EXECUTIVE SESSION; Congressional Record Vol. 165, No. 205
(Senate - December 18, 2019)

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[Pages S7123-S7126]
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                           EXECUTIVE SESSION


                           EXECUTIVE CALENDAR

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to resume consideration of the following 
nomination, which the clerk will report.
  The legislative clerk read the nomination of Matthew Walden 
McFarland, of Ohio, to be United States District Judge for the Southern 
District of Ohio.
  The PRESIDING OFFICER. The Senator from Illinois.

                             Tobacco to 21

  Mr. DURBIN. Madam President, this week we are going to be voting on 
some appropriation bills. They are rather large. They call them 
minibuses. But there will be six or eight appropriations bills bunched 
together, and they will include things other than strictly spending 
  One of the areas that will be addressed is the age that you must 
reach to purchase tobacco and vaping materials in the United States. It 
is known euphemistically as T-21, and I have supported it for years. 
The notion of raising the purchasing age to 21 for these products, to 
me, just makes sense.
  We know that they are addictive. Both cigarette tobacco and vaping 
materials have nicotine in them, a highly addictive chemical. Raising 
the age of purchase across the United States to 21 makes sense.
  But I am disappointed as well. Although I originally sponsored this 
bill, there have been several revelations in the last few months, which 
call for us to move far beyond the idea of establishing a new age for 
purchasing these products, and let me be specific.
  One of the things we have been working on is trying to address the 
shocking increase in the use of vaping materials and e-cigarettes by 
young people across America. It has been called a public health 
epidemic, not by a politician but by the Commissioner of the Food and 
Drug Administration. That Commissioner told us, as well as the Surgeon 
General of the United States, that this is an issue that cannot be 

[[Page S7124]]

  Today, we estimate that nearly 30 percent of school-age children are 
vaping--more than 5 million kids across America.
  A group of young high schoolers came in to see me from New York last 
week and said: Senator, you are all wrong. In our schools it is a 
  A majority of the students are vaping, not only outside of the 
school, but even in the classroom. They have hooked up vaping devices 
to the clothing that they are wearing, and when the teacher turns his 
or her back on the class, they are puffing on their vaping materials--
their Juuls--and blowing the white vapor into the air of the classroom.
  It sounds incredible, but they told me it is true and it happens all 
over the school--in the restrooms, in the cafeteria, in the classrooms.
  The reason it is happening is that so many students are vaping now 
and it is an addiction. As these students continue to vape, their 
appetite for the product grows.
  Kids are using these products for many reasons, and I can get into 
the psychology of it for a minute, but let me dwell on the obvious.
  The flavors that are being sold on these vaping materials are 
designed for them--to attract children to Juul's products, to flavors 
like Cotton Candy, Unicorn Milk--whatever the heck that is--Cool Mint, 
Mom's Sugar Cookies, and, yes, Menthol.
  According to the Food and Drug Administration, more than 80 percent 
of children who vape start with a flavored e-cigarette.
  Now, the vaping industry says: Oh, you have got it all wrong. You 
see, this is a non-tobacco product which people can use to get off 
  Well, that sounds pretty noble; doesn't it? We want people to move 
away from something more dangerous, like tobacco cigarettes.
  But when you look at the incidence of people using this product, it 
is miniscule in terms of adults with a tobacco addiction moving to 
vaping products, and the number of children and young students moving 
from non-vaping to vaping is dramatic. As I mentioned, the official 
figures are 30 percent of high school students.
  According to the Food and Drug Administration, one of the things that 
is luring young people to this behavior is the flavoring or the flavor 
pods. Does anyone believe these flavors are intended for some 50-year-
old chain smoker who wants to give up on tobacco cigarettes--flavors 
like Farley's Gnarly Sauce, Bubble Purp by Chubby Bubbles, Blue Razz by 
Candy King, Cotton Candy by Zonk? Some 50-year-old is attracted to 
Cotton Candy by Zonk?
  We know better. These flavor pods are made for kids--to attract kids, 
get them started, get them hooked, and make them lifelong customers.
  Together with bipartisan colleagues, I have pressed the Food and Drug 
Administration and the White House for years to put an end to these 
kid-friendly flavor pods.
  Well, the tobacco giant Altria--it used to be Philip Morris, if I am 
not mistaken--stepped in and bought the lion's share of the stock of 
Juul, the most prolific producer of vaping devices in the United 
  Altria knows this business and how to attract kids because they used 
to make Marlboro cigarettes. Remember that cowboy designed to appeal 
across the board, particularly to young smokers?
  Well, now they have a new gig. It is called vaping, e-cigarettes, and 
Altria has bought in in a big way.
  They have been taking out ads to support raising the Federal age to 
purchase tobacco products to 21.
  Wait a minute. A tobacco company wants to raise the age for 
purchasing the products?
  They do. They see it as inevitable, but it is also part of their 
market strategy. That is the same policy I have supported, and I thank 
my colleagues Senator Schatz and Senator Kaine for joining in the 
effort, along with Senator Romney. But what we have seen is that Altria 
has invested $13 billion to acquire a 35-percent stake in Juul, which 
controls more than 70 percent of the vaping market. Tobacco is big in 
  Altria and Juul together now believe that if the only thing we do is 
just raise the tobacco age to 21, they will be in the clear and they 
can avoid the scrutiny for their targeted efforts to hook kids on e-
  I disagree. I have made clear that any T-21, ``Tobacco to 21'' policy 
must be coupled with meaningful provisions to get rid of the e-
cigarette flavors now addicting our kids, but they have turned to one 
of their allies, Senator McConnell, on this effort, who was an original 
sponsor on T-21. His party resisted the effort to join the banning of 
flavor pods for e-cigarettes as part of the T-21 bill in our 
appropriations bill.
  I fear that the spending bill will come before us and include just 
the T-21 policy, and that of course doesn't address what is happening 
with vaping among children in America.
  If we are serious about sparing Americans, particularly our kids, 
from addictions to nicotine, it has to reach beyond tobacco cigarettes 
to vaping. It is a mistake not to do so.
  The public health community agrees with me on that. Any serious 
solution to skyrocketing rates of youth e-cigarette use must include 
the removal of kid-friendly flavors--not just the tobacco industry's 
preferred policy--and I will continue to work with Members on both 
sides of the aisle in pushing to do so.
  Finally, let me say on this subject that on September 15, President 
Trump held a press conference in the Oval Office on this subject of 
vaping. Sitting next to him was the First Lady of the United States, 
Melania Trump. She doesn't often stand up on political issues, but she 
is the mother of a teenager, and she decided to speak out against 
vaping. I thanked her. I praised her along with the President. They did 
the right thing, but now we are not sure where the President is on this 
subject. We are not sure if he is going to continue his effort to end 
the scourge of vaping and e-cigarettes.
  I hope the President comes back to the position he announced in 
September. We need his help to ban these flavor pods.
  The recent appointee as FDA Commissioner, Stephen Hahn, has told me 
personally and many of my colleagues that he thinks this is a serious 
issue. I believe he ought to be given the authority to exercise his 
legal right and power to stop these pods and stop these devices as 
quickly as possible.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cramer). Without objection, it is so 

                   Recognition of the Majority Leader

  The PRESIDING OFFICER. The Republican leader is recognized.


  Mr. McCONNELL. Mr. President, all eyes today are on the House of 
Representatives. The country is waiting to see whether these House 
Democrats will give in to the temptation that every other House in 
modern history has managed to resist and misuse the solemn process of 
impeachment to blow off partisan steam. I will have more to say on this 
subject if House Democrats do, in fact, proceed.
  Yesterday I came to the floor to discuss one initial aspect of this 
that concerns our Senate process. Over the weekend, my colleague the 
Democratic leader began asking the Senate to break from precedent, 
break with the unanimous template from 1999, and begin choreographing 
the middle of a potential trial before we have even heard opening 
  Back in 1999, all 100 Senators agreed on a simple pretrial resolution 
that set up a briefing, opening arguments, Senators' questions, and a 
vote on a motion to dismiss. Senators reserved all other questions, 
such as witnesses, until the trial was underway. That was the unanimous 
bipartisan precedent from 1999. Put first things first, lay the 
bipartisan groundwork and leave midtrial questions to the middle of the 
  I have hoped, and still hope, that the Democratic leader and I can 
sit down and reproduce that unanimous bipartisan agreement this time. 
His decision to try to angrily negotiate through the press is 
unfortunate, but no amount of bluster will change the simple fact that 
we already have a unanimous bipartisan precedent. If 100 Senators

[[Page S7125]]

thought this approach was good enough for President Clinton, it ought 
to be good enough for President Trump.
  I hope House Democrats see reason to pull back from the precipice, 
but if they proceed, I hope the Democratic leader and I can sit down 
soon and honor the template that was unanimously agreed to the last 
  Mr. President, on another matter, in the meantime, the Senate is busy 
completing the legislation our country actually needs. Yesterday the 
Senate passed the NDAA conference report and put it on President 
Trump's desk. Thanks to the diligence of Chairman Inhofe and Ranking 
Member Reed, this critical legislation to support our armed services 
will become law for a 59th consecutive year.


  Mr. President, tomorrow we will vote on government funding bills the 
House passed yesterday. A lot of hard work brought this appropriations 
process back from the brink. Here are some of the important things that 
will happen as a result: stable, full-year funding for our Armed 
Forces, including research and modernization; the largest pay raise for 
our troops in a decade; and more support for key alliances like NATO, 
close partners like Israel, and high-priority areas like Hong Kong.
  The bills also deliver on vital domestic priorities as well. It funds 
infrastructure and transportation projects. It repeals even more of 
Obamacare by cutting out more harmful taxes.
  Every single State wins in this bill. By way of example, here are a 
few ways my State will benefit. This bill keeps the decade-old promise 
of a new, modern VA medical center with a special emphasis on care for 
women veterans. There is support for fighting invasive Asian Carp in 
West Kentucky, for Central Kentucky's role in high-tech agricultural 
research. Of course, Kentucky has a huge stake in our Nation's battle 
against opioid and substance abuse. I am proud these bills fund housing 
and treatment programs established by my CAREER Act to help those in 
long-term recovery reenter the workforce.
  Speaking of addiction, I am especially proud that this legislation 
includes my T-21 legislation to raise the nationwide age for purchasing 
tobacco and vaping products to 21 years old and help roll back the 
explosion in tobacco and nicotine use among our Nation's youth.
  I am proud to have worked with Senator Kaine and others on both sides 
to ensure that the legislation we drafted became law this year. Senator 
Todd Young of Indiana was also deeply involved in this as well. I am 
proud that these bills include direct bipartisan action that I urged to 
shore up the looming pension and healthcare crisis faced by coal 
communities in Kentucky and across the Nation.
  These are some examples from Kentucky. This legislation touches, in 
fact, all 50 States. This is why full-year funding bills are better 
than chronic CRs. This is why the Senate should pass these bills this 
way and send them to the President's desk.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from South Dakota.

                   National Defense Authorization Act

  Mr. THUNE. Mr. President, we are wrapping up the year in the Senate, 
and I am looking forward to getting home to South Dakota for Christmas. 
Before we leave, we will wrap up this year's spending bills, including 
the Defense funding bill.
  Yesterday we passed the National Defense Authorization Act, which is 
yearly legislation to authorize funding for our military and our 
national defense. I am pleased to report that this year's bill 
authorizes the full annual funding request for development of the B-21 
bomber, which will be coming to Ellsworth in the not-too-distant 
  The news that Ellsworth Air Force Base had been selected as the first 
home of the future B-21 Raider was exciting news this year. Ellsworth 
Air Force Base has been a priority of mine since I first came to the 
Senate and worked with a lot of dedicated people to prevent Ellsworth 
from being closed by the Base Realignment and Closure Commission in 
  Since then, I have worked with the other Members of the South Dakota 
delegation and the Air Force and community leaders to make sure the 
base never again finds itself in the same position. Among other things, 
our efforts resulted in the expansion of the Powder River Training 
Complex into the largest training airspace in the continental United 
  It is undoubtedly partly thanks to this airspace that Ellsworth was 
chosen as the first home for the B-21. Ellsworth is going from strength 
to strength. I am honored to advocate for our national security and the 
airmen at Ellsworth in the U.S. Senate.

              United States-Mexico-Canada Trade Agreement

  Mr. President, agriculture is the lifeblood of our economy in South 
Dakota, and our farmers and ranchers are always at the top of my 
priority list in the Senate. Thanks to national disasters, protracted 
trade disputes, and several years of low commodity prices, farmers and 
ranchers have had a tough few years.
  This spring, farmers throughout the Midwest were hit with heavy 
rainfall and flooding. By the time the soil finally dried out enough 
for planting, it was too late for many farmers to plant their normal 
crops, and many had to turn quick-growing cover crops that could be 
used for feed and grazing and to protect the soil.
  The farmers in South Dakota and other Northern States faced a 
problem. The Department of Agriculture had set November 1 as the first 
date on which farmers could harvest these cover crops for feed or use 
them for pasture without having their crop insurance indemnity reduced.
  Farmers who hayed or grazed before this date faced a reduction in 
their prevent plant indemnity payments, which are crop insurance 
payments to help them cover their income loss when the fields can't be 
planted due to flooding or other issues.
  While November 1 is a reasonable date for farmers in Southern States, 
for farmers in Northern States like South Dakota, November 1 is too 
late for harvesting thanks to killing frost and the risk of late fall 
and early winter storms. It is too late to maximize the use of cover 
crops for pasture, since a killing frost is liable to flatten cover 
crops before they are grazed.
  So, beginning in early May, I started pressing the Department of 
Agriculture to change the November 1 date. In June, the Department of 
Agriculture announced that it would move up the November 1 date for 
2019 by 2 months, to September 1--a significant amount of time that 
allowed South Dakota farmers to plant cover crops without worrying 
about whether they would be able to successfully harvest or graze them.
  A year ago this week, the President signed into law the 2018 farm 
bill, which contained nearly 20 provisions that I authored based on 
input from South Dakota farmers and ranchers. This year, I have closely 
monitored the Department of Agriculture's implementation of the bill. 
In particular, I have pressed the Department of Agriculture to 
implement the bill's improvements to the Conservation Reserve Program 
and hold CRP signups, and I am pleased the administration opened a CRP 
signup earlier this month.
  When I talk to farmers and ranchers at home in South Dakota, they 
emphasize that the most important thing Washington can do to boost our 
agriculture economy is to take action on trade agreements.
  Farmers and ranchers need access to new and expanded markets for 
their products. Just as importantly, they need certainty about what 
international markets are going to look like going forward.
  I have spent a lot of time this year pushing for Congress to approve 
the United States-Mexico-Canada Trade Agreement. After months and 
months of unnecessary delay, I am pleased this agreement is now moving 
forward. I am hopeful the Senate will pass it in January so the farmers 
and ranchers can start experiencing the benefits.

                            Renewable Fuels

  Mr. President, one piece of good news for corn farmers came this year 
with the administration's announcement that it would permit the year-

[[Page S7126]]

sale of E15, which is 15 percent ethanol-blended fuel. I spent over a 
decade advocating the year-round sale of E15, and I was very pleased by 
the administration's announcement.
  However, for corn farmers to see the full benefit of year-round E15 
sales, the Environmental Protection Agency needs to start accounting 
for its unprecedented use of small refinery exemptions. These so-called 
hardship waivers should be limited only to instances where small 
refiners would no longer be profitable or competitive by complying with 
their blending obligation under the renewable fuel standard.
  On Friday, the EPA is poised to finalize a supplemental rule that it 
assures us will deliver on the President's commitments to account for 
waivers and to truly blend 15 billion gallons of ethanol each year.
  However, based on this EPA's track record, it is difficult to trust 
it will retreat from its aggressive issuance of small refinery 
exemptions. I hope the EPA proves me wrong, but I think I speak for 
most of farm country when I say I will believe it when I see it.
  On the topic of renewable fuels, I am happy to be able to say that 
the biodiesel tax credit will be extended for 5 years, through 2022, as 
part of this year's tax extenders deal. Biodiesel is a good deal for 
farmers, as it adds value to each bushel of soybeans by making use of 
the oil from bean processing, and it is a good deal for our environment 
because the use of this fuel lowers emissions.

                             MOBILE NOW Act

  Mr. President, as a former chairman of the Senate Commerce Committee 
and current chair of the Commerce Subcommittee on Communications, 
Technology, Innovation, and the Internet, I have spent a lot of time 
over the last few years focused on Internet, communications, and data 
privacy issues.
  One big priority of mine has been paving the way for 5G--the next 
generation of wireless technology--ensuring that rural areas and not 
just big cities get this technology.
  Last year, the President signed the law, my bipartisan MOBILE NOW 
Act, which was legislation I introduced to help secure adequate 
spectrum for 5G technology.

                  STREAMLINE Small Cell Deployment Act

  Mr. President, earlier this year, Senator Schatz and I introduced the 
STREAMLINE Small Cell Deployment Act to address the other part of the 
5G equation. That is infrastructure.
  I was thrilled to be home in Sioux Falls to mark a huge milestone for 
the city and for South Dakota--the unveiling of Sioux Falls' first 5G 
small cells, which are small antennas that will join traditional cell 
towers to support 5G technology.
  5G has tremendous promise for rural areas, but it will deliver on 
that promise only if we ensure that 5G cells are actually deployed in 
these areas. I am proud we have made a good start in South Dakota. The 
Sioux Falls mayor, Paul TenHaken, has worked aggressively to remove 
barriers to telecommunications investment in Sioux Falls.
  Advancing 5G will continue to be a priority of mine here in the 
Senate. We want the United States, not China or South Korea, to win the 
race to 5G and to seize the economic benefits that 5G will bring.
  Another thing I have spent a lot of time working on in the Commerce 
Committee this year is data privacy. In October, I introduced the 
Filter Bubble Transparency Act, which is designed to address one aspect 
of the data privacy problem--the issues that arise from internet 
companies' use of consumers' personal data to shape what consumers see 
on their platforms.
  I also introduced legislation this year with Senator Ed Markey to 
address the problem of annoying, illegal robocalls. I am hopeful that 
our legislation, the Telephone Robocall Abuse Criminal Enforcement and 
Deterrence Act--or the TRACED Act--will pass the Senate soon and be on 
the President's desk before Christmas.
  I have worked on a lot of other bills this year to make life better 
for South Dakotans and American families. I have introduced tax reform 
bills to help small businesses, update the tax code for the 21st 
century economy, encourage charitable giving, and permanently protect 
family farms from the death tax. I have introduced legislation to 
protect access to healthcare in rural areas, helped Americans repay 
their student loans, and much more. I will continue to work on these 
issues in the new year.
  As always, my priority will be ensuring that Congress is addressing 
the challenges facing South Dakota families.
  The holidays are a time to reflect on the blessings we have received, 
and I feel truly blessed to call the great State of South Dakota home. 
It is an honor and a privilege to represent the people of South Dakota 
in the U.S. Senate.
  To all South Dakotans, I hope you have a wonderful Christmas and a 
joyous holiday season. I look forward to continuing to represent your 
priorities here in Washington and in the coming new year.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Ms. HASSAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.