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Chairman Leahy, Ranking Member Grassley, Members of the Committee: each one of us, upon arrival to the United States Senate, swore a sacred oath—to ourselves, to each other, and to our fellow Americans—pledging to defend and support the Constitution of the United States.

In taking this oath, before God and country, each of us made a solemn promise to be bound—above all other loyalties and partialities—by our allegiance to the Constitution.

We do this because we are made free by God, but it is this document, and our commitment to uphold it, that keeps us free.

I am deeply dismayed that today, we gather here to consider a proposal—S. J. Res 19—that would considerably weaken the First Amendment of the Constitution.

The primary argument in support of this amendment is that “money isn’t speech.” Of course money is not the same thing as speech. Money is simply a tool used to carry out other activities.

But if Congress had the power to restrict the use of money to speak, the exercise of that power would unavoidably interfere with people’s ability to speak.

Freedom of speech is not simply one among many liberties protected in the Bill of Rights—it is absolutely essential to the health of our Republic. This is especially true of political speech, even when it contradicts the prevailing order.

As Justice Powell put it in Gertz v. Welch (1974): “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”

But it doesn’t take a complicated constitutional exposition to see what this proposed amendment is really about: power…giving it to sitting Members of Congress and taking it away from the American people, including, not coincidentally, any potential candidate that might like to challenge a sitting Member of Congress.

As we have seen in the unfolding scandal at the Internal Revenue Service, there is a permanent temptation facing those in power to muzzle dissent—and a permanent inclination to deceive oneself into thinking that such a temptation does not exist.

This is precisely why we have a written Constitution that checks those in authority and prevents the kind of proposal represented here today.

In Federalist 51, James Madison, the lead author of our Constitution, anticipated debates in which we’re engaged today, and he makes perfectly clear the folly of an amendment such as S. J. Res 19. 

“If men were angels, no government would be necessary,” Madison wrote. “If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

One of the most important of such “auxiliary precautions” is the First Amendment and its protections of the freedom of speech.

The proposed amendment would cripple this protection and irrevocably damage our most precious possession as Americans: our freedom.

For these reasons, I strongly urge my colleagues to join me in voting against the proposed amendment.

This weekend as Americans all over the country gather to celebrate our nation’s Independence Day we should all take a moment—in the midst of our barbecues, firework displays, and outdoor festivities—to commemorate this holiday by reading aloud the Declaration of Independence, America’s great charter of freedom.  
 
Beyond the rhetorical eloquence of the document, the Declaration of Independence is worth reciting on its anniversary because its words remind us of the permanent and universal truths to which the founding of our nation was dedicated.
 
For the purpose of the document was not to declare America’s independence from Britain—that was done by the Continental Congress on July 2, 1776—but to justify it. As such, the Declaration sets down the timeless principles—about human nature and the nature of government—that would unite the separate colonies into a single union and commit them to a common cause.
 
Contained within these principles are two major political teachings meant to guide the future of the fledgling nation and lay the foundation for America’s new government.
 
First, because all men and women are “created equal”—that is, each has an equal claim to govern their own lives—government must derive its “just powers from the consent of the governed.” Second, since all human beings “are endowed by their Creator with certain unalienable Rights,” the primary purpose of government is “to secure these rights,” chief among which are the right to “Life, Liberty and the pursuit of Happiness.”
 
Some may try to claim that these foundational principles are simply relics of a bygone era, but the political teachings of the Declaration of Independence—and the self-evident truths upon which they rest—are as true and relevant today as they were in 1776.
 
As Calvin Coolidge put it, “About the Declaration there is a finality that is exceedingly restful.”
 
“If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final.”
 
Though our society has advanced a great deal since 1776, Coolidge explained, “no progress can be made beyond” the propositions of “this great charter.” Any denial of the truths of the Declaration is a movement “not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people.”
 
Yet our government today has grown so powerful and so unaccountable that it poses a serious challenge to Silent Cal’s conviction.
 
The moral and political wisdom expressed in the Declaration of Independence may be true at all times and in all places, but we cannot expect this wisdom inevitably to prevail in our society and in our government.
 
Indeed, the fate of the American experiment in self-government depends on whether or not the principles of the Declaration remain alive in the hearts and minds of the people and their representatives.
 
For those of us who are concerned about the perpetual dysfunction and unsustainability of today’s government, it’s important to remember that advocating for the revival of America’s founding principles does not mean that we should return to the government we had 200 years ago.
 
Our founding principles are not an answer key, but a road map—an eternal reference point to guide us as we attempt to solve contemporary social problems. To fix our big, broken government, we must turn for guidance to these principles and figure out how to apply them to the great challenges of our generation.

Rather than focus only on reducing the size of government, we need a comprehensive reform agenda to address the increasing immobility among the poor, insecurity in the middle class, and special-interest privilege among well-connected Washington insiders.

An anti-poverty, upward mobility, and anti-cronyist agenda would replace our distant, unresponsive, bureaucratic government programs with policies that build on, rather than crowd out, the institutions that are best suited to solve our social problems: a free enterprise economy, voluntary civil society, and local and state governments.

Guided by the wisdom of the Declaration, such an agenda would make government more accountable to the people and better able to fulfill its primary purpose of securing the rights of the citizens.

 

Jun 25 2014

Riley v. California

Today, in Riley v. California, the Supreme Court by a 9-0 vote ruled that police officers may not search the data on cell phones seized incident to an arrest.  While law enforcement officers may hold a phone seized at the time of arrest, they must get a warrant before accessing the content stored on the phone, including text messages, photos, and emails.
 
In the opinion, Chief Justice John Roberts noted that a 16-gigabyte cell phone can hold “millions of pages of text, thousands of pictures, or hundreds of videos,” and that such a large amount of data in such varied formats presents significant consequences for privacy.  These concerns are magnified in the context of the limitless storage capacity of email and cloud computing, an area where law enforcement is able to access content older than 180 days without a warrant.  
 
I believe the Supreme Court’s unanimous decision demonstrates the shift in the expectations of privacy we have for our digital information.  This case underscores the need to extend similar protection to the information we store in our email and in the cloud.  The Leahy-Lee ECPA Amendments Act, S. 607, would require that the government get a warrant to access documents and content we store in the cloud and in our email accounts, eliminating the antiquated 180-day rule.
 
The ECPA Amendments Act was reported out of the Senate Judiciary Committee by voice vote and awaits consideration on the Senate floor.
Senator Lee describes an amendment he introduced to the Workforce Innovation and Opportunity Act that would penalize the Secretary of the Department of Labor for not fulfilling required evaluations of taxpayer-funded programs.

Today’s hearing addresses AT&T’s recent announcement of its intention to acquire DirecTV.  AT&T and DirecTV are well-known and successful companies.  AT&T is primarily a provider of mobile and fixed telephone, but it has in recent years made impressive inroads in the markets for video and high-speed internet.  DirecTV, on the other hand, is a satellite-video provider.  It has grown to become one of the largest multichannel video programming distributors or MVPDs in the country with around 20 million subscribers. 

The companies do not, for the most part, compete in the same markets.  Their primary products are not substitutes, but rather are complements.  Mergers of complements have the potential to create efficiencies that a merger of substitutes may not, and such transactions have traditionally been approved. 

This merger has nonetheless attracted attention.  The markets for video and internet are extremely important to consumers, and this transaction is occurring only months after Comcast and Time-Warner—two large players in the markets for video and internet—announced their intention to combine.  In addition, AT&T and DirecTV do offer substitute video products in some parts of the country, and the transaction has the potential to affect the competitive landscape in those areas.

As always, the guiding principle for our antitrust analysis is consumer welfare.  Indeed, as Robert Bork wrote in The Antitrust Paradox: “Competition must be understood as the maximization of consumer welfare.”  In antitrust, as in other areas of government policymaking, competitors often stand to benefit from government regulations or restrictions on their rivals.  As much as any other entity, competitors to merging parties have a constitutional right to petition and lobby the government.  They often have valuable information and insight into markets that will be affected by a transaction, and in many cases competitors simply want to ensure that antitrust enforcers protect competition and ensure a level playing field.  At the same time, history and experience have taught that competitors can and will seek to use the antitrust process to gain an advantage.  It is therefore essential that we remain on guard to ensure that government process not be used to pick winners and losers in the marketplace.  Where our policies and approach to antitrust ensure that free markets operate effectively and consumers choose the winners and losers, we obtain the best outcome for the country.

Applying these principles to this transaction will require a close look at those areas where the transaction may impact competition, such as where AT&T and DirecTV currently compete for video subscribers.  It requires scrutiny of the market for programming, where consolidation is reducing the number of buyers of video content and may potentially impact the range of choice of content that may be available for consumers going forward.  This transaction’s effect on the practice of bundling and the impact of that practice on consumers also merits discussion.

Proper antitrust principles, however, also require due weight be given to the pro-competitive aspects of this deal.  AT&T has committed to expand high-speed internet access to 15 million Americans who otherwise may not have such access.  The market for high-speed internet in some respects is both more important to consumers in the long term and suffers from less competition than the market for video.  This deal may thus offer real efficiencies and benefits to consumers—including innovation in a new internet distribution technology—that would not obtain if the deal is blocked.    

Markets change rapidly, and nowhere is this as true as it is for markets in technology-driven industries such as voice, video, and internet.  In response to such changing circumstances—and as we have seen with increasing frequency of late—incumbent companies may seek to consolidate.  In some cases, this behavior may be part of a nefarious attempt to forestall change—to prevent new products or technologies from making an incumbent obsolete.  In other cases, however, this behavior simply represents intelligent business planning to adapt to, and take advantage of, new trends.

Accordingly, in fast-moving markets, consumers may be harmed by government intervention as easily as they may be harmed by consolidation, and it is essential that, in considering important transactions such as the one before us, we apply rigorous economic analysis and ground our conclusions in the evidence.  By ensuring that we protect competition, and not any individual company or competitor, we can help create market conditions that benefit consumers and promote economic development.  

The implementation of Obamacare has been an unmitigated disaster
under HHS's previous leadership. It is critical that before the next HHS
Secretary is approved, we have a frank and open discussion about how the
administration plans to relieve the pain and confusion caused by this law.
So far, Ms. Burwell's testimony has been less than forthcoming and
suggests she plans to follow the lead of her predecessor in blocking
Congress's ability to do proper oversight for the American people.  The
questions we propose in the letter have not only been asked repeatedly,
but deal with issues she should have been prepared to answer at her
hearings but did not. We are therefore going to attempt one more time to
get answers to these simple questions and the Senate should not move
forward on her nomination until we get them.

Senator Lee and Senator Cruz Letter to HHS Nominee Sylvia Burwell regarding Obamacare Implementation

Today,  I joined Senator Lindsey Graham (R-SC), Senator Kelly Ayotte (R-NH), Senator Dianne Feinstein (D-CA) to introduce the Restoration Of America’s Wire Act

In 2011, the Department of Justice released a legal opinion regarding Internet gambling that abruptly reversed the position it held for fifty years and undercut laws Congress passed relying upon the DOJ’s legal views.  Overnight, we went from a nation in which all gambling on the Internet was illegal under federal law to one in which states could authorize almost any and every form of gambling on the Internet that they choose.

It is time to step in and fix the damage done to the Wire Act and allow Congress, the states, law enforcement, and the public an opportunity to fully review, assess, understand, and debate the significant policy implications entailed in the spread of Internet gambling.

 

Summary of Provisions

  • Section 1 – short title.
  • Section 2 – removes from the Wire Act the phrase “sporting event or contest,” adds definitions to some of the terms found in the Wire Act.

Explanation of Section 2:

    • The Wire Act uses the phrase “sporting event or contest” in one clause, but not in another.  While DOJ had always interpreted the Wire Act to ban all online gaming, the 2011 reversal – finding that it only prohibited sports betting - was predicated in part on the use of this phrase in only part of the Act.  Our bill will remove any ambiguity as to what form of online gambling the Wire Act applies to, and restore its longstanding interpretation.
    • Among the definitions, this bill exempts from the definition of “bet or wager” certain non-gambling activities to mirror the exemptions found in the Unlawful Internet Gambling Enforcement Act (UIGEA); things such as, e.g., securities transactions, insurance contracts, bank transaction, and certain fantasy sports.  This bill also makes clear that using a “wire communication facility” for gambling, includes using the Internet.

  • Section 3 – construction clause.

Explanation of Section 3:

  • Finally, we include a construction clause to clarify that our legislation does not alter, limit, or extend the Interstate Horseracing Act of 1978; in-person, state licensed retail lottery sales; or state charitable gaming laws.

 

In addition, I also sent the following letter to the Utah Attorney General in response to a request he made on the DOJ’s legal opinion regarding online gambling:

Sen. Lee Responds to Letter Requesting Review of Wire Act Interpretation

The Welfare Reform and Upward Mobility Act addresses deep problems in the federal government’s welfare programs that make it more difficult for low-income Americans to work their way into the middle class and stay there. This bill would get existing federal welfare programs under control and would help the working poor transition from poverty to opportunity and security.
I think Americans would agree that terrorist organizations with intentions of attacking the United States should not be able to access or benefit from assistance paid for by the American taxpayer. If the administration cannot guarantee that U.S assistance in Syria is not getting into the hands of terror organizations, the assistance pipeline must be shut.

Jan 21 2014

Fighting for PILT

After I learned that the recent omnibus spending bill didn't include funding for PILT, I held a conference call with several of Utah's county commissioners.  It is clearly a problem that a 1,500 page spending bill that spends over $1 trillion dollars doesn't provide funding to offset the financial burdens that are faced by states with high amounts of public land owned by the federal government.

Here are some highlights from the conference call:

This power might be used to enslave any particular state Spending bill that doesn't fund PILT spends $160 million for new land Those burdens remain there regardless How Senator Reid is Obstructing the Funding of PILT

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August Town Hall Schedule

Senator Lee will be holding several town hall meetings during the month of August. Visit the town hall page to find a meeting being held in your area.