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Public Statements

Marketplace Fairness Act of 2013

Floor Speech

Location: Washington, DC


Mr. KING. Mr. President, I rise today with some humility because I rise in the footsteps of one of Maine's greatest Senators, Olympia Snowe. I am fortunate enough to succeed her in this seat. In the midst of the campaign a year or so ago, I also realized I was not only succeeding Olympia Snowe but George Mitchell and Ed Muskie, who are two of the greatest legislators of the 20th century.

So it is with some trepidation to be standing on the shoulders of those great Members of this body.

Most speeches we hear in this Chamber are on a topic of the day--taxation, gun control, fairness of the marketplace--but I think in order to understand the issues we are debating, the issues coming before us on a continuous basis, we have to have some context. We have to look back to the history of this body and the history of the country.

My favorite quote from Mark Twain--and there are lots of them, but my favorite is: History doesn't always repeat itself, but it usually rhymes. And in this case I believe that is true.

Let's start with a very basic question: Why do we have government at all? Why are we here? Why do we have this grand edifice? Why do we have the rules and laws and this panoply of the Constitution?

Well, it is all about human nature. Unfortunately, part of human nature is conflict. Often it is conflict that is resolved by violence. Hobbes, the British philosopher, said: "Life is nasty, brutish, and short.''

A few years ago, Bill Moyers, whom I believe is one of the wisest living Americans, spoke at the graduation of one of my sons. I was at the graduation because I wanted to see what $100,000 looked like all in one place at one time. Now it would be $200,000. But Moyers had a very profound observation, and he talked about the propensity of people to be mean to each other, to resolve disputes by violence. He used a phrase that has stayed with me, and I think it is very profound: "Civilization,'' Moyers said, ``is an unnatural act.'' Civilization is an unnatural act. It takes work to maintain civilization from one generation to the next. The world around us today gives us evidence of this. All one has to do is open the paper: North Korea, the Middle East, and, Lord help us, the Boston Marathon or two little boys in a sandbox with one truck. Conflict is part of our human nature.

So the basic function, the basic necessity that brings forth any government throughout history is to provide security to our citizens, internal and external, and, of course, the Constitution says this in the Preamble: to ``ensure domestic tranquility''--that is Al Capone--and ``provide for the common defense''--that is Hitler or al-Qaida. But, then, the paradox is once we create a government, we are handing over power to other people, and there is always the danger the government itself will become abusive, and that has been true throughout human history.

The ancient Latin quote is, "Who will guard the guardians?'' Governments are about power--power we give up in order for governments to serve us. But, again, human nature raises its head. Lord Acton, the 19th century British philosopher, again had a very profound observation: ``Power corrupts, and absolute power corrupts absolutely.'' That is true of all people in all times and in all places. Power corrupts and absolute power corrupts absolutely.

So these two questions--why have a government and how do we control the government once we create it--encompasses all one needs to know about political science. Our Constitution is the best answer ever provided to these two questions. It is the best answer, and the Framers knew exactly what they were doing.

Madison, in the 51st Federalist--and I have to apologize to my female Senator friends because Madison only talked in terms of men, but when we hear ``men,'' we think ``men and women.'' He meant that, he just didn't say it. But in the 51st Federalist, here is what he said: ``If men were angels, no government would be necessary.'' We wouldn't need it. Then he said:

If angels were to govern men, neither external nor internal controls on the government would be necessary, either. In framing a government which is to be administered by men over men, however, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.

That is the whole deal. That is what the Constitution is all about. How did it do it? I think the best analogy for the U.S. Constitution is the homely Vegematic. Remember Billy Mays: It slices, it dices, it purees. The Constitution is the Vegematic of power. It slices and dices. It lays it out. It divides it between the people and the government, between the Federal Government and the States and the localities, and within the branches of the Federal Government. Power is separated, and that was the theory of the Framers; that this division of power--ambition combating ambition--was the structural solution to the danger of the government abusing its own people.

Then, finally, they weren't satisfied, and in the ratification of the Constitution was adopted the Bill of Rights. The Bill of Rights is nothing more than a sphere of protection around each of us as individuals that says even if the government follows all these arcane rules and all these Rube Goldberg procedures and a law comes out at the other end, if it violates free speech, it is no good. If it violates the right to bear arms, it isn't valid. If it violates people's right to be secure in their persons and possessions, it is off limits. So the Bill of Rights is the last sword, shield, and buckler that protects us from an abusive government.

The tension between effective government and controlling government has never been resolved in this society. Many of the arguments we are having now about gun control, the Federal budget, financial regulation, health care, climate change, and environmental policy are all manifestations of this age-old debate we keep having.

What I think is amazing is that the arguments and even the rhetoric--the words themselves--always seem to be about the same. On the Federalist side, we always hear about the necessity of national solutions to national problems, universal principles, appeals to fairness. On the other side, we hear allegations of tyranny, nullification, references to Jefferson's famous quote, that ``occasionally the tree of Liberty must be watered with the blood of Patriots and Tyrants.'' The 10th amendment, States rights, and hints of secession, the rhetoric is the same. In fact, the current divisions in this Congress between traditional Democrats and a Republican Party largely driven by the anti-Federalist sentiments of the tea party is at least the 10th time this same issue has arisen in American history.

The American Revolution itself, No. 1, was a populist revolt against concentrated power far away. Second, the drafting of the Constitution arose out of the weaknesses of the Articles of Confederation. Many of us--all of us--sort of feel this government has been what it is forever. For 7 or 8 years, between the end of the Revolution and the drafting of the Constitution, we were governed by something called the Articles of Confederation, which was too weak. It didn't concentrate power enough, and that gave rise to the Constitutional Convention in 1787.

Then, the ratification of the Constitution and the Bill of Rights was itself a manifestation of this argument--the argument that the wonderful terms "Federalist'' and ``anti-Federalist'' describe the division in the country which we are fighting over to this day. I think of Harry Reid and Dick Durbin as Hamilton and Adams and McConnell and Cornyn are the pre-1803 Jefferson and Madison. I say pre-1803 because Jefferson was the apostle of States rights, but he became President and somehow found in the Constitution the heretofore unknown right to buy Louisiana. We are glad he did.

The Alien and Sedition Acts of 1800, which were the PATRIOT Act of the day, passed by President John Adams to

get at what they thought were seditious activities in the country. Jefferson, when he was Vice President, secretly wrote a resolution for the Kentucky legislature saying that the Alien and Sedition Acts were null and void in Kentucky and were a violation of the constitutional principles.

The tariff of 1828, known as the Tariff of Abominations, was a tariff that protected northern manufacturers, but it prejudiced the South and, lo and behold, South Carolina wanted to nullify it and, in fact, in 1832 voted to do so. The nullification crisis of 1832 was only averted by the election of Andrew Jackson and a compromise tariff that was passed in 1834.

That is five times already.

This is an interesting one. The fugitive slave laws in 1850 were passed by the Federal Government and it says if a slave escaped into your State, even if it was a free State, your legal enforcement community had to cooperate and return the slave to its master. The Supreme Court of the State of Wisconsin in 1854 declared that law unconstitutional, void, and of null effect in the State of Wisconsin. Again, it was the tension between the power of the Federal Government to remedy national problems and the rights of the States and the people to make their own decisions.

Of course, tragically, the most dramatic manifestation of this was the Civil War, but the Civil War itself was about this very question. Wrapped up in States rights and slavery, it was a question of what are the powers of the Federal Government and what are the powers reserved to the States and to the people. We all know the tragedy of that event and what happened.

I think one of the most interesting results of the Civil War is a change in English usage of the term ``United States.'' Prior to the Civil War, people in the United States referred to the United States as a plural noun: the United States are; they are. The United States, they are doing this or that. In other words, they referred to themselves as a collective, as a group of States. After the Civil War, the usage which we have until today is that the United States is a singular noun, one country: It is. That is an amazing development. There was no law passed, but that showed how the people's view of what their country was all about changed.

In the early part of the last century, the New Deal and the two crises of depression and war--particularly the Great Depression--the issue then was fought out in the Supreme Court, and the U.S. Supreme Court at first said the New Deal laws were unconstitutional. They went too far. The commerce clause wouldn't stretch that far. Then, of course, there was a lot of politics and discussion. The case went back--I believe it was the ``sick chicken'' case--and the Supreme Court said: Well, maybe the commerce clause does stretch that far. Historians refer to that as ``the switch in time that saved nine.''

The civil rights movement was happening as I was growing up, and States rights was the rhetoric again. What are the powers that we have in this city versus the communities and the States.

Here we are, No. 10: The tea party and the urge to shrink government. The resistance to the Affordable Care Act. I was always surprised that summer when people were getting red in the face about a health care bill. It wasn't the health care bill; it was the perception that Washington was somehow taking over something that should have been left to them.

Gun control is a classic example which we were debating last week, and the irony and the difficulty of gun control is the problem is largely local and particularly in urban areas, but the solution is national because the guns being misused in urban areas come from all over the country. That is why, in my opinion, we need national legislation; at a minimum background checks and trafficking regulation. Regulation itself is an expression of governmental power, and it is resisted in many parts of the country.

Budgets--finally, budgets. I shouldn't say finally. My wife says I say ``finally'' too much and it gets people's hopes up. Budgets. A budget fundamentally reflects policy. It fundamentally reflects what we believe about ourselves and about the government. The budget passed by the House--the so-called Ryan budget--is a classic political document. I don't mean that in a negative sense. It espouses a philosophy of what this government should be.

It is one more step in this discussion.

I do not believe the Ryan budget is about debt and deficits. It is about shrinking government. That is what the policy is: to reduce the size of the government to a place where it is much smaller.

Federal spending is not out of control. Nondefense discretionary spending today is the lowest it has been in 50 years. Defense is about the same. What is out of control is all of our spending on health care. That is what is driving the Federal deficit. It is not about debt and deficits, it is about shrinking government.

So where does this leave us? An interesting history lesson.

I hope something more.

First, I think it provides us with a way of understanding what separates us. If we understand what is going on here in this Chamber, I think it helps us.

Second, I think it is important, for me anyway, to believe there is no right answer to this question. There is no right answer. It cannot be all one or the other. Neither side has exactly the right response. We should not be an uncontrolled, central government, and we should not be a government that is so dispersed that we cannot do anything. The tension is hard-wired into our system, but I think it helps us find balanced policy.

We need a national government--we need a strong national government--for the same reasons as in 1789: to solve national problems, problems that cannot be solved at the local level either because of the scope of the problem itself--global terrorism: I am sorry, the Brunswick Police Department cannot deal with all the terrorism--or because piecemeal solutions will not work. Environmental protection has to be done locally, but it also has to be done nationally. Air moves. Polluted water moves.

Or immigration. It has to be a national solution.

I am sorry, but strangling government in the bathtub is even less feasible today than it was in 1789.

Gridlock, which is, if you think about it, gridlock is total victory for the anti-Federalists. Gridlock is not the answer. The Framers knew the government had to work. It may be slow and cumbersome, but, ultimately, it had to be functional. Madison recognized this, and so did the preamble: ``to form a more perfect Union''--"a more perfect Union''--than that which had been formed by the Articles of Confederation.

On the other hand, on the other side of this argument, though, Federal solutions all the time are not the answer either.

There is a grave danger that we all face because our job here is making laws; and the problem is, if the only tool you have is a hammer, every problem looks like a nail. If the only tool we have is laws, then we are inclined to try to solve every problem. I believe States rights are important. I think States have an important role to play in our system, and I think they are the best places to solve a lot of the issues that are facing our country.

One of them is education. I remember sitting at home and watching the debate between George W. Bush and Al Gore in 2000, and they were arguing what size the classroom should be and how big the school should be, and I turned to my wife Mary and said: These guys think they are running for superintendent of schools.

This is not a Federal issue. The Federal Government has a responsibility in education: to fund, to do research, and to help, but not to guide.

Overreaching regulation, in my view, is a problem. I believe in structural solutions. I was not a Member of this body, but had I been, I suspect I would have opposed Dodd-Frank and supported the restoration of the Glass-Steagall Act. I think that is a structural solution because regulatory solutions always end up being burdensome.

A friend of mine in Maine sent me a picture of him sitting next to a stack this high of regulations at a community bank as a result of Dodd-Frank that they are going to have to abide by. This is a community bank. Bangor Savings Bank did not cause the financial crisis of 2008, yet they are having to bear the burden of these regulations, which are expensive, which are drying up credit for their customers, and which I do not believe are going to contribute to a solution.

Another point on this, on the anti-Federalist side, is that deficits do matter. Deficits do matter. We cannot continue to burden our children with the costs of government.

In a hypercompetitive world, it seems to me that every tax dollar counts and every regulation must be smart and minimally intrusive. This is a new world we are in. We are competing not just with companies around this country but with companies all over the world, and they want our jobs.

Understanding these differences and this age-old argument, we have to understand that we cannot be enthralled to this debate. We cannot be locked into it. But we do have national challenges. They have to be met with national solutions. Challenges such as cyber threats, research, infrastructure, gun crime, terrorism--and, Boston, by the way, is an example of coordination between levels of government that I think worked very effectively.

Our failure to act is a disservice to those who built what we have inherited. Calls to cut government spending are fine, but they must be matched with specifics. You cannot just talk about government spending and not talk about FAA towers or our intelligence community or our defense capability.

We have to understand that each generation must meet its own challenges and redefine this question with its eyes open to practical effects, without blinders on of absolutism or ideology.

As I look back on history, the great accomplishments of the body, the great accomplishments of this government, have rarely if ever been victories for one side or the other. Instead, they have been based upon hard-fought battles and grudging compromise, recognition of national needs along with local interests, and a willingness to honor our most basic charge: to form a more perfect union.

I hope in a small way to contribute to this, to contribute to the search for solutions that are practical and effective. I am caucusing with the Democrats, but I agree with Enzi and Alexander on the Marketplace Fairness Act. I agree with Enzi and Alexander on the Marketplace Fairness Act, but with Blumenthal and Kaine on guns. I agree with Blumenthal and Kaine on guns, but I agree with Coburn on duplication and regulation. And I agree with Coburn on duplication and regulation, but I agree with Murray on the budget.

We face serious challenges--defense, budget, and constantly changing circumstances. We live in a time of accelerated change.

Almost exactly 150 years ago, our greatest President sent a message to Congress in the midst of the greatest crisis this country has ever faced. His message was about change and about how to deal with change and was to try to shake Congress out of the lethargy of politics as usual because we were in the midst of the Civil War.

I cannot argue that the crises we face today collectively or individually equal the Civil War, but they are pretty serious. I have been in hearings in the last 2 weeks in the Intelligence Committee and the Armed Services Committee, and every single one of the top professionals in both defense and intelligence have said this is the most dangerous and complicated period they have experienced in their 35, 40, or 50 years in this business. So we are facing some serious challenges.

I want to share with you what I believe is the most profound observation about how we deal with change that I have ever encountered. December 2, 1862, President Lincoln sent the message, and here is how it ended. Here is what Abraham Lincoln said:

The dogmas of the quiet past, are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise--with the occasion. As our case is new, so we must think anew, and act anew.

And here is the key line:

We must disenthrall ourselves, and then we shall save our country.

We must disenthrall ourselves, think in new and different ways, and then we shall save our country.

Thank you, Mr. President.


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