The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“STOP SANCTUARY POLICIES AND PROTECT AMERICANS ACT--MOTION TO PROCEED” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S7249-S7260 on Oct. 8, 2015.
The publication is reproduced in full below:
STOP SANCTUARY POLICIES AND PROTECT AMERICANS ACT--MOTION TO PROCEED
Mr. McCONNELL. Mr. President, I move to proceed to Calendar No. 252, S. 2146.
The PRESIDING OFFICER. The clerk will report the motion.
The legislative clerk read as follows:
Motion to proceed to Calendar No. 252, S. 2146, a bill to hold sanctuary jurisdictions accountable for defying Federal law, to increase penalties for individuals who illegally reenter the United States after being removed, and to provide liability protection for State and local law enforcement who cooperate with Federal law enforcement and for other purposes.
Cloture Motion
Mr. McCONNELL. Mr. President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The cloture motion having been presented under rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, do hereby move to bring to a close debate on the motion to proceed to Calendar No. 252, S. 2146, a bill to hold sanctuary jurisdictions accountable for defying Federal law, to increase penalties for individuals who illegally reenter the United States after being removed, and to provide liability protection for State and local law enforcement who cooperate with Federal law enforcement and for other purposes.
Mitch McConnell, David Vitter, John Barrasso, Dan
Sullivan, David Perdue, Bill Cassidy, Ron Johnson,
Steve Daines, James Lankford, James E. Risch, John
Boozman, Mike Lee, Richard C. Shelby, John Cornyn, Jeff
Sessions, Johnny Isakson, Patrick J. Toomey.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the mandatory quorum call be waived and that notwithstanding the provisions of rule XXII, the cloture vote occur at 2:15 p.m., on Tuesday, October 20.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, 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. Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, Senators will soon travel to their home States for the State work period. I ask colleagues to consider some important questions as they meet with constituents and take time to reflect.
In a time of limited Federal resources and tough choices, is it fair to treat localities that cooperate with Federal law enforcement or work hard to follow Federal law no better than localities that refuse to help or actively flout the law? When a deputy sheriff puts her life on the line every day, is it fair to make her live in constant fear of being sued for simply trying to keep us safe? When felons enter our country illegally and repeatedly, is it fair to victims and families to not do what we can now to stop them? The answer to all of these questions is no. No, it isn't fair--not to citizens and governments that do the right thing, not to law enforcement officers who risk everything for our safety, not to victims and their families.
The proponents of so-called ``sanctuary cities'' seem to callously disregard how their policies can hurt other people. That is not right. The bill I just filed cloture on this afternoon aims to ensure more fairness on this issue.
The ideas underpinning the Stop Sanctuary Policies and Protect Americans Act are supported by a great many Americans. The bill is supported by many law enforcement organizations as well. They have had some really positive things to say about it, such as this letter:
Thank you for introducing the Stop Sanctuary Policies and Protect Americans Act which will empower Federal and local law enforcement officers' cooperative efforts to better protect our communities and our citizens. Your proposal will ensure we do not dishonor the memory of Kate Steinle and the immeasurable grief her family is enduring.
The letter went on:
Ms. Steinle was killed in San Francisco by an illegal immigrant who had previously been deported from the United States five times, and had been convicted of seven felonies. The shooter chose to live in San Francisco because he knew it was a sanctuary city that would shield him from Federal immigration law. Tragically, his ``sanctuary'' gambit proved fatal for the Steinle family. Federal officials requested that San Francisco detain the shooter until immigration authorities could pick him up, but San Francisco officials refused to cooperate and released Sanchez three months before Kate's murder. We owe it to Kate and the American citizenry to fix this community safety issue now.
That is what the Federal Law Enforcement Officers Association had to say about the bill that we will be voting on when we get back. Groups like the National Sheriffs' Association and the National Association of Police Organizations have sent letters in support as well.
I thank the sponsors of this legislation for all their hard work on this bill. I hope Senators will reflect on the questions I have raised over the State work period. The Senate will consider this bill when we reconvene.
Mr. President, 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. DONNELLY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
60th Anniversary of Crispus Attucks Championship
Mr. DONNELLY. Mr. President, earlier this year I was incredibly fortunate to be part of the 50th anniversary of Bloody Sunday, a moving and meaningful experience in Selma, AL. Fifty years ago, during the marches from Selma to Montgomery, civil rights leaders and everyday citizens of this country put their lives at risk in a passionate, nonviolent demonstration for a more equal and more just society. The passion and courage for equality reflected in the historic marches in Selma were the culmination of decades of struggle shown by men and women across this country.
In my home State of Indiana, a place that takes great pride in high school basketball, it is fitting that 60 years ago the civil rights movement played out on the hardwood of Indiana basketball courts. On March 19, 1955, at the Butler Fieldhouse, the Flying Tigers of Crispus Attucks High School became not only the first all-African-American high school team to win a State championship in Indiana but the first all-
African-American high school athletic team to win a State championship in the United States. Led by future NBA Hall of Famer--and maybe the best basketball player of all time--Oscar Robertson, the Flying Tigers finished their 1955 season with a 30-and-1 record, capped with a 97-to-
74 victory over Gary Roosevelt High School in the State final.
Before Crispus Attucks' historic 1955 season, no Indianapolis basketball team had won a State championship in the tournament's 45-
year history. Attucks' win was a source of pride, particularly for the African-American community.
Crispus Attucks High School was founded in 1927 as a segregated high school for Black students. The Indiana High School Athletic Association initially refused to grant Crispus Attucks membership, and the school could not play in the State tournament until 1942. Even then, many of the all-White schools refused to play Crispus Attucks. The Crispus Attucks team would often have to travel dozens or even hundreds of miles to find teams willing to play against them. Because the school's gym was built too small for home games, every game was an away game for the Flying Tigers.
Despite the segregation and racism, Crispus Attucks thrived. African-
American educators could not teach in White schools, so Crispus Attucks attracted an elite African-American community. Nearly every teacher had either a doctorate or master's degree. Teachers at Crispus Attucks included former Tuskegee Airmen and members of the Golden 13, the first African-American U.S. Naval officers.
One of those teachers was Ray Crowe. A native of Johnson County, IN, Crowe became head coach of the basketball team in 1950. He instituted a new fast-paced style of offense and was a coach who cared deeply about his players. Crowe's coaching style brought enormous success to the team.
Soon, the same White schools that refused to play Crispus Attucks wanted to schedule games with them. Lacking a home court, the team would frequently play at Butler Fieldhouse on the campus of Butler University. The Flying Tigers packed the house, regularly attracting 10,000 fans or more to a high school basketball game. Still the team was not treated fairly. When traveling for games, the players were unable to stay at hotels or to eat in restaurants that only served White people.
That wasn't the only challenge the Flying Tigers confronted. They also had to contend with bias from the referees. Coach Crowe used to tell the team they had to play against seven people every game--the five players and the two refs. Yet the Flying Tigers kept winning. In 1954, the team made it all the way to the State semifinals, even with several key players missing from injuries. The stage was set for the 1955 season, when a junior forward named Oscar Robertson was ready to lead the team. He had some of the most amazing teammates you could ever find.
Coach Crowe and the Flying Tigers finished the regular season with one loss. They breezed through the first four games of the tournament, winning by an average of 28 points per game. Then they faced Muncie Central, another powerhouse basketball program, and the Flying Tigers won by a single point--but all you need to win by is one point. Over 15,000 fans came to the Butler Fieldhouse to watch Crispus Attucks beat New Albany in the State semifinal and then again to witness history as Crispus Attucks defeated another all-African-American team, Gary Roosevelt, 97-to-74 to become State champs.
The trailblazing players who made it possible included Johnny Mack Brown, Bill Brown, Willie Burnley, John Clemons, John Gipson, Bill Hampton, Willie Merriweather, Sam Milton, Sheddrick Mitchell, Stanford Patton, Oscar Robertson, and Bill Scott.
It was a crowning achievement. The ``Big O'' Oscar Robertson said:
I remember that night. They called us Indianapolis Attucks, not Crispus Attucks. . . . To me, that sort of meant we arrived. They just wanted you to win; they didn't care what color you were.
There was a tradition in Indiana that after every State championship the winning team would climb onto a firetruck and then be taken around the city of Indianapolis for a victory parade. The parade route always included a stop at Monument Circle for pictures and celebration, followed by a tour of downtown Indianapolis, but as the firetruck carrying the Flying Tigers approached Monument Circle, it didn't stop, and it didn't continue through downtown. Instead, the firetruck brought the players and fans to a park in the city's African-American neighborhood.
Crispus Attucks, the team that had just made American history, didn't receive the celebration they deserved simply because of the color of their skin. When Attucks repeated in 1956 and again won the State championship, the firetruck took the same detour.
Change did not come overnight, but the Crispus Attucks basketball team inspired many schools to begin recruiting African-American players along with starting to end their long-held policies of segregation. Oscar Robertson later said:
By us winning, it sped up the integration. I truly believe that us winning the state championship brought Indianapolis together.
In March, members of the Indianapolis-based Family Girls Youth Mentoring Program honored the seven living members of the 1955 championship team and the celebration included the traditional victory tour through the streets of Indianapolis, an honor that was denied to these players 60 years ago.
At this year's Indy 500, the 1955 Crispus Attucks basketball team served as the grand marshals of the Indy 500 Festival Parade. For the first time in the parade's history, there was a stop at Monument Circle, where the Flying Tigers got the celebration they had rightfully earned so long ago.
Today I am proud to join my friend Congressman Andre Carson in honoring the legacy of the 1955 Crispus Attucks basketball team. As Indiana's Senator, on behalf of Hoosiers, I want to recognize the Crispus Attucks team not only for their amazing accomplishments on the court but for the powerful message they always sent throughout the State of Indiana and for the pride that is still present in Indianapolis today for them and for all their accomplishments and for all they mean to us.
The members of the 1955 State championship Crispus Attucks basketball team, their coaches, the teachers who taught them, the community that supported them, and the families who loved them--they were an inspiration in 1955 to all of us, and they are an inspiration today. God bless all of those young players, God bless Indiana, and God bless America.
Mr. HATCH. Will the Senator yield?
Mr. DONNELLY. Yes.
Mr. HATCH. I graduated from high school in 1952. I was the captain of the high school basketball team. I followed this Crispus Attucks team. It was fantastic, almost every player.
Mr. DONNELLY. Extraordinary people.
Mr. HATCH. They were extraordinary, and they inspired all of us, especially in the way they conducted themselves and carried through. What a bunch of great athletes they were.
Mr. DONNELLY. To my colleague, the leader of the Senate, our President pro tempore, I am so honored for you to speak of our fine young men that way. Every citizen of Indiana is grateful. They were an extraordinary group. I met them when I was back home. As fine a people as they were when they were young, they are even more extraordinary citizens for our State and for our country.
Mr. HATCH. Thank you. They were all winners, I will tell you that.
Mr. DONNELLY. Thank you.
The PRESIDING OFFICER (Mr. Cassidy). The Senator from Utah.
Defend Trade Secrets Act
Mr. HATCH. Mr. President, I rise today to speak about an important form of intellectual property: trade secrets. I am pleased to be participating in this colloquy with my friend from Delaware, Senator Chris Coons.
Earlier this year, we introduced the Defend Trade Secrets Act, a bill that will create a harmonized Federal standard for protecting trade secrets. Trade secrets such as customer lists, formulas, and manufacturing processes are an essential form of intellectual property, yet trade secrets are the only form of U.S. intellectual property where misuse does not provide the owner with a Federal private right of action. Instead, trade secret owners must rely on State courts or Federal prosecutors to protect their rights. The multistate procedural and jurisdictional issues that arise from such cases are costly and complicated, and the Department of Justice lacks the resources to prosecute many trade secret cases. Those systemic issues put companies at a great disadvantage since the victims of the trade secret theft need to recover information quickly before it crosses State lines and leaves the country.
At a time when cyber theft of trade secrets is at an alltime high, particularly as it involves Chinese competitors, it is critically important that U.S. companies have the ability to protect their trade secrets in Federal court. Senator Coons, trade secret theft has hit some of the nation's best known companies, including Delaware-based DuPont and its popular Kevlar synthetic fiber products.
I would like to ask how trade secret theft has impacted DuPont.
Mr. COONS. Mr. President, I thank Senator Hatch for his leadership on this important issue. As the Senator from Utah has mentioned, trade secrets are the only form of intellectual property not protected from theft under Federal civil law, which is particularly striking when one considers the value of trade secrets to the economy. According to some estimates, they are worth $5 trillion for the U.S. economy, on par with IP protected by patent. The scope of the loss due to theft or misappropriation is huge, somewhere between $160 and $480 billion annually.
I submit that there is not a State in the country that has not been affected by this problem, and Delaware is no exception. In the 1960s, DuPont--one of our signature manufacturing chemistry-based companies--
invented Kevlar, a para-aramid fiber with extraordinary strength that is also very lightweight. These properties make Kevlar versatile, but its best known use is in lifesaving body armor worn by our police officers and the brave men and women in the American Armed Forces. It has saved thousands of lives, including more than 3,000 police officers here in the United States whose lives have been saved by Kevlar vests.
About 10 years ago, DuPont developed the next generation of Kevlar, which is even lighter and better able to withstand penetrating trauma from a broader range of rifle rounds and IED-generated shrapnel. It represented a real breakthrough in safety, but it cost millions of dollars to develop.
Chemically, para-aramid fibers are not that complicated, but the fabrication method, the manufacturing technique, which is what gives them their strength and flexibility, is actually incredibly difficult to develop and implement. So one day about 6 years ago, a rogue employee of DuPont took the know-how behind DuPont's creation of next-
generation Kevlar and began to work with a rival manufacturing company in Korea, using DuPont trade secrets. The potential loss to DuPont alone from this one instance of trade secret theft or misappropriation approaches $1 billion.
So I ask Senator Hatch, if you were a CEO and your employees were ripping off your trade secrets, your intellectual property, and taking it to another country at the cost of $1 billion a pop, would that affect your willingness to invest the resources in future R&D here in the United States that are needed to make similar lifesaving technological breakthroughs?
Mr. HATCH. Well, of course it would. I thank Senator Coons. He has asked what really is the critical question. If I were a CEO responsible to my shareholders, I could not, according to my fiduciary duties, make those investments if rogue employees could just take off and render those investments worthless.
Trade secret theft does not just affect manufacturing. I read recently an interesting article in the New Republic titled ``Corn Wars'' that provides a detailed account of how China is stealing proprietary corn seeds from America's farms.
Most corn in China is used as a feed for livestock. That was not a problem until the country's middle class acquired an appetite for meat. Given this new demand, China is trying desperately to increase corn production amidst its water shortage and lack of arable land.
That is where our country's intellectual property comes in. Rather than spend the time and resources to develop a hybrid corn seed of its own, China would rather steal, literally right out of the ground, America's high-performing seeds. Experts from America's top seed producers confirmed that acquiring the technology behind a specially designed line of seed is equivalent to 5 to 8 years of research and at least $40 million. You better believe the Chinese know the value of the seeds they steal and the numerous crimes they are committing while in our country.
Let me read an excerpt from the New Republic article that details an encounter a DuPont Pioneer field manager had with industrial spies from a Chinese agricultural company:
It was early May 2011 and Mo [Hailong] and Wang Lei, vice chairman of Kings Nower Seed at the time, were driving roads in Tama County, Iowa, allegedly searching for a DuPont Pioneer test field. But apparently uncertain if he was in the right place or unsure of what kind of seed DuPont Pioneer was testing, Mo had Wang pull to the edge of the field, so they could question a farmer in the midst of spring planting. . .
. How had these two men chanced upon his field on the very day he happened to be planting an experimental and top-secret seed under development by DuPont Pioneer?
The next day, a DuPont Pioneer field manager spotted the same car. He watched Mo scramble up a ditch bank, and then kneel down in the dirt and begin digging corn seeds out of the ground. When confronted by the field manager, Mo grew flustered and red-faced. . . . But before the field manager could question him further, Mo fled.
There is no doubt that China and other foreign competitors are working furiously to steal American innovation not just from manufacturing and agriculture but from all sectors of the economy, including high-tech, life sciences, aeronautics, financial services, and the energy sector. That is why Congress must act now to pass the bipartisan, bicameral Defend Trade Secrets Act.
I ask Senator Coons, what exactly does this bill that you and I are cosponsoring do?
Mr. COONS. I thank Senator Hatch for the opportunity to go into more detail about this terrific bipartisan, bicameral Defend Trade Secrets Act. It is actually relatively simple. It creates a Federal private right of action for misappropriation of trade secrets. It uses an existing Federal criminal law, the Economic Espionage Act, to define trade secrets. It draws heavily from the Uniform Trade Secrets Act which has been enacted by many States to define what is misappropriation.
Simply put, our bill harmonizes U.S. law. Each State has a different trade secret law, and they vary in a range of different ways. Not all of these differences are major, but they affect in small but real ways the definition of a trade secret, what an owner must do to keep a trade secret a secret, what constitutes misappropriation, and what damages are available.
So our Defend Trade Secrets Act creates a single, national baseline or a minimum level of protection and gives trade secret owners access to both a uniform national law and our excellent Federal courts, which provide nationwide service of process and execution of judgments. It is important to note that this bill does not preempt State law because States are free to add further protections on top of what is in this bill. The proposed legislation does one more thing, and trade secret owners tell us this is a critical component of the law not available in States. It creates an ex parte seizure ability. Trade secrets are different from other forms of intellectual property because they are protected under the law only if they remain a secret. Once the public learns of a trade secret, even if it does so wrongfully, the trade secret loses its legal protection. So this bill provides a limited right of action for the owner of a trade secret to go to court ex parte and get it back before the misappropriator, the thief of the trade secret, has a chance to share it with a competitor or the world, thus exposing it.
This is a commonsense idea to help address a very serious problem, but when talking about Federal private rights of action and ex parte injunctive relief, we had to be very careful to avoid any unintended consequences. So, Senator Hatch, would you address how you took concerns about unintended consequences into account as we worked together to draft this bill?
Mr. HATCH. Sure. I want to thank Senator Coons for that helpful overview. As a Republican, I was initially cautious when he approached me about expanding Federal civil law to create a new private right of action for trade secret theft. After all, some have suggested that State law is sufficient, but after consulting with many in the business community, I was convinced that creating a Federal trade secrets law is the right approach.
Soon after its introduction, the Heritage Foundation confirmed the need for Federal legislation. Mr. Alden Abbott from the Heritage Foundation writes:
The lack of a federal civil remedy for victims of trade secret theft precludes owners of trade secrets from vindicating their rights under certain circumstances. Enjoining and sanctioning trade secret thieves who cross state lines is often difficult. . . . [A] federal civil statutory remedy would make Federal tribunals instantly available to aggrieved businesses that seek injunctions, which is particularly important when time is of the essence due to flight risks.
Another problem we faced was ensuring that the ex parte seizure authority could not be used abusively or for anticompetitive purposes.
When we began the drafting process last Congress, we started from scratch and asked for input from all interested stakeholders, especially in regard to the ex parte provision. We received many helpful suggestions and included them in the bill. That is correct, isn't it, Senator Coons?
Mr. COONS. Yes, it is, I say to Senator Hatch. After all that work together, all that consultation, when we introduced this bill last Congress, we wanted to make sure the ex parte provision couldn't be used for abuse, so we required that the party seeking ex parte review must make a rigorous showing that they owned the trade secret, that the trade secret had been stolen, and that third parties would not be harmed if an ex parte order were granted. We also included damages for wrongful seizure, including attorneys' fees. And with that whole combination of important measures to ensure that the ex parte seizure capabilities under the statute are not misused, I think we achieved real consensus at that time. Isn't that right, Senator Hatch?
Mr. HATCH. That is right, I say to Senator Coons.
As we prepared to reintroduce our bill in this Congress, we were fortunate to join forces with Senator Jeff Flake of Arizona. He was invaluable in fine-tuning the ex parte seizure language.
Because of Senator Flake's good work, I believe the ex parte provisions are where they need to be--strong, fair, and not susceptible to abuse.
Would the Senator agree with that?
Mr. COONS. Yes, I would, thanks in no small part to you, I say to Senator Hatch, and to Senator Flake, who insisted both last Congress and this Congress that we put everything on the table and invite all stakeholders to come forward and share their concerns. We worked together, we did that, and we found an incredible consensus.
In addition to talking with industry, we have gone to think tanks and academic institutions about this bill. Some people with whom we have spoken raised concerns that our bill, as previously drafted, could harm employee mobility.
So, Senator Hatch, I don't want to restrict employee mobility, and I don't think you want to either; is that right?
Mr. HATCH. That is right, I say to Senator Coons. I never thought our bill harmed employee mobility. But when I heard these concerns, I wanted to make sure that we addressed this particular issue. So we included language in the bill this Congress that states explicitly that a person cannot be prevented from accepting an offer of employment because of his or her prior exposure to trade secrets.
I think we have struck the right balance with this bill. I am not aware of any stakeholder opposition to this bill. Those who operate businesses in the real world and have to protect their trade secrets on a regular basis are strong supporters of the Defend Trade Secrets Act.
The list of companies and associations that have endorsed the act is diverse and impressive. Let me read the names of some of the businesses and organizations that support this bill: Adobe, AdvaMed, American Bar Association Section of Intellectual Property Law, American Intellectual Property Law Association, Association of Global Automakers, Biotechnology Industry Organization, Boeing Company, Boston Scientific, BSA-The Software Alliance, Caterpillar, Corning, DuPont, Eli Lilly and Company, General Electric, Honda, IBM, Illinois Tool Works, Information Technology Industry Council, Intel, International Fragrance Association of North America, Johnson & Johnson, Medical Device Manufacturers Association, Medtronic, Michelin North America, Micron, Microsoft, National Alliance for Jobs and Innovation, National Association of Manufacturers, New England Council, Nike, Pfizer, Philips, Intellectual Property Owners Association, Procter & Gamble, Semiconductor Industry Association, SAS, Software & Information Industry Association, U.S. Chamber of Commerce, and United Technologies Corporation. And let me mention just one more, but there are others: 3M.
Mr. President, I ask unanimous consent to have printed in the Record letters of support from these organizations.
There being no objection, the material was ordered to be printed in the Record, as follows:
American Bar Association,
October 5, 2015.Re S. 1890, the Defend Trade Secrets Act of 2015
Hon. Charles E. Grassley,Chairman, Committee on the Judiciary,U.S. Senate, Washington DC.Hon. Patrick J. Leahy,Ranking Member, Committee on the Judiciary,U.S. Senate, Washington DC.
Dear Chairman Grassley and Ranking Member Leahy: I write to express the views of the American Bar Association Section of Intellectual Property Law on S. 1890, the ``Defend Trade Secrets Act of 2015.'' These views have not been submitted to or approved by the ABA House of Delegates or Board of Governors, and should not be considered to be views of the Association.
There is no generally applicable federal private cause of action whereby an owner of a trade secret can seek redress for misappropriation of a trade secret. Relief must be sought under state law, and most states and the District of Columbia have in effect some version of the Uniform Trade Secrets Act
(UTSA).
Congress recognized the need for federal protection of trade secrets when it enacted the Economic Espionage Act of 1996. That law authorizes criminal penalties of imprisonment for up to 15 years and a fine of not more than $10,000,000 for the theft of trade secrets for the benefit of a foreign government or other foreign interest. Lesser penalties are provided for misappropriation not benefiting foreign interests but which relate to products in interstate or foreign commerce. The Attorney General of the United States has the authority to seek injunctive relief against the theft of trade secrets, but the Act does not contemplate a private cause of action by the owners of those trade secrets. The Section of Intellectual Property Law supports establishment of such a cause of action, and urges the enactment of S. 1890 for this purpose.
Currently in the United States, trade secrets are protected under an un-harmonized patchwork of trade secret laws that is ill-equipped to provide an effective civil remedy for companies whose trade secrets are stolen. Not all states have adopted the UTSA, and many differ in the interpretation and implementation of existing laws. For instance, many states define protectable trade secrets differently and also have different requirements for the maintenance of claims for trade secret misappropriation. To give but two examples, some states have found a novelty requirement for information to be considered a trade secret, and some are more protective than others of customer lists.
States have differing statutes of limitations for trade secret claims, and there are also significant differences in the availability of monetary relief. Many states have not enacted Section 8 of the UTSA, which calls upon each state to construe and apply the law to achieve uniformity among states. Moreover, victims of trade secret theft can face lengthy and costly procedural obstacles in obtaining evidence when the misappropriator flees to another state or country or transfers evidence outside the state.
S. 1890 is the product of several years of congressional consideration and development. The Section of Intellectual Property Law has followed these developments and, in doing so, has identified essential components that should be included in a bill to establish a federal private cause of action for misappropriation a of a trade secret. These components include:
a definition of trade secret that is clear and effective and not unduly restrictive or overly technical;
a clear delineation of the requirements for a federal cause of action;
the availability of remedies that are comparable to those available under the UTSA, including provisions providing for injunctive relief and monetary relief in the form of royalties, disgorgement of the proceeds of unjust enrichment, and exemplary damages;
provisions for seizure orders that adequately limit the circumstances in which they may be issued and executed and that provide for the custody, security, and access to seized property; and
confirmation that the bill's enactment will not preempt state trade secret laws.
Because S. 1890 contains these essential components, the Section of Intellectual Property Law supports its enactment.
Very truly yours,
Theodore H. Davis Jr.,
Section Chair, American Bar Association, Section of Intellectual Property Law.
____
Resolution adopted by the Intellectual Property Owners Association
Board of Directors Sunday, September 27, 2015
RESOLVED, that IPO supports the enactment of legislation, such as the Defend Trade Secrets Act of 2015, to establish a federal civil cause of action for trade secret misappropriation to protect trade secrets from domestic and foreign theft, including an ex parte seizure provision, while providing adequate safeguards against improper use of such ex parte seizure provision.
____
July 29, 2015.Hon. Orrin Hatch,U.S. Senator, Hart Senate Office Building, Washington, DC.Hon. Christopher Coons,U.S. Senator, Russell Senate Office Building, Washington, DC.Hon. Jeff Flake,U.S. Senator, Russell Senate Office Building, Washington, DC.
Dear Senator Hatch, Senator Coons, and Senator Flake: The undersigned companies and organizations write to express our support for the Defend Trade Secrets Act of 2015. We appreciate your leadership on this issue.
The Defend Trade Secrets Act will create a harmonized, uniform standard and system for companies to protect their trade secrets. Your bipartisan legislation will establish a strong standard for trade secret protection.
Trade secrets are an essential form of intellectual property. Trade secrets include information as broad-ranging as manufacturing processes, product development, industrial techniques, formulas, and customer lists. The protection of this form of intellectual property is critical to driving the innovation and creativity at the heart of the American economy. Companies in America, however, are increasingly the targets of sophisticated efforts to steal proprietary information, harming our global competitiveness.
Existing state trade secret laws are inadequate to address the interstate and international nature of trade secret theft today. Federal law protects trade secrets through the Economic Espionage Act of 1996 (``EEA''), which provides criminal sanctions for trade secret misappropriation. While the EEA is a critical tool for law enforcement to protect the clear theft of our intellectual property, U.S. trade secret owners also need access to a federal civil remedy and the full spectrum of legal options available to owners of other forms of intellectual property, such as patents, trademarks, and copyrights.
The Defend Trade Secrets Act will create a federal remedy that will provide a consistent, harmonized legal framework and help avoid the commercial injury and loss of employment that can occur when trade secrets are stolen. We are proud to support it.
Sincerely,
Association of Global Automakers, Inc., Biotechnology Industry Organization (BIO), The Boeing Company, Boston Scientific, BSA/The Software Alliance (BSA), Caterpillar Inc., Corning Incorporated, Eli Lilly and Company, General Electric, Honda, IBM, Illinois Tool Works Inc., Information Technology Industry Council (ITI), Intel, International Fragrance Association, North America.
Johnson & Johnson, Medical Device Manufacturers Association
(MDMA), Medtronic, Micron, Microsoft, National Alliance for Jobs and Innovation (NAJI), National Association of Manufacturers (NAM), The New England Council, NIKE, Pfizer, The Procter & Gamble Company, Siemens Corporation, Software & Information Industry Association (SIIA), U.S. Chamber of Commerce, United Technologies Corporation, 3M.
____
Semiconductor
Industry Association,
Washington, DC, October 7, 2015.Hon. Orrin Hatch,U.S. Senate, Washington, DC.Hon. Chris Coons,U.S. Senate, Washington, DC.Hon. Doug Collins,House of Representatives, Washington, DC.Hon. Jerry Nadler,House of Representatives, Washington, DC.
Dear Senator Hatch, Senator Coons, Congressman Collins, and Congressman Nadler: On behalf of the Semiconductor Industry Association (SIA), I am writing to express our support for the Defend Trade Secrets Act of 2015 (S. 1890; H.R. 3326).
The U.S. semiconductor industry supports the strong protection of all forms of intellectual property, including trade secrets. Our industry invests 18 percent of revenue on average on research and development--the highest of any U.S. industry. Protecting the valuable intellectual property that results from this significant investment is critical to our industry's continued success.
In the semiconductor industry, trade secrets include essential intellectual property such as manufacturing processes and techniques, circuit designs, software source code, and business strategies and customer lists. The ability to protect these types of trade secrets has contributed to advances in semiconductor design and manufacturing that have helped enable technological advancements in sectors throughout the economy.
Unfortunately, existing laws are inadequate to address the theft of trade secrets in today's environment. Federal law currently provides criminal sanctions for trade secret misappropriation, but owners of trade secrets currently lack a federal civil remedy for the theft of their trade secrets. State laws provide a civil remedy, but the state courts lack the authority to act effectively against trade secret theft that crosses state and national borders.
The Defend Trade Secrets Act would strengthen the protection of trade secrets by providing for a federal civil cause of action. The bills would provide a consistent, harmonized legal framework and help avoid the commercial injury, diminished competitiveness, and loss of employment that can occur when trade secrets are stolen.
We appreciate your leadership in introducing this bipartisan legislation that will strengthen U.S. competitiveness and innovation.
Sincerely,
John Neuffer,
President & CEO.
Mr. HATCH. I ask Senator Coons, don't you think it is time that Congress acted on trade secret theft?
Mr. COONS. Absolutely, Senator Hatch, I do. I think when you talk about an important issue such as trade secret theft, which poses such a great threat to American innovation, economic growth, and competitiveness, it really is past time that we act on this issue.
This bill is truly bipartisan. I was the lead sponsor in the last Congress, and you are the lead sponsor in this Congress. Along the way we have worked closely together and undertaken an inclusive and iterative process to make sure we have heard from all stakeholder perspectives so that we have legislation that creates winners only, not winners and losers.
Senator Hatch, it has been an honor to work with you on this. You have been a big part of the reason we were able to undertake such a successful and constructive process.
I would ask, Senator Hatch, in your view, has this process now produced a bill that is ready to move in the Senate Judiciary Committee, on which we both serve?
Mr. HATCH. First, I thank you for your work on this bill, Senator Coons. You have been a great partner in advancing this bill.
I agree with you that the Defend Trade Secrets Act is ready to move--
not just through the Senate Judiciary Committee but also on the Senate floor. In fact, I think this is the type of bill that could move by unanimous consent.
At the same time, we are not closing the door or turning a deaf ear to anyone who has thoughts on this legislation. Let me say, if my of my colleagues have concerns or questions about the bill, come talk to me or Senator Coons. Now is the time to resolve your concerns, and we will resolve them.
If you talk to any of the companies that were initially on the fringes and that are now supporters of the bill, I think they will agree that you and I are willing to address all legitimate concerns. So work with us.
I am pleased with the momentum we have already seen on this bill through industry support and in the Senate. One way that is happening is that Senators on both sides of the aisle want to support this bill.
Mr. President, I ask unanimous consent that Senators James Risch, Mike Crapo, and Roy Blunt be added as cosponsors to the Defend Trade Secrets Act, S. 1890.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I am pleased with the support we have already seen and encourage many more of my colleagues to support and help us pass this bill. Help us make this happen. It is the right thing to do.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Sentencing Reform and Corrections Act
Mr. SESSIONS. Mr. President, over the past several months, law enforcement officers across our country have been shot, shot at, and killed without provocation, too often simply because they wear a badge. Violent crime and murders have increased across the country at almost alarming rates in some areas. Drug use and overdoses are occurring and dramatically increasing. It is against this backdrop that we are considering a bill, or will be, to cut prison sentences for drug traffickers and even other violent criminals, including those currently in Federal prisons.
So we need to be asking about this carefully and with real caution, because as a prosecutor for a number of years, I know there are reasons we have people in jail. One is that it is just desserts. When somebody assaults another person, breaks into their house and robs them, uses weapons to rob a person of a thing of value, steals their automobiles, murders, rapes, and those kinds of things, they have to have a certain punishment or there is no real justice in the world. Just desserts is a legitimate reason to have punishment. It is not all economics. It is not all about whether they might or might not commit another crime. If you do a serious crime, you should do some time for it.
Another one is incapacitation. This is too little appreciated, but when you take a person who is committing crimes--and many of them commit many crimes--a study in California of their State prison system showed there was a huge number of those criminals who admitted committing as many as 170 crimes a year. We say that is not possible, but people would break into two or three cars a night. They would break into businesses, break into Coke machines, break into other things and cause all kinds of issues, such as lost time from work, costs to repair, disrupting lives, making people change the very nature of their business affairs because they are afraid of being robbed or burglarized. So those are things that occur.
Rehabilitation is a factor. The original idea was that in prison--we called it a penitentiary--where people do penance and hopefully they try to change their lives.
So I would just point out that those are some of the things we need to be aware of when we are talking about sentencing and what is appropriate, particularly in a time of rising crime.
People want Congress to represent their best interests and to protect them--people who do the right thing. They want their children to be able to play in the streets, walk around the block, see their friends, and not be afraid of some drug dealer or some gang member. Too often that is not possible in America. It got better, but it is getting worse, and we need to be aware of that as we consider legislation to improve our criminal justice system.
According to the Drug Enforcement Administration, the amount of heroin seized at the southwest border has increased nearly 300 percent from 2008 to 2013, and I suspect the numbers are still going up. Heroin overdose deaths have increased 45 percent. That is huge. We went through a period of decline in all of this. It took 20 years. I was there. I worked with the Coalition for a Drug-Free Mobile, the Partnership For Youth. They volunteered hours and hours--teachers, school systems, gave their time and effort. We went from a period when 50 percent of high school seniors in 1980, according to a University of Michigan study, admitted to using an illegal drug, to less than 25 percent. It was cut by half. How many young people's lives stayed on track? How many people's lives were not led astray and destroyed by drug addiction as a result of that significant decline in drug use?
I think it needs to be said that the President should never have said smoking marijuana is like smoking cigarettes: Oh, I wish I hadn't done it. That is the kind of message people hear. Now we have States legalizing it, and they are already talking about decriminalizing it. It is a mistake. We have seen that experiment before. Lives are at stake.
The Drug Enforcement Administration called me recently and told me that 120 people a day are dying of a drug overdose in America. How many of them have serious brain injuries as a result of those overdoses? Our Presiding Officer, Dr. Cassidy, has been around emergency rooms. How many people are taken to emergency rooms and at what great cost to our communities? How many lives are disrupted? How many children are in broken homes? How many people had to leave their home because one spouse or the other has spent all the family money on drugs to support a habit? How many children have been abandoned, went to bed without food because of addiction in their family?
These are serious matters. We made tremendous progress. The murder rate in America dropped by over 50 percent since the 1980s when Ronald Reagan said ``just say no'' and started a War on Drugs. He appointed me as the U.S. attorney in Alabama. I know what we did. And the Federal Government led the way with tough sentencing, eliminating parole, targeting dangerous drugs in effective ways, and States and local governments followed.
I am worried about it. It is just tragic to me that we are making the same mistakes we made in the 1960s and 1970s. According to new data, 4.3 million people abuse or are dependent on marijuana. Marijuana is stronger today--several times stronger--than the marijuana of the 1960s, and it does impact people adversely.
The American Medical Association has issued a report that is unequivocal about the danger and the ramifications of the use of marijuana. According to the 2014 ``Monitoring the Future'' study, since 2007, lifetime, past year, past month, and daily drug use among 8th, 10th, and 12th graders combined have all increased.
Meanwhile, over the last several years, Congress, the President, the Supreme Court, and the U.S. Sentencing Commission all have taken steps to lessen punishment for, or altogether stop, the enforcement of laws that we passed over the years that led to this decline. They have been eliminated and weakened. I supported one of the big ones in Congress. I worked with Senator Durbin and we passed a bill that I think was justified and would not have done anything other than make the system better, in my opinion, and fairer, but now we need to ask ourselves, what do we do next, if anything?
In 2005, the Supreme Court ruled that the sentencing guidelines that were enacted by Congress were not mandatory. This was a huge thing. In the early 1980s we passed sentencing guidelines and, depending on the severity of the crime and what the aggravating factors were at work, a person got more time or less time. It involved aggravating factors and mitigating factors, and it ended this idea that if you went to one judge, he would give you probation and if you went to another judge for the same crime, you would get 10 years, 15 years in jail.
So I think that is to be noted. This is a very significant reduction as a practical matter in the amount of time that a person would serve because of eliminating the mandatory requirement of the sentencing guidelines.
Then in 2010--this is a bill I worked on, the Fair Sentencing Act, which reduced the disparity between crack cocaine and powder cocaine and made other changes that in many ways reduced sentences overall. It reduced sentences. It was designed because minority groups, particularly the African-American community--the drug of choice too often was crack and that had much higher sentences and it seemed to be unfair, and we fixed that to a large degree. It eliminated the mandatory 5-year minimum sentence--the mandatory 5 years without parole for possession of crack cocaine. I didn't think that was legitimate, Congress agreed, and we eliminated that requirement. It was being gotten around, and not many times were people being sentenced for simple possession of a small amount of cocaine. That was changed, and the Sentencing Commission then implemented an amendment to the sentencing guidelines that applied this retroactively. So people who had been sentenced under the previous procedures had those procedures reversed and then they got out of jail early--and a lot of people did. It resulted in early release of thousands of offenders.
In August of 2013, in a dramatic event too little appreciated, Attorney General Eric Holder ordered Federal prosecutors not to charge certain drug offenders with mandatory minimums, regardless of the quantity of drugs involved. He directed the prosecutors not to follow the law. Under the law, if you have a certain amount of drug use, you are supposed to serve at least a minimum mandatory sentence. This is different from the guidelines. This is a statutory requirement. And Attorney General Holder reversed previous attorneys general memoranda which directed that prosecutors should charge the main offense and they should be subject to the main penalty. That further reduced the number of people convicted and the amount of time they served.
Then the administration has declined to enforce Federal drug laws regarding marijuana in Colorado, Washington, and Oregon. It is still a Federal offense to deal marijuana in the United States. So even though a State doesn't have that law, the Federal Government does. They said: Well, if you don't enforce it, we won't enforce it--another relaxation of Federal law.
Then, according to the Administrative Office of U.S. Courts, prosecutions for drug trafficking--the number of people actually tried and prosecuted for drug trafficking under the primary drug law, 21 U.S. Code section 841, has declined over 16 percent since 2009, and since President Obama took office, prosecutions under 21 U.S. Code section 960, the Import-Export Act, have declined by 30 percent over that time period.
We haven't had those kinds of reductions in drugs that are imported into the United States. We don't have fewer drug distribution networks. We have more. Those prosecutions shouldn't be declining. We didn't reduce the number of prosecutors working in the U.S. Attorneys' offices.
Attorney General Holder ordered Federal prosecutors to refrain from objecting to defendants' requests in court for shorter sentences. He said: Don't object to their requests for shorter sentences. Less than a month later, the Sentencing Commission voted to reduce sentences for an estimated 70 percent of Federal drug trafficking offenders, including those who possessed a firearm, committed a violent crime or had a prior conviction, decreasing their sentence an average of 11 months--almost 1 year. An estimated 6,000 will be released from Federal prison beginning November 1, and about 40,000 will be eligible for early release in the coming years.
President Obama has commuted the sentences of 89 Federal drug offenders, including crack cocaine distributors--some convicted of dealing more than 10 pounds of crack, which is hundreds of thousands of dollars in value, while others were convicted of possession of a firearm in relation to a drug offense.
One of the things my office always did was it was sure to prosecute drug dealers who used guns while they were doing their nefarious crimes. I think it had an impact on the murder rate in America. Fewer dangerous drug dealers were carrying guns on a regular basis because they knew if they got caught, they would be taken to Federal court and be held another 5 years without parole for carrying a gun on top of their drug offense.
The President has announced that he plans to continue to grant clemency to Federal drug offenders through the end of his Presidency. Are we talking about thousands more?
All of this has led the Federal prison population to fall.
Now you have heard it said that we have this ever-growing number of people in the Federal prisons and that somehow it is wrong--there are about 200,000 people in Federal prisons.
We should talk about that. It is OK to talk about it, but we have to be careful. What I would say to you and what is too little appreciated, colleagues, is that we have already seen dramatic reductions in sentences in the last several years, far unlike what we had done in the 1970s, 1980s, and 1990s.
So the prison population has now started dropping. It has reached the lowest levels since 2005, 10 years ago. According to the Bureau of Prisons, the prison population of 200,000 has decreased over the last 2 years--by 5,300 in fiscal year 2014, last year. They project the population to ``further drop by 14,987 between FY2015 and FY2016''--
another 15,000 decline--``particularly as a result of the retroactive sentencing guidelines change.'' Admissions to Federal prisons have declined every year since 2011. The number of people being admitted to the Federal prisons is going down, driven, I suspect, by the prosecutorial policies set by Attorney General Holder. They will continue to decline given the President's policy of directing prosecutors not to charge certain criminal offenses.
This is a very serious matter. We need to be careful as we analyze the legislation today. Crime is already rising at an alarming rate, so much so that it has prompted an emergency meeting of the Major Cities Chiefs Association in August. The New York Times recently reported that murders have increased sharply in many cities across the country since 2014, including Atlanta, up 32 percent--these are murders--Baltimore, up 56 percent, nearby; Chicago, up 20 percent; Houston, up 44 percent; Los Angeles, up 11 percent; New York, up 9 percent; Milwaukee, up 76 percent; Minneapolis, up 50 percent; New Orleans, up 22 percent; Philadelphia, up 4 percent; Dallas, up 17 percent; and Washington, DC, where we are, up 47 percent--murders. This trend, in my opinion, will continue.
Property crimes have also risen sharply throughout the country and even in small cities such as Abilene, Carson City, Portland, Ithaca, and Binghamton, NY.
I am afraid we are watching a repeat of history. A couple of generations ago, when we had an indeterminate sentencing system with no guidelines or required minimum sentences, virtually identical defendants received totally different sentences depending on the judge, and many received little or no incarceration. A nationwide crime wave ensued. It was a revolving door. People were arrested. They were released on bail. They came to court, and the case got continued. It got continued again, it got continued again, and the witnesses disappeared. They had a plea bargain, they got a little bit of time, and they served less than a third of the time they got. That is what was happening.
People say: Prison makes them worse. Do you remember those arguments? Well, in 1980, one out of four households in the United States had suffered a rape, robbery, burglary, assault, larceny or auto theft in the previous year. Crime was increasing in double-digits per year in the 1960s and 1970s, and we did not respond to it.
So then the Congress passed legislation that imposed mandatory minimum sentences on criminals convicted of the most serious Federal crimes and drug crimes to ensure that these perpetrators served at least a fixed amount of time in prison. Every drug dealer knew it and came to know that if they were caught, they were going to serve real time and they were not going to talk their way out of it. The Anti-Drug Abuse Act was passed, and the Armed Career Criminal Act, which had mandatory 15-year penalties. Career criminals carrying guns and committing serious crimes were hammered. It targeted career criminals--
the kind of people who kill people to carry out their crimes. Drug trafficking fell into that category. Congress also established sentencing guidelines that required judges to sentence within certain ranges and calculate factors and create objectivity, so that one poor person got the same sentence as some rich person with a highly paid lawyer. The rationale was and remains three-fold: to deter offenders from engaging in further criminal behavior, to ensure that a meaningful period of time elapsed for the offender to become rehabilitated, and to incapacitate the offender from harming law-abiding citizens.
How many people do you know that would rape someone? How many people do you know that would likely take a gun and murder somebody? The more of those that are in jail serving time, the less people are going to get murdered. It is mathematics, and that is really what happened since 1980 with the increasing number of people being incarcerated. This idea worked.
According to the FBI statistics, the rate of violent crimes--murder, rape, robbery, and aggravated assault--was reduced by more than 50 percent from 1991 to 2013. That is when these sentences were beginning to be understood and were impactful. Property crimes, burglary, murder, larceny, and motor vehicle thefts dropped by a similar measure.
Over time, prison penalties fairly and systematically applied mean that less crime and fewer innocent people are burglarized, robbed, raped or murdered. Scholars have estimated that the increase in the size of our prison population has driven down crime rates by at least 25 percent.
Professor Matt DeLisi of Iowa State University testified before the Senate Judiciary Committee that criminal justice research shows that
``releasing 1 percent of the current [Federal prison] population would result in approximately 32,850 additional murders, rapes, robberies, aggravated assaults, burglaries, thefts, auto thefts, and incidents of arson.''
Well, we have had more than a 1 percent increase already. The great criminologist and Professor James Q. Wilson said:
A high risk of punishment reduces crime. It just does.
If you are talking about the classroom or on the football field, if the flag is thrown every time somebody clips, they quit clipping. If it is not thrown, you will still see it.
In 2011 the Supreme Court upheld a lower court ruling in Brown v. Plata, that California was required to reduce its prison population to ease overcrowding. In dissent in that case, Justice Alito recalled a prisoner-release program in Philadelphia in the 1990s:
Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police arrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, 2,748 thefts, not to mention thousands of drug offenses.
I wish it weren't so. I wish we could have these programs. I have seen them since my time in law enforcement in 1975, as a young prosecutor. Year after year, people have come forward with plans that sound so good, and they have been tried before. But they never work out nearly as well as people promote. Trust me. If there was any quick fix, it would already have been done all over America. People don't--States don't want to spend money on prisons. But the truth is that people who tend to be criminals tend to continue to be criminals and commit crimes. We ignore too often the pain, the destruction and the damage it does to innocent people who are afraid to have their children experience the turmoil of crime.
Now is not the time to move too fast to further reduce penalties without careful thought. Before we rush to judgment about undoing Federal sentencing laws, we must consider the results of what has already happened--how much reduction we have already seen. We have a responsibility to the public to examine every aspect of the legislation that may be coming forward and be introduced in committee, which could greatly impact the everyday lives of Americans for years to come. To that end, we must have a good hearing on it. We need to study what experts have told us and what history tells us about crime.
It would be so wonderful if we could do a drug treatment program and people would not commit crimes again. It would be so wonderful if we could have an in-prison educational program that people could take and somehow have a significant reduction of crime rates. There are all kinds of ideas that have been tried over the years, and some of them may have a benefit. Some of them have some benefit, but none of them have produced dramatic alterations in the rate of recidivism or repeat of criminal acts. One study a number of years ago concluded that when a person comes out of prison, they make a decision. It is an individual, personal decision about whether they are going to continue with criminal activity or not. Some of them make it because the prison was a bad place and they don't want to go back. Some of them make it because they have had a religious experience. Some of them make it because they took advantage of an online or education course and decided they are going to do something better for their lives. But it is an individual decision, and we have not found it possible to somehow impact the psyche of people in prison so that we can consistently reduce the likelihood that they will return to crime. We have to understand that.
If somebody has a plan that shows me that, I would like to see it.
Mr. President, I thank the Chair for allowing me to share these thoughts. We are at a very important time in criminal justice, and we need to get it right.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Pension Protection
Ms. STABENOW. Mr. President, I want to speak on the floor today about something that is incredibly important to families all across Michigan and all across the country--what we have talked about in terms of the importance of having a middle class in this country. Folks who are working all their lives, who get a good wage, and who pay into a pension and expect it to be there. Those fundamentals are falling apart for far too many people. Specifically, I want to speak about what is happening regarding pensions and pension protections in this country.
I think all of us would agree that a pension is a promise and it is earned. A pension is earned over a lifetime of hard work, and it is the foundation of retirement security for tens of millions of American workers who have a pension and for their families. There is no question that a number of pension funds in our country are suffering, due largely to factors that they cannot control, such as what happened with the Wall Street financial crisis, which took billions of dollars and wasn't the fault of any of the workers involved or of the businesses, for that matter, that found themselves going out of business because of what happened during that financial crisis.
This took a huge toll on middle-class families. We have focused on homes and the loss of homes, which was a disaster. But a second disaster is now beginning to be felt, and that is the question of pensions and the loss of pension benefits. Workers are now at risk of losing their pensions because of cuts that are beginning to be announced. This already includes 30,000 workers in Michigan--30,000 workers in Michigan.
I understand the dilemma the pension funds are facing. Their funding is in critical status. They are becoming increasingly insolvent over time. I understand the tough decisions they are having to make, but they would not have to be making those decisions if protecting pensions were a priority for Congress. This is a matter of whether we are going to continue to have a middle class in this country.
Frankly, it is an issue of fairness for the people who have paid in their whole lives and expect, as they come to retirement age--or they are already retired--as a matter of fairness, that their funds are going to be available for them, and they should be.
One of the things that is so outrageous when we look at the lack of fairness around priorities in this country is that we see companies taking advantage of tax loopholes to move jobs overseas and avoid paying taxes. I have a bill called the Bring Jobs Home Act, which simply closes one of those loopholes and says: If you are going to move, at least you should not be able to write off the cost of the move, and the workers who are losing their jobs and taxpayers should not have to pay for the cost of the move.
We have not been able to close that loophole, so we see tens of millions of dollars, billions of dollars, going overseas sometimes because companies stay here, they just move overseas on paper. So they are still breathing the air and drinking the water and driving on roads, but on paper they have moved so they don't have to pay taxes, and we have another gigantic tax loophole.
On the one hand, while we see the system rigged over and over again for the wealthy and the well connected who pay less in taxes, we have hard-working citizens--whether they are truck drivers or teachers or police officers or men and women in uniform or people all across our country--who are paying into pension systems, and we have not been able to get the support to fully fund those systems, to fully fund the PBGC, the pension guarantee fund. So there is an issue around pensions and people knowing their pensions will be protected going forward.
I believe it is up to us in Congress to put in place the resources necessary to help protect the financial security of workers and retirees and their families. This is a matter of priorities. There are ways for us to do that--by closing tax loopholes for special interests, for the wealthy, for folks who want to avoid paying their taxes in a wide variety of ways. Take those dollars and make sure we shore up pension protection in this country. It is pretty basic. People are counting on us to take action. We need to fully commit to make sure every worker gets the pension benefits they need, they deserve, and, most importantly, they have earned.
That is why I am cosponsoring important legislation that Senator Sanders has put forward. There are a number of us who are cosponsoring this. Let me mention a few of the cosponsors. We have a number of different people: Senator Baldwin, Senator Brown, Senator Franken, Senator Jack Reed, and others. I know my colleague Senator Peters cares deeply about this as well.
There are a number of us who are coming together on legislation that would prevent the proposed cuts to workers' earned pension benefits. This bill would set our priorities straight by closing the tax loopholes, many of which I have talked about, to make sure we have the resources to put back into protecting workers' pensions. It would also make sure workers and retirees in the Central State Pension Fund system, the largest pension fund facing severe and growing financial difficulties, would be able to receive the full benefits they have earned--again, the full benefits they have earned.
It is outrageous to me to think that a promise as basic as a pension, a lifetime of work paying into a pension--that that pension would not be there and that we would not as a Congress consider it a priority to do everything possible to protect pensions people have earned.
I am going to keep doing everything I can, looking for ways to stop these cuts to the earned pension benefits. It is a basic issue of financial security. We have legislation, if passed right away, that would make a big difference. We need to get that bill passed so we can put in place the pension protections and send a message to people across our country that we get it, that we understand what is at stake for so many families.
A pension is a promise that needs to be kept. We have a way to do that in legislation before this body. I hope the leadership--the Republican leadership--will view it as a priority and take it up so we can get this passed as soon as possible.
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. CARPER. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Transportation Funding
Mr. CARPER. Mr. President, I have come to the floor--I don't come to the floor every day, but every day that I come here you are presiding. Either I am coming here more often than I thought or you are presiding more than most people do. Maybe you just drew the short straw, but at the end of the day, I enjoy having these conversations with you, even when most of our colleagues have packed up and headed for places near and far--mostly far.
I have a couple of charts here today I would like for us to go over. The first one is--I like these bar graphs. This is an interesting one. We have Great Britain on this axis right here. We have information about the relative amount of fuel taxes countries have. Great Britain is the world champ. They have the biggest fuel taxes of anybody, and they have had for quite a while.
All the way over here is the U.S.A. There is an outfit called the OECD, which I would say is the Organization for Economic Cooperation and Development. It doesn't have 41 nations; maybe it has about 37 or 38. They are arrayed right here. There are Russia, India, and Brazil. This gives you some sense of how different nations pay for their transportation infrastructure.
A bunch of nations, like Great Britain, use their fuel taxes to help balance the budget. Great Britain is here, and then we have these other countries--Luxembourg, Spain, Argentina. You get all the way down here, and there is Brazil. They are like off the charts. They must not have any fuel taxes to pay for their transportation infrastructure at all. We are pretty close to them. We are right here, the United States. We are right between Canada and Mexico.
I wanted to show that to give people a sense of--people think: Boy, we charge a lot of money for a gasoline tax and diesel tax. Well, as it turns out, not so much.
Some people think we spend a lot of money in the Federal budget on foreign aid. A lot of time in my townhall meetings, people complain and say: Well, we spend way too much money on foreign aid.
I say: Well, what percentage of the budget do you think actually goes to foreign aid?
People say about 20, 25 percent. And the answer is 1 percent. So that is a misperception.
I think the perception here is that we charge very high fuel taxes compared to the rest of the world. No. We have among the very lowest fuel taxes when you combine State and local with all of the developed nations of the world.
Let's see what is next here. It says: How much do we pay in fuel taxes? This is the cost of regular gasoline right here, August 2015, about a month and a half ago. This right over here is diesel fuel in about August of this year, a month and a half ago. The retail price at that time, I guess on average across the country, was about $2.64 for gasoline, and the retail price for diesel was about the same, $2.60 a gallon.
It is interesting to see how much tax is collected in a $2.64 gallon of gas. In our State, in Delaware, I pulled up for gas last week. I went to Wawa. I paid about $2.11 for gas. There are a bunch of stations--probably 1,000 or more--several thousand stations across the country last week where people paid less than two bucks a gallon. But this was the average. We have a couple of big States where the prices are higher, California among them.
Anyway, what makes up the price of gas at $2.64? This was back in August. About 40 percent of that was the cost of crude oil. About another 25 percent of that $2.64 was attributable to refining costs. Another almost 20 percent--19 percent, actually--was for the cost of distribution, for distributing and marketing. Add that all up, and it adds up to about 82 percent, 83 percent of the cost of gasoline was crude oil, and refining, distribution, and taxes was about 17 percent.
Again, when you look at our taxes in this country, State and local, we have among the lowest in the developed world. We just saw that in our first chart.
The numbers on diesel are pretty much the same--40 percent of the cost of the diesel when you fill up tanks if you have a car or a truck that uses diesel. It is about 18 percent for refining and another 22 percent. So about 80 percent of the cost for a gallon of diesel fuel 1\1/2\ or 2 months ago was, again, crude oil, the cost of crude, the cost of refining, and the cost of distribution and marketing.
Let's see what is on our next chart. It strikes me that gasoline prices are going down nationwide. Well, are they or are they not? Let's look. The average price of gas on October 5, 2015--what is today? Today is October 8, my sister's birthday. Three days before that birthday--
October 5--gas nationwide was about $2.32 a gallon. Compared to last year, it is down by 98 cents again.
On the east coast, the price of gas where I come from in Delaware--I said I bought gas last week at Wawa for $2.11. The average price up and down the east coast is about $2.17 a gallon, and that is down by over
$1 from a year ago. In New England, the price is just about the same as the Northeast--$2.23 a gallon. The Central Atlantic is pretty much Virginia, Maryland, and maybe North Carolina and South Carolina. In the Central Atlantic, it is $2.22 a gallon. These are all down by over $1 a gallon from last year. The Lower Atlantic is pretty much the same. The Midwest is a little bit more. Gulf Coast States--down very close to $2 here. The gulf coast is down to $2.03 a gallon. That is down by roughly
$1 from a year ago. Go out to the Rocky Mountain States--if you move farther to the West, prices go up a little bit. The Rocky Mountain States are $2.47, $2.48. That is down by $1. The west coast is about
$2.79. That is almost $1. Finally, the Pacific Northeast is about
$2.50, again, down by $1. So I would say prices are down by about a third across the country.
I like this poster. For folks who can't read it, there are a couple of guys who are sitting in a gas station. The passenger says to the driver, ``I just found some loose change in the cup holder.'' And the driver says, ``Awesome. Fill 'er up.'' Well, we are not quite at that point, but we are getting a lot more for the loose change we find in our cup holder than used to be the case. Now the question is, Is that going to continue?
Look at this next chart and see what it shows. It shows that the global price of oil continues to drop. Again, keep in mind that about 40 percent of the cost of gas--40 percent at the pump, 40 percent of the cost of diesel at the pump--is attributable to the price at the wellhead. This is the price of crude oil over a few years--2011, 2012, 2013, 2014, and 2015. Here we are. This is starting at about the middle of 2014. There is a precipitous drop, some recovery, and then another precipitous drop.
This is even better. This is the price of crude oil over the past 6 months. There is a big drop starting about in June. You see what we have down here. It is about midforties per barrel.
That is history. The question is, Looking forward, what can we expect prices to look like?
I don't have a magic solar ball or anything like that, but I do know this: The world in which we live is awash in oil, and the United States has been a big contributor to that because of what we are bringing up out of the ground, on the land, and in the seas beside us, beside our country.
But there is another country that is, I think, No. 4 in the world in terms of their strategic reserves compared to the rest of the world. It is a country that has not been pumping a lot of late, but it is a country that has the ability to pump a lot of oil, and that country is Iran. Today, this month, next month, they can pump maybe 100,000 barrels a day, maybe 200,000 barrels a day. But if they abide by the agreement we struck with them, the Brits, the French, the Germans, the Russians, the Chinese, and us--if the Iranians keep their agreement, which is designed to ensure they don't end up with a nuclear weapon--if they keep that agreement and the sanctions are lifted, they will be able to, probably starting more next year than this, begin to pump more oil out of the ground. They have a lot of it to pump. They have a big reason to want to pump a lot of it because, as bad as our transportation and infrastructure is, theirs is a whole lot worse. They need to generate the money, and one of the ways they are going to do it is to pump a lot of oil.
Looking forward, can we say the price of gasoline is going to go down? Is it going to stay the same? I would just say this: One of the big factors for us to consider is that the fourth biggest oil reserve country in the world is going to start--all things being equal, they are going to start pumping a lot of oil, and that is going to come into a world market of oil where, frankly, we are awash in oil. It is not going to drive the price up, I can assure you. It may keep it steady. It could actually drive it down further.
All right. Let's take a look at the next chart. This is a chart that focuses on what we are investing as a nation in our transportation systems, our roads, our highways, our bridges. We are looking at, actually, some numbers provided by an outfit called the American Society of Civil Engineers. These are people who make a living by building infrastructure and helping design and figure out what we should build and how we should build it. It is not just transportation, it is all kinds of infrastructure, but it certainly includes transportation.
They actually grade how we are doing on transportation in this country on roads, highways, and bridges. I think the last time I saw, the grade they gave us was a D-plus. The only thing I can say was good about that is it was not a D-minus. But it hasn't been a C or even a C-
minus for a long time. It certainly hasn't been a B for a lot longer. And one of the things that happens is when you have a transportation system--when our investments are at about a D-plus--``d'' as in
``dog''--we end up spending a lot of time in traffic just sitting there.
Every year, Texas A&M comes up with a study that says how much time we spend in traffic just pretty much sitting there, barely moving. The average across the country for the average driver is 42 hours a year. Think about that. That is pretty much almost 2 days that you just sitting there, maybe moving a little bit but not much.
For the bigger cities, such as Washington, DC; Houston, TX; Dallas; Denver; or L.A., the numbers are more like 82 hours per year. That is almost 4 days just sitting there in traffic in your car, truck, van, big truck, your diesel, rig, whatever, waiting to move.
The American Society of Civil Engineers says our investment needs are about $228 billion. Is that per year? That is per year. That is a lot of money. If we were pumping that kind of money into roads, highways, and bridges in our transit system, we wouldn't have a D-plus anymore; we would have a B-plus--``b'' as in ``bravo'' as opposed to ``d'' as in
``dog.'' So that is what $228 billion a year would get us. That would be new revenues on top of the current revenues we are already generating from roads, highways, and bridges.
Over at the U.S. Department of Transportation, they have said their magic number is $171 billion per year. They are talking about $171 billion per year. They say that is just enough to begin to improve our transportation system. Instead of seeing it continue to be degraded, if we put in about $171 billion, we would see that is just enough to begin to improve our transportation system.
Over here, these are our civil engineers. These are smart people who help design roads. This is the U.S. Department of Transportation. One says we need to put in about $228 billion a year and the U.S. Department of Transportation says about $171 billion a year. Our current highway trust fund spending out of our trust fund is $50 billion a year. It is not even 20 percent, maybe not even 25 percent of what the engineers who build these systems are telling us, and it is not even a third of what the Department of Transportation says we ought to be doing. We could begin--just begin to improve our transportation system.
What this chart says to me is we are going nowhere fast and we are woefully underfunding. If we want to get better; if we want to reduce the amount of time we are just sitting, going nowhere; if we want to reduce the amount of money we are spending to replace our tires or have our front ends aligned and other repairs on our vehicles--that adds up to about, on average, between $350 to $500 per driver. That is what we are spending now.
Let's see what this poster says:
The U.S. highway trust fund running out due to political gridlock.
Where the highway ends.
Let me just say that we have had over the last, I don't know, 5, 6, 7, 8 years any number of blue ribbon commissions that have been commissioned. We commissioned them in the Transportation bill we passed maybe 6 years ago. We said to all these smart people: We want you to go out and figure out how we ought to pay for transportation.
They came back and said: Well, here is why we think a big part of it ought to be user fees, some for tolling and some for figuring out how many miles are actually traveled, vehicle miles traveled, kind of migrating toward that of system, but for the most part it should be user fees.
A big piece of that, at least for now, should be user fees for the amount of gas we buy and for the amount of diesel fuel we buy because that generally ensures that the folks who are using our roads, highways, and bridges are actually paying for them.
So there has not really been a lot of question among people a lot smarter than I and even smarter than my colleagues--most of them, at least--the folks who are most knowledgeable about this say this is the way we ought to pay for it, and it should be a user-fee approach.
The reason we are not doing that is because of political courage--not an overabundance of that; maybe a lack of it.
All right. Let's see what is next. The TRAFFIC Relief Act, which is the Tax Relief And #FixTheTrustFund For Infrastructure Certainty Act of 2015--that is a mouthful--was introduced by a fellow from Illinois named Senator Durbin and a fellow from Delaware. That would be me.
Dick Durbin and I came to Washington. I was a Navy guy for many years before I was treasurer of Delaware, Congressman for a while, Governor, and now in the Senate. Dick came to Washington in 1982. We both were elected to the House in 1982. We found out on the first day on the job--we were sworn in January 3, 1983--the Social Security trust fund was about to run out of money, I mean entirely. But in 1983 we were not going to be talking about reducing Social Security benefits by 5 percent, 10 percent, or 20 percent; by the end of 1983, we were going to run out of money and we wouldn't be able to pay anything for Social Security benefits.
Fortunately, in 1982 some very smart people got together. A blue ribbon commission was chaired by Alan Greenspan, who went on to became Federal Reserve Chairman. They said: Here is how we ought to pay for it.
Dick Durbin and I--a lot of Democrats and a lot of Republicans--all of us together said: That makes sense. Let's do it.
It was a combination of reductions in benefits and additional revenues. We got the job done. Social Security is not set forever, but it has lasted for another 30 years, 40 years. We need to do some more to fix it, but that is the kind of bipartisan resolve we need.
The legislation Senator Durbin and I introduced in this instance--
maybe a little more than a month ago--raises about $220 billion for the highway trust fund over 10 years, and that is on top of the amount of money we are already going to spend anyway over the next 10 years. I think that would be another maybe $400 billion, roughly, $450 billion,
$350 billion. Add that to $220 billion, and that gives us $570 billion.
Does this get us from D-plus to an A or A-minus or even a B-plus? No, it doesn't, but it moves us in the right direction. It moves the needle in the direction it needs to go. It provides for $90 billion to fully fund the highways and transit programs and about $130 billion for new investments in repairs and upgrades. We need to do those new investments, and we certainly need to do the repairs and upgrades.
Let me close by thanking Senator Durbin for joining me in this effort. People vote for us to come to Congress and to make tough decisions. People expect us to work together. People especially expect us to get things done. People especially expect us to do things that help strengthen the economic recovery, which is underway, to make it more robust going forward in the future. We can do that. It doesn't take a rocket scientist to figure out how.
A lot of smart people on these blue ribbon commissions have been telling us for years that the way to do it is move toward tolling, eventually move toward some kind of vehicle-miles-traveled system where based on the actual miles we travel we pay some find of fee. But they have also said for now, because those other two ideas are not fully realized--and especially for vehicle miles traveled, we are not going to be there for probably 10 years, 20 years. In the meantime, we have all this work that needs to be done and to be paid for, and they have said the best way to do it is to ensure that we pay--those of us who are using the roads, highways, and bridges pay for that, and we have been using gas taxes and diesel taxes to do that.
I will close with this. I am not a big coffee drinker, but I stopped by a carryout we have downstairs in the basement. They are open whenever we are in session, and you can go get a sandwich or some soup or yogurt or something, and they also sell coffee. Some days, especially when we are in session late at night--we have not been doing that much lately--but at night when we are in session late, they sell a lot of coffee. The coffee is anywhere from the smallest cup costing like 70 cents, and the middle-sized maybe $2, $2.50, and the largest cups are maybe $3 or something like that. If you go to Starbucks you pay a lot more for a cup of coffee than that. You pay as much as $5 at Starbucks, I am told by a friend of mine who buys his coffee there, but I bought a cup of coffee here today and it was a little more than $2 for a middle-sized cup of coffee.
As it turns out, if we actually raised the user fee--the gas tax and the diesel tax--for 4 cents a year, which is what Dick Durbin and I are calling for, 4 cents a year for 4 years, and the Federal gas tax has been 18 cents for 22 years. Since 1993 it has been 18 cents. It is not worth 18 cents anymore because of inflation. It is worth less than a dime. The diesel tax is about 23 cents. It is not worth 23 cents anymore. It has been that since 1993. It is worth less than 15 cents. In the meantime, the price of concrete is up, asphalt is up, steel is up, labor is up, and the major way, the principal way we pay for roads, highways, bridges, and transit frankly has greatly diminished in value.
If we were to actually raise, as Senator Durbin and I are suggesting, the price of these user fees--gas tax, diesel tax--by 4 cents a year for 4 years, that would add 16 cents to the price of gasoline. For the average driver, that turns out to be on a weekly basis just about the price of a cup of coffee. It works out to be just about the price of a cup of coffee.
Here is a question I would ask. I think if we asked most drivers in this country of ours today when they are sitting in traffic trying to get someplace--whether here in the Mid-Atlantic area, up in the Northeast, out on the West Coast or other places--would you be willing, 4 years from now, to be paying an amount of money equal to the price of a cup of coffee in order to spend a lot less time sitting in traffic going nowhere or running into potholes that destroy your tires and your front-end alignment? Would you be willing to pay on a weekly basis the amount of money you spend on a cup of coffee? My guess is most people would say that doesn't seem like a bad deal. You know what. They would be right because it is not a bad deal.
I will close with this. I am from Delaware. People here are from all over the country representing their States. Guess what 12 of the 50 States have done in the last 2 years--2013, 2014--and those States are mostly red States, with Republican Governors and Republican legislatures. One dozen of those States have raised their user fees. They have raised their user fees and not by a dollar all at once or even a half dollar or a quarter, but they have raised them in some places by pennies, a nickel or more over a couple of years.
Then last November in those 12 States they had elections. This is an interesting story. Guess what happened to the State legislators who voted to raise their user fees to actually pay for their roads, highways, and bridges. When they ran for reelection they got reelected. Amazing. They showed political courage. They did the hard thing. Ninety-five percent of them, Republicans, who were running for reelection last November, in those States where they raised the user fees--gas tax, diesel tax--they got reelected.
Do you know who didn't get reelected in some of those States? The legislators who voted against raising the user fees, who did not support making investments in transportation.
How about the Democrats in those States? Well, the Democrats in States where they raised the user fees to pay for their transportation investments, almost 90 percent of them won their primary last November, won the general election, and they got reelected too. They did better than the legislators who voted against those increases. Think about that.
I like to quote Thomas Jefferson from time to time, and Jefferson used to say: If people know the truth, they won't make a mistake. I would like to think the same thing is true here. If my colleagues and I know the truth, we won't make a mistake either. People think it is political suicide to vote to raise these user fees and you can't get reelected by doing the right thing. But you know what. You can. You can, and there is a lot of evidence to show it can happen.
I will close not with the words of Jefferson but of Mark Twain, who said a lot of things--a lot of funny things--and one of the things he said that I think is especially appropriate is: In the end, tell the truth. You will confound your critics and amaze your friends.
The truth is we need to make these investments. The other truth is this is not political suicide. At the end of the day, we are actually going to get, I think more often than not, rewarded for doing the hard thing and the right thing. My hope is we will do that, and I will continue to make that case.
One last great quote, Mr. President. Wayne Gretzky--I don't know if you play much hockey down your way, we play some in Delaware--but Wayne Gretzky said a lot of memorable things in his life--a great hockey player, now retired--and when people would say to him: Mr. Gretzky, why are you such a good hockey player? He would say: I go where the puck will be, not where the puck is. Think about that. I go where the puck will be, not where the puck is.
One of the other things Wayne Gretzky said that I especially like is: I miss 100 percent of the shots--talking about taking a shot on the goal--he said: I miss 100 percent of the shots that I never take. Think about that. I miss 100 percent of the shots I never take.
I am convinced this is a shot worth taking. I am going to push very hard to make sure somebody is here, and Dick Durbin and my guess is some others, too, will come along and will encourage folks to join us in this effort. This is a just cause.
I don't see anybody else waiting in line to speak, so with that, 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. McCONNELL. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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