(Senate - February 28, 2019)

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[Pages S1595-S1602]
From the Congressional Record Online through the Government Publishing Office []


      By Mr. REED (for himself, Ms. Collins, Mr. Warner, Mr. Kennedy, 
        and Mr. Jones):
  S. 592. A bill to amend the Securities and Exchange Act of 1934 to 
promote transparency in the oversight of cybersecurity risks at 
publicly traded companies; to the Committee on Banking, Housing, and 
Urban Affairs.

[[Page S1596]]


  Mr. REED. Mr. President, today I am reintroducing the Cybersecurity 
Disclosure Act along with two members of the Select Committee on 
Intelligence, Senator Collins, and the ranking member, Senator Warner, 
in addition to Senator Kennedy and Senator Jones, who also serve with 
me on the Senate Banking Committee. In response to data breaches of 
various companies that exposed the personal information of millions of 
customers, our legislation asks each publicly traded company to 
include--in Securities and Exchange Commission, SEC, disclosures to 
investors--information on whether any member of the board of directors 
is a cybersecurity expert, and if not, why having this expertise on the 
board of directors is not necessary because of other cybersecurity 
steps taken by the publicly traded company. To be clear, the 
legislation does not require companies to take any actions other than 
to provide this disclosure to its investors.
  In Deloitte's 11th Global Risk Management Survey of financial 
services institutions, published last month, ``sixty-seven percent of 
respondents named cybersecurity as one of the three risks that would 
increase the most in importance for their business over the next two 
years, far more than for any other risk. Yet, only about one-half of 
the respondents felt their institutions were extremely or very 
effective in managing this risk.'' According to the 2018-2019 National 
Association of Corporate Directors Public Company Governance Survey, 
only 52 percent of directors ``are confident that they sufficiently 
understand cyber risks to provide effective cyber-risk oversight,'' and 
58 percent ``believe their boards collectively know enough about cyber 
risk to provide effective oversight.'' Indeed, Yahoo, in its 2016 
annual report, disclosed, ``the Independent Committee found that 
failures in communication, management, inquiry and internal reporting 
contributed to the lack of proper comprehension and handling of the 
2014 Security Incident. The Independent Committee also found that the 
Audit and Finance Committee and the full board were not adequately 
informed of the full severity, risks, and potential impacts of the 2014 
Security Incident and related matters.'' The 2014 Security Incident 
here refers to the fact that ``a copy of certain user account 
information for approximately 500 million user accounts was stolen from 
Yahoo's network in late 2014.''
  This is particularly troubling given that data breaches expose more 
and more records containing personally identifiable information. 
Indeed, according to the Identity Theft Resource Center, the number of 
these types of records exposed by data breaches in the business 
industry grew from 181,630,520 in 2017 to 415,233,143 in 2018 and in 
the medical and healthcare industry from 5,302,846 in 2017 to 9,927,798 
last year. Across all industries, the number of records containing 
personally identifiable information exposed by data breaches rose 126 
percent, from 197,612,748 in 2017 to 446,515,334 in 2018.
  Investors and customers deserve a clear understanding of whether 
publicly traded companies are prioritizing cybersecurity and have the 
capacity to protect investors and customers from cyber related attacks. 
Our legislation aims to provide a better understanding of these issues 
through improved SEC disclosure.
  In testimony given to the Senate Banking Committee last June, Harvard 
Law Professor John Coates, who also practiced securities law as a 
partner at Wachtell, Lipton, Rosen & Katz, expressed support for our 
legislation by stating that ``[the Cybersecurity Disclosure Act] is 
well designed. It does not attempt to second-guess SEC guidance and 
rules regarding disclosures generally, or even as to cyber-risk 
overall. The bill simply asks publicly traded companies to disclose 
whether a cybersecurity expert is on the board of directors, and if 
not, why one is not necessary. To be clear, the bill does not require 
every publicly traded company to have a cybersecurity expert on its 
board. Publicly traded companies will still decide for themselves how 
to tailor their resources to their cybersecurity needs and disclose 
what they have decided. Some companies may choose to hire outside cyber 
consultants. Some may choose to boost cybersecurity expertise on staff. 
And some may decide to have a cybersecurity expert on the board of 
directors. The disclosure required would typically amount to a sentence 
or two.''
  While this legislation is a matter for consideration by the Banking 
Committee, of which I am a member, this bill is also informed by my 
service on the Armed Services Committee and the Select Committee on 
Intelligence. Through this Banking-Armed Services-Intelligence 
perspective, I see that our economic security is indeed a matter of our 
national security, and this is particularly the case as our economy 
becomes ever more dependent on technology and the internet.
  Indeed, General Darren W. McDew, the former commander of U.S. 
Transportation Command, which is charged with moving our military 
assets to meet our national security objectives in partnership with the 
private sector, offered several sobering assessments during an April 
10, 2018 hearing before the Senate Armed Services Committee. He stated 
that ``cyber is the number one threat to U.S. Transportation Command, 
but I believe it is the number one threat to the nation . . . in our 
headquarters, cyber is the commander's business, but not everywhere 
across our country is cyber a CEO's business . . . in our cyber 
roundtables, which is one of the things we are doing to raise our level 
of awareness, some of the CEO's chief security officers cannot even get 
to the see the board, they cannot even . . . see the CEO. So that is a 
  In my view, this is a real problem because, if we are attacked, the 
first strike will likely not be a physical one against the military but 
a cyber strike against the infrastructure of movement, logistics, and 
other critical assets in the civilian space.
  With growing cyber threats, we all need to be more proactive in 
ensuring our Nation's cybersecurity before there are additional serious 
breaches. This legislation seeks to take one step towards that goal by 
encouraging publicly traded companies to be more transparent to their 
investors and customers on whether and how their boards of directors 
and senior management are prioritizing cybersecurity.
  I thank the bill's supporters, including the North American 
Securities Administrators Association, the Council of Institutional 
Investors, the National Association of State Treasurers, the California 
Public Employees' Retirement System, the Bipartisan Policy Center, MIT 
Professor Simon Johnson, Columbia Law Professor Jack Coffee, Harvard 
Law Professor John Coates, K&L Gates LLP, and the Consumer Federation 
of America, and I urge my colleagues to join Senator Collins, Senator 
Warner, Senator Kennedy, Senator Jones, and me in supporting this 
      By Mr. THUNE (for himself, Mr. Brown, Ms. Baldwin, Mr. Barrasso, 
        Mr. Blumenthal, Mr. Booker, Ms. Cantwell, Ms. Collins, Ms. 
        Cortez Masto, Mr. Crapo, Mr. Cruz, Ms. Ernst, Ms. Hassan, Mr. 
        Hoeven, Mr. Isakson, Mr. King, Ms. Klobuchar, Mr. Leahy, Mrs. 
        Murray, Mr. Portman, Mr. Reed, Mr. Schatz, Mrs. Shaheen, Mr. 
        Tillis, Mr. Toomey, Mr. Van Hollen, Mr. Whitehouse, Mr. Wicker, 
        Mrs. Hyde-Smith, Mr. Murphy, Mr. Peters, Mr. Risch, and Mr. 
  S. 604. A bill to limit the authority of States to tax certain income 
of employees for employment duties performed in other States; to the 
Committee on Finance.
  Mr. THUNE. 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. 604

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


       This Act may be cited as the ``Mobile Workforce State 
     Income Tax Simplification Act of 2019''.

                   EMPLOYEE INCOME.

       (a) In General.--No part of the wages or other remuneration 
     earned by an employee who performs employment duties in more 
     than one State shall be subject to income tax in any State 
     other than--

[[Page S1597]]

       (1) the State of the employee's residence; and
       (2) the State within which the employee is present and 
     performing employment duties for more than 30 days during the 
     calendar year in which the wages or other remuneration is 
       (b) Wages or Other Remuneration.--Wages or other 
     remuneration earned in any calendar year shall not be subject 
     to State income tax withholding and reporting requirements 
     unless the employee is subject to income tax in such State 
     under subsection (a). Income tax withholding and reporting 
     requirements under subsection (a)(2) shall apply to wages or 
     other remuneration earned as of the commencement date of 
     employment duties in the State during the calendar year.
       (c) Operating Rules.--For purposes of determining penalties 
     related to an employer's State income tax withholding and 
     reporting requirements--
       (1) an employer may rely on an employee's annual 
     determination of the time expected to be spent by such 
     employee in the States in which the employee will perform 
     duties absent--
       (A) the employer's actual knowledge of fraud by the 
     employee in making the determination; or
       (B) collusion between the employer and the employee to 
     evade tax;
       (2) except as provided in paragraph (3), if records are 
     maintained by an employer in the regular course of business 
     that record the location of an employee, such records shall 
     not preclude an employer's ability to rely on an employee's 
     determination under paragraph (1); and
       (3) notwithstanding paragraph (2), if an employer, at its 
     sole discretion, maintains a time and attendance system that 
     tracks where the employee performs duties on a daily basis, 
     data from the time and attendance system shall be used 
     instead of the employee's determination under paragraph (1).
       (d) Definitions and Special Rules.--For purposes of this 
       (1) Day.--
       (A) Except as provided in subparagraph (B), an employee is 
     considered present and performing employment duties within a 
     State for a day if the employee performs more of the 
     employee's employment duties within such State than in any 
     other State during a day.
       (B) If an employee performs employment duties in a resident 
     State and in only one nonresident State during one day, such 
     employee shall be considered to have performed more of the 
     employee's employment duties in the nonresident State than in 
     the resident State for such day.
       (C) For purposes of this paragraph, the portion of the day 
     during which the employee is in transit shall not be 
     considered in determining the location of an employee's 
     performance of employment duties.
       (2) Employee.--The term ``employee'' has the same meaning 
     given to it by the State in which the employment duties are 
     performed, except that the term ``employee'' shall not 
     include a professional athlete, professional entertainer, 
     qualified production employee, or certain public figures.
       (3) Professional athlete.--The term ``professional 
     athlete'' means a person who performs services in a 
     professional athletic event, provided that the wages or other 
     remuneration are paid to such person for performing services 
     in his or her capacity as a professional athlete.
       (4) Professional entertainer.--The term ``professional 
     entertainer'' means a person of prominence who performs 
     services in the professional performing arts for wages or 
     other remuneration on a per-event basis, provided that the 
     wages or other remuneration are paid to such person for 
     performing services in his or her capacity as a professional 
       (5) Qualified production employee.--The term ``qualified 
     production employee'' means a person who performs production 
     services of any nature directly in connection with a State 
     qualified, certified or approved film, television or other 
     commercial video production for wages or other remuneration, 
     provided that the wages or other remuneration paid to such 
     person are qualified production costs or expenditures under 
     such State's qualified, certified or approved film incentive 
     program, and that such wages or other remuneration must be 
     subject to withholding under such film incentive program as a 
     condition to treating such wages or other remuneration as a 
     qualified production cost or expenditure.
       (6) Certain public figures.--The term ``certain public 
     figures'' means persons of prominence who perform services 
     for wages or other remuneration on a per-event basis, 
     provided that the wages or other remuneration are paid to 
     such person for services provided at a discrete event, in the 
     nature of a speech, public appearance, or similar event.
       (7) Employer.--The term ``employer'' has the meaning given 
     such term in section 3401(d) of the Internal Revenue Code of 
     1986 (26 U.S.C. 3401(d)), unless such term is defined by the 
     State in which the employee's employment duties are 
     performed, in which case the State's definition shall 
       (8) State.--The term ``State'' means any of the several 
       (9) Time and attendance system.--The term ``time and 
     attendance system'' means a system in which--
       (A) the employee is required on a contemporaneous basis to 
     record his work location for every day worked outside of the 
     State in which the employee's employment duties are primarily 
     performed; and
       (B) the system is designed to allow the employer to 
     allocate the employee's wages for income tax purposes among 
     all States in which the employee performs employment duties 
     for such employer.
       (10) Wages or other remuneration.--The term ``wages or 
     other remuneration'' may be limited by the State in which the 
     employment duties are performed.


       (a) Effective Date.--This Act shall take effect on January 
     1 of the second calendar year that begins after the date of 
     the enactment of this Act.
       (b) Applicability.--This Act shall not apply to any tax 
     obligation that accrues before the effective date of this 
      By Mr. DURBIN (for himself, Mr. Whitehouse, Ms. Warren, Mr. Reed, 
        Mr. Brown, Mr. Blumenthal, Ms. Hirono, and Mr. Markey):
  S. 608. A bill to provide that chapter 1 of title 9 of the United 
States Code, relating to the enforcement of arbitration agreements, 
shall not apply to enrollment agreements made between students and 
certain institutions of higher education, and to prohibit limitations 
on the ability of students to pursue claims against certain 
institutions of higher education; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. DURBIN. 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. 608

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


       This Act may be cited as the ``Court Legal Access and 
     Student Support (CLASS) Act of 2019''.

                   HIGHER EDUCATION.

       (a) In General.--Chapter 1 of title 9 of the United States 
     Code (relating to the enforcement of arbitration agreements) 
     shall not apply to an enrollment agreement made between a 
     student and an institution of higher education.
       (b) Definition.--In this section, the term ``institution of 
     higher education'' has the meaning given such term in section 
     102 of the Higher Education Act of 1965 (20 U.S.C. 1002).

                   HIGHER EDUCATION.

       Section 487(a) of the Higher Education Act of 1965 (20 
     U.S.C. 1094(a)) is amended by adding at the end the 
       ``(30) The institution will not require any student to 
     agree to, and will not enforce, any limitation or restriction 
     (including a limitation or restriction on any available 
     choice of applicable law, a jury trial, or venue) on the 
     ability of a student to pursue a claim, individually or with 
     others, against an institution in court.''.


       This Act and the amendments made by this Act shall take 
     effect 1 year after the date of enactment of this Act.
      By Mr. GRASSLEY (for himself and Mr. Wyden):
  S. 617. A bill to amend the Internal Revenue Code of 1986 to extend 
certain expiring provisions, to provide disaster tax relief, and for 
other purposes; read the first time.
  Mr. GRASSLEY. Mr. President, before the Presidents Day recess, I 
announced that I would introduce legislation if the tax extenders 
weren't included in the legislation that we passed at that time that 
would keep government open.
  Today I am following through on that promise with a bill that I am 
introducing with Finance Committee ranking member Senator Wyden of 
  It is fitting that I am taking this step in the same month as 
Groundhog Day, as the subject of my remarks is something that Congress 
has had to deal with too many times already.
  Next to me is a depiction from the movie ``Groundhog Day,'' which is 
about a man named Phil who must relive the same day over and over until 
he gets everything right. While we still need to break the cycle of 
repetitive short-term extensions, the right thing to do right now is to 
extend these already-expired provisions for 2018 and 2019.
  As I have said before, the tax extenders are a collection of 
temporary tax

[[Page S1598]]

incentives that have required extension on a very regular basis in 
order to keep them available to the taxpayers. Currently, there are 26 
provisions. At one time there were as many as 50-some. We have done 
away with some of them and made some of those laws permanent, but these 
26 provisions expired at the end of 2017. They need to be extended, as 
well as three others that expired at the end of last year.
  Today we are in the middle of filing season for 2018 tax returns, and 
taxpayers affected by these expired provisions need a resolution so 
that they can file. I want to stress that I want to find a long-term 
resolution so that we don't have to have temporary tax policy, but it 
is critical we make it clear to the taxpayers that these provisions are 
available for the 2018 filing season and extending them for this year 
will give us room to take a needed long-term view of this temporary tax 
  Many of the tax extenders are intended to be incentives, and to be 
successful, then, these incentives need to be in effect before 
decisions can be made. That is why we should provide extensions for at 
least 2 years, to maximize that incentive effect. But it is also 
important that we extend these provisions for 2018, even though the 
year has obviously already ended. We have developed a very bad policy 
and a very bad habit of extending these tax provisions year after year, 
and people and businesses have come to expect that the extension will 
  As a result, decisions were made by various businesses in 2018 based 
upon the expectation of extension, and that is a reasonable expectation 
because we have done it over decades. In other words, people did what 
we wanted them to do in their business decisions when these provisions 
were created. We should not retroactively punish these businesspeople 
for Congress's inaction.
  Today, a diverse group of organizations, including the National 
Biodiesel Board, the American Trucking Associations, and the National 
Corn Growers Association, among others, sent a letter to congressional 
leaders requesting that the expired provisions be extended through 2019 
as quickly as possible. I want to quote a few sentences from that 

       Providing taxpayers with a predictable planning outlook as 
     it pertains to tax rules is conducive to increased private 
     sector investment and economic activity. Accordingly, we 
     respectfully ask that you act to retroactively extend these 
     expired tax provisions through 2019 on the first appropriate 
     legislative vehicle.

  Mr. President, I ask unanimous consent that the complete letter be 
printed in the Record.
       There being no objection, the material was ordered to be 
     printed in the Record, as follows:

                                                February 28, 2019.
     Hon. Nancy Pelosi,
     Speaker of the U.S. House,
     Washington, DC.
     Hon. Kevin McCarthy, 
     U.S. House Republican Leader,
     Washington, DC.
     Hon. Mitch McConnell,
     U.S. Senate Majority Leader,
     Washington, DC.
     Hon. Charles Schumer, 
     U.S. Senate Democratic Leader,
     Washington, DC.
     Hon. Richard Neal,
     Chairman, U.S. House Committee on Ways and Means,
     Washington, DC.
     Hon. Kevin Brady,
     Ranking Republican Member, U.S. House Committee on Ways and 
     Washington, DC.
     Hon. Charles Grassley,
     Chairman, U.S. Senate Finance Committee,
     Washington, DC.
     Hon. Ron Wyden,
     Ranking Democratic Member, U.S. Senate Finance Committee,
     Washington, DC.
       Dear Speaker Pelosi, Republican Leader McCarthy, Majority 
     Leader McConnell, Democratic Leader Schumer, Chairman Neal, 
     Ranking Member Brady, Chairman Grassley and Ranking Member 
     Wyden: The following organizations, representing diverse 
     business, energy, transportation, real estate and agriculture 
     sectors, are writing to you regarding the pressing need to 
     address the expired tax provisions (``tax extenders''). We 
     respectfully ask that at a minimum, the House and Senate 
     retroactively extend these provisions through 2019 promptly 
     in order to minimize potentially severe disruptions to the 
     recently opened tax filing season.
       These temporary tax provisions have remained lapsed since 
     the end of 2017. This has created confusion for the numerous 
     industry sectors that utilize these tax incentives and has 
     threatened thousands of jobs in the U.S. economy. The 
     continued uncertainty with regard to eventual congressional 
     action on tax extenders is undermining the effectiveness of 
     these incentives and stands as a needless barrier to 
     additional job creation and economic growth in the private 
       Providing taxpayers with a predictable planning outlook as 
     it pertains to tax rules is conducive to increased private 
     sector investment and economic activity. Accordingly, we 
     respectfully ask that you act to retroactively extend these 
     expired tax provisions through 2019 on the first appropriate 
     legislative vehicle.
       We sincerely appreciate your attention to this matter, and 
     stand ready to work with you to achieve this important 
       Advanced Biofuels Association; Advanced Biofuels Business 
     Council; Air Conditioning Contractors of America (ACCA); Air-
     Conditioning, Heating, and Refrigeration Institute; Algae 
     Biomass Organization; Alliantgroup; American Biogas Council; 
     American Council of Engineering Companies; American Council 
     On Renewable Energy (ACORE); American Horse Council; American 
     Public Gas Association; American Public Transportation 
     Association; American Short Line and Regional Railroad 
     Association; American Soybean Association; American Trucking 
     Associations; American Veterinary Medical Association; 
     Association of American Railroads; Biomass Power Association; 
     Biotechnology Innovation Organization; Business Council for 
     Sustainable Energy; CCIM Institute; Citizens for Responsible 
     Energy Solutions; Coalition for Energy Efficient Jobs & 
     Investment; Coalition for Renewable Natural Gas (RNG 
     Coalition); Community Transportation Association of America; 
     Copper Development Association; Directors Guild of America; 
     E2 (Environmental Entrepreneurs); Education Theatre 
     Association EDTA; Electric Drive Transportation Association; 
     Energy Recovery Council; Fuel Cell and Hydrogen Energy 
     Association; Growth Energy; and Hearth, Patio & Barbecue 
       Independent Electrical Contractors; Independent Film and 
     Television Alliance; Independent Fuel Terminal Operators 
     Association; Institute of Real Estate Management; 
     NAESCO (National Association of Energy Service Companies); 
     National Association of Home Builders; NAHB; National 
     Association of REALTORS; National Association of 
     State Energy Officials (NASEO); National Association of 
     Truckstop Operators; National Biodiesel Board; National Corn 
     Growers Association; National Council of Farmer Cooperatives; 
     National Employment Opportunity Network (NEON); National 
     Hydropower Association; National Lumber and Building Material 
     Dealers Association; National Propane Gas Association; 
     National Railroad Construction and Maintenance Association; 
     National Real Estate Investors Association; National 
     Renderers Association; National Thoroughbred Racing 
     Association; NEFI; NGVAmerica; Pellet Fuels Institute; 
     Renewable Fuels Association; South West Transit Association; 
     The American Society of Cost Segregation Professionals; The 
     Railway Engineering-Maintenance Suppliers Association 
     (REMSA); The Sheet Metal and Air Conditioning Contractors 
     National Association (SMACNA); Tile Roofing Industry 
     Alliance; U.S. Canola Association.

  Mr. GRASSLEY. Mr. President, another very important point I want to 
make has to do with the question about whether an extender package 
should be offset or not. Around here, the word ``offset'' means if you 
have tax provisions that might lose revenue, then do you have other 
revenue coming in to take its place? The House has decided that is what 
you should do--pay as you go, or PAYGO, as they might call it. It is a 
rule of the House.
  I have a long record of promoting budget responsibility, and I am as 
concerned about the deficit and debt as anyone. However, we also have 
bipartisan precedent for treating the extension of temporary tax 
policy, like these extenders, just as we treat the extension of annual 
spending policy. In neither case do we need offset for such extensions. 
In other words, it is all right to spend more money or continue to 
spend the same amount of money after a program has expired, and you 
don't have to offset it when you have tax law that has been on the 
books for a couple of decades, and it is sunset. Why should you have to 
sunset that? There are a few people around here who think it is all 
right to spend money without offsets, but it is wrong to do tax policy 
unless you have offsets.
  There are a few specific items in this legislation that I want to 
take time to mention. Significant work has already been done to provide 
long-term solutions on two extenders--the short line railroad tax 
credit and the biodiesel tax credit.
  The bill I am introducing extends those credits at their current 
levels for 2018 and 2019. I want my colleagues to

[[Page S1599]]

know that I still remain committed to enacting the compromises that 
several of our colleagues and I worked with the stakeholders to 
  The bill also includes an extension of a proposal adopted last 
Congress that would extend the 7.5-percent floor for itemized 
deductions of medical expenses. Without this provision, the floor on 
deductions will be 10 percent for 2019. This means that without this 
provision, individuals with chronic illnesses and high medical expenses 
would have to pay more for healthcare before that excess can be 
deducted in the expenses on their 2019 tax returns.
  This proposal is a very important priority for one of our best 
colleagues, Senator Collins. She deserves a lot of credit for getting 
what has turned into a bipartisan proposal to help many Americans 
facing catastrophic medical expenses.
  Finally, the legislation includes provisions to assist Americans who 
have been affected by natural disasters in 2018. This package includes 
proposals that we have adopted in prior years to help Americans recover 
from natural disasters across our country. For example, the package 
would allow increased access to retirement funds and relax restrictions 
around charitable giving. I am sure everyone here would like to help 
people affected by these natural disasters as soon as we are able to.
  I don't want my comments today to imply that each tax extender should 
be permanently extended, but the right thing to do now is to provide 
extensions for at least 2018 and 2019. In the long term, Congress needs 
to decide if these provisions should be allowed to expire or if they 
should be phased out or if they should be made permanent as current tax 
policy or modified in some way beyond expiring, phasing out, or being 
made permanent.
  Those decisions need to be made after we resolve the short-term 
crisis caused by the current lapse. These provisions have support of 
Members on both sides of the aisle. For people who think that things 
around here get done only with Republicans fighting Democrats or vice 
versa, these provisions have wide bipartisan support.
  There is a solid foundation for a long-term package consisting of 
many of these provisions in one form or another. We need to get past 
today so that we can chart the course for a reliable future for the tax 
extenders and give business some certainty.
  Just as Phil wants to stop living the same day over and over again, I 
think all of us want to break the cycle of short-term extensions of, in 
many cases, very popular tax policy. The legislation I introduce today 
with the ranking member, Senator Wyden of Oregon, is a critical first 
step toward helping taxpayers complete their 2018 returns and helping 
us begin work on a long-term solution to temporary tax policy.
  I have asked our majority leader to rule XIV this bill onto the 
calendar, and I urge the House to send us a tax bill to address the 
extenders without further delay.
  Just this morning, I had discussions with Iowa Congressmen of both 
political parties about this issue to contact the leadership of the 
House and the leadership of the Ways and Means Committee on the 
importance of moving legislation since the Constitution doesn't allow 
the Senate to move tax legislation in the first place.
      By Mr. CARPER (for himself, Mrs. Capito, Mr. Peters, Mr. Tillis, 
        Ms. Stabenow, Mr. Rubio, Mr. Merkley, Mr. Gardner, Mr. Reed, 
        Ms. Murkowski, Mrs. Shaheen, Mr. Burr, Mr. Bennet, Mr. Manchin, 
        Mr. Schumer, Mr. Udall, Mr. Heinrich, Ms. Hassan, Mrs. 
        Gillibrand, and Ms. Baldwin):
  S. 638. A bill to require the Administrator of the Environmental 
Protection Agency to designate per- and polyfluoroalkyl substances as 
hazardous substances under the Comprehensive Environmental Response, 
Compensation, Liability Act of 1980, and for other purposes; to the 
Committee on Environment and Public Works.
  Mr. CARPER. Mr. President, during the debate on the nomination of 
Andrew Wheeler to be Administrator of the Environmental Protection 
Agency I came to the floor to express concerns on a number of issues, 
including EPA's regulation of per- and poly-fluorinated alkyl 
  PFAS are a class of man-made chemicals developed in the 1940s. PFAS 
can be found across industries in many products, including food 
packaging, nonstick pans, clothing, furniture, and firefighting foam 
used by the military. These chemicals have a long and tragic history--
suffice it to say that their widespread use resulted too many Americans 
without access to safe drinking water.
  This very issue is a matter of some controversy as EPA has failed to 
provide meaningful and swift action on these chemicals under this 
administration. That is why I am here today to introduce a bipartisan 
bill to designate PFAS chemicals as hazardous substances under the 
Federal superfund law. The Carper-Capito-Peters-Tillis-Stabenow-Rubio-
Merkley-Gardner-Reed-Murkowski-Shaheen-Burr-Bennet-Manchin bill will 
force EPA to begin the rulemaking process to protecting Americans from 
overexposure to these harmful chemicals and hold polluters accountable. 
It is very similar to legislation that has already been introduced in 
the House of Representatives by Congresswoman Debbie Dingell.
  In his confirmation hearing, Andrew Wheeler said, and I quote:

       It is these Americans that President Trump and his 
     Administration are focused on, Americans without access to 
     safe drinking water or Americans living on or near hazardous 
     sites, often unaware of the health risks they and their 
     families face. Many of these sites have languished for years, 
     even decades. How can these Americans prosper if they cannot 
     live, learn, or work in healthy environments? The answer is 
     simple. They cannot. President Trump understands this and 
     that is why he is focused on putting Americans first.

  One would think those words might mean that there could be some 
common ground at least on addressing PFAS. After all, who wouldn't 
agree that we should be acting with urgency to address contamination 
from these hazardous chemicals?
  According to one 2017 study, drinking water supplies for 6 million 
U.S. residents have exceeded the EPA's lifetime health advisory for 
these chemicals.
  Another 2018 study performed by the Environmental Working Group 
reports that up to 110 million Americans could have PFAS-contaminated 
  In 2016, the Department of Defense announced that it was assessing 
the risk of groundwater contamination from firefighting foam at dozens 
of fire and crash testing sites across the country. It is likely that 
they are all contaminated.
  Just last year, the town of Blades in my home State of Delaware 
alerted its 1,250 residents, as well as businesses and schools that use 
public water, to stop using public water for drinking an cooking 
because PFAS chemicals were present at nearly twice the Federal health 
advisory level. Reportedly, 36 of 67 sampled groundwater wells on Dover 
Air Force Base showed dangerously high levels of PFOA and PFOS. And it 
is not just Delaware--contamination is widespread, in red States and 
blue States, in small water systems and large ones, on military sites 
and in residential areas, from Maine to Alaska.
  It is essential that we legislate to require EPA to designate PFOA 
and PFOS as ``hazardous substances,'' which means that polluters could 
be held responsible for cleaning it up under the superfund law. In its 
recently released PFAS Action Plan, EPA has said again that it would 
issue this proposal in the future but did not indicate how long it will 
take to complete. Unfortunately, it has no sense of urgency to address 
these emerging contaminants and to protect American's from harmful 
levels of contamination.
  EPA had an opportunity to take action to address PFAS chemicals in a 
real and comprehensive way; however, time and again, it has failed to 
move in an expeditious and meaningful way. That is why this bill is so 
important. Designating these chemicals as hazardous substances will, at 
a minimum, start the process to getting these contaminated sites 
cleaned up. This not the silver bullet to the broader contamination 
problems, but it is a start.
      By Mr. CARPER (for himself, Mr. Merkley, Mr. Markey, Mr. Coons, 
        Mr. Whitehouse, Mr. Jones, Mr. Schatz, Mr. Booker, Mr. Schumer, 
        Mr. Bennet,

[[Page S1600]]

        Mr. Reed, Mr. Van Hollen, Ms. Stabenow, Mr. Murphy, Mr. 
        Manchin, Mr. Heinrich, Ms. Baldwin, Mr. Brown, Mrs. Murray, 
        Mrs. Feinstein, Ms. Klobuchar, Mr. Blumenthal, Mrs. Gillibrand, 
        Mr. Cardin, Mr. Warner, Mr. Leahy, Ms. Rosen, Ms. Smith, Mr. 
        Wyden, Mrs. Shaheen, Ms. Hirono, Ms. Duckworth, Mr. Durbin, Ms. 
        Hassan, Mr. Casey, Mr. Peters, Mr. Menendez, Ms. Cortez Masto, 
        Mr. Sanders, Mr. Kaine, Mr. Tester, Ms. Harris, Ms. Cantwell, 
        Ms. Sinema, Ms. Warren, Mr. King, and Mr. Udall):
  S.J. Res. 9. A joint resolution calling on the United States and 
Congress to take immediate action to address the challenge of climate 
change; to the Committee on Environment and Public Works.
  Mr. SCHUMER. Mr. President, I am joined this morning by a group of my 
Democratic colleagues to talk about the greatest threat facing our 
country and our planet--climate change. Despite the gravity and scale 
of the problem, at no time in the past 5 years have Republicans brought 
even a single bill to the floor to meaningfully address climate change. 
They brought CRAs to the floor to repeal critical environmental 
protections that limited the emission of greenhouse gases like methane. 
They brought legislation to open up more Federal lands to oil drilling, 
but they haven't brought forward a single meaningful bill to address 
climate change.
  Ironically, the first bill Leader McConnell would bring to the floor 
on climate change is a bill that he and his party intend to vote 
against. What a ridiculous sham; what a pathetic political stunt. It 
would be a stunt on its own from a leader who just a month ago claimed 
he didn't bring sham bills to the floor, but it is an even greater 
stunt because they have nothing positive to say about dealing with this 
climate crisis.
  So today, Democrats will be introducing a resolution to steer the 
direction of this conversation about climate change back in the right 
direction--all 47 Democrats, every single one.
  We are introducing a resolution that affirms three simple things: 
First, climate change is real; second, climate change is changed by 
human activity; and third, Congress must act immediately to address 
this problem. These are three simple things--three things that the vast 
majority of the American people agree with. Two are plain facts, and 
the third is just a statement that Congress should take action in light 
of those two facts.
  Our resolution does not prescribe what action we should take. It 
doesn't say that someone has to be for this solution or that solution. 
It simply states that climate change is happening, and we ought to do 
something about it. It is like saying that opioid abuse is a problem, 
and we should do something. Surely every Senator agrees with that.
  In an ideal world, every single Republican Senator would sign on to 
our climate change resolution because there should be nothing 
controversial about it at all. But because one political party in 
America largely denies the science or, as I am sure my colleague from 
Rhode Island will address, is so in the pocket of Big Oil that it 
refuses to admit the severity of it, I suspect many of our Republican 
colleagues will not sign on, and what a shame--what a shame--that would 
be. At least the American people will know which of their Senators 
denies the overwhelming consensus of the scientific community.
  So if and when Leader McConnell moves to proceed to the Green New 
Deal, Democrats will demand a vote on our resolution, and we will see 
if Leader McConnell is so eager to take that vote.
  Again, I have asked him every day; I asked him earlier this morning: 
Leader McConnell, do you believe climate change is real? Leader 
McConnell, do you believe it is caused by human activity? And, Leader 
McConnell, do you believe Congress has to act to deal with climate 
change? We have simply heard silence from the leader and from just 
about every other Republican so far.
  So we are going to push this resolution, and we hope the American 
people will let their Senators who are not on this resolution know that 
they should be on it. It is the first step to moving something in a 
positive direction because we intend to go on offense on climate.
      By Mr. UDALL (for himself, Ms. Collins, Mrs. Shaheen, and Ms. 
  S.J. Res. 10. A joint resolution relating to a national emergency 
declared by the President on February 15, 2019; to the Committee on 
Armed Services.
  Mr. UDALL. Thank you for the recognition, Madam President.
  Today I rise to call on this body to defend the Constitution, to 
protect the separation of powers, and to safeguard Congress's role as a 
coequal branch of government.
  Today I am introducing a bipartisan resolution with my Senate 
colleagues to terminate the President's declaration of a national 
emergency to build his border wall.
  My partners in this effort include Senator Collins, who is with me 
today. She will be here momentarily. Also partners are Senator 
Murkowski and Senator Shaheen.
  I just want to say to Senator Collins that I commend her on her 
principled stance and on standing up for the Constitution.
  The vote we will take on this resolution is historic. This is no 
longer about the President's wall. This is not about party. This is not 
about protecting the very heart of our American system. This is about 
protecting the very heart of our American system of governance.
  Congress--and only Congress--holds the power of the purse. Article I, 
section 9 of the Constitution clearly states: ``No Money shall be drawn 
from the Treasury, but in Consequence of Appropriations made by Law.'' 
The Constitution is absolutely clear.
  Congress's power to make spending decisions is very clear. There is 
no ambiguity. Deciding how to spend public funds is among our most 
fundamental powers and responsibilities under the Constitution. The 
Founders gave this power to the legislative body, not the executive, to 
ensure there is a broad support for how public funds are spent.
  Consequential and far-reaching decisions about spending taxpayer 
money are not left to one person, not even the President.
  This body has rejected the President's request to give him $5.7 
billion for his wall along the southern border with Mexico. On February 
14, not 2 weeks ago, we passed the Consolidated Appropriations Act of 
2019 by a vote of 83 to 16. That compromise bill did not include the 
$5.7 billion the President wanted to build his wall.
  Whether you believe Congress should fund the President's wall is not 
at issue. This is a question about the strength of the rule of law in 
this country and about the separation of powers, which forms the 
foundation of our American government.
  The President's declaration of a national emergency is an end-run 
around Congress's power to appropriate--plain and simple. To quote 
Senator Collins, the President is ``usurping congressional authority.''
  We are the representatives of the people. The people do not want to 
spend $5.7 billion on the President's wall, and we must protect their 
  Let's be clear. This emergency declaration has serious implications 
for States all across the country. To build this wall, the White House 
will raid $3.6 billion from the Department of Defense's military 
construction budget and $2.5 billion from that Department's drug 
interdiction program, but the White House apparently failed to realize 
there are only about $80 million in the drug interdiction account. So 
we should be prepared for a raid on other accounts or taking even more 
from military construction funding.
  These are military construction funds that Congress already has 
appropriated for specific projects necessary to support the national 
security priorities of the United States. I am privileged to serve on 
the Appropriations Committee. I understand the hard and careful work 
that goes into these funding decisions.
  From my home State of New Mexico, Congress allocated some $85 million 
to construct a formal training unit at Holloman Air Force Base in the 
south-central part of New Mexico for unmanned aerial vehicles. This 
investment in technology tracks terrorists

[[Page S1601]]

and protects our national security. We allocated $40 million to the 
White Sands Missile Range to build an information systems facility 
badly needed for next-generation research and development activities at 
the range. Both of these projects were vetted over several years and 
deemed important to our national security.
  New Mexico is not alone. Many States' military bases and regional 
economies will be impacted. Colorado, for example, is at risk of losing 
almost $100 million for construction projects at Fort Carson near 
Colorado Springs. Ohio risks $61 million for the first installment for 
building at the National Air and Space Intelligence Center at Wright-
Patterson Air Force Base.
  Military construction projects totaling $210 million are at risk in 
Florida, $520 million in Texas, $81 million in Utah, and the list goes 
on and on. Projects in every corner of the country will be impacted.
  According to the 1976 Senate report from the National Emergencies 
Act, the President's emergency power may ``be utilized only when actual 
emergencies exist.'' As a border Senator, I am here to tell you that 
there is no actual national security emergency at our southern border 
necessitating a massive wall along the southern border, as this body 
has already determined. This is a matter where the President and 
Congress have disagreed and the President is trying to overrule 
Congress by fiat.
  A bipartisan group of 58 former national security officials are 
sounding the alarm. They write: ``Under no plausible assessment of the 
evidence is there a national emergency today that entitles the 
president to tap into funds appropriated for other purposes to build a 
wall at the southern border.''
  The evidence speaks for itself. The number of border apprehensions 
has decreased dramatically. Since the early 2000s, southern border 
apprehensions have dropped 81 percent. The number of apprehensions at 
the end of fiscal year 2017 was the lowest it has been since 1971--a 
46-year low. We have the lowest number of undocumented immigrants in 
our country that we have had in over a decade.
  The Pew Research Center estimated recently that the total number of 
undocumented immigrants residing in the United States is far less than 
since 2004. That is a 14-year low. And more people emigrate to Mexico 
from the United States than immigrate from Mexico to here. That is 
right. We have a negative net migration rate with Mexico.
  I am one of the four States that border Mexico--one of the four 
States that will be the most directly affected by a wall. I know for an 
absolute fact that there is no national security emergency along my 
State's border with Mexico. It is quite the opposite.
  New Mexico's border communities are thriving. International commerce 
is thriving. Our multicultural communities are thriving. Crime rates 
are low.
  A wall like the President wants would be disastrous for a State like 
New Mexico. It will seize away private property and carve up family 
ranches, farms, and homesteads. It will harm the beautiful but fragile 
environment there on the border.
  Again, whether you support the President's wall is not at issue on 
this vote. As Senator Tillis put it in an op-ed in the Washington Post, 
``I support President Trump's vision on border security. But I would 
vote against the emergency.''
  Another Senate Republican Senator recently said, ``Congress has been 
ceding far too much power to the executive branch for decades. We 
should use this moment as an opportunity to start taking power back.''
  Over 20 former Republican Senators and Representatives were compelled 
to pen a letter opposing the emergency declaration. They state: ``It 
has always been a Republican fundamental principle that no matter how 
strong our policy preferences, no matter how deep our loyalties to 
presidents and party leaders, in order to remain a constitutional 
republic we must act within the borders of the Constitution.''
  The time to act is now. Litigation has been filed, but Congress 
should resolve the issue of our own constitutional authority and not 
wait for the courts.
  Let me repeat. The vote we will take will be historic. It is 
imperative that all of us--Republican and Democrat--protect and defend 
our Constitution and that we protect and defend the checks and balances 
that unequivocally place the power of the purse with Congress and that 
we affirm our powers--powers that are separate from the President's.
  Our oath is to uphold the Constitution, and the Constitution is 
clear. The Constitution does not empower the President to raid money by 
decree just because Congress has already said no.
  I will vote to terminate the President's declaration of the national 
emergency to build his wall, and I will urge everyone in this Chamber 
to protect our constitutional prerogative and to do so as well.
  Ms. COLLINS. Mr. President, I rise today to speak on the resolution 
that I am joining Senator Udall in introducing. It would reverse the 
President's ill-advised decision to declare a national emergency and 
commandeer funding provided for other purposes by Congress and instead 
redirect it to construct a wall on our southern border.
  I thank Senator Udall for his leadership and also recognize the 
support we have received from our cosponsors, Senator Murkowski and 
Senator Shaheen.
  Let me be clear. The question before us is not whether to support or 
oppose the wall. It is not whether to support or oppose President 
Trump. Rather, it is this: Do we want the executive branch now or in 
the future to hold a power that the Founders deliberately entrusted to 
  It has been said that Congress's most precious power is the power of 
the purse set out in plain language in article I, section 9 of our 
Constitution. It reads as follows: ``No money shall be drawn from the 
Treasury but in consequence of Appropriations made by law.''
  Alexander Hamilton, in Federalist 72, made clear the Founders' view 
that only the legislative branch commands this power, not the judiciary 
and not the executive. James Madison, in Federalist 58, called the 
power of the purse ``the most complete and effectual weapon with which 
any constitution can arm the [ . . . ] representatives of the people.''
  Congress's power was jealously guarded in the early days of our 
Republic. No less an authority on our constitutional framework than 
Supreme Court Justice Joseph Story, in his famous ``Commentaries,'' 
explained that ``[i]f it were otherwise, the executive would possess an 
unbounded power over the public purse of the nation, and might apply 
all its monied resources at his pleasure.''
  Throughout our history, the courts have consistently held that ``only 
Congress is empowered by the Constitution to adopt laws directing 
monies to be spent from the U.S. treasury.''
  I strongly support protecting the institutional prerogatives of the 
U.S. Senate and the system of checks and balances that is central to 
the structure of our government.
  I support funding for better border security, including physical 
barriers where they make sense. I understand the President is 
disappointed that the funding he requested did not pass, but the 
failure of Congress to pass funding in the amount the President prefers 
cannot become an excuse for the President to usurp the powers of the 
legislative branch.
  This is not the first time I have made this argument against 
Executive overreach. In 2015, I authored the Immigration Rule of Law 
Act, legislation that would have provided a statutory basis for the 
Dreamer population, while rolling back President Obama's 2014 Executive 
orders expanding that program.
  As I explained at the time, even though I supported comprehensive 
immigration reform and was disappointed that it had not passed, I 
rejected the notion that its failure could serve as the justification 
for President Obama to implement by Executive fiat that which Congress 
had refused to pass, regardless of the wisdom of Congress's decision.
  I would now like to turn to a discussion of the National Emergencies 
Act. This act was passed in 1976 to standardize the process by which 
the President can invoke national emergency powers and Congress can 
terminate the declaration through a joint resolution such as the one we 
are introducing today.

[[Page S1602]]

  The act is procedural in nature. It lays out the process the 
President must follow to declare a national emergency but does not 
provide the President with any additional powers. Instead, it requires 
the President to specify where, in existing law, he has been granted 
the authority for the powers he intends to exercise.
  By itself, the National Emergencies Act does not give the President 
the power to repurpose billions of dollars to build a wall. The 
President must look elsewhere for that authority.
  In his declaration, the President cites the authority provided by 
title 10, section 2808 of the U.S. Code, which relates to 
``Construction authority in the event of a declaration of war or 
national emergency.'' But that authorization applies only to ``military 
construction projects'' that are ``necessary to support [the] use of 
the armed forces.'' I do not believe this provision can be fairly read 
to bootstrap the presence of troops along the southern border into the 
authority to build a wall as a military construction project.
  The question isn't whether the President can act in an emergency but 
whether he can do so in a manner that would undermine the congressional 
power of the purse.
  Here, I think we need a better understanding of what should qualify 
as an emergency. One place we could turn is to a five-part test 
originally developed by the Office of Management and Budget in 1991, 
under former President George Herbert Walker Bush, to determine whether 
requested funding merited an ``emergency spending'' designation under 
our budget rules.
  Under that test, a spending request was designated as an 
``emergency'' only if all five of the following conditions were met:
  First, expenditures had to be necessary; second, the need had to be 
sudden, coming into being quickly, not building up over time; third, 
the need had to be urgent; fourth, the need had to be unforeseen; and 
fifth, the need could not be permanent.
  I raise this test only by way of analogy, but it is fair to say that 
whether or not you agree with the President that more should be done to 
secure the southern border--and I do agree with the President's goal--
his decision to fund a border wall through a national emergency 
declaration would not pass this five-part test.
  The President's declaration also has practical implications for the 
military construction appropriations process, as my colleague has 
pointed out.
  Last year, in testimony before the Appropriations Committee, the 
Department of Defense said that the President's budget request for 
military construction funding was crucial to support our national 
defense, including construction projects to improve military readiness 
and increase the lethality of the force. This includes missile defense, 
improved facilities in Europe to deter Russian aggression, and 
infrastructure to operationalize the F-35 stealth fighter.
  This also included several important efforts at the Portsmouth Naval 
Shipyard in Maine that are vital to the Navy conducting timely 
maintenance and refueling of our Nation's submarines. Shifting funding 
away from these vital projects is shortsighted and could have very real 
national security implications.
  We must defend Congress's institutional powers, as the Founders hoped 
we would, even when doing so is inconvenient or goes against the 
outcome we might prefer.
  The gridlock we have experienced on difficult issues like border 
security and immigration reform is not simply a failure to get our work 
done but a reflection of the fact that we have yet to reach a 
  The President's emergency declaration is ill-advised precisely 
because it attempts to shortcut the process of checks and balances by 
usurping Congress's authority. This resolution blocks that overreach, 
and I hope, regardless of our colleague's position on the construction 
of the border wall, that we will join together to assert Congress's 
constitutional authority in the appropriations process.
  I urge our colleagues to support this important resolution.
  Mr. UDALL. Would the Senator yield?
  Ms. COLLINS. I would be happy to.
  Mr. UDALL. I just want to say, because we have both been here for a 
bit talking on the floor about this, I want to thank Senator Collins 
for standing up for principle. I want to thank her for standing up for 
our Constitution. It is a real honor to join her in this resolution of 
  I also, as she just did, thank the two other Senators who are joining 
us, Senator Murkowski and Senator Shaheen. I thank the Senator very 
  Ms. COLLINS. Mr. President, I would thank the Senator for his 
gracious comments. As always, it has been a great pleasure to work with 
him, and I know he cares deeply about the constitutional principle that 
brings us to the floor today. Let us defend the Constitution.