January 6, 2009 CONGRESSIONAL RECORD — SENATE S133 

I firmly believe that outsourcing interrogations, whether coercive or more 

appropriate ones, to private companies 

is a way to diminish accountability 

and to avoid getting the Agency’s 

hands dirty. I also believe that the use 

of contractors leads to more brutal interrogations than if they were done by 

government employees. 

There are surely areas where paying 

contractors makes practical and financial sense. Interrogations—a form of 

collecting intelligence—is not one of 

them. This has become a major diplomatic issue, a key obstacle in prosecuting people like Abu Zubaydah and 

Khalid Shaykh Mohammed, and a national black eye. It is not the sort of 

thing to be done at arm’s length. 

The fourth and final provision in this 

legislation requires that the CIA and 

other intelligence agencies provide notification to the International Committee of the Red Cross—the ICRC—of 

their detainees. Following notification, 

the CIA will be required to provide 

ICRC officials with access to their detainees in the same way that the military does. 

Access by the ICRC is a hallmark of 

international law and is required by 

the Geneva Conventions. Access to a 

third party, and the ICRC in particular, was seen by the U.S. in 1947 as 

a guarantee that American men and 

women would be protected if they were 

ever captured overseas. 

But ICRC access has been denied at 

CIA black sites, just like it had been in 

some military-run facilities in the war 

on terror. This has, in part, opened the 

door to the abuses in detainee treatment. Independent access prevents 

abuses like we witnessed at Abu Ghraib 

and Guantanamo Bay. It is time that 

the same protection is in place for the 

CIA as has been demanded of the Department of Defense. 

We remain a nation at war, and credible, actionable intelligence remains a 

cornerstone of our war effort. But this 

is a war that will be won by fighting 

smarter, not by sinking to the depths 

of our enemies. 

Our Nation has paid an enormous 

price because of these interrogations. 

They cast shadow and doubt over our 

ideals and our system of justice. 

Our enemies have used our practices 

to recruit more extremists. 

Our key global partnerships, crucial 

to winning the war on terror, have been 

strained. 

It will take time to resume our place 

as the world’s beacon of liberty and 

justice. This bill will put us on that 

path and start the process. I urge its 

passage. 

Mr. President, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD, as follows: 

S. 147 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Lawful Interrogation and Detention Act’’. 

SEC. 2. INTELLIGENCE COMMUNITY DEFINED. 

In this Act, the term ‘‘intelligence community’’ has the meaning given that term in 

section 3(4) of the National Security Act of 

1947 (50 U.S.C. 401a(4)). 

SEC. 3. CLOSURE OF DETENTION FACILITY AT 

GUANTANAMO BAY. 

(a) REQUIREMENT TO CLOSE.—Not later than 

1 year after the date of the enactment of this 

Act, the President shall close the detention 

facility at Guantanamo Bay, Cuba operated 

by the Secretary of Defense and remove all 

detainees from such facility. 

(b) DETAINEES.—Prior to the date that the 

President closes the detention facility at 

Guantanamo Bay, Cuba, as required by subsection (a), each individual detained at such 

facility shall be treated exclusively through 

one of the following: 

(1) The individual shall be charged with a 

violation of United States or international 

law and transferred to a military or Federal 

civilian detention facility in the United 

States for further legal proceedings, provided that such a Federal civilian facility or 

military facility has received the highest security rating available for such a facility. 

(2) The individual shall be transferred to 

an international tribunal operating under 

the authority of the United Nations that has 

jurisdiction to hold a trial of such individual. 

(3) The individual shall be transferred to 

the custody of the government of the individual’s country of citizenship or a different 

country, provided that such transfer is consistent with— 

(A) the Convention Against Torture and 

Other Forms of Cruel, Inhuman or Degrading 

Treatment or Punishment done at New 

York, December 10, 1984; 

(B) all relevant United States law; and 

(C) any other international obligation of 

the United States. 

(4) If the Secretary of Defense and Director 

of National Intelligence determine, jointly, 

that the individual poses no security threat 

to the United States and actions cannot be 

taken under paragraph (1) or (3), the individual shall be released from further detention. 

(5) The individual shall be held in accordance with the law of armed conflict. 

(c) REPORTING REQUIREMENTS.— 

(1) REQUIREMENT FOR REPORT.—Not later 

than 90 days after the date of the enactment 

of this Act, the President shall submit to 

Congress a report that describes the President’s plan to implement this section. 

(2) REQUIREMENT TO UPDATE.—The President shall keep Congress fully and currently 

informed of the steps taken to implement 

this section. 

(d) CONSTRUCTION.— 

(1) IMMIGRATION STATUS.—The transfer of 

an individual under subsection (b) shall not 

be considered an entry into the United 

States for purposes of immigration status. 

(2) NO ADDITIONAL DETENTION AUTHORITY.— 

Nothing in this section may be construed as 

altering or adding to existing authorities for, 

or restrictions on, the detention, treatment, 

or transfer of individuals in United States 

custody. 

SEC. 4. LIMITATION ON INTERROGATION TECHNIQUES. 

No individual in the custody or under the 

effective control of personnel of an element 

of the intelligence community or a contractor or subcontractor of an element of the 

intelligence community, regardless of nationality or physical location of such individual or personnel, shall be subject to any 

treatment or technique of interrogation not 

authorized by the United States Army Field 

Manual on Human Intelligence Collector Operations. 

SEC. 5. PROHIBITION ON INTERROGATIONS BY 

CONTRACTORS. 

The Director of the Central Intelligence 

Agency shall not allow a contractor or subcontractor to the Central Intelligence Agency to carry out an interrogation of an individual. Any interrogation carried out on behalf of the Central Intelligence Agency shall 

be conducted by an employee of such Agency. 

SEC. 6. NOTIFICATION OF THE INTERNATIONAL 

COMMITTEE OF THE RED CROSS. 

(a) REQUIREMENT.—The head of an element 

of the intelligence community or a contractor or subcontractor of such element 

who detains or has custody or effective control of an individual shall notify the International Committee of the Red Cross of the 

detention of the individual and provide access to such individual in a manner consistent with the practices of the Armed 

Forces. 

(b) CONSTRUCTION.—Nothing in this section 

shall be construed— 

(1) to create or otherwise imply the authority to detain; or 

(2) to limit or otherwise affect any other 

rights or obligations which may arise under 

the Geneva Conventions, other international 

agreements, or other laws, or to state all of 

the situations under which notification to 

and access for the International Committee 

of the Red Cross is required or allowed. 

By Mr. KOHL: 

S. 148. A bill to restore the rule that 

agreements between manufacturers 

and retailers, distributors, or wholesalers to set the minimum price below 

which the manufacturer’s product or 

service cannot be sold violates the 

Sherman Act; to the Committee on the 

Judiciary. 

Mr. KOHL. Mr. President, I rise 

today to introduce legislation essential 

to consumers receiving the best prices 

on every product from electronics to 

clothing to groceries. My bill, the Discount Pricing Consumer Protection 

Act, will restore the nearly century old 

rule that it is illegal under antitrust 

law for a manufacturer to set a minimum price below which a retailer cannot sell the manufacturer’s product, a 

practice known as ‘‘resale price maintenance’’ or ‘‘vertical price fixing’’. In 

June 2007, overturning a 96-year-old 

precedent, a narrow 5–4 Supreme Court 

majority in the Leegin case incorrectly 

interpreted the Sherman Act to overturn this basic rule of the marketplace 

which has served consumers well for 

nearly a century. My bill—identical to 

legislation I introduced in 2007 (S. 2261 

in the 110th Congress)—will correct 

this misinterpretation of antitrust law 

and restore the per se ban on vertical 

price fixing. Our bill has been endorsed 

by 34 state attorneys general as well as 

numerous antitrust experts, including 

former FTC Chairman Pitofsky and 

current FTC Commissioner Harbour. 

The reasons for this legislation are 

compelling. Allowing manufacturers to 

set minimum retail prices will threaten the very existence of discounting 

and discount stores, and lead to higher 

prices for consumers. For nearly a century the rule against vertical price fixing permitted discounters to sell goods 


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S134 CONGRESSIONAL RECORD — SENATE January 6, 2009 

at the most competitive price. Many 

credit this rule with the rise of today’s 

low price, discount retail giants— 

stores like Target, Best Buy, Walmart, 

and the Internet sites Amazon and 

EBay, which offer consumers a wide 

array of highly desired products at discount prices. 

From my own personal experience in 

business I know of the dangers of permitting vertical price fixing. My family started the Kohl’s department 

stores in 1962, and I worked there for 

many years before we sold the stores in 

the 1980s. On several occasions, we lost 

lines of merchandise because we tried 

to sell at prices lower than what the 

manufacturer and our rival retailers 

wanted. For example, when we started 

Kohl’s and were just a small competitor to the established retail giants, we 

had serious difficulties obtaining the 

leading brand name jeans. The traditional department stores demanded 

that the manufacturer not sell to us 

unless we would agree to maintain a 

certain minimum price. Because they 

didn’t want to lose the business of 

their biggest customers, that jeans 

manufacturer acquiesced in the demands of the department stores—at 

least until our lawyers told them that 

they were violating the rule against 

vertical price fixing. 

So I know firsthand the dangers to 

competition and discounting of permitting the practice of vertical price fixing. But we don’t need to rely on my 

own experience. For nearly 40 years 

until 1975 when Congress passed the 

Consumer Goods Pricing Act, Federal 

law permitted States to enact so-called 

‘‘fair trade’’ laws legalizing vertical 

price fixing. Studies Department of 

Justice conducted in the late 1960s indicated that prices were between 18–27 

percent higher in the States that allowed vertical price fixing than the 

States that had not passed such ‘‘fair 

trade’’ laws, costing consumers at least 

$ 2.1 billion per year at that time. 

Given the tremendous economic 

growth in the intervening decades, the 

likely harm to consumers if vertical 

price fixing were permitted is even 

grater today. In his dissenting opinion 

in the Leegin case, Justice Breyer estimated that if only 10 percent of manufacturers engaged in vertical price fixing, the volume of commerce affected 

today would be $ 300 billion, translating into retail bills that would average $ 750 to $ 1,000 higher for the average family of four every year. 

And the experience of the last year 

and a half since the Leegin decision is 

beginning to confirm our fears regarding the dangers from permitting 

vertical price fixing. In December 2008, 

for example, Sony announced that it 

would implement a no-discount rule to 

retailer’s selling some of its most indemand products, including some models of high-end flat screen TVs and digital cameras. On December 4, 2008, the 

Wall Street Journal reported that a 

new business has materialized for companies that scour the Internet in 

search of retailers selling products at a 

bargain. When such bargain sellers are 

detected, the manufacturer is alerted 

so that they can demand the seller end 

the discounting of its product. The 

chilling effect on discounting of such 

tactics is clear—in one example, the 

Wall Street Journal reported that Circuit City was forced to raise its retail 

price for an LG flat screen TV by $ 170 

to nearly $ 1,600 after its discount price 

was discovered on the Internet. 

Defenders of the Leegin decision 

argue that today’s giant retailers such 

as Walmart, Best Buy or Target can 

‘‘take care of themselves’’ and have 

sufficient market power to fight manufacturer efforts to impose retail prices. 

Whatever the merits of that argument, 

I am particularly worried about the effect of this new rule permitting minimum vertical price fixing on the next 

generation of discount retailers. If new 

discount retailers can be prevented 

from selling products at a discount at 

the behest of an established retailer 

worried about the competition, we will 

imperil an essential element of retail 

competition so beneficial to consumers. 

In overturning the per se ban on 

vertical price fixing, the Supreme 

Court in Leegin announced this practice should instead be evaluated under 

what is known as the ‘‘rule of reason.’’ 

Under the rule of reason, a business 

practice is illegal only if it imposes an 

‘‘unreasonable’’ restraint on competition. The burden is on the party challenging the practice to prove in court 

that the anti-competitive effects of the 

practice outweigh its justifications. In 

the words of the Supreme Court, the 

party challenging the practice must establish the restraint’s ‘‘history, nature 

and effect.’’ Whether the businesses involved possess market power ‘‘is a further, significant consideration’’ under 

the rule of reason. 

In short, establishing that any specific example of vertical price fixing 

violates the rule of reason is an onerous and difficult burden for a plaintiff 

in an antitrust case. Parties complaining about vertical price fixing are 

likely to be small discount stores with 

limited resources to engage in lengthy 

and complicated antitrust litigation. 

These plaintiffs are unlikely to possess 

the facts necessary to make the extensive showing necessary to prove a case 

under the ‘‘rule of reason.’’ In the 

words of FTC Commissioner Pamela 

Jones Harbour, applying the rule of 

reason to vertical price fixing ‘‘is a virtual euphemism for per se legality.’’ 

In July 2007, our Antitrust Subcommittee conducted an extensive 

hearing into the Leegin decision and 

the likely effects of abolishing the ban 

on vertical price fixing. Both former 

FTC Chairman Robert Pitofsky and 

current FTC Commissioner Harbour 

strongly endorsed restoring the ban on 

vertical price fixing. Marcy Syms, CEO 

of the Syms discount clothing stores, 

did so as well, citing the likely dangers 

to the ability of discounters such as 

Syms to survive after abolition of the 

rule against vertical price fixing. Ms. 

Syms also stated that ‘‘it would be 

very unlikely for her to bring an antitrust suit’’ challenging vertical price 

fixing under the rule of reason because 

her company ‘‘would not have the resources, knowledge or a strong enough 

position in the marketplace to make 

such action prudent.’’ Our examination 

of this issue has produced compelling 

evidence for the continued necessity of 

a ban on vertical price fixing to protect 

discounting and low prices for consumers. 

The Discount Pricing Consumer Protection Act will accomplish this goal. 

My legislation is quite simple and direct. It would simply add one sentence 

to Section 1 of the Sherman Act—the 

basic provision addressing combinations in restraint of trade—a statement 

that any agreement with a retailer, 

wholesaler or distributor setting a 

price below which a product or service 

cannot be sold violates the law. No balancing or protracted legal proceedings 

will be necessary. Should a manufacturer enter into such an agreement it 

will unquestionably violate antitrust 

law. The uncertainty and legal impediments to antitrust enforcement of 

vertical price fixing will be replaced by 

simple and clear legal rule—a legal 

rule that will promote low prices and 

discount competition to the benefit of 

consumers every day. 

In the last few decades, millions of 

consumers have benefited from an explosion of retail competition from new 

large discounters in virtually every 

product, from clothing to electronics 

to groceries, in both ‘‘big box’’ stores 

and on the Internet. Our legislation 

will correct the Supreme Court’s abrupt change to antitrust law, and will 

ensure that today’s vibrant competitive retail marketplace and the savings 

gained by American consumers from 

discounting will not be jeopardized by 

the abolition of the ban on vertical 

price fixing. I urge my colleagues to 

support this bill. 

Mr. President, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD, as follows: 

S. 148 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Discount 

Pricing Consumer Protection Act’’. 

SEC. 2. STATEMENT OF FINDINGS AND DECLARATION OF PURPOSES. 

(a) FINDINGS.—Congress finds the following: 

(1) From 1911 in the Dr. Miles decision until 

June 2007 in the Leegin decision, the Supreme 

Court had ruled that the Sherman Act forbid 

in all circumstances the practice of a manufacturer setting a minimum price below 

which any retailer, wholesaler or distributor 

could not sell the manufacturer’s product 

(the practice of ‘‘resale price maintenance’’ 

or ‘‘vertical price fixing’’). 


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January 6, 2009 CONGRESSIONAL RECORD — SENATE S135 

(2) The rule of per se illegality forbidding 

resale price maintenance promoted price 

competition and the practice of discounting 

all to the substantial benefit of consumers 

and the health of the economy. 

(3) Many economic studies showed that the 

rule against resale price maintenance led to 

lower prices and promoted consumer welfare. 

(4) Abandoning the rule against resale 

price maintenance will likely lead to higher 

prices paid by consumers and substantially 

harms the ability of discount retail stores to 

compete. For 40 years prior to 1975, Federal 

law permitted states to enact so-called ‘‘fair 

trade’’ laws allowing vertical price fixing. 

Studies conducted by the Department of Justice in the late 1960s indicated that retail 

prices were between 18 and 27 percent higher 

in states that allowed vertical price fixing 

than those that did not. Likewise, a 1983 

study by the Bureau of Economics of the 

Federal Trade Commission found that, in 

most cases, resale price maintenance increased the prices of products sold. 

(5) The 5–4 decision of the Supreme Court 

majority in Leegin incorrectly interpreted 

the Sherman Act and improperly disregarded 

96 years of antitrust law precedent in overturning the per se rule against resale price 

maintenance. 

(b) PURPOSES.—The purposes of this Act 

are— 

(1) to correct the Supreme Court’s mistaken interpretation of the Sherman Act in 

the Leegin decision; and 

(2) to restore the rule that agreements between manufacturers and retailers, distributors or wholesalers to set the minimum price 

below which the manufacturer’s product or 

service cannot be sold violates the Sherman 

Act. 

SEC. 3. PROHIBITION ON VERTICAL PRICE FIXING. 

(a) AMENDMENT TO THE SHERMAN ACT.—Section 1 of the Sherman Act (15 U.S.C. 1) is 

amended by adding after the first sentence 

the following: ‘‘Any contract, combination, 

conspiracy or agreement setting a minimum 

price below which a product or service cannot be sold by a retailer, wholesaler, or distributor shall violate this Act.’’. 

(b) EFFECTIVE DATE.—The amendment 

made by subsection (a) shall take effect 90 

days after the date of enactment of this Act. 

By Mr. KOHL: 

S. 149. A bill to change the date for 

regularly scheduled Federal elections 

and establish polling place hours; to 

the Committee on Rules and Administration. 

Mr. KOHL. Mr. President, today I 

rise to introduce the Weekend Voting 

Act. This legislation will change the 

day for Congressional and Presidential 

elections from the first Tuesday in November to the first weekend in November. This legislation is nearly identical 

to legislation that I first proposed in 

1997. 

We have recently completed the most 

serious business of our democracy—a 

Presidential election in which millions 

and millions of citizens demonstrated 

an enormous amount of enthusiasm. 

We all want every eligible voter to participate and cast a vote. But recent experience has shown us that unneeded 

obstacles are placed preventing citizens from exercising their franchise. 

The debacle of defective ballots and 

voting methods in Florida in the 2000 

election galvanized Congress into passing major election reform legislation. 

The Help America Vote Act, which was 

enacted into law in 2002, was an important step forward in establishing minimum standards for States in the administration of Federal elections and 

in providing funds to replace outdated 

voting systems and improve election 

administration. However, there is 

much that still needs to be done. 

With more and more voters seeking 

to cast their ballots on Election Day, 

we need to build on the movement 

which already exists to make it easier 

for Americans to cast their ballots by 

providing alternatives to voting on just 

one election day. Twenty-eight States, 

including my own State of Wisconsin, 

now permit any registered voter to 

vote by absentee ballot. These states 

constitute nearly half of the voting age 

citizens of the United States. Thirtyone States permit in-person early voting at election offices or at other satellite locations. The State of Oregon 

now conducts statewide elections completely by mail. These innovations are 

critical if we are to conduct fair elections for it has become unreasonable to 

expect that a Nation of 300 million people can line up at the same time and 

cast their ballots at the same time. If 

we continue to try to do so, we will encounter even more reports of broken 

machines and long lines in the rain and 

registration errors that create barriers 

to voting. 

That is why I have been a long-time 

advocate of moving our Federal election day from the first Tuesday after 

the first Monday in November to the 

first weekend in November. Holding 

our Federal elections on a weekend 

will create more opportunities for voters to cast their ballots and will help 

end the gridlock at the polling places 

which threaten to undermine our elections. 

Under this bill, polls would be open 

nationwide for a uniform period of time 

from 10 a.m. Saturday eastern time to 

6 p.m. Sunday eastern time. Polls in all 

time zones would in the 48 contiguous 

states also open and close at this time. 

Election officials would be permitted 

to close polls during the overnight 

hours if they determine it would be inefficient to keep them open. Because 

the polls would be open on both Saturday and Sunday, they also would not 

interfere with religious observances. 

Keeping polls open the same hours 

across the continental United States, 

also addresses the challenge of keeping 

results on one side of the country, or 

even a state, from influencing voting in 

places where polls are still open. Moving elections to the weekend will expand the pool of buildings available for 

polling stations and people available to 

work at the polls, addressing the critical shortage of poll workers. 

Most important, weekend voting has 

the potential to increase voter turnout 

by giving all voters ample opportunity 

to get to the polls without creating a 

national holiday. There is already evidence that holding elections on a nonworking day can increase voter turnout. In one survey of 44 democracies, 29 

held elections on holidays or weekends 

and in all these cases voter turnout 

surpassed our country’s voter participation rates. 

In 2001, the National Commission on 

Federal Election Reform recommended 

that we move our Federal election day 

to a national holiday, in particular 

Veterans Day. As expected, the proposal was not well received among veterans and I do not endorse such a 

move, but I share the Commission’s 

goal of moving election day to a nonworking day. 

Since the mid 19th century, election 

day has been on the first Tuesday of 

November. Ironically, this date was selected because it was convenient for 

voters. Tuesdays were traditionally 

court day, and land owning voters were 

often coming to town anyway. 

Just as the original selection of our 

national voting day was done for voter 

convenience, we must adapt to the 

changes in our society to make voting 

easier for the regular family. We have 

outgrown our Tuesday voting day tradition, a tradition better left behind to 

a bygone horse and buggy era. In today’s America, 60 percent of all households have two working adults. Since 

most polls in the United States are 

open only 12 hours on a Tuesday, generally from 7 a.m. to 7 or 8 p.m., voters 

often have only one or two hours to 

vote. As we’ve seen in recent elections, 

long lines in many polling places have 

kept some voters waiting much longer 

than one or two hours. If voters have 

children, and are dropping them off at 

day care, or if they have a long work 

commute, there is just not enough 

time in a workday to vote. 

With long lines and chaotic polling 

places becoming the unacceptable 

norm in many communities, we have 

an obligation to reform how our Nation 

votes. If we are to grant all Americans 

an equal opportunity to participate in 

the electoral process, and to elect our 

representatives in this great democracy, then we must be willing to reexamine all aspects of voting in America. 

Changing our election day to a weekend may seem like a change of great 

magnitude. Given the stakes—the integrity of future elections and full participation by as many Americans as 

possible—I hope my colleagues will recognize it as a commonsense proposal 

whose time has come. 

Mr. President, I ask unanimous consent that the text of the bill be printed 

in the RECORD. 

There being no objection, the text of 

the bill was ordered to be printed in 

the RECORD, as follows: 

S. 149 

Be it enacted by the Senate and House of Representatives of the United States of America in 

Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Weekend 

Voting Act’’. 

SEC. 2. CHANGE IN CONGRESSIONAL ELECTION 

DAY TO SATURDAY AND SUNDAY. 

Section 25 of the Revised Statutes (2 U.S.C. 

7) is amended to read as follows: 


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