest annual jump yet 

in carbon dioxide. A monitoring station in the Arctic this year measured 

carbon dioxide at 400 parts per million 

for the first time, which is 50 parts per 

million higher than the maximum concentration at which scientists predict a 

stable climate. Of course, 400 parts per 

million is way outside the 170 to 300 

parts per million bandwidth that has 

existed on this planet for the past 8,000 

centuries. For 800,000 years, we have 

been between 170 and 300 parts per million, and now in the bellwether leading-edge Arctic area, we cracked 400 in 

our climate. 

A 2012 report by the IPCC concludes 

that climate change increases the risk 

of heavy precipitation. Rhode Islanders 

are no stranger to heavy precipitation. 

In 2010, we saw flooding that exceeded 

anything we have seen since the 1870s, 

when Rhode Island first started keeping records. At the height of the rains, 

streets in many Rhode Island cities and 

towns looked more like rivers than 

roads. Local emergency workers sailed 

down Providence Street, a main road in 

West Warwick, by boat and jet skis— 

down a main road on boats and jet 

skis—in order to assist residents 

trapped by the floodwaters. Of course, 

we cannot link that exact storm to climate change, but we know that climate change is increasing the risk of 

extreme weather events like this one. 

It is loading the dice for more and 

worse storms. 

As a New Englander, I was concerned 

by a report released this week by Environment America, titled ‘‘When It 

Rains, It Pours.’’ The report found that 

in New England ‘‘intense rainstorms 

and snowstorms [are] happening 85 percent more often than in 1948. The frequency of intense rain or snowstorms 

nearly doubled in Vermont and Rhode 

Island, and more than doubled in New 

Hampshire.’’ Not only are these inundations happening more often, but the 

largest events are actually dumping 

more precipitation—around 10 percent 

more on average—across the country. 

For States such as mine, these storms 

are dangerous, expensive, and cause 

lasting damage. 

We are moving down a troublesome 

and unknown path. The best we can do 

now is to prepare for dramatic environmental shifts. We must look to science 

and scientists and use the best available data to protect and prepare both 

our natural and built environments, 

which sustain us and our economy. Ensuring the integrity of our infrastructure in the face of a rapidly changing 

climate is essential. I want to focus for 

a minute on that infrastructure. Coastal States face a particularly unique set 

of challenges, so the infrastructure 

challenge for Rhode Island is worse 

than many places. We face what I call 

a triple whammy, as we must adapt not 

only to extreme temperatures and unusual weather but also to sea level rise. 

As average global temperatures rise, 

less water will be stored in snowpack 

and on the ice sheets of Antarctica and 

Greenland. We also know that at higher temperatures water expands to 

greater volume, so that leads to a sea 

level rise, which is predicted to range 

from 20 to 39 inches by 2100, with recent 

studies showing that the numbers 

could be even higher due to greater 

than expected melting of glaciers and 

ice sheets. This is not a theory. We are 

into the realm of measurement. 

Long-term data from tide gauges in 

the historic sailing capital of Newport, 

RI, show an increase in average sea 

level of nearly 10 inches since 1930. At 

these same tide gauges, measurements 

show that the rate of sea level rise has 

increased in the past two decades compared to the rate over the last century. 

This is consistent with reports that 

since 1990 sea level has been rising faster than the rate predicted by models 

used to generate IPCC estimates. 

Sea level rise is one thing, and the 

increase in storm surges that will accompany it is even worse and promises 

to bring devastation to our doorsteps. 

Critical infrastructure in at-risk coastal areas—roads, powerplants, wastewater treatment plants—will need to 

be reinforced or relocated. Additionally, our estuaries, marshes, and the 

barrier islands that act as natural filtration systems and buffers against 

storms will be inundated, with little 

time or space to retreat and move inland as they have in the past. The oncoming weather is coming on too fast. 

One consequence of rising sea levels 

is that local erosion rates in Rhode Island have doubled from 1990 to 2006, 

and some freshwater wetlands near the 

coast are transitioning to salt marsh. 

Increased sea level and erosion puts 

critical public infrastructure at risk. 

In one example, we have a small but vibrant coastal community, Matunuck, 

where beaches have eroded 20 feet over 

the past 12 years. The town has to face 

difficult decisions as the only road connecting about 1600 residents and several restaurants and businesses is protected now by less than a dozen feet of 

sand from the ocean. This road, which 

provides access for emergency vehicles 

and lies on top of a water main, must 

be protected. But what are the costs of 

protecting this piece of road for areas 

nearby or farther down the shore? 

Often when you protect one area of 

beach from erosion by hardening or altering the shoreline, you do so to the 

sacrifice of other areas. It takes 

science and data to sort out how to do 

that right. 

These are not easy decisions for communities. To best protect infrastructure and the communities and families 

who live in these at-risk areas, we have 

to, as a nation, plan ahead. We have to 

use the best and most reliable science, 

and we have to be able to prioritize adaptation efforts. 

In North Carolina, the State legislature considered a measure that would 

have severely restricted the ability of 

their Coastal Resources Commission to 

employ scientific estimates of future 

sea level rise. That is the ultimate case 

of the ostrich burying its head in the 

sand—in this case, the beach sand. This 

type of thinking will cost money and 

lives in the future. 

In Rhode Island, we are taking a different approach. 

We have to if we want to protect public health and safety. Rhode Island has 

19 ‘‘high hazard’’ dams that have been 

deemed ‘‘unsafe’’ by our Department of 

Environmental Management. We have 

6,000 onsite waste water treatment systems located near the coast, several 

landfills that may be susceptible to 

coastal erosion and evacuation routes 

that could be underwater as sea levels 

rise. 

In 2008, our Coastal Resources Management Council adopted a climate 

change and sea level rise policy to protect public and private property, infrastructure, and economically valuable 

coastal ecosystems. The policy states 

the following: 

The Council will integrate climate change 

and sea-level rise scenarios into its operations to prepare Rhode Island for these new, 


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August 2, 2012 CONGRESSIONAL RECORD — SENATE S5927 

evolving conditions and make our coastal 

areas more resilient. 

It is the Council’s policy to accommodate 

a base rate of expected 3–5 foot rise in sea 

level by the year 2100 in the siting, design, 

and implementation of public and private 

coastal activities and to insure proactive 

stewardship of coastal ecosystems under 

these changing conditions. It should be noted 

that the 3–5 foot rate of sea-level rise assumption embedded in this policy is relatively narrow and low. The Council recognizes that the lower the sea level rise estimate used, the greater the risk that policies 

and efforts to adapt sea-level rise and climate change will prove to be inadequate. 

This policy is already helping the 

State make smart decisions. For example, when a new pump station was 

needed at a sewage treatment plant, 

CRMC looked at sea-level rise models 

before determining where it should go, 

avoiding future relocation costs or 

malfunction in the face of flash flooding and sea level rise. 

In 2010, our general assembly created 

the Rhode Island Climate Change Commission to study the projected impacts 

of climate change on the State, develop 

strategies to adapt to those impacts, 

and determine mechanisms to incorporate climate adaptation into existing 

state and municipal programs. A draft 

progress report from the Commission 

lists many ways the state is planning 

to adapt to climate change, including: 

Creating a ‘‘Structural Concept and 

Contingency Plan to Inundation of the 

Ferry Terminals and Island Roadway 

Systems’’; creating the ‘‘Central Landfill Disaster Preparedness Plan’’; national grid, our electricity and natural 

gas utility, undertaking a ‘‘Statewide 

Substation Flooding Assessment’’; the 

Army Corps of Engineers, FEMA, and 

the Rhode Island Emergency Management Agency conducting a ‘‘Hurricane 

and Flooding Evacuation Study’’; and 

the list goes on and on. 

In the town of North Kingston, RI, 

they have taken the best elevation 

data available, and modeled 1, 3, and 5 

feet of sea-level rise, as well as 1 foot of 

sea-level rise plus 3 feet of storm surge. 

By overlaying these inundation models 

on top of maps identifying critical infrastructure such as roads, emergency 

routes, railroads, water treatment 

plans, and estuaries, the town will be 

able to prioritize transportation, conservation, and relocation projects. 

They are also able to quantify the 

costs of sea-level rise. In one small 

area of the town, 1 foot of sea-level rise 

would put two buildings, valued at $1.3 

million, underwater. Five feet of sealevel rise, however, jeopardizes 116 

buildings valued at $91 million. 

Similarly, by modeling how sea-level 

rise will impact estuaries, towns can 

preserve areas that will stay wetlands 

or undeveloped areas that will become 

wetlands in the future, as opposed to 

areas that will be lost. Estuaries act as 

nurseries for our hugely valuable fisheries, and protect our homes, buildings 

and communities from storm surge. 

There is already limited funding to 

protect these important ecosystems 

and this kind of planning promotes efficiency in spending. 

Let me close by saying that it is now 

well past time for us as a country to 

start making policy that helps us 

adapt to the emerging scientific reality 

that our actions indeed do affect our 

environment. For those of us who are 

ocean States, the state of our oceans 

and coastlines is particularly significant, and I urge my colleagues to support our National Endowment for the 

Oceans, which got all the way into the 

conference committee on the highway 

bill before it was taken out in an unfortunate, unwise, and, frankly, unfair 

maneuver. 

We are at a place now where nature 

could not be giving us clearer warnings. Whatever higher power there is— 

and we each have our own beliefs on 

that—that higher power that gave us 

our advanced human capacity for perception, for calculation, for analysis, 

for deduction, and for foresight has laid 

out before us more than enough information for us to make the right decisions. Only a wild and reckless greed or 

a fatal hubris could blind us to the distress signals coming from our oceans, 

our atmosphere, and our world. Fortunately, these human capacities still 

provide us everything we need to act 

responsibly but only if we will. 

I thank the Presiding Officer, and I 

yield the floor. 

f 

EXECUTIVE SESSION 

NOMINATION OF GERSHWIN A. 

DRAIN TO BE UNITED STATES 

DISTRICT JUDGE FOR THE EASTERN DISTRICT OF MICHIGAN 

The PRESIDING OFFICER (Mrs. 

MCCASKILL). Under the previous order, 

the Senate will proceed to executive 

session to consider the following nomination, which the clerk will report. 

The assistant bill clerk read the 

nomination of Gershwin A. Drain, of 

Michigan, to be United States District 

Judge for the Eastern District of 

Michigan. 

The PRESIDING OFFICER. There 

will be 1 hour of debate equally divided. 

Mr. LEAHY. Mr. President, earlier 

this week, Senate Republicans followed 

through on their partisan opposition to 

the President by slamming the door on 

a highly qualified, consensus circuit 

court nominee with bipartisan support. 

It was the first time in history that a 

circuit court nominee reported with bipartisan support from the Judiciary 

Committee was successfully filibustered. Judge Robert Bacharach, who 

was nominated to the Tenth Circuit 

Court of Appeals, had had the strong 

support of his Republican home State 

Senators, Senator COBURN and Senator 

INHOFE. Unfortunately, they chose not 

to vote to end the unprecedented filibuster of his nomination and cloture 

fell just short. This deprived the people 

of Oklahoma and the Tenth Circuit of 

an outstanding judge who could today 

be serving the American people as an 

appellate judge. The Bacharach nomination is one of the many judicial 

nominees ready for final action by the 

Senate but being delayed by Republican opposition. 

There was an article in the Washington Post this morning entitled ‘‘A 

Bench with Plenty of Room’’ about the 

judicial vacancies being perpetuated by 

partisanship all to the detriment of 

those seeking justice in our Federal 

courts. It notes that a lower percentage of President Obama’s nominees 

have been confirmed than had been 

during the Bush administration and 

that at this point during the Bush 

Presidency there were only 28 judicial 

vacancies. It observes that ‘‘Obama, 

with 78 vacancies, may be the first 

president in decades to end his first 

term with more judicial vacancies than 

when he began.’’ We can change that if 

Senate Republicans will cooperate in 

the consideration of the 23 judicial 

nominees on the Senate Executive Calendar awaiting a final, up-or-down confirmation vote. I ask that a copy of 

that article be printed in the RECORD. 

There being no objection, the material was ordered to be printed in the 

RECORD, as follows: 

[From the Washington Post, Aug. 1, 2012] 

A BENCH WITH PLENTY OF ROOM

The Senate’s rejection Monday of Oklahoma Magistrate Judge Robert Bacharach 

for a U.S. Court of Appeals seat sent a clear 

message to the three other appellate nominees hoping for a vote on the Senate floor: 

Fuhgeddaboudit. 

Ditto for 16 U.S. District Court nominees 

also pending in committee. The odds of judicial confirmations after this August recess 

are exceptionally slim—at best. The Cubs 

will win the pennant before you’ll be putting 

on the black robes. 

No nominees were confirmed after the August recess when President Bill Clinton was 

running for reelection in 1996 and only three 

when President George W. Bush was running 

for a second term in 2004—although five got 

in during the lame-duck session. 

Still, a whopping 13 George H.W. Bush 

nominees, including two for appellate seats, 

were confirmed after the August recess in 

1992, according to Senate Judiciary Committee statistics. 

Four Clinton judicial picks were confirmed 

after the recess in 2000, when Bush II and Al 

Gore were running, and 10 Bush judges were 

confirmed during the race between Barack 

Obama and John McCain, the committee reports. 

So with the numbers pretty much set, let’s 

recap. 

President Barack Obama, who started off 

slowly in getting nominations up to the Senate, never fully caught up. He’s nominated 

fewer judges (200) than either Bush (228) or 

Clinton (245) on Aug. 1 of their fourth year in 

office, according to committee statistics. 

At the same time, the Senate has confirmed a smaller percentage of Obama nominees than Clinton nominees—78 percent, 

compared with 80.8 percent—and a much 

smaller percentage than in the Bush administration (86.4). 

As a result, Obama, with 78 vacancies, may 

be the first president in decades to end his 

first term with more judicial vacancies than 

when he started. 

At this point in their first terms, Clinton 

had 58 judicial vacancies and Bush had 28. 

(The latter figure is pretty much full employment.) 


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