DPC | June 14, 2007

Senate Oversight Highlights Week of June 4, 2007

“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.…” — Woodrow Wilson

 

Congress has the Constitutional responsibility to perform oversight of the Executive Branch and matters of public interest. This report summarizes highlights from each week’s Senate oversight hearings.

 

 

Tuesday, June 5, 2007: Senate Committee on the Judiciary

“Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys? – Part V”

 

• Department of Justice officials violated long-standing policy against influencing election outcomes when they unnecessarily launched a non-urgent investigation of get-out-the-vote efforts targeting low-income and minority groups shortly before the 2006 election.

 

• While eager to pursue a less-urgent case against a group that assists low-income, minority, and traditionally Democratic voters, Department of Justice officials seemed reluctant to pursue possible voting rights abuses against Native Americans where Republican state officials were implicated.

 

• One senior Justice official went so far as to order the altering of performance evaluations of career attorneys.

 

 

Tuesday, June 5, 2007: Senate Committee on the Judiciary

“Examining the Federal Role to Work with Communities to Prevent and Respond to Gang Violence: The Gang Abatement and Prevention Act of 2007”

 

• Decreased federal funding to support local law enforcement and increased gang activity have contributed to a rise in violent crime.

 

• Traditional gangs have evolved into sophisticated, franchised operations – intensifying in big cities and migrating to mid-sized cities and small towns across the country.

 

• No longer a local issue, federal action is needed to address this nation-wide epidemic.

 

 

Wednesday, June 6, 2007: Senate Finance Committee
“Trade and Globalization: Adjustment for a 21^st Century Workforce”

 

·Since 1962, the Trade Adjustment Assistance Program (TAA) has provided assistance to American workers displaced by international trade.

 

·Witnesses agreed that TAA should be modernized and expanded to cover services workers, secondary workers, and communities.

 

·Two witnesses urged Senators to consider the expansion and reauthorization of TAA independently from specific free trade agreements.

 

 

Wednesday, June 6, 2007: Senate Committee on Banking, Housing, and Urban Affairs
“Paying for College: The Role of Private Student Lending”

 

·Federal student aid programs have not kept pace with the rising costs of college education, forcing more and more students to rely heavily on private loans that leave them facing enormous debt at high interest rates.

 

·An investigation by the Attorney General of New York has uncovered deceptive and illegal practices in the student loan industry, with the most egregious practices in the private loan industry.

 

·While one witness testified that private education loans are already heavily regulated, other witnesses called for Congress to act to reform the student loan industry.

 

Thursday, June 7, 2007: Senate Armed Services Committee

“Hearing to Consider the Nomination of Lieutenant General Douglas E. Lute, USA, to be Assistant to the President and Deputy National Security Advisor for Iraq and Afghanistan”

 

• General Lute would be tasked with duties that should have been carried out by the Bush Administration over the past several years.

 

• General Lute acknowledged that the Iraqi government has made “very little progress” on political reconciliation, which he sees as key to improving the security situation in Iraq, and has concerns about the capacity of the Iraqi government to move forward with political reconciliation.

 

• General Lute believes that we must accelerate initiatives to transfer security responsibility to the Iraqis, and does not believe that our commitment to Iraq should be open-ended.

 

 

Thursday, June 7, 2007: Senate Committee on the Judiciary

“Prevention of Deceptive Practices and Voter Intimidation in Federal Elections: S. 453”

 

• More than a problem of the past, the incidents of voter deception and intimidation during the 2006 general election illustrate the continued need for strong voting rights laws.

 

• Minority voters across the country are being intentionally and blatantly disenfranchised by campaign tactics that circumvent the Voting Rights Act of 1965.

 

• This bill protects First Amendment guarantees of free speech by narrowly targeting intentional falsehoods that are intended to prevent citizens from exercising their right to vote.

 

 

Each hearing on prosecutorial independence at the Justice Department reveals more about how politics and ideology may have played a role in key decisions, such as when to prosecute a case or who to hire or fire. The testimony of Bradley Schlozman, Associate Counsel, Director of the Executive Office for U.S. Attorneys and Todd Graves, Former U.S. Attorney, Western District of Missouri did nothing to assuage those concerns.

 

Department of Justice officials violated long-standing policy against influencing election outcomes when they unnecessarily launched a non-urgent investigation of get-out-the-vote efforts targeting low-income and minority groups shortly before the 2006 election.

 

SEN. LEAHY: You’re aware that the Justice Department’s [DOJ] guidebook on federal prosecution of election offenses, the so-called red book, aren’t you?…

 

BRADLEY SCHLOZMAN, ASSOCIATE COUNSEL, DIRECTOR OF THE EXECUTIVE OFFICE FOR U.S. ATTORNEYS: I was familiar with it, Senator, yes.

 

SEN. LEAHY: …[I]t says, “Since a federal prosecutor’s function in the area of election crimes is not primarily preventative, any criminal investigation by the department must be conducted in a way that eliminates or at least minimizes the possibility the investigation itself becomes a factor in the election. With very few exceptions, no overt investigation should occur until after the election.”

 

ACORN [Association of Community Organizations for Reform Now] had been investigated, had itself referred the incidents to the county prosecutor’s office. So there’s no threat that prosecution was needed. By the time you filed the indictments, the people involved had already been terminated. Registration activities for the election had ceased. Is that not true?

 

MR. SCHLOZMAN: Yes, it is true, Senator, that they had ceased.

SEN. LEAHY: Well, then – did you go to anybody in the Justice Department to approve what you were doing insofar as this apparently goes against what is in the prosecutor’s handbook?

MR. SCHLOZMAN: Yes, Senator. I – at my direction, the prosecutor, the Assistant U.S. Attorney assigned to this case… contacted the head of the Election Crimes Branch, which is a unit within the Public Integrity Section…

 

SEN. LEAHY: And what was the response?

 

MR. SCHLOZMAN: The response was[,]… “Go ahead if you’ve got the investigation ready to go. Go ahead and indict. There’s no need to wait until after the election.”

SEN. LEAHY: Even so – even though the manual says, and they actually underline in the manual, “Thus most, if not all, investigations of alleged election crime must await the end of the election to which the allegation relates”?…

MR. SCHLOZMAN: The Director’s explanation was is that this case did not implicate any of the DOJ informal policies. Because, as he said, there was no need to actually interview any voters in this case. And because of that, there was – the purpose of that policy is designed to ensure that no investigation ensues where a voter might actually have to be interviewed prior to the election, which could chill potential electoral activity…

SEN. LEAHY: But you – but why did you even seek – why didn’t you just wait a couple weeks more? I mean, wasn’t this obvious to you that just simply bringing the charges – especially when there was nothing that you had to bring to stop somebody before the election – just the bringing of the charges could have an effect on the election? Did that thought ever occur to you?

 

MR. SCHLOZMAN: …I didn’t think that this was going to have any impact on any election. I mean, these were individuals who were filling out false voter-registration cards. So…

SEN. LEAHY: …You didn’t think that when the U.S. Justice Department stepped in, that would have any effect whatsoever that close to an election?

 

MR. SCHLOZMAN: Well, there was no individual who was possibly going to be disenfranchised….

SEN. LEAHY: That’s not my question at all, Mr. Schlozman, and you know it. Did you really think that bringing – having the Department of Justice bring a charge like that that close to the election would have no effect on the election – I’m not talking about an individual being stopped from voting –would have no effect on the election?

MR. SCHLOZMAN: I did not think it was going to have any effect on the election in this case, no, Senator.

SEN. FEINGOLD You’re amazing.

 

…

 

SEN. FEINGOLD: I understand – I know you testified similarly to Senator Feinstein and also, when I wasn’t here, to Senator Leahy’s question on the ACORN indictments, quote, “I didn’t think it would have any effect on the election,” unquote. And Senator Leahy expressed some surprise at the testimony, with pretty good reason.

 

I just want to read you an excerpt from a Missouri Republican Party press release from November 2nd, 2006. Quote: “‘It is very disturbing that members of this left-leaning group have been indicted for engaging in serious voter fraud designed to cause chaos and controversy at the polls in order to help Democrats try to steal next week’s election,’” said Paul Sloca, communications director for the Missouri Republican Party.

 

“‘This illegal assault on our election system should concern every voter in the state, who deserves to know that their legitimate ballots won’t be canceled out by fraudulent ones. It also raises serious questions about the Democratic Party and Claire McCaskill’s involvement with ACORN,’” end of quote.

 

Would you say that statement was intended to affect voters’ decisions?

MR. SCHLOZMAN: Senator, I can’t speak for anybody else… I mean, I don’t know why…

SEN. FEINGOLD: You know how to read a statement. When you hear something like that, doesn’t that sound to you like something that’s trying to persuade people to make a decision about an election?

MR. SCHLOZMAN: Senator, I mean, it’s probably improper for me to characterize his testimony. I mean, I don’t know why he said what he said.

SEN. FEINGOLD: Well, I think you do. I think it clearly was intended to affect the outcome of the election. The timing is obvious.

 

…

 

SEN. LEAHY: You know, I tend to think that perhaps you used this more as a doorstop than as something you actually had to follow. I read from it: “It should also be kept in mind that any investigation undertaken during the final stages of the contest may cause the investigation itself to become a campaign issue. But if not, most allegations during this period come from political partisans who are actively involved in the election,”and on and on.

 

While eager to pursue a less-urgent case against a group that assists low-income, minority, and traditionally Democratic voters, Department of Justice officials seemed reluctant to pursue possible voting rights abuses against Native Americans where Republican state officials were implicated.

 

SEN. LEAHY: Now, according to the recent press report, Tom Heffelfinger, who, I’m told is a widely respected U.S. Attorney –former U.S. Attorney in Minnesota wanted to investigate possible voting rights discrimination against Native Americans in his district.

 

Now, at that time, you were serving in the Civil Rights Division. You may have played a role in quashing this voter protection investigation. But then, when you were interim U.S. Attorney – and I want to give you plenty of time to tell me if you disagree with any of this – when you were interim U.S. Attorney, you filed the ACORN suit against four individuals on the eve of an election.

 

You explain what you did, even though it seems to go contrary to what’s in the election offenses guidebook.

 

But despite the expressed priority in the guidebook for protecting the voting rights of minorities, you prevented the U.S. Attorney in Minnesota from taking action. And according to the May 31st Los Angeles Times, you effectively quashed the investigation into possible voter discrimination against Native Americans.

 

Joe Rich, who was the career head of the DOJ’s Voting Rights Section, had recommended such an investigation.

 

What was your motivation in not pursuing that recommendation?…

 

MR. SCHLOZMAN: We were getting so many complaints that we were literally assigning extra staff and attorneys to handle the complaints. And because we were getting so many complaints, we wanted to be able to properly triage how we were going to handle each of these matters…

 

SEN. LEAHY: The Los Angeles Timesreported that you told Mr. Rich not to do anything on the Minnesota Native American issue without your approval because of the special sensitivity of this matter. Is that correct?

 

MR. SCHLOZMAN: That was, I believe, what he was instructed to do on all investigations. So, yes.
 

SEN. LEAHY: What was special sensitivity about this?

MR. SCHLOZMAN: Well, any time we’re dealing in a pre-election period and any time the Civil Rights Division is going to be going in and making inquiries on phone calls it immediately alerts the – I mean, those things make the newspaper, it gets the attention. And we wanted to make sure that we were not going off half-cocked in any jurisdiction. So…

 

SEN. LEAHY: Apparently that wasn’t the case in Missouri, however.

 

MR. SCHLOZMAN: Senator, I mean, again, that’s a completely different case that was two years later…

 

(CROSSTALK)

 

SEN. LEAHY: Let’s go back to Minnesota.

MR. SCHLOZMAN: Yes.

SEN. LEAHY: Let’s go back to Minnesota. What – did you restrict the Minnesota officials whom Rich could speak in conducting his investigation? Did you tell him there were certain Minnesota officials he couldn’t speak with?

MR. SCHLOZMAN: I instructed my voting counsel to – once I got the allegation in, that this was something that we should be looking into. The secretary of state is a state’s chief election official. And so the allegation, as I understand it, was that she had come up with some kind of interpretation that was going to be potentially discriminatory with regards to Native Americans using tribal ID. And so the natural first person to go to would be the secretary of state to figure out what the interpretation is. Nobody killed any investigation.

SEN. LEAHY: What Justice Department employees were involved in the decision not to go forward at that point?

 

MR. SCHLOZMAN: I don’t know who would have been responsible for not going forward, because I certainly did not give any kind of instruction to not pursue the investigation. The instruction that came from my voting counsel was to go ahead and contact the chief election official, which is the secretary of the state. If there was information there that proved valuable, then any investigation could be followed up.

 

…

 

SEN. FEINSTEIN: No, but when you have a U.S. Attorney in an area who says, “Whoa, I think we have a problem here; we should look into it,” don’t you look at that?

MR. SCHLOZMAN: Well, and Senator, it sounds like we did look into it. And we directed the Voting Section chief to contact the secretary of state to launch an investigation and contact the secretary of state.

SEN. FEINSTEIN: But DOJ didn’t launch an investigation.

MR. SCHLOZMAN: I don’t know what happened…

SEN. FEINSTEIN: I just find it a little – you know, you have ACORN in one state where it’s being solved by the locals. And yet, boom, you move in and you put forward indictments, one of which was wrong. And here you have Native Americans who are going to be denied their right to vote, quite possibly, because of a certain ID, and you say, “Well, it’s up to the secretary of state.”

 

The Gonzales-Bush Justice Department also seemed unwilling to respond to concerns that the Georgia ID law would hurt African-American voters.

 

SEN. LEAHY: Well, you were serving as Acting Attorney General for civil rights. You approved the pre-clearance under Section 5 of theVoting Rights Act of a voter-photo identification provision from the state of Georgia. And, you know, that decision became the focus of extensive criticism about the management of the Voting Section. According to a memorandum that is obtained by the press and has now been made public, four of the five career attorneys who were tasked with reviewing that law found it had negative impact on the voting rights of Georgia’s minorities, predominantly African-American – four out of five.

 

As a consequence, these career – career attorneys recommended that the department refuse to approve the change. The only attorney to recommend approving the pre-clearance is someone you hired, is that correct?

MR. SCHLOZMAN: No, that is not correct.

SEN. LEAHY: OK. Who did hire the one person who approved it?

MR. SCHLOZMAN: The person who recommended pre-clearance was the chief of the section, John Tanner. And I’m the one who promoted him to chief of the section. And the chief of the section recommended pre-clearance in the Georgia ID.

SEN. LEAHY: So he was promoted by you to be chief?

MR. SCHLOZMAN: He was – actually, his promotion occurred the day before I took over as the acting. But he was promoted during my tenure as – in the division to chief of the Voting Section, correct.

 

…

 

SEN. LEAHY: Now, in 1994, the Voting Section considered a voter identification requirement in Louisiana that was less restrictive. They found it violated the Voting Rights Act. And your pre-clearance of the law in Georgia came on August 27th, just a day after the career staff recommended objecting to the law. Is that correct?

MR. SCHLOZMAN: Again, Senator, the career section chief recommended that the matter be pre-cleared.

SEN. LEAHY: But what about the other four? There’s five people. Four recommended against it. One recommended for it. You went ahead and OKed it even though a less restrictive one had been turned down in Louisiana a few years before. Is that correct?

MR. SCHLOZMAN: I pre-cleared – well, actually, that’s not correct. The – under the regulations governing Section 5, the chief of the Voting Section is delegated responsibility to pre-clear things. He sent it up to me for approval, and I approved it. But it was his actual decision under the regulations that govern Section 5 submissions.

SEN. LEAHY: And you’re aware of the fact that the reason that four out of the five had objected to it is that they felt it suppressed African-American voting in Georgia. Is that correct?

MR. SCHLOZMAN: I was aware of their recommendations.

 

The DOJ’s claims that politics played no role in the hiring of career employees seems less credible with each evasive answer given by current and former officials.

 

SEN. SCHUMER: Mr. Schlozman, is the policy against considering political and ideological affiliations in the hiring of career department employees formal or informal?

 

MR. SCHLOZMAN: I think it is pursuant to a civil service statute for career employees.

SEN. SCHUMER: So it’s formal?

MR. SCHLOZMAN: The Hatch Act, yes.

 

…

 

SEN. SCHUMER: OK. Let me ask you this one: Did you ever suggest to anyone that an applicant for a position at the Justice Department should change his or her resume to hide a conservative or Republican affiliation or connection?

MR. SCHLOZMAN: What I did do was – I mean, the answer to that is, it’s not a matter of hiding it, but I did encourage individuals to – on a couple of occasions, to take political background which was irrelevant to the hiring decision for a career position and did not include that in the resume that they submitted for a career position.

 

…

 

SEN. SCHUMER: OK. Did you ever boast to anyone that you had hired a certain number of Republicans or conservatives for any division or section at the Department of Justice?

MR. SCHLOZMAN: I mean, I don’t remember – what I probably, I mean, I have made statements, you know, that we have in one section brought more, perhaps, individuals who were more professional and…

SEN. SCHUMER: No, I didn’t ask professional… I know you may associate Republican or conservative with professional, but that’s not my question.

 

…

 

Did you ever boast to anyone that you hired a certain number of Republicans or conservatives for any division or section at the Justice Department?

 

MR. SCHLOZMAN: I mean, I probably have made statements like that.

SEN. SCHUMER: Thank you. OK, why did you do it if you just said a few minutes ago that it wasn’t relevant to have that on their resumes because it wasn’t political?

MR. SCHLOZMAN: These individuals, Senator, were not hired because they were Republican or…

SEN. SCHUMER: I didn’t ask that. If you said it was irrelevant at one point, now you’re boasting to people that, “Well, we hired Republicans.” Is there a contradiction there?

MR. SCHLOZMAN: No, Senator. I mean, I – when I inherited the Voting Section of the division, I was aware of the significant problems that had been – that had afflicted the division and the administration having been hit with more than $4.1 million in sanctions. And that’s taxpayer dollars. And I wanted to make sure that we weren’t going to have those kind of abuses repeat themselves.

SEN. SCHUMER: Mr. Schlozman, it sure seems a contradiction to me.

 

Senior DOJ officials reached out to conservative legal organizations for career employees, but there is little or no evidence that they gave equal time to liberal organizations.

 

SEN. SCHUMER: OK. Before you mentioned, Mr. Schlozman, that you did outreach to organizations for hiring.

 

MR. SCHLOZMAN: Yes.

SEN. SCHUMER: Name all of the conservative ones.

MR. SCHLOZMAN: I know…

SEN. SCHUMER: Did you reach out to the Federalist Society?

MR. SCHLOZMAN: I did, yes.

SEN. SCHUMER: OK. Name some other ones of that type.

 

MR. SCHLOZMAN: I believe I talked to an individual at the Heritage Foundation…

 

SEN. SCHUMER: OK. How about any liberal ones? Did you reach out to any of them?

 

SCHLOZMAN: Yes.

SEN. SCHUMER: Who?

MR. SCHLOZMAN: I know I reached out to the – it’s in Arizona, New Mexico, to various Native American groups.

 

SEN. SCHUMER: That’s not a liberal group…

MR. SCHLOZMAN: Well, I mean, I…

SEN. SCHUMER: Did you reach out to the equivalent to the Federalist Society…

 

MR. SCHLOZMAN: At my direction, Senator, I had the chief of my voting section reach out to a number of liberal organizations.

SEN. SCHUMER: I’m asking you. You reached out to the Heritage Foundation. You reached out to the Federalist Society. Did you reach out to CATO Institute, even though they’re not a legal institute?

MR. SCHLOZMAN: No, Senator. No.

SEN. SCHUMER: OK. So name some liberal organizations.

MR. SCHLOZMAN: Senator…

 

…

 

SEN. SCHUMER: You said before that you didn’t consider any of these issues. You have a glaring contradiction that on the one hand you told people take their political organizations off but then, of course, it was relevant in other ways, that you bragged about them.

 

So did you reach out – you, Brad Schlozman, reach out to any liberal organizations?

 

MR. SCHLOZMAN: I don’t – I did not personally do it. I had others do it on my behalf.

SEN. SCHUMER: Yes. Thank you. OK. You think that’s – you think that was even-handed? Do you think that was down the middle?

MR. SCHLOZMAN: Yes, Senator, because I…

SEN. SCHUMER: Why did you reach out to the conservative ones and you had others reach out to the liberal ones? And give me the name of one liberal one that you ordered, asked – give me the name of the person you told to call and the organization you told him to call.

 

MR. SCHLOZMAN: John Tanner, the chief of the Voting Section.

SEN. SCHUMER: Yes.

MR. SCHLOZMAN: And we had – I had him reach out to, I know to various organizations we work with. I believe…

 

SEN. SCHUMER: Like, give me a name of a liberal organization. You just said that you – you were very definitive…

MR. SCHLOZMAN: Yes.

SEN. SCHUMER: …that you had someone else reach out to, quote, “liberal organizations,” John Tanner. Name a liberal organization you reached out to.

MR. SCHLOZMAN: I believe he reached – my understanding is, is that he reached out to MALDEF, to NAPABA to – I mean, I don’t have the exact list of people who he reached. I mean, I said, “Reach out to organizations with whom you work.”

SEN. SCHUMER: Yes, but MALDEF is not the equivalent of the Heritage – the Heritage Foundation and the Federalist Society have an ideological hue to them. These others are Native American organizations, Hispanic American organizations. Those are different.

 

So you want to think about it? Did Mr. Tanner reach out to liberal organizations that would be, sort of, the mirror image, if you will, of the Heritage Foundation and the Federalist Society?

 

MR. SCHLOZMAN: Senator, I guess – and what my response will be – I just don’t recall today exactly what – I mean, I’m happy to check what organizations he reached out to.

SEN. SCHUMER: Again, I think the record here is speaking for itself.

 

One senior Justice official went so far as to order the altering of performance evaluations of career attorneys.

 

SEN. WHITEHOUSE: In testimony before a House Judiciary subcommittee, Joe Rich, who worked at DOJ’s Civil Rights Division for, I believe, 37 years, the last six of which he served as the chief of the Voting Section, testified as follows: that he was – and here begins the quote – “ordered to change, ordered to change the standard performance evaluations of attorneys under my supervision to include critical comments of those who had made recommendations that were counter to the political will of the front office and to improve evaluations of those who were politically favored. In my 32 years of management in the division before this Administration, I was never asked to alter my performance evaluation.” Was it you who ordered him to make those changes in the performance evaluations?

MR. SCHLOZMAN: On a number of occasions I believe I did order him to – and it’s actually on the evaluation, Senator, there is a rating official and a reviewing official. Usually the career section chief is the rating official and the Deputy Assistant Attorney General is the reviewing official.

 

So I would get Mr. Rich’s evaluations and then I would be required to review it for whatever I felt. And so if I felt that there were inaccuracies or omissions or need for anything, any kind of changes to the evaluation, it was my responsibility to do it as the reviewing official.

 

SEN. WHITEHOUSE: And so for the past 32 years in that section which it had ever done before, that was just – what? – reviewing officials, sort of, falling down on their duties?

MR. SCHLOZMAN: Senator, I can’t speak for anybody other than myself, and if I didn’t change what I felt to be an inaccurate evaluation I’d be shirking my own responsibility.

SEN. WHITEHOUSE: Why is it that he testified that there was a political difference between those whose evaluations you sought to improve because they were, and I quote, “politically favored,” versus those who you sought to criticize further because they were not?

MR. SCHLOZMAN: Senator, I don’t – I can’t characterize Mr. Rich’s testimony or get into his head.

 

Other U.S. Attorneys, besides the eight dismissed in December, may have been fired for political or otherwise inappropriate reasons.

 

SEN. WHITEHOUSE: Let me go back to the call from Michael Battle. Did he, when he indicated that they would be asking you to resign, suggest there was any performance-related reason?

 

TODD GRAVES, FORMER U.S. ATTORNEY, WESTERN DISTRICT OF MISSOURI GRAVES: He made it very clear that there wasn’t. That’s the first thing he said, “There are no performance issues, you have” – I quoted from what he said, “You’ve served honorably and you’ve performed well. But the decision’s been made at the highest levels of government to give another person a chance.”

 

…

 

SEN. WHITEHOUSE: So do you have any idea what Ms. Goodling was getting at last month when she testified before the House Judiciary Committee that the decision to remove you as U.S. Attorney may have been related to an investigation by the department’s Office of the Inspector General?

MR. GRAVES: Yes, that – I know exactly what she was talking about. I was immediately angry over that comment.

 

I think it is another example of those who have a bright spotlight cast on them for their conduct attempt to shift those things to the people that were asked to leave.

 

I immediately contacted the Office of Inspector General. I got a copy of that report. I released it to the press.

 

What that was, was in the context of an employment matter we had someone raise an allegation against me. And as you know, when you’re dealing with employment matter, whistleblower is something you have to deal with.

 

So we called the bluff of the person. And I turned that into the Department of Justice, I initiated that investigation.

 

The investigation was conducted. It was about standing in a picture line for a picture with the Vice President of the United States. The investigation found that I did nothing wrong.

 

…

 

SEN. WHITEHOUSE: And in terms of the decision, you were informed that it came from the very highest levels of government. Have you generated or become aware of any other information more specifically where that decision came from?

MR. GRAVES: No, I haven’t…

 

SEN. WHITEHOUSE: Did they ever tell you why?

MR. GRAVES: They specifically told me – well, yes. They told me that it was because they wanted to give another person a chance to serve. That’s what they told me.

 

Despite assertions to the contrary, prosecutorial independence does not seem to be a first priority of the Bush-Gonzales Justice Department.

 

MR. GRAVES: I had had a run-in with the department that was very significant in 2003, over a cross-burning case. It was a case that had been mediated in front of a federal magistrate. And there had been someone from the Civil Rights Division at main Justice in the room when it had been mediated and had authority.

 

And, as you know, federal magistrates don’t do mediations unless everybody in the room has authority to bind their parties because they don’t want to waste their time. It had been a very difficult mediation. It had been settled. And as – it was a civil mediation of a civil rights case. And it had followed a criminal prosecution for these individuals that had burned these crosses – or burned a cross in a person’s yard.

 

And the department came back. Then the Acting Director – and I honestly don’t even remember that person’s name – called me and said, “We’re not going to go forward with this settlement.”

 

And the way the department works, Civil Rights has authority to act without U.S. Attorneys in civil rights matters. But U.S. Attorneys do not have authority to act without Civil Rights.

 

And our discussion got very heated. And I ended up hanging up the phone, telling him that I would not participate in what they wanted to do.

 

Later, I got an e-mail and I drafted an e-mail back. They wanted to remove some provisions from the settlement, some punitive provisions against the defendant. And I…

SEN. WHITEHOUSE: Against the defendant who had burned the cross?

MR. GRAVES: Had burned the cross. And he happened to be from a rural part of the very county where I’d been the elected prosecuting attorney. I knew this person. I knew that when he got out, that there was a high likelihood that the same sort of behavior would continue.

SEN. WHITEHOUSE: But they wanted to remove punitive provisions that you had already negotiated from the agreed civil remedies for somebody who had burned a cross in somebody’s yard?

GRAVES: Right. Because the criminal remedies – because he’d been sentenced to prison. Once he got out, that’s over. The only way to have sanctions controlling his behavior in the future was to have a civil settlement.

 

And there was a provision that he could not drink alcohol. And I can’t remember what the other ones were. And someone at the department didn’t think that was in accord with the theory of prosecution, or the theory of what civil rights settlements should be.

 

And I was a lunch-pail prosecutor. I was just a guy out in Kansas City who was trying to do my job….

 

I had two concerns about that. One is, my reputation was on the line with the federal magistrate. Because we had committed to that. Two is, I wasn’t going to back up on this guy because I knew that, you know, when he got in trouble again I would have to own that decision and take responsibility for it. And I didn’t think it was the right decision.

 

So I sent a strongly worded e-mail…. And the person that I was told was going to contact me to mediate this after I – mediate it with the department after I’d thrown down the gauntlet – they told me that Brad Schlozman was going to be the guy, the peacemaker in the matter. And so I talked to him maybe the next week. And as it turned out, I wouldn’t back up. I wouldn’t change my position. My reputation in the legal community in Kansas City was more important to me than my reputation in the halls and the many offices of, you know, staff level at main Justice. And they ended up doing what we wanted.

SEN. WHITEHOUSE: I’d stop you right there on that point… to make the point to you that I think that one of the reasons that we have locally appointed United States Attorneys is so that they will make exactly that kind of call. And it’s one of the concerns that I have about the – for want of a better word –infiltration of the U.S. Attorney corps by people who have limited contact with the home district, but are sent out as emissaries of the operatives in main Justice.

 

…

 

SEN. WHITEHOUSE: After you left the U.S. Attorney’s office, you stated that, “When I first interviewed with the department I was asked to give the panel one attribute that describes me. I said,‘independence.’ Apparently, that was the wrong attitude.”

Could you explain why you now think that that was the wrong attitude?

MR. GRAVES: Well, that was in response to so much of what I’ve seen since I left there.

 

 

Decreased federal funding to support local law enforcement and increased gang activity have contributed to a rise in violent crime.

 

WILLIAM J. BRATTON, CHIEF OF POLICE, CITY OF LOS ANGELES: Recent statistics released by the Federal Bureau of Investigation (FBI) indicate that violent crime is increasing nationwide at its highest rate in 15 years. Current research conducted by PERF [Police Executive Research Forum] and supported by anecdotal evidence from some of the nation’s leading police chiefs indicates we have a developing crime problem in this country, which has been commonly referred to as “A Gathering Storm.” Crime numbers for 2006 indicate that crime is again spiking in communities throughout the country. In Los Angeles, where we have driven crime down by 29 percent over the last four years, and reduced the number of homicide victims by 25 percent, we continue to struggle with an entrenched gang crime problem. In fact, renowned civil rights attorney, Connie Rice, referred to Los Angeles as, “The gang capital of the country.”After four years of steady decline in gang-related crime, including a 22 percent reduction in homicides, overall gang-related violent crime in Los Angeles rose by 15 percent in 2006.

 

Traditional gangs have evolved into sophisticated, franchised operations – intensifying in big cities and migrating to mid-sized cities and small towns across the country.

 

Antonio R. Villaraigosa, Mayor, City of Los Angeles:Gangs are no longer a local issue and they are no longer isolated to urban cities. They operate sophisticated multi-state and multi- national networks that cannot be contained by municipal police alone. That is why we need a sustained partnership with the federal government if we are going to turn our neighborhoods around. If we fail to work together, we won’t just be out-gunned, we will be out-organized.

 

…

 

James P. Fox, District Attorney, San Mateo County, CALIFORNIA:Over the last four years, several of my colleagues on the board of directors of the National District Attorneys Association have had the privilege of testifying before either this Committee or the House Subcommittee on Crime, Terrorism and Homeland Security regarding gang crime and related issues. I would commend to you [their testimony:]….

 

[Denver, CO]

 

“In Denver the gangs and gang members are long-time Denver, ‘home grown,’ criminals but the vast majority of their culture in Colorado can be traced back to California. Beginning in the mid-to-late 1980’s the California gangs started to ‘franchise’ to the Denver-area. Intelligence reports showed that California gang members viewed the lack of competition from local gangs; coupled with local law enforcement’s and the community’s relative lack of “gang sophistication,” as making Denver easy prey, and labeled Denver the ‘The Big Easy.’ While the migration was from primarily Southern California gangs, Colorado has seen the migration of a significant number of Chicago-area gangs. From the late 1980’s to the present, the number of gang members and gangs in Denver has grown steadily to the present estimated figure of 13,000 gang members in the metro-Denver area….

 

The gangs in the metro-Denver area have historically used drug trafficking as their criminal enterprise of choice. However, with the drug trade comes a wide assortment of other violent felonies, including armed robberies, aggravated assaults, homicides, etc. To conduct their business, and more often to protect their distribution locations, the gangs will often resort to means of extreme violence. Within the gangs’ drug business, the Denver- area has seen what appears to be a greater and more wide-spread use of juveniles to commit and participate in gangs’ business, particularly the drug transactions. Drugs (most common cocaine, with a recent surge in ‘meth’) are the primary, but not exclusive, criminal enterprise for Denver-area gangs. Many gangs are also heavily involved in property crimes – auto thefts and business and residential burglaries. Recently, there have been reports of some traditionally African-America street gangs expanding into the area of prostitution. Likewise, Denver has seen a significant increase in Asian gangs becoming more and more involved with some traditionally white collar crimes (check and credit card fraud) as well as loan sharking and extortion.

 

[Chicago, IL]

 

Chicagotells a similar story. The gang problem in and around Chicago is widespread. While ‘only’ listing 98 identified gangs in Chicago the membership is estimated to be over 100,000 – and this is only within the city limits. The gangs are well established with corporate structures and as many as three generations of a family in the gang. Gang leaders are frequently in their 40’s and 50’s.

 

With the demolition of numerous housing projects the impact on the Chicago gangs has been to geographically disperse gang members into other areas of the city and into the suburbs. This has had a major impact on the ability of law enforcement to collect intelligence about criminal activities. Since many of the suburbs have small police departments another problem has arisen over their ability to take any action to curtail the gang activity. In one instance a gang shot out the tires on the four police cars in the town and literally disabled the force for several days….”

 

Another difference from previous gang activity has been that over turf battles. The gangs today are as antagonistic as seen previously. Frequently they operate more on corporate lines forming trade alliances to maximize profitability. Prosecutors in Chicago state that gang members are more into “making money” than worrying about gang rivalries. They further observe that this is carried through in the efforts of many gangs to develop enterprises to launder profits from criminal enterprises. Some of these businesses include construction companies, car washes, beeper shops, recording and music related businesses and restaurants….

 

[Rural America]

 

More-and-more rural communities find they are not immune from the influx of gangs. In Snyder County, Pennsylvania, a relatively small county in central Pennsylvania the District Attorney recently met with the State Police officer assigned to gathering intelligence on gangs in his jurisdiction. He found out that one of the major bike gangs had infiltrated a local club that had been originally organized for charitable purposes and had “taken over” the club. This was done by gradually recruiting outside members until the local people no longer wanted to associate with the group. In the past 3-4 years, Snyder County had seen an increase in gang related crime (burglary and drugs primarily). There is a state police barracks in the county and the District Attorney frankly admits that without it they “totally lack the resources to deal with a problem of this sort.”

 

According to the Federal Bureau of Investigation currently there are approximately 800,000 gang members belonging to about 30,000 violent street gangs, motorcycle gangs and prison gangs in the United States. According the 2004 National Youth Gang Survey there were approximately 760,000 gang members and 24,000 gangs were active in more than 2,900 jurisdictions that city (population of 2,500 or more) and county law enforcement agencies served in 2004.

 

No longer a local issue, federal action is needed to address this nation-wide epidemic.

 

CHIEF BRATTON: Senator Feinstein’s Gang Abatement and Prevention Act of 2007 (S.456)[: a]mong other initiatives, this comprehensive crime bill proposes an increase in gang prosecution and prevention efforts. It establishes an extended federal commitment to help fight criminal street gang violence nationwide, by authorizing more than $1 billion over the next five years to support federal, state and local law enforcement efforts against violent gangs, witness protection programs and services geared toward gang prevention. The bill further specifies that half of the High Intensity Gang Activity Area program funding be used for intervention and prevention efforts by schools and civic groups focused on at-risk youth, in a combined prevention-intervention-suppression approach modeled after the successful Operation Cease-fire Strategy, and with a new Gang Research, Evaluation and Policy Institute established to study and collect best practices for the prevention of gang violence and to train jurisdictions accordingly.

 

This bill recognizes what cops already know, that we can’t arrest our way out of our gang crime problem. The police alone can’t own the gang problem. Society must step up to address intervention and prevention and the Feinstein-Hatch bill is a major and essential step in the right direction.

 

Enforcement alone won’t work, as solving the nation’s gang problem will include an emphasis on prevention, intervention and suppression/enforcement.

 

Gregg Croteau, Executive Director, The United Teen Equality Center (UTEC): [While] the federal government is absolutely on point in recognizing youth violence as a critical issue in our communities[,]… we respectfully express our concern that this [legislation], this unique opportunity to significantly affect change that lasts beyond the current moment, must include a balanced approach of enforcement along with intervention and prevention. In our opinion, enforcement is indeed a much needed component of an overall approach to best reduce youth and gang-related violence. However, enforcement is also only at its strongest when there is a very solid complementary force of intervention and prevention services in the community.

 

…

 

CHIEF BRATTON: The LAPD [Los Angeles Police Department] firmly believes that prevention, intervention and suppression are the keys to curbing gang violence. The LAPD has seven prevention and two intervention programs, which provide at-risk youths with alternatives to gang membership and criminal behavior. Prevention programs deter at-risk youths from gangs and/or criminal behavior, while intervention programs help at-risk youths to separate from gangs and/or criminal behavior. However, nothing in life is free. Everything comes with a price. Other than providing personnel resources, neither the city nor the LAPD provides funding for these youth programs. The LAPD has 19 geographic areas, all of which generate their own funding to support these nine programs, derived from various sources including, but not limited to, state and federal grants, area boosters, corporate sponsors, private donors and fundraisers. High visibility also deters gang violence, and the LAPD conducts city-wide gang suppression efforts against gangs, gang crime and violence throughout the City of Los Angeles. The funding provided via the High Interstate Gang Activity Area program would greatly assist the LAPD in curbing this growing gang problem through prevention, intervention and suppression; further allowing us to provide the highest quality service to the people who live, work and visit the City of Los Angeles.… However, the investment we pay now will reap great dividends in our future generations.

 

…

 

MR. CroteaU: Soon after our establishment, UTEC created the Streetworker Peacemaking Project that aims to intervene in gang conflicts and mediate specific disputes between rival gang sets. Through our work in this area, our Streetworker Team implements a peacemaking process with rival youth gang leaders that ultimately lead to the facilitation of various peace summits between opposing gang sets. We have received significant recognition for our peacemaking work in this area. We are often called upon by city and state leaders to advise on a variety of youth and gang violence issues.

 

Additional funding is also needed to support prosecutors and protect witnesses.

 

DISTRICT ATTORNEY Fox:In 2002 the National District Attorneys Association developed a comprehensive policy on juvenile crime issues and as part of that document adopted the following policy statement and commentary as they relate to gang activity and the increasing involvement of juveniles in it:

 

Policy: Adequate resources should be provided to prosecutors to assist in the prosecution of gang-related crimes and the protection of witnesses….

 

According to the Bureau of Justice Statistics (National Survey of Prosecutors, Prosecutors in State Courts, 2005, Steven W. Perry, July 2006, NCJ 213799) there are about 2,344 state court prosecutor offices in the United States employing approximately 26, 500 criminal attorneys. These attorneys are responsible for trying approximately 95 percent of the criminal cases in this nation. Unfortunately with increased demands and ever shrinking state and county budgets local law enforcement and prosecutors must look to the federal government to assist with the gang problem….

 

Title III of the Gang Abatement and Prevention Act of 2007 would provide the necessary funding needed to improve enforcement efforts; establish multi-jurisdictional teams in high intensity gang areas; hire addition prosecutors to prosecute more cases; and provide much needed technology, training and information to law enforcement and prosecutors. The training of law enforcement and prosecutors in the gang arena is extremely important to the outcome in the courtroom, the safety of the witnesses, and the well-being of the community.

 

Cooperation at the federal and state level to curb gang violence and other crime has worked in the past – and will again in the future – to save lives and make our communities safer.

 

Mayor Villaraigosa: As proof of the effectiveness of collaboration, our model originates from a collaborative agreement between the City of Los Angeles and the U.S. Department of Justice. This joint effort, called the Gang Reduction Program, commonly referred to in Los Angeles as GRP, has resulted in the most significant drop in crime in any gang-impacted community in Los Angeles.

 

The original collaboration started with a $2.5 million federal investment over five years with the goal of reducing youth gang crime and violence in the community of Boyle Heights. Boyle Heights is a predominantly Latino neighborhood where nearly a third of the 194,061 residents live in poverty and unemployment is twice the national rate.

 

GRP incorporates a comprehensive and collaborative approach to reducing gang crime and violence, including an inventory and integration of existing community services and the application of best practices and evidence-based prevention, intervention, re-entry, and suppression programs. GRP also focuses on accountability and employs ongoing evaluation to ensure the effectiveness of its taxpayer-funded programs.

 

Many successful gang prevention, intervention, re-entry, and suppression programs are currently being implemented through GRP in Boyle Heights. The federal resources fund organizations that provide afterschool programs, mentoring, truancy and dropout prevention, gang awareness trainings, intensive case management, job training and placement, pre-natal and infancy support, early college awareness, literacy programs, and tattoo removal. For example, the nationally-recognized Homeboy Industries, founded and led by Father Greg Boyle, is partially funded by the GRP and serves as a model for providing essential job training and other programs to get reformed gang members out of gangs. In addition, the GRP also has a very productive partnership with Big Brothers/Big Sisters of Los Angeles which provides mentors and positive role models for youth.

 

The GRP programming in Boyle Heights has resulted in a coordinated effort to prevent gang recruitment and future involvement, provide opportunities for offenders returning to the community, and rid communities of violent gang leaders. In this community, gang-related crime has been reduced by 44 percent during a period where we have experienced an increase in gang crime in virtually every other part of the City.

 

Consequently, our current strategy expands the GRP and targets resources in the areas most impacted by gangs – eight “Gang Reduction Zones.” These areas were selected based on an objective assessment of gang-related crime rates while also taking into account other factors such as poor academic performance, truancy, dropout statistics, and conditions of joblessness and poverty – all factors that have been shown to be precursors to gang involvement and activity. Through our strategy, what we hope to bring to these communities is hope. What we hope to bring to the youth is safe passage into responsible adulthood.

 

As I stated, the GRP started with a federal investment, but it did not end there. Many of the programs that have played a part in the recovery of Boyle Heights were funded with city, county, state, and private dollars. Over the years, the city has allocated significant resources to programs and services geared toward at-risk youth. Now we must expand and leverage those resources through multi-jurisdictional cooperation while ensuring that every dollar is spent effectively and efficiently.

 

It is my plan to replicate our successes, and it should be Congress’ plan to replicate them in communities across the country. But to make it a reality, we need the federal government to make an investment and play its part. You just heard what we did for $2.5 million in one of the most gang-impacted [sic] communities in the nation. Imagine what we could do with the $1 billion authorized by this bill.

 

 

 

Since 1962, the Trade Adjustment Assistance Program (TAA) has provided assistance to American workers displaced by international trade.

 

SEN. BAUCUS: Forty-five years ago, President John F. Kennedy said: “Those injured by trade competition should not be required to bear the full brunt of the impact…. [T]here is an obligation to render assistance to those who suffer as a result of national trade policy.” Congress agreed. And when Congress enacted the Trade Expansion Act of 1962, that law contained President Kennedy’s new Trade Adjustment Assistance program, called TAA.

 

…

 

JERRY ANN ROSS, CURRENT PARTICIPANT IN THE TRADE ADJUSTMENT ASSISTANCE PROGRAM: I worked for Owens and& Hurst Lumber Mill Inc. for over 13 years… as a supervisor in the plant. In the early months of 2005… the mill was forced to close its doors after 225 years of business due to the result of competition from foreign trade…. Trade Adjustment Assistance was offered to the 87 affected employees…. I chose a 2-year program in the Building Trades, and Accounting Technology offered at Flathead Valley Community College. The TAA program has provided unemployment benefits and gas allotment for the 150 miles I drive daily roundtrip to attend school. All my books, tuition, and required materials have been paid for. I cannot say enough good things about the program. It has been a dream come true for me to attend college…. I would like to personally thank you for providing these programs to dislocated workers as myself who have suffered job losses due to foreign trade…. This brings hope not only to our future but also for the future of our nation. This allows us the opportunity to once again be part of our nation’s work force.

 

…

 

HOWARD ROSEN, EXECUTIVE DIRECTOR OF THE TRADE ADJUSTMENT ASSISTANCE COALITION: In 1962, when the United States was running a trade surplus, imports were barely noticeable in the economy, and manufacturing employment was increasing, Congress made a commitment to assist American workers, firms and communities hurt by international trade, by establishing the Trade Adjustment Assistance program. This commitment is based on an appreciation that despite their large benefits, widely distributed throughout the economy, international trade and investment can also be associated with severe economic dislocations.

 

Witnesses agreed that TAA should be modernized and expanded to cover services workers, secondary workers, and communities.

 

SEN. BAUCUS: [T]imes have changed since Congress created TAA. Back then, ocean-going container ships were a new way to transport goods. Today, container ships carry 17 times the cargo – in three-quarters the time – that they did half a century ago. Factories have become more efficient. Millions of workers moved out of manufacturing and into services. And worldwide advancements in technology and communications now move boxes, services, and ideas around the globe in record time. Times have changed. But the government’s approach to trade adjustment has not. American workers still have to rely on a program that was crafted for a different era. It is time to change that. It is time to ask tough questions. Is today’s TAA relevant to the 21st century global economy?

 

…

 

LAEL BRAINARD, VICE PRESIDENT AND DIRECTOR, GLOBAL ECONOMY AND DEVELOPMENT PROGRAM, BROOKINGS INSTITUTE: Trade Adjustment Assistance is the core program for addressing dislocation associated with globalization. I put myself among those who strongly support the need for Trade Adjustment Assistance and yet are saddened that its actual implementation falls short of the mark. Given the scope and scale of the challenges facing our workforce, it is critical that TAA be strengthened.

 

This committee is considering a number of proposed changes to the scope and operation of TAA that I believe are vital. It is a poorly kept secret that the time-consuming and excessively restrictive eligibility determination process of TAA is one of its main flaws; automatic triggers need to be introduced into the eligibility determination to ensure adequate breadth and timeliness of coverage. Secondary workers, services workers, and agricultural workers dislocated due to globalization deserve access to adjustment assistance no less than manufacturing workers. The cost of the health care tax credit remains out of reach for most workers and should be reduced. Wage insurance should be a real option for a much larger group of workers – and made easily accessible in contrast to the current situation where even eligible workers are not informed of its availability. Training benefits should be fully funded – not rationed –and made more flexible so that those who must go back to work sooner are able to upgrade their skills at a later date or in parallel with work. Adjustment assistance for firms and for communities should be greatly strengthened.

 

…

 

JANE MCDONALD-PINES, WORKFORCE ISSUES SPECIALIST, AFL-CIO: All workers who are forced to sacrifice their livelihoods so that other Americans may benefit from federal trade policies should be made whole for their loss, regardless of whether they were employed in the manufacturing sector. But we cannot emphasize enough that expanding eligibility without a guarantee of adequate funding is an empty promise.

 

The TAA program does not currently cover the thousands of technology and service sector workers who find themselves jobless when their employers outsource their work overseas. TAA should be expanded to cover service and public sector workers who have been displaced by trade policy. In 2002 the TAA program was expanded to cover secondary workers, such as parts manufacturing workers who lose their jobs when the primary firm moves its operations to another country. However, few secondary workers are receiving benefits. According to the latest GAO [Government Accountability Office] report, just 7 percent of workers covered by TAA were secondary workers in FY 2004 -2006. In an earlier report, GAO found that no state has developed procedures to identify workers who are secondarily affected by a trade-related layoff in another state.

 

…

 

MR. ROSEN: The service sector is increasingly under pressure from outward shifts in investment and international outsourcing. Based on its current interpretation of the statute, DOL [Department of Labor] denies assistance to workers who lose their jobs from the service sector…. Although the law does not specifically restrict TAA eligibility to workers employed in manufacturing industries per se, over the years DOL’s interpretation of the law has de facto resulted in such a restriction…. The law governing the TAA for Workers program needs to be updated to cover workers who lose their jobs from service industries.

 

…

 

The impact of globalization on the U.S. economy is not limited to workers, farmers and fishermen. All of these people are located within communities, which also feel the consequences of massive lay offs and earnings losses. Workers who lose their jobs cannot afford to purchase non-essential goods or eat in restaurants, thereby causing the effects of a plant closing to ripple across a community. Plant closing can also contribute to eroding a community’s tax base, making it more difficult for the community to provide important functions and attract new investment…. Several members of Congress have recently called for a TAA for Communities program. This proposal is based in part on a growing awareness that the effectiveness of any training program is limited by the availability of jobs that utilize the skills acquired in that training. Under these circumstances, job creation requires shifting to composition of existing investment and attracting new investment.

 

Witnesses expressed support for the expansion of and improvement to the health coverage tax credit.

 

MS. MCDONALD-PINES: Most TAA participants will find it very difficult to participate in sustained training unless they have health insurance coverage for themselves and their families. In 2002 Congress created the Health Care Tax Credit (HCTC) to assist TAA recipients to receive affordable health care. However, Congress must improve HCTC if it is to be fully effective.

 

In its most recent report, GAO states, “the high cost of the health coverage benefit to participants is the greatest barrier to participation.” Congress should increase the subsidy to 90 percent and provide fallback coverage through plans like the Federal Employee Health Benefit plan or Medicare. Delays in TAA and HCTC processing can mean laid-off workers have lapses in coverage that disqualify them for consumer protections necessary to get coverage. Congress should allow for presumptive eligibility so that workers who are TAA eligible are HCTC eligible and disregard lapses in coverage that occur through no fault of the worker. HCTC is a complicated program to administer. The Department of Labor and the Internal Revenue Service must work with the states to find ways to improve access to the tax credit for eligible workers.

 

…

 

MS. ROSS: Has the Health Coverage Tax Credit been working? There needs to be improvement for this process. Sixty-five percent of a tax credit is still not enough. What is needed is some form of health insurance. Either something affordable or some type of insurance for the trainee and their family while they are in training. Currently there is one man in his 30’s who has been in the program for two years. His kidneys are failing. He has no insurance and he is starting dialysis as we speak. He has a wife and two children.

 

Two witnesses urged Senators to consider the expansion and reauthorization of Trade Adjustment Assistance independently from specific free trade agreements.

 

MS. MCDONALD-PINES: While programs such as Trade Adjustment Assistance are important, it must be emphasized that they are no substitute for good trade policies that create and retain good jobs in the United States. This is why the conversation about improving these programs should be separate from the debate over Trade Promotion Authority and trade agreements. Millions of workers are suffering from the displacement effects of our trade policies. The need to help them exists independently of the debate over these trade policies.

 

The TAA program must honor the promise made to workers since 1962: that the federal government will provide retraining, reemployment assistance, and income support to workers who lose their jobs due to federal trade policies. These workers are forced to pay the price for federal policy decisions that benefit other Americans, and they deserve to be made whole for their loss. We believe that TAA’s greatest strength is that it supports long-term, intensive training and extended income support. Unfortunately, many laid-off workers are still not eligible for these benefits, and others are not receiving the benefits to which they are entitled.

 

…

 

DR. BRAINARD: We have grown accustomed to thinking about globalization as a choice– the terms of which can be negotiated. Consequently, the need for adjustment assistance traditionally has been viewed as directly tied to an incremental expansion of trade associated with a particular trade agreement. Today, globalization is a dynamic process that is facilitated by trade agreements but in no way confined to them. The rise of services offshoring was facilitated by the digitization and transmissibility of services and India’s investment in broadband; no international agreement was signed, no U.S. legislation was enacted. If we want to maintain support for an open and dynamic economy, our adjustment programs need to become as flexible and adaptable as the economy itself. It should not take three years following a profound shift towards globalization of the services sector to provide eligibility for dislocated workers in the affected occupations. More broadly, maintaining America’s preeminence in the global economy while supporting rising living standards and easing adjustment to the racing winds of global commerce requires a seamless web of forward-looking policies – not a patchwork of uncoordinated policies that address yesterday’s challenges.

 

 

 

Federal student aid programs have not kept pace with the rising costs of college education.

 

SEN. DODD: Today, 60 percent of the new jobs being created by our economy require at least some post-secondary education. Compare that to a half-century ago, when only 15 percent of new jobs required some amount of college. Yet, at a time when higher education has never been more important, in a very real sense it has never been more difficult for many families to afford. Over the past two decades or so, the cost of attaining a college degree has risen at approximately twice the rate of inflation. That is a staggering fact that has imposed a staggering burden on lower- and middle-income families in our nation. Today, the average cost of attending a public university is about $13,000 per year. The average cost of attending a private university is more than double that -- $30,000 per year, with some schools costing as much as $50,000 per year….

 

During that same period of time, the federal government’s commitment to student financial aid has waned in relation to the rising cost of a college diploma. Federal aid in the form of grants and federal loans has failed miserably to keep up with rising costs. By some estimates, the national gap between the cost of tuition and available aid is approximately $120 billion – and growing. This college affordability gap leaves many would-be students with few options: to give up their dream of pursuing a higher education degree; to rely on their parents for financing their educational expenses; or to seek out alternative sources of financing their higher education – primarily through the form of private educational and “direct-to-consumer” loans.

 

…

 

SEN. CASEY: The growth in the private student loan market has been a product of two regrettable trends – the rapid increase in the cost of education, and the failure of federal student loan programs to meet the needs of students who have had to find ways to finance their education. The fact is that federal policy and institutions of higher education have created a vacuum, and the private sector has helped to fill that void. That is a good thing, but it has had some negative consequences.

 

More and more students are forced to rely heavily on private loans to finance their education, leaving them faced with enormous debt at high interest rates.

 

SEN. DODD: Unlike federal student loans, private loans are not guaranteed by the federal government, and while guaranteed student loans carry a rate of no more than 6.8 percent, there are no limits on the interest rates and fees private lenders can charge. Some have variable rates of up to 20 percent.

 

Generally, the underwriting for private education loans is similar to that used for other forms of consumer credit. That means that student borrowers, who usually have little to no credit history, poor credit scores, or no parental co-signer or whose parents have a poor credit history, will typically pay higher rates than those with a good credit history or those with a parental co-signer with good credit history. In some regards, this model runs counter to the longstanding federal purpose of student aid – targeting low-cost financial assistance to students with the greatest needs and those from the humblest of backgrounds….

 

The private student loan market is growing at an astronomical rate – by 1,200 percent over the past decade – and private student loans are projected to overtake federal educational loans as the largest percentage of student lending within the next decade.

 

We have an obligation in this Committee to ensure that this market is functioning effectively and efficiently – for lenders and borrowers alike. We must act –including legislatively if need be – to ensure that young people of this country have an opportunity to rise as high as their talents will take them. And we must not allow young, unsophisticated borrowers and their families to be subjected to practices that deny them the ability to obtain credit on fair, transparent and reasonable terms. Otherwise, countless students will suffer serious and irreversible harm to their financial futures – and our nation’s economic and social future will suffer, as well.

 

…

 

ANDREW M. CUOMO, ATTORNEY GENERAL, STATE OF NEW YORK: The amount of federally insured loans each student and parent may take out has, like grants and scholarships, not kept up with the increasing costs of higher education. This has pushed students and parents into less favorable private loans. Private loans are the fastest growing segment of the student loan industry and have become the most fertile ground for unscrupulous practices. In spite of the large number of students and families affected by the student loan industry, the procedures of applying for and receiving loans are enormously complex and confusing. This is especially so for private loans. Because private loan rates are not set by Congress and pricing is generally unregulated, the complex array of private loan products is, to say the least, dizzying. Private loans are the Wild West of the student loan industry.

 

…

 

Jonathan Avidan, Consumer: My name is Jonathan Avidan, I am 25 years old, recently married and living in Langhorne, Pennsylvania. I attended Boston University and graduated in May 2004 with a Bachelors Degree in Business Administration. I work for Calle Financial Network, an investment advisory business, as its Director of Operations.

 

My parents, like the majority of middle class Americans, struggled with the enormous challenge of spiraling college costs during my first two years at Boston University. Prior to my junior year, they told me they could not afford to pay my tuition anymore. I was faced with a grim choice – go home and enroll in my local community college, or stay at Boston University. I wish I knew at the time that the choice to stay would be the most expensive decision of my life.

 

I was able to borrow $18,000 of federal loans at a fixed 3.0 percent, but this only covered a fraction of school costs. I would be forced to find the vast majority of funds through private loans - over $60,000 for the remaining two years. I have been making payments every month for the past two years, but the balance has managed to increase to $69,000.

 

I was told up front that the original 6.36 percent variable interest rate was capped at 10.0 percent and that it was tied to the prime rate. How many 20 year olds know what that really means? The truth was the variable rate was not capped. In fact, the rate was the current LIBOR rate plus a margin of 4.85 percent. The 4.85 percent was derived, at the time, from my parent’s credit score, and our combined credit-worthiness. I cannot believe that the original terms of the promissory notes could not be reevaluated after five years.

 

Then, I was 20 years old and I had no credit history or income. Now, I am 25, with a flawless credit history and a credit score over 720 points. I deserve a better margin now than I did five years ago. Currently the rate is 9.92 percent.

 

Right now, despite generous and timely raises and my wife’s income, we are hard pressed to keep up with the combination of rate increases and graduated payments. My private student loan payments, $250 when I first graduated, have gone up over 200 percent in the last 24 months. Currently, I am paying $600 a month. By April 2009, my payment will be approximately $1000/month. I won’t begin to reduce the principal for another two years and my expected payoff date is November 2024. When it’s all over and I paid off my debt to these lenders, I will have paid back close to triple the amount that I borrowed.

 

An investigation by the Attorney General of New York has uncovered deceptive and illegal practices in the student loan industry, with the most egregious practices in the private loan industry.

 

ATTY. GEN. CUOMO: Over the last few months my office has conducted an investigation into the student loan industry. During the course of this investigation, we have uncovered several significant, deceptive, and illegal practices. Unfortunately, these practices are widespread throughout the country and throughout the many segments of the industry, including the lucrative private or alternative loan market. These practices have affected hundreds of thousands of student borrowers and their parents….

 

Faced with the broad array of choices, parents and students often seek advice from school financial aid offices. Students quite reasonably trust that the institutions will give them unbiased guidance as to how to best finance their education. In response, many institutions of higher education have created lists of recommended lenders. In some instances, these “preferred lender lists”contain dozens of lenders that meet certain minimal requirements. In other cases, educational institutions use the lists to recommend a handful of lenders, or even a single lender, as “preferred.” The benefits to the lenders of being included on these lists are considerable.

 

Lenders on preferred lender lists typically receive up to 90 percent of the loans borrowed by the institutions’ students and parents. With this loan volume come vast profits for included lenders. Unfortunately, we have found that lenders have often corrupted these preferred lender lists by paying schools to put them on the lists, even if they are not the best for students. The best interests of the lender and the institution, rather than the interests of the student, all too often have become paramount….

 

What I believe to be the most egregious practice that we have uncovered so far is a form of kick-back scheme often referred to as “revenue sharing.” Revenue sharing is an arrangement under which a lender pays an institution of higher education a percentage of the principal of each loan taken out by a borrower at the institution. I note that, so far, we have uncovered revenue sharing only with respect to private loans. Private loans have fostered these types of agreements because Department of Education regulations preventing lenders from providing inducements to colleges have not applied to non-federally guaranteed loans. And the federal banking regulators have taken no action with respect to these arrangements.

 

The practice of revenue sharing creates a potential conflict of interest on the part of the institutions of higher education. When and if the institutions direct students to lenders, the direction should be based solely on the best interests of the student and parents who may take out loans from the lenders. Because of these revenue sharing arrangements, however, the institutions have a financial interest in the student or parents selecting the revenue sharing lender, regardless of whether that lender offers the best rates and service for that borrower. The advice the students and parents sought from a trusted source may not be so impartial after all….

 

Our investigation has uncovered potential conflicts of interest created by financial aid administrators who have held stock in a private lender, having been encouraged to purchase the stock by one of the lender’s executives. In other cases, financial aid administrators have received payment for consulting with lenders. In several of these cases, the implicated lenders succeeded in getting themselves placed on the implicated administrators’ schools’ preferred lender lists.

 

A witness testified that private education loans are already heavily regulated.

 

Barry W. Goulding, Senior Vice President, Sallie Mae: The market for private education loans is heavily regulated. In fact, some might argue that a private education loan is more heavily regulated than the federal student loan marketplace. For example, as consumer finance instruments, private loans are made by regulated banks, over which, as this Committee knows, there is significant oversight and monitoring. And, unlike federal student loans, the federal Truth-In-Lending Actapplies to private education loans. In addition, the Equal Credit Opportunity Act, the Fair Credit Reporting Act and other federal and state lending and consumer protection laws govern private education loans.

 

Witnesses called for Congress to act to reform the student loan industry.

 

ATTY. GEN. CUOMO: But, to most effectively reform the student loan industry - and to restore most fully the broken trust between universities and lenders on the one hand and students on the other - legislation is necessary so that these types of reforms come to all lenders and schools. I respectfully submit that it is crucial that Congress act promptly to end the conflicts, perks and revenue sharing that have been costing our students dearly. I ask you to move quickly to ensure that, as another group of high schools students look toward beginning their college educations this fall, we have reform in place that will keep the students’ interests paramount….

 

Part of the reason the practices we have uncovered have been able to flourish nationwide over the past several years is because private loans have been growing at break-neck speed and regulation and oversight of these loans has been lacking. The federal banking regulators, for example, have failed to aggressively protect student lenders. Additionally, despite being aware of the problems, the Department of Education has neither sought authority to stem abuses in the private loan market nor has the Department of Education referred the matter to the banking regulators.

 

…

 

Jennifer Pae, President, United States Student Association: In the best interest of our nation and our economy, these issues must be addressed now to protect vulnerable student borrowers. As an immediate concern related to private loans, the focus should be to reduce the need to rely on private loans for financing college, ensure that private loan borrowing that does occur is affordable, and mandate that clear and accurate information is presented to student borrowers to allow them to make responsible educational financing decisions. We also urge Congress to adopt legislative solutions proposed by The Project on Student Debt. These solutions include:

 

·Treat private student loans like other consumer debt in bankruptcy [;]

·Clearly label private student loans as different from federal loans [;]

·Make it easier to compare private student loans [;]

·Protect borrowers who are harmed by conflicts of interest or fraud [; and]

·Require private lenders to disclose in plain English the rates, terms, and conditions of private loans when the student or parent receives approval[.]

 

 

 

 

General Lute would be tasked with duties that should have been carried out by the Bush Administration over the past several years.

 

SEN. REED: My sense if, you step back, your appointment represents a devastating critique of the national security apparatus of this White House, because all you're being asked to do was what Mr. Hadley and Dr. Rice were supposed to be doing for the last several years: identify problems, coordinate resources, bring them to the attention of the President, get presidential direction. And that has been abysmal. And I think also, too, I'm afraid that your position will be someone who's there to take the blame, but to not really have the kind of access to the President and the resources you need to do the job. I presume you will be reporting to Mr. Hadley?

 

LIEUTENANT GENERAL DOUGLAS E. LUTE, U.S. ARMY: No, sir. I'll be reporting to the President and coordinating with Mr. Hadley.

 

SEN. REED: And Mr. Hadley will be reporting to the President independently?

 

LT. GEN. LUTE: On matters outside of Iraq and Afghanistan, yes, sir.

 

SEN. REED: That I find interesting. I mean, frankly, Afghanistan, Iraq, and, related to that, Iran, are the most critical foreign policy problems we face. And the National Security Adviser to the United States has taken his hands off that and given it to you? Is that your understanding?

 

LT. GEN. LUTE: Sir, that's the design, yes.

 

…

 

SEN. LEVIN: Let me just clarify one thing – and your answer is so critically important here: Is there a written description of your job which states what you have just said to Senator Reed, that you are going to report to the President on Afghanistan, on Iraq, and that Hadley does not have that any longer in his portfolio? Is that in your written description?

 

LT. GEN. LUTE: It is, sir. The best written description is perhaps the response to the first policy question, which is an extract of the job description itself.

 

SEN. LEVIN: But it excludes Hadley reporting?

 

LT. GEN. LUTE: No, sir.

 

SEN. LEVIN: You have the exclusive – you got that chunk of his portfolio.

 

LT. GEN. LUTE: I believe that's right. It does not exclude him from also advising, but the responsibilities for advising for Iraq and Afghanistan, if confirmed, will be mine.

 

SEN. LEVIN: I agree with Senator Reed. I view that as an astounding indictment and a bifurcation of the national security job. Now there's two National Security Advisers to the President – one on Iraq and Afghanistan, and one on everything else. But despite all the relationship between Iraq and Afghanistan and everything else, I think that Senator Reed has put his finger on a very, very decisive point here. And I find it, with him, kind of astounding that that has been done.

 

General Lute acknowledged that the Iraqi government has made “very little progress” on political reconciliation, which he sees as key to improving the security situation in Iraq.

 

SEN. BAYH: We had a briefing in the intel world on Iraq last week. And I'd like to share with you the consensus view of the intelligence community and get your reaction to that. Their overall consensus was that the trend in Iraq is negative, that there are occasional bright spots – for example, some developments in Al Anbar province – but that those positive developments are within the context of an overall negative trend. Do you share that assessment?

 

LT. GEN. LUTE: I think, Senator, when you consider beyond simply the security setting – but also looking at the opportunities presented to the Iraqi government to make progress on important political and economic measures with the intent of reconciliation – that I share that at best the progress has been uneven.

 

…

 

SEN. BAYH: …do you share the intelligence community's assessment that the political steps toward reconciliation are likely to be marginal at best through the end of this calendar year?

 

LT. GEN. LUTE: Senator, my assessment would be that they have a very full agenda and have shown, so far, very little progress.

 

SEN. BAYH: We were also told that the state of the insurgency – the level of violence and that sort of thing – was in all likelihood going to be about where it is today a year from now. Do you have an opinion about that?

 

LT. GEN. LUTE: Senator, in the absence of the kind of political and economic steps that are before the Iraqi government now, if they don't make progress on those sorts of reconciliation measures, I'd share the view that we're not likely to see much difference in the security situation.

 

General Lute has concerns about the capacity of the Iraqi government to move forward with political reconciliation.

 

LT. GEN. LUTE: I believe that we have asserted leverage to the extent that the Iraqi government officials clearly understand that we're providing critical stability for them and critical security for them, especially in face of this five brigade plus-up in Baghdad proper. We're giving them a golden opportunity that they must seize to make progress on the political front. I don't think there's any doubt in the mind of any Iraqi politician that this is an opportunity they have to seize.

 

SEN. LEVIN: And should there be consequences if they don't seize it?

 

LT. GEN. LUTE: I accept that that might, in some views, increase the leverage on these Iraqi officials and it ought to be a dimension of future policy considerations.

 

SEN. LEVIN: When you say "in some views," is that your view?

 

LT. GEN. LUTE: Senator, only to the extent that – as I just indicated, I have reservations about just how much leverage we can apply on a system that is not very capable right now.

 

SEN. LEVIN: Is it your view that to some extent, at least, that the leverage may be useful?

 

LT. GEN. LUTE: Senator, I agree that it ought to be considered, that it may be useful.

 

General Lute believes that we must accelerate initiatives to transfer security responsibility to the Iraqis.

 

SEN. SESSIONS: [General Abizaid] always expressed concern – and I believe it was persuasive to me – that there was a danger in over-committing American troops in what could be perceived as an occupation mode and not a supportive role, a temporary action. Share your thoughts about that concern. Would you articulate the tension between using military force and being an occupation force?

 

LT. GEN. LUTE: Senator, I think this goes right to the heart of the question of are we in the lead or are the Iraqis in the lead and are we supporting. And I think at this point in this fight, increasingly, we need to take every opportunity to put the Iraqis in the lead across the security, governance, economic dimensions of this struggle. So if we fail to do that, and we retain the lead, I think there is a real risk that we'll be seen as occupiers.

 

General Lute does not believe that our commitment to Iraq should be open-ended.

 

SEN. LEVIN: Secretary Gates has said that the votes here in the Congress that set a timetable, while he doesn't agree with them, nonetheless perform a useful function in that they put pressure on the Iraqi leaders to recognize that there is a diminished congressional support for the President's policies and that the people have no longer – since at least November – supporting the policies as well.

 

Do you agree with Secretary Gates that there's a useful purpose to these votes, even though he disagrees with the substance of the amendment; that when Congress does pass amendments saying we'll begin to reduce troops as of a certain time, that that does have a useful aspect to it?

 

LT. GEN. LUTE: I think that the policy debate back here, first of all, is watched very carefully by the Iraqi officials. And I agree with Secretary Gates that it helps them draw the right conclusion, which is that our commitment to Iraq is not open-ended.

 

 

 

More than a problem of the past, the incidents of voter deception and intimidation during the 2006 general election illustrate the continued need for strong voting rights laws.

 

SEN. CARDIN: [Last year,] former Congressman Kweisi Mfume… ran against me for the Democratic nomination and lost. He subsequently endorsed me as the U.S. Senate nominee for the general election, as did Prince George’s County Executive Jack Johnson. They both are prominent African-Americans leaders in Maryland and appeared at several campaign events on my behalf as I prepared to face off against Lt. Governor Steele in the November general election.

Imagine my surprise then to discover on Election Day that the Republican campaigns for governor and senator in Maryland had distributed [the following literature:]

The title of the piece is “Ehrlich-Steele Democrats” and “Official Voter Guide.” The cover page prominently displays three African-American politicians: former Prince George’s County Executive Wayne Curry, former Congressman Mfume, and current Prince George’s County Executive Jack Johnson. Under their names is the statement “These are OUR choices,” implying that all 3 gentlemen had endorsed Mr. Ehrlich for governor and Mr. Steele for senator. That is false. Mr. Mfume and Mr. Johnson endorsed my candidacy over Mr. Steele for the Senate. The flyer concludes with a citation to the general election, on Tuesday, November 7, 2006, and legal authority lines (required under Maryland election law) noting that the literature was “paid and authorized” by both the Ehrlich and Steele campaigns.

This type of deceptive literature is despicable and outrageous. It is clearly designed to mislead African-American voters about prominent endorsements by well-respected politicians. Maryland voters have a legal right to vote and pick the candidate of their choice. I was also upset to read in the Washington Post that a Maryland Republican election worker guide for poll workers stated that their “most important duty as a poll worker is to challenge people” trying to vote. This election guide was rightfully denounced by civil rights groups as a voter suppression and intimidation effort.

 

…

 

JACK B. JOHNSON, COUNTY EXECUTIVE, PRINCE GEORGE’S COUNTY, MARYLAND: [On Election Day 2006,] I woke up and went to the polls early to gauge what was going on. I went to my polling place and saw someone I didn’t know handing out literature saying I was supporting the Republican candidate for United States Senate. The literature said “These are Our Choices.” On the cover was my photo, the leader of the Democratic Party in our county. The inference was totally false. The First Amendment protects speech, but not false statements such as these….

Rather than using my time to visit with voters and talk about issues of mutual concern affecting the county, I spent the entire day using all my energy to inform citizens that the literature was a hoax and that it was false and deceptive…. I have been a public servant for more than 20 years. I know the poll workers because they are my neighbors and activists I have worked with over the years. I did not know a single person distributing this literature….Many citizens told me they saw my face on the literature and voted accordingly.

 

…

 

DOUGLAS F. GANSLER, ATTORNEY GENERAL, STATE OF MARYLAND:[On Election Day 2006,] after voting at my home polling place, an elementary school in Chevy Chase, Maryland, in Montgomery County, I traveled to a polling place in Prince George’s County. There, I witnessed long lines snaking around the building, as voters, predominantly African-American, waited hours to cast their ballots. This stood in stark contrast to my own experience voting at a polling place that served a more affluent community, which took just a few minutes. Television cameras have recorded similar contrasting images in every recent election, across the country: poor and minority voters being subjected to greater obstacles than whites in neighboring jurisdictions. This is unacceptable in America in 2007.

 

…

 

JOHN TRASVIÑA, PRESIDENT AND GENERAL COUNSEL, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND (MALDEF): [On Election Day 2006 in Tucson, Arizona] Vigilantes, at least one of whom was armed, approached Latino voters casting their ballots at the 49th Precinct Polling Place in an apparent attempt to suppress the Latino vote in the congressional midterm elections. One man carried a camcorder, another held a clipboard, and a third wore a law enforcement emblem and a holstered gun as they approached Latino voters exclusively. The vigilantes asked Latino voters pointed questions about their political views, wrote down Latino voters’ personal information, and videotaped them as they went to cast their vote. The vigilantes’ website indicated that they were videotaping Latino voters in order to confirm that all Latino voters who participated in the election were properly registered to vote.

Also in 2006, approximately fourteen thousand Spanish-surname voters in Orange County, California received letters that utilized deceptive practices in an apparent attempt to suppress the Latino vote in the days leading up to the midterm congressional elections. These letters appeared on the letterhead of the California Coalition for Immigration Reform, a local anti-immigrant group notorious for its hostility to local immigrants and Latinos. They were signed by the fictitious “Sergio Ramirez” and contained numerous deceptive and intimidating statements.

First, the Orange County letter falsely advised prospective voters that immigrants who vote in federal elections are committing a crime that can result in incarceration and possible deportation. This is a false and deceptive statement: naturalized immigrants who are otherwise eligible to vote are free to vote in federal elections without fear of penalties (including but not limited to incarceration and/or deportation). Second, the letter stated that“the U.S. government is installing a new computerized system to verify names of all newly registered voters who participate in the elections in October and November…. Organizations against emigration will be able to request information from this new computerized system.” Again, the letter adopts an intimidating tone based upon false information in an apparent attempt to undermine voter confidence within the targeted group of voters. Finally, the letter stated that“[n]ot like in Mexico, here there is no benefit to voting.” This letter, representing a coordinated and extensive effort to suppress the Latino vote in the days leading up to a congressional election, has been traced to a candidate running for the congressional seat in the district in which the affected voters live….

 

Voters are frequently provided false information about the time, place and manner of elections. In Virginia, Colorado, New Mexico and Ohio, for example, registered voters have recently been misinformed about their registration status in the days leading up to the elections through phone calls claiming that their registration was cancelled and threatening arrest if they tried to vote. Additionally, voters in New Mexico received phone calls that provided incorrect information about the constituents’ voting place after the caller verified the voters’ names and addresses….

Additional evidence also exists of recent incidents in which voters were intentionally deceived about voting requirements. In Lake County, Ohio, for example, a fraudulent memo written on fake Board of Elections letterhead was sent to county residents informing them that registration obtained through Democratic Party and NAACP registration drives were invalid. In Charleston County, South Carolina, certain voters received deceptive letters purporting to be from the NAACP that threatened voters with arrest if they had outstanding parking tickets or unpaid child support. In Pittsburgh, Pennsylvania, flyers printed on county letterhead advertised the wrong election date, stating that the voting date had been changed to one day later than the actual voting date. Also, poll workers at precincts across the country have often provided incorrect information regarding the identification required to vote. While many of these incidents may have been honest mistakes that would not trigger penalties under S. 453, in several of these incidents poll workers explained that they imposed additional identification requirements in order to keep non-citizens from voting.

 

…

 

HILARY O. SHELTON, DIRECTOR, WASHINGTON BUREAU, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE (NAACP): In Ingham County, Michigan, a partisan poll challenger confronted every African American attempting to vote that day. There were no reports of any Caucasian voters even being questioned….

In Baltimore Maryland, misleading fliers were placed on cars in predominantly African American neighborhoods giving the wrong date for the upcoming Election Day.

In Virginia, registered voters received recorded (robotic) calls that falsely stated that the recipient of the call was registered in another state and would face criminal charges if they came to the polls to vote. It was also in Virginia that voters received phone calls stating that because they were such regular voters they could vote this time by telephone, by simply pressing a number at that time for the candidate of their choice. The call ended by repeating that they had now voted, and did not need to go to the polls. The disenfranchisement continues.

In all of these cases, a quick response to expose the lies that were told and provide corrected information to get legitimate voters to the polls in time to have their vote counted was clearly warranted. Unfortunately, nothing was done by the federal government to aid clearing-up these lies. It was therefore up to the local and national media, as well as advocacy groups, to scramble to try to undo the damage.

 

Minority voters across the country are being intentionally disenfranchised by campaign tactics that circumvent the Voting Rights Act of 1965.

 

SEN. CARDIN: After having served in elective office in Annapolis for 20 years and in Washington for 20 years, I understand that campaigns are a rough and tumble business. I expect that candidates will question and criticize my record and judgment, and voters ultimately have a right to choose their candidate. What goes beyond the pale, is when a campaign uses deceptive tactics to deliberately marginalize and disenfranchise minority voters. These tactics seem to deliberately target minority neighborhoods and are blatant attempts to reduce minority turnout….

 

It has been 137 years since Congress and the states ratified the Fifteenth Amendment to the Constitution in 1870, which states that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race [or] color…” The Amendment also gave Congress power to enforce the article by “appropriate legislation.”African-Americans suffered through nearly another 100 years of discrimination at the hands of Jim Crow laws and regulations, designed to make it difficult if not impossible for African-American to register to vote due to literacy tests, poll taxes, and outright harassment and violence. It took Congress and the states nearly another century until we adopted the Twenty-Fourth Amendment to the Constitution in 1964, which prohibited poll taxes or any tax on the right to vote. In 1965 Congress finally enacted the Voting Rights Act, which once and for all was supposed to prohibit discrimination against voters on the basis of race or color.

It is time for Congress to once again take action to stop the latest reprehensible tactics that are being used against African-American, Latino, and other minority voters to interfere with (a) their right to vote or (b) their right to vote for the candidate of their choice, as protected in the Voting Rights Act. These tactics undermine and corrode our very democracy and threaten the very integrity of our electoral process.

 

…

 

RICHARD BRIFFAULT, JOSEPH P. CHAMBERLAIN PROFESSOR OF LEGISLATION, COLUMBIA LAW SCHOOL: The dissemination of false statements concerning eligibility to vote can have the effect only of confusing the voter as to whether he or she is entitled to vote, again with the result of discouraging the voter from exercising his or her rights. The communication of false statements concerning endorsements can only undermine the ability of the voter to cast a ballot in accord with his or her political preferences….

 

To the extent that these communications are aimed at lower income groups, the less educated, or racial minorities, they will tend to systematically undermine the ability of the election to represent the views of the entire community.

 

…

 

MR. SHELTON: Specifically, vulnerable populations, such as racial and ethnic minorities, the disabled and/or the poor and senior citizens are often targeted by those perpetuating these deceptive practices.

To put it bluntly, it is now against the law to use official means to prevent whole communities of American citizens from casting a free and unfettered ballot. Yet there are still people and organizations in our country who are so afraid of the outcome of our democratic process that they must stoop to lies, duplicitous behavior and intimidation to try to keep certain segments of our community away from the voting booth.
 

The federal government must end voter intimidation and deceptive practices by implementing tough penalties for offenders, while providing voters with a trustworthy source for accurate information before they reach the polls.

 

SEN. SCHUMER: All too often, no one investigates these dirty tricks because it is not yet a federal crime to disenfranchise voters by deception. Congress must act without delay to give the Department of Justice both the tools and the incentive to investigate and punish acts of voter deception and intimidation….

This bill will impose meaningful penalties for deceptive practices, either through civil enforcement or through criminal punishment of up to 5 years imprisonment or $100,000 fine for deceptive practices. I am convinced that criminal penalties are appropriate for wrongdoing that strikes at the core of our democracy, and also that these penalties should be sufficient to deter violations.

This bill recognizes that voter disenfranchisement by deception is just as serious as voter intimidation, which has long been criminalized. And in cases of voter intimidation, our bill will increase the maximum criminal penalty from 1 year to 5 years in prison, commensurate with the seriousness of this crime….

With our bill, the Justice Department’s tools will not be limited to punishing wrongdoers after the fact. The Department will also have a responsibility to communicate corrected information in order to undo the damage caused by deceptive practices and to help voters reach the polls.

Any person can report deceptive practices to the Justice Department, and the bill contains important safeguards to ensure that the Department will assess these reports fairly and will take action swiftly when necessary.

 

…

 

MR. TRASVIÑA: If S. 453 had been in place during the 2006 election cycle, the deceptive practices of voter intimidation described above would have resulted in different outcomes…. [T]he Department of Justice [DOJ] would have been charged with conducting an investigation and prosecuting the offending parties if they engaged in intentional deceptive practices prohibited under the statute. Also, DOJ would have been required to enact corrective actions to counter any deceptive information that may have been disseminated by the vigilantes. Finally, MALDEF may engage in private litigation against the vigilantes in question as a result of their having violated Latino voters’ civil rights; our litigation options may have been strengthened by the private right of action included in S. 453 as introduced, which would provide additional legal bases for the private protection of protected voting rights.

The Orange County voter suppression letter described above also would have triggered federal action under the proposed Deceptive Practices and Voter Intimidation Prevention Act….

 

Instead, MALDEF worked with the California Secretary of State to distribute corrective action letters to all affected voters that contained the correct voter eligibility information. Had the Deceptive Practices and Voter Intimidation Prevention Act been in place at the time, affected voters could have expected the U.S. Attorney General to promptly implement corrective actions, quickly initiate and conclude an investigation, and prosecute individuals who improperly suppressed the vote using tactics barred under the Act…. Voters are still awaiting resolution, over seven months later, of a DOJ investigation of the matter.

 

Congress has the constitutional authority to regulate federal elections and a duty to protect the right to vote in free and fair elections.

 

MR. BRIFFAULT: The Constitution gives Congress broad authority to regulate federal elections and protect the rights of federal voters. The “time, place, and manner” clause of Article I, Section 4 specifically provides that power with respect to elections for Senators and Representatives. The Supreme Court has found in Article II an inherent Congressional power to act to “preserve the purity of presidential and vice presidential elections.” Burroughs & Cannon v. United States, 290 U.S. 534 (1934). Federal laws intended to prevent fraud, intimidation, and corruption in federal elections date back almost a century and a half to the years after the Civil War. More modern laws, such as the Voting Rights Act of 1965 and its amendments, the National Voter Registration Act of 1993, and the Help America Vote Act of 2002, continue to demonstrate federal power to protect voting rights in federal elections….

 

Moreover, S. 453 promotes the compelling governmental interest in electoral integrity. The Supreme Court has repeatedly indicated that the state may restrict even constitutionally protected speech when “protecting the right of its citizens to vote freely for the candidates of their choice.” Burson v. Freeman, 504 U.S. 191, 198 (1992). Congress has a “compelling interest in protecting voters from confusion and undue influence” and in “ensuring that an individual’s right to vote is not undermined by fraud in the election process.”…

 

S. 453 is a constitutionally legitimate addition to the arsenal of federal laws which operate to prevent fraud and intimidation, to protect the rights of voters, and to promote the integrity of federal elections. By prohibiting a narrowly defined set of communications that, by their nature, can have as their only intent the confusion of voters – deceiving some to vote against their political preferences, and leading others not to vote at all – S. 453 vindicates the right to vote and the ability of voters to make informed decisions. By protecting political participation and voter autonomy, S. 453 is not only consistent with the First Amendment, but it actually advances First Amendment values.

 

This bill protects First Amendment guarantees of free speech by narrowly targeting intentional falsehoods that are intended to prevent citizens from exercising their right to vote.

 

SEN. CARDIN: This legislation is narrowly tailored to apply to only a small category of communications that occur during the last 60 days before an election. Under our legislation the categories of the false and deceptive information cited above are only illegal if they are intentionally communicated by a person who: (1) knows such information to be false and (2) has the intent to prevent another person from exercising the right to vote in an election. This legislation properly respects the First Amendment’s guarantee of freedom of speech while recognizing the power of Congress to prohibit racially discriminatory tactics to be used in elections under the Fifteenth Amendment, Voting Rights Act, and the general power of Congress under Article I, Section 4 of the Constitution to regulate the “times, places, and manner” of federal elections.

This legislation creates tough new criminal and civil penalties for those who create and distribute this type of false and deceptive literature. The bill authorizes a process to distribute accurate information to voters who have been exposed to false and deceptive communications. The bill requires the Attorney General to submit to Congress a report compiling and detailing any allegations of false and deceptive election communications.

 

…

 

MR. BRIFFAULT: The Supreme Court has repeatedly held that the First Amendment simply does not protect intentionally false statements of fact…. By targeting very specific set of facts that deal primarily with the mechanics of an election, the bill would not affect the ability of any person to discuss the actions, statements, official decisions, voting record, policies, or personalities of any candidate.

 

…

 

SEN. SCHUMER: Let me also be clear about what this bill will not do. It will not criminalize honest mistakes. This bill only prohibits the deliberate lies that have no place in our democracy, and only when there is an intent to prevent a person from voting. Moreover, this legislation will not impede legitimate political speech. It is narrowly tailored and constitutionally sound, so those who are engaged in fair and open political debate will have nothing to fear under this bill.

DPC