[Congressional Record Volume 148, Number 80 (Monday, June 17, 2002)]
[Senate]
[Pages S5624-S5627]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                  TERRORISM RISK INSURANCE ACT OF 2002

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
now resume consideration of S. 2600, which the clerk will report.

  The assistant legislative clerk read as follows:

       A bill (S. 2600) to ensure the continued financial capacity 
     of insurers to provide coverage for risks from terrorism.

  Pending:

       Brownback amendment No. 3843, to prohibit the patentability 
     of human organisms.
       Ensign amendment No. 3844 (to amendment No. 3843), to 
     prohibit the patentability of human organisms.

  The PRESIDENT pro tempore. What is the will of the Senate?
  The Senator from Kansas, Mr. Brownback.


                           Amendment No. 3843

  Mr. BROWNBACK. Mr. President, I thank the Senator from Nevada for 
bringing up the issues. They are important ones before the country.
  We are on the terrorism reinsurance bill, an amendment I have pending 
on this bill. The amendment I have pending has to deal with the issue 
of whether you can patent a human embryo, patent a person, whether you 
can patent a clone. I regret we are considering this amendment in this 
way. It was my hope that we would be able to have a set amount of time 
on the floor to be able to openly debate the overall issue of human 
cloning. I was hopeful we would be able to have that debate in February 
or March of this year, but things came up, apparently, and we were not 
able to take this debate forward.
  I am left with the only recourse I have as a Member of this body, and 
that is presenting amendments to the body to consider the issue of 
whether or not we should proceed forward with the issue of human 
cloning, which is proceeding forward in America today. I think the wise 
course of action at this time is for us, overall, to have a moratorium 
on human cloning of all types for a 2-year time period. This will 
enable us to sort out what people really think and where this science 
would take us. I would favor a ban on human cloning, in order that we 
would not create human beings just for research purposes or for spare 
parts. But those issues will be left, perhaps, to address later this 
year.

  For now, we have a narrow issue before the body, and that is whether 
or not human clones should be allowed to be patented. The Patent Office 
has issued a statement that it believes they should not grant patents 
on human clones, that this is a violation of the 13th amendment to the 
Constitution on slavery.
  The Patent and Trademark Office has a longstanding policy of not 
permitting patents on people. Within the past year, they have awarded a 
patent to the University of Missouri on the process of human cloning, 
as well as what is referred to as the products of that process.
  It is clear that while the Patent and Trademark Office has an 
announced policy and, in view of recent patents that have been issued, 
as well as the fate of some of the patents that are currently pending, 
that the Congress should codify the view of the PTO in order to remove 
any ambiguity. We need to make it clear to the Patent Office that a 
human embryo created by a cloning process is a person, not a piece of 
property, not livestock that can be owned, and therefore should not be 
allowed to be patented. But there is a rub here because the Patent 
Office is being asked to issue these patents on people. They are 
saying, no, we should not grant these. A number of lawyers are 
challenging that and saying: What is a human clone? What is the young 
human embryo. They are stating: It is not a person, it is a piece of 
property; therefore, we can patent this. That is why we want to have 
clarity coming out of the Congress--a clear determination that you 
cannot patent a person. That should be illegal and should back up the 
position of the Patent and Trademarks Office.
  We all know this debate is really about the future of humanity. It is 
moving at a very rapid rate. Just a few years ago, the debate was over 
whether or not the Federal Government should subsidize the destruction 
of embryos for the purpose of harvesting their inner-cell mass. That 
debate was over the disposition of human embryos already in existence.
  Then the debate moved to whether or not embryos can be specifically 
created for their destruction. Human cloning--and whether or not we 
should utilize some of the most recent developments in the field of 
science--to create embryos for research purposes has been one of the 
latest debates. The next debate will be the issue of whether or not we 
can take outside genetic material and put it into the human species to 
the point where it can be reproduced in future generations of humans--
where one generation of humans would decide the future of following 
generations. That is called germ line manipulation, and that will be up 
next.
  This involves the issue of slavery again. It is a debate about 
whether or not individuals, and whether or not corporate America, can 
in fact patent and therefore control the destiny of a group of humans.
  It is clear, as several have already commented, that the patenting of 
people could very well lead to a commercial eugenics movement--where 
people and traits are bought and sold by those in a position of power 
and authority.
  The time will come--if this is allowed to continue--where human 
attributes are determined by a parents' pocketbook perhaps, rather than 
nature.

  Human cloning tampers with nature in a very significant way. Now what 
some in the corporate world want to do is start trafficking in human 
embryos--creating human embryo farms where embryos are mass produced on 
assembly lines by specific specifications and harvested for parts.
  These corporate interests are now trying to begin patenting the 
people they produce. As my colleagues are well aware, the University of 
Missouri has already been granted a patent on the human cloning 
process.
  The time for clarity is now. This disturbing bioindustrialization of 
life is continuing as I speak on the Senate floor. This debate is no 
longer about yet another step down the path toward a brave new world; 
it is, as the commentator Charles Krauthammer put it, ``downhill 
skiing.'' It is not just a step, it is downhill skiing. We need to stop 
it now.
  By denying private companies the ability to patent a human person, 
and barring them from patenting the process of human cloning, we will 
be sending a very clear message that it is unacceptable to turn people 
into property and then buy and sell them as if they were commodities.
  We should not allow corporate America to traffic in human embryos. By 
preventing the patenting of people, we will be stopping this practice.
  My amendment makes clear that it is not acceptable to patent people 
and not acceptable to patent the process of human cloning for the 
purpose and process of making people.
  This is a very important issue--one that demands our immediate 
attention. I urge my colleagues to vote against cloture on the 
terrorism reinsurance bill so that we can have our debate on the 
emerging biotech sector that I have mentioned.
  I want to address a couple of other issues. I have a letter I want to 
put forward for Members of the body to consider. It is from the 
President of the Biotechnology Industry Organization on the issue of 
patenting people and of embryos, Carl Feldbaum. He was writing to an 
individual and stated their organization's opposition to the patenting 
of human embryos.
  He states this:

       Thank you for your thoughtful letter, which posed 
     reasonable, provocative questions. With regard to the primary 
     question you raised, BIO opposes patents on cloned human 
     embryos. Many issues surrounding the research remain to be 
     resolved, but on that matter our position is decided.

  That is from Carl Feldbaum, President of Biotechnology Industry 
Organization, the lead organization for biotechnology, which is opposed 
to the patenting of people.
  I ask unanimous consent that this letter be printed in the Record at 
the end of my statement.
  (See exhibit 1.)
  Mr. BROWNBACK. Mr. President, I urge Members to look at this. Here is 
the lead organization in the country that one might think is probably 
most in favor of patenting clones; yet they state they are opposed to 
it.

[[Page S5625]]

  By passing this amendment to ban the patenting of human clones, it 
does not ban, does not stop, does not even slow down the issue of human 
cloning. That will proceed. The research is allowed. I don't think it 
should be. I think we should join the House and the President in 
calling for an end to human cloning. This body has not done that. But 
this amendment does not address that issue. The only issue in front of 
the body in this amendment is whether or not the Patent Office will be 
allowed to patent human embryos and human clones. That is the only 
issue involved in this amendment--whether or not that patenting will 
occur.

  If my amendment passes, we will say: Patent Office, do not allow 
patents of human clones or embryos, but if people want to continue 
research on human clones, they can do so. If they want to continue to 
develop human clones, they can do so. I don't think it is wise or the 
right thing. I think it should stop, but that is not involved in this 
amendment. This is strictly about the issue of whether patents can be 
issued on a human clone. In that sense, it is a very clear issue of the 
division of what do you think a clone is? A person or property? In our 
jurisprudence system, it is one or the other--a person or a piece of 
property. If it is a piece of property, it can be patented. If it is a 
person, it cannot. That is against the 13th amendment to the 
Constitution on antislavery. If it is property, it can be patented.
  So it really goes to your fundamental view of how you view young 
life, the human embryo. Is it a person on the continuum of life, or is 
it a piece of property to be disposed of as its master chooses? Which 
is it? That is the issue in front of this body--whether this young 
human at this stage, if it were nurtured to grow into a full birth, 
full human, by anybody's definition, is considered a person or 
property.
  Now, some arguments were put forward last week on what this would do 
in the field of human cloning. Again, I state to my colleagues that it 
is not going to ban human cloning. This would simply limit the 
patenting process of human clones, and this is something that the 
Patent Office seeks clarifying authority on as well.
  For those reasons, I urge my colleagues to support this amendment, to 
not support the cloture motion on terrorism reinsurance. This is the 
only vehicle we have open to us to be able to get these important and 
vital issues in front of the body.
  We would like to get a clear up-or-down vote on this issue, and this 
is what we need to do to get that vote before the body. I hope my 
colleagues will study this carefully and realize what they are and are 
not voting on with this particular motion.


                             Cloture Motion

  Mr. BROWNBACK. Mr. President, I send a cloture motion to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the Brownback 
     amendment No. 3843:
         Jon Kyl, Jeff Sessions, Don Nickles, Jim Inhofe, John 
           Ensign, Rick Santorum, Michael B. Enzi, Bob Smith, 
           Chuck Hagel, Mitch McConnell, Tim Hutchinson, George 
           Allen, Peter Fitzgerald, Trent Lott, Sam Brownback, 
           Larry E. Craig.

  The PRESIDENT pro tempore. The Senator from Kansas, Mr. Brownback.
  Mr. BROWNBACK. Mr. President, I admit filing a cloture motion is a 
very strong statement to make. However, I believe I have been very 
patient. The Senate has a responsibility to begin addressing this very 
important issue. It started last fall. We thought we were going to get 
it addressed in the February-March timeframe, and now we are in June.
  My cloture motion is meant to ensure that if the majority leader 
fails to invoke cloture on the underlying bill, we will then get a vote 
on this amendment of patenting people. The Senate needs to begin voting 
on these issues, and I am going to begin trying to get votes on my 
amendment as we go along the process.
  I was a little surprised last week to see that the Senate majority 
leader filed a cloture motion on the terrorism insurance bill so 
quickly--another parliamentary move to close debate on this very 
important issue of human patenting. I had hoped we could have had a 
fair debate and vote on my amendment. Unfortunately, the leadership is 
trying to prevent my amendment coming to a vote. Therefore, in the 
event the majority leader fails to invoke cloture on the underlying 
bill tomorrow, I am going to get a vote on my amendment, and that is 
what I seek.
  This should be a clear issue for people to decide where they stand on 
the issue of patenting of human clones and human embryos. That is why I 
filed this cloture motion.
  Mr. President, I yield the floor.
  The PRESIDENT pro tempore. What is the will of the Senate?
  The Senator from Nevada, Mr. Reid.
  Mr. REID. Mr. President, there has been some discussion as to why the 
majority leader filed a motion to invoke cloture. Remember, last week 
we finished work on a bill and were asked by those who said they 
favored a discussion and favored the antiterrorism legislation to go to 
it on Wednesday, and they said: Give us an extra day. Of course, the 
extra day did not mean anything. Basically, there were no amendments 
filed. One amendment was filed, and we waited and waited. Then Friday 
was the same.
  We have a lot of work to do. As the President pro tempore knows, we 
have all the appropriations bills to do. They are going to have to be 
done in a very condensed period of time. As soon as we get some 
numbers, all the subcommittee chairs in the Senate will be anxious to 
proceed.
  Again, as the Presiding Officer knows, we tried very hard when we 
were doing the supplemental appropriations bill to get some numbers, 
complete it, have it a part of that legislation, but people objected. 
That is too bad because we could this week be marking up some 
appropriations bills.
  In the Senate, we have a finite amount of time to do an infinite 
number of items. I certainly support the majority leader filing a 
motion to invoke cloture, and in the future, when people are not 
serious about offering amendments to legislation, then he should do so 
again.
  We have been very patient waiting for people to file amendments on 
legislation. We just cannot stand around in quorum calls all day and 
then deal with amendments that have nothing to do with the basic 
legislation that the whole country says is important.
  I understand the seriousness of the Senator from Kansas. He believes 
very deeply in what he is trying to do. I admire his conviction. But 
others have different convictions and feel just as strongly. The 
Senator will have other opportunities to move this issue. Also, the 
majority leader lived up to his commitment to the Senator from Kansas. 
He said he would make sure there was an opportunity to bring this up.
  A unanimous consent request was offered. The only thing wrong with it 
was who got to vote last. The Senator from Kansas, for reasons he 
believes are important, would not agree to the unanimous consent 
request because he did not get the last vote. As a result of that, we 
are in the posture of these issues being brought up on unrelated 
legislation.
  I think the best thing to do is to bring up a freestanding bill and 
deal with the issues he believes are important. It can be debated on 
both sides. It would be a clean way to do it. Everyone realizes--the 
Banking Committee is dealing with terrorism insurance legislation--no 
matter what happens, something dealing with cloning is not going to 
stay in conference. It is a banking bill. We would be better off with a 
freestanding bill.
  I personally do not understand why my friend, the distinguished 
senior Senator from Kansas, would not accept the unanimous consent 
request, but that is a decision he made. I still underscore the fact 
that he has a right to do what he is doing, and the majority leader has 
a right to do what he is doing to terminate debate on this bill which I 
am confident and hopeful will happen in the morning.
  Mr. BROWNBACK. Mr. President, I would like to respond to the Senator 
from Nevada. I have a great deal of respect for Senator Reid and for 
what he is doing. There was a unanimous consent request propounded 
before, and I

[[Page S5626]]

agreed not to amend the basic bill on cloning. We had it agreed to with 
no amendments. I have a series of four or five amendments. This was not 
going to be an open debate about the issue. This was going to be two 
cloture motion votes at the end. There were to be no amendments, which 
I thought was a relinquishing of my rights, and we would just do two 
cloture motion votes. The order of the cloture motions became very 
important.
  If we are going to have two votes on a very big issue, the last one 
is going to be the one that would have the most possibility. Most 
Members of the body believe we should be doing something on cloning. If 
the first one does not get 60, it is highly likely the second one will 
be in a better position because a number of Members of the body may 
say, I am with you on this because something needs to be done on 
cloning, and would peel over and vote for the second cloture motion.
  I gave up a lot of ground and rights by agreeing to a tight timeframe 
and only two votes on arguably one of the biggest bioethical issues of 
our era. When we were not given a better position in the vote, it 
looked to me that the process was set to come up with a certain 
outcome. I cannot agree to that, not after this much effort has been 
put into the overall issue. That is why I disagreed to the unanimous 
consent request, and that is why I am bringing this issue up now. We 
need to get it considered. This is a vehicle on which we can consider 
it.
  We have a limited number of legislative days. The body needs to speak 
on these important issues. I think it is better if we just pull this 
issue up for a vote even before the cloture motion vote so it is a 
clean issue and people can decide. It does not remove the issue of 
cloning. Cloning can continue to take place in America and 
will, whether this amendment passes or not. This is strictly about 
whether the process of creating human beings or the human person itself 
can be patented. I think that this vote should be relatively easy for 
most Members of this body to take. That is why I bring it forward and 
continue to ask that the cloture petition of the majority leader not be 
agreed to at this time so we can consider this important legislation.

  I thank the floor manager for being willing to work with us. He has 
been very gracious and thoughtful, but I wanted to express my reasons 
for wanting to take the stance that I did.

                               Exhibit 1

                                            Biotechnology Industry


                                                 Organization,

                                   Washington, DC, April 26, 2002.
     Mr. William Kristol,
     Chairman, Stop Human Cloning, Washington, DC.
       Dear Mr. Kristol: Thank you for your thoughtful letter, 
     which posed reasonable, provocative questions. With regard to 
     the primary question you raised, BIO opposes patents on 
     cloned human embryos. Many issues surrounding the research 
     remain to be resolved, but on that matter our position is 
     decided.
       I would like very much to discuss in person and at length 
     your other concerns about our industry, and stem cell 
     research in particular. Perhaps we can arrange something 
     after the Brownback vote. Although I wish we had begun this 
     conversation before the issues became so polarized, I welcome 
     the opportunity you've opened for a dialogue.
           Sincerely,
                                                 Carl B. Feldbaum,
                                                        President.

  Mr. REID. I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. REID. Mr. President, I ask unanimous consent that, 
notwithstanding the recess of the Senate, Members may still file 
amendments until 3 p.m. today.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. HOLLINGS. Madam President, I rise to address the pending 
legislation, S. 2600 which is designed to provide financial assistance 
to the insurance industry concerning coverages and losses due to acts 
of terrorism--for the purpose of ensuring the continued availability of 
terrorism insurance coverage. I must say from the outset that I 
disagree with this legislation, not based on its aims, but the manner 
in which the legislation is structured and the way it seeks to 
accomplish its stated goals.
  This is an issue that the Senate sought to address last fall, during 
the height of the national market and security crises that were 
precipitated by the September 11 terrorist attacks. In light of the 
fact that our commercial markets had never experienced a terrorist 
attack and losses in the magnitude that occurred on September 11, a 
great deal of uncertainty was stirred in the marketplace. Claiming that 
they had no experience in pricing such events, insurance companies 
threatened wholesale cancellations of terrorism coverage by the end of 
the year of 2001. Given these circumstances--and the severe threat that 
was posed to the stability of key industries and markets--clearly 
Congress was compelled to act.
  Consequently, I, along with Senator McCain, decided it was necessary 
for the Commerce Committee to take action. We made this decision in 
light of the Commerce Committee's longstanding jurisdiction over the 
business of insurance, and given that the committee had been working on 
legislation to address the availability of property and casualty 
insurance in areas prone to natural disasters, which involved issues 
similar to those relating to terrorism insurance. I would like to 
emphasize that the Commerce Committee has exercised jurisdiction over 
the business of insurance for the past 50 years. We have considered 
legislation relating to: the creation of risk pools and special 
insurance funds for insuring against natural disasters; the repeal of 
McCarran-Ferguson Act and the Federal regulation of insurance; Federal 
oversight of the solvency of insurance companies; the prohibition of 
discrimination in the sale of insurance; insurance redlining; Federal 
regulation of automobile insurance; and the availability of liability 
and property and casualty insurance, which are the very issues this 
legislation seeks to address.
  The committee convened a hearing, which included testimony from 
Treasury Secretary O'Neill, as well as state insurance officials, 
academics, the Consumer Federation of America, CFA, the National 
Taxpayers Union, NTU, and the insurance industry. I should note that 
the main point that was emphasized by the independent witnesses is that 
a program could and should be designed to ensure the insurance 
companies used their own resources to provide the necessary backstop to 
stabilize the market. As they, and state officials advised, the best 
way to do this was through the creation of a risk pool.
  Following the hearing, along with Senator McCain and other members of 
the committee, I began to work with state regulators, CFA and NTU to 
craft legislation along these lines. Senator McCain and I came to an 
agreement except for on the matter of punitive damages. Consequently, 
we introduced two separate bills--S. 1743, my bill, and S. 1744, his 
bill--both of which would have required a payback by the companies.

  I will briefly describe my legislation. As I noted, the legislation 
was constructed from risk pool proposals submitted by the insurance 
industry, state insurance commissioners, the Consumer Federation of 
America, CFA, and the National Taxpayers Union. It has been endorsed by 
13 current state insurance commissioners--Republican and Democrat.
  The legislation would establish a risk pool through the creation of a 
national fund--known as the National Terrorism Fund hereinafter 
referred to as ``the fund''. The fund will be created within the U.S. 
Department of Commerce, in conjunction with a 10-member Advisory 
Committee, which would include the Secretary of Treasury, State 
insurance regulators, and insurance industry representatives.
  The fund will be capitalized through an annual assessment of 3 
percent of an insurer's previous calendar year direct written gross 
premiums. The companies writing coverages for the major property and 
casualty lines would be required to participate.
  All commercial insurance companies will be required to participate in 
the fund. Providers of personal insurance coverage will have the option 
of participating if they believe they need additional reinsurance.
  Companies will be authorized to pass through the 3 percent assessment 
to

[[Page S5627]]

their policyholders. Companies seeking to raise rates beyond these 
levels will be required to report and justify, with substantial 
evidence, such actions to State insurance regulators. This is designed 
to deter companies from using terrorism as an excuse to raise rates 
overall. Additionally, the bill will maintain enforcement of states' 
fair trade practices and fair claims practices and laws.
  Each participating insurer would have a 10 percent retention level 
based on its previous year's direct written premiums. Once a company 
suffers losses due to terrorism that exceeds its retention level, the 
company would be permitted to receive payments from the fund. For 
example, if a company has direct written premiums of $100 million, its 
retention would be $10 million. Some have advised that the retention 
level should be as high as 20 percent. The bill originally contained a 
20 percent retention, but it was lowered to 10 percent in response to 
concerns by the industry.
  Once a company has met its retention levels, the fund will cover its 
remaining losses as follows: 90 percent during the first year (90/10). 
For the second and third years, a company will be permitted to select 
the amount of coverage from the following options: 90 percent coverage 
of losses for a premium of 5 percent of its direct written premiums and 
surplus; 80 percent coverage for a 4 percent premium; and 70 percent 
coverage for 3 percent premium.
  If at any time during the 3 years of the program, the losses from the 
participating companies exceed the fund's capacity, the fund will be 
authorized to borrow, from the Federal Treasury, moneys to cover the 
losses up to $100 billion. The fund, through assessments on 
all participating companies, would be required to repay the loan. The 
fund and the companies would be given as long as 20 years, if 
necessary, to repay the loans at standard market interest. If there are 
outstanding loans due after the expiration of the fund on December 31, 
2004, the companies will continue to be assessed until the loans are 
repaid.

  If at the end of the program the fund has a positive balance, the 
participating companies would be allowed to recoup the funds--based on 
the proportion of each company's contribution--contingent upon a 
guarantee that the money will be placed in a special catastrophic 
reserve account. That account could be used only to pay for losses 
related to terrorism, and major catastrophes, earthquakes, hurricanes, 
and tsunamis. Any company seeking to use the money for other purposes 
would be subject to criminal penalties.
  I should also note that as time began to run out last year, I 
received a call from Secretary O'Neill offering to work together to 
ensure the passage of a measure to deal with the crisis. I accepted the 
invitation and had my staff and the administration officials working 
together the next morning on a compromise bill. We agreed to work upon 
the outlines of a 1-year stopgap measure. Unfortunately, the Secretary 
met strong objections from the Republican side of the Chamber.
  I still believe that any legislation that is passed at this point 
should require a payback. This is especially the case given reports 
that the market has stabilized and insurance coverage is available for 
most businesses. The bill before us essentially provides for 2 years of 
potential unnecessary payments to insurance companies, who could reap a 
windfall at the expense of the taxpayers.
  I also believe that this legislation should not be used as a vehicle 
for Federal tort reform. This issue killed the bill last year, and may 
very well derail it this year.

                          ____________________