[Congressional Record Volume 149, Number 137 (Wednesday, October 1, 2003)]
[Senate]
[Pages S12278-S12299]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. FEINGOLD (for himself, Mr. Grassley, Mr. Kennedy, and Mr. 
        Lieberman):
  S. 1691. A bill to establish commissions to review the facts and 
circumstances surrounding injustices suffered by European Americans, 
European Latin Americans, and Jewish refugees during World War II; to 
the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, today I introduce the Wartime Treatment 
Study Act. This bill would create two fact-finding commissions: one 
commission to review the U.S. Government's treatment of German 
Americans, Italian Americans, and European Latin Americans during World 
War II and another commission to review the U.S. Government's treatment 
of Jewish refugees fleeing Nazi persecution during World War II. This 
bill is long overdue.
  I am very pleased that my distinguished colleagues, Senators 
Grassley, Kennedy, and Lieberman, have joined me as cosponsors of this 
important bill. I thank them for their support.
  The Allied victory in the Second World War was an American triumph, a 
triumph for freedom, justice, and human rights. The courage displayed 
by so many Americans, of all ethnic origins, should be a source of 
great pride for all Americans.
  But, as so many brave Americans fought against enemies in Europe and 
the Pacific, here, at home, the U.S. Government was curtailing the 
freedom of some of its own people. While, it is, of course, the right 
of every nation to protect itself during wartime, the U.S. Government 
must respect the basic freedoms for which so many Americans have given 
their lives to defend. War tests our principles and our values. And as 
our Nation's recent experience has shown, it is during times of war and 
conflict, when our fears are high and our principles are tested most, 
that we must be even more vigilant to guard against violations of the 
Constitution.
  Many Americans are aware of the fact that, during World War II, under 
the authority of Executive Order 9066, our Government forced more than 
100,000 ethnic Japanese from their homes into internment camps. 
Japanese Americans were forced to leave their homes, their livelihoods, 
and their communities and were held behind barbed wire and military 
guard by their own government. Through the work of the Commission on 
Wartime Relocation and Internment of Civilians created by Congress in 
1980, this shameful event finally received the official acknowledgement 
and condemnation it deserved. Under the Civil Liberties Act of 1988, 
people of Japanese ancestry who were subjected to relocation or 
internment later received an apology and reparations on behalf of the 
people of the United States.
  While I commend our Government for finally recognizing and 
apologizing for the mistreatment of Japanese Americans during World War 
II, I believe that it is time that the government also acknowledge the 
mistreatment experienced by many German Americans,

[[Page S12279]]

Italian Americans, and European Latin Americans, as well as Jewish 
refugees.
  The Wartime Treatment Study Act would create two independent, fact-
finding commissions to review this unfortunate history, so that 
Americans can understand why it happened and work to ensure that it 
never happens again. One commission will review the treatment by the 
U.S. Government of German Americans, Italian Americans, and other 
European Americans, as well as European Latin Americans, during World 
War II.
  I believe that most Americans are unaware that, as was the case with 
Japanese Americans, approximately 11,000 ethnic Germans, 3,200 ethnic 
Italians, and scores of Bulgarians, Hungarians, Romanians or other 
European Americans living in America were taken from their homes and 
placed in internment camps during World War II. We must learn from our 
history and explore why we turned on our fellow Americans and failed to 
protect basic freedoms.
  A second commission created by this bill will review the treatment by 
the U.S. Government of Jewish refugees who were fleeing Nazi 
persecution and genocide. We must review the facts and determine how 
our restrictive immigration policies failed to provide adequate safe 
harbor to Jewish refugees fleeing the persecution of Nazi Germany. The 
United States turned away thousands of refugees, delivering many 
refugees to their deaths at the hands of the Nazi regime.
  As I mentioned earlier, there has been a measure of justice for 
Japanese Americans who were denied their liberty and property. It is 
now time for the U.S. Government to complete an accounting of this 
period in our Nation's history. It is time to create independent, fact-
finding commissions to conduct a full and through review of the 
treatment of all European Americans, European Latin Americans, and 
Jewish refugees during World War II.
  Up to this point, there has been no justice for the thousands of 
German Americans, Italian Americans, and other European Americans who 
were branded ``enemy aliens'' and then taken from their homes, 
subjected to curfews, limited in their travel, deprived of their 
personal property, and, in the worst cases, placed in internment camps.
  There has been no justice for European Latin Americans who were 
shipped to the United States and sometimes repatriated or deported to 
hostile, war-torn European Axis powers, often in exchange for Americans 
being held in those countries.
  Finally, there has been no justice for the thousands of Jews, like 
those aboard the German vessel the St Louis, who sought refuge from 
hostile Nazi treatment but were callously turned away at America's 
shores.
  Although the injustices to European Americans, European Latin 
Americans, and Jewish refugees occurred fifty years ago, it is never 
too late for Americans to learn from these tragedies. We should never 
allow this part of our nation's history to repeat itself. And, while we 
should be proud of our Nation's triumph in World War II, we should not 
let that justifiable pride blind us to the treatment of some Americans 
by their own government.
  I urge my colleagues to join me in supporting the Wartime Treatment 
study Act. It is time for a full accounting of this tragic chapter in 
our Nation's history.
  I ask that the text of the Wartime Treatment Study Act be printed in 
the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1691

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Wartime Treatment Study 
     Act''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) During World War II, the United States successfully 
     fought the spread of Nazism and fascism by Germany, Italy, 
     and Japan.
       (2) Nazi Germany persecuted and engaged in genocide against 
     Jews and certain other groups. By the end of the war, 
     6,000,000 Jews had perished at the hands of Nazi Germany. 
     United States Government policies, however, restricted entry 
     to the United States to Jewish and other refugees who sought 
     safety from Nazi persecution.
       (3) While we were at war, the United States treated the 
     Japanese American, German American, and Italian American 
     communities as suspect.
       (4) The United States Government should conduct an 
     independent review to assess fully and acknowledge these 
     actions. Congress has previously reviewed the United States 
     Government's wartime treatment of Japanese Americans through 
     the Commission on Wartime Relocation and Internment of 
     Civilians. An independent review of the treatment of German 
     Americans and Italian Americans and of Jewish refugees 
     fleeing persecution and genocide has not yet been undertaken.
       (5) During World War II, the United States Government 
     branded as ``enemy aliens'' more than 600,000 Italian-born 
     and 300,000 German-born United States resident aliens and 
     their families and required them to carry Certificates of 
     Identification, limited their travel, and seized their 
     personal property. At that time, these groups were the two 
     largest foreign-born groups in the United States.
       (6) During World War II, the United States Government 
     arrested, interned or otherwise detained thousands of 
     European Americans, some remaining in custody for years after 
     cessation of World War II hostilities, and repatriated, 
     exchanged, or deported European Americans, including 
     American-born children, to hostile, war-torn European Axis 
     nations, many to be exchanged for Americans held in those 
     nations.
       (7) Pursuant to a policy coordinated by the United States 
     with Latin American countries, many European Latin Americans, 
     including German and Austrian Jews, were captured, shipped to 
     the United States and interned. Many were later expatriated, 
     repatriated or deported to hostile, war-torn European Axis 
     nations during World War II, most to be exchanged for 
     Americans and Latin Americans held in those nations.
       (8) Millions of European Americans served in the armed 
     forces and thousands sacrificed their lives in defense of the 
     United States.
       (9) The wartime policies of the United States Government 
     were devastating to the Italian Americans and German American 
     communities, individuals and their families. The detrimental 
     effects are still being experienced.
       (10) Prior to and during World War II, the United States 
     restricted the entry of Jewish refugees who were fleeing 
     persecution and sought safety in the United States. During 
     the 1930's and 1940's, the quota system, immigration 
     regulations, visa requirements, and the time required to 
     process visa applications affected the number of Jewish 
     refugees, particularly those from Germany and Austria, who 
     could gain admittance to the United States.
       (11) Time is of the essence for the establishment of 
     commissions, because of the increasing danger of destruction 
     and loss of relevant documents, the advanced age of potential 
     witnesses and, most importantly, the advanced age of those 
     affected by the United States Government's policies. Many who 
     suffered have already passed away and will never know of this 
     effort.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) During world war ii.--The term ``during World War II'' 
     refers to the period between September 1, 1939, through 
     December 31, 1948.
       (2) European americans.--
       (A) In general.--The term ``European Americans'' refers to 
     United States citizens and permanent resident aliens of 
     European ancestry, including Italian Americans, German 
     Americans, Hungarian Americans, Romanian Americans, and 
     Bulgarian Americans.
       (B) Italian americans.--The term ``Italian Americans'' 
     refers to United States citizens and permanent resident 
     aliens of Italian ancestry.
       (C) German americans.--The term ``German Americans'' refers 
     to United States citizens and permanent resident aliens of 
     German ancestry.
       (3) European latin americans.--The term ``European Latin 
     Americans'' refers to persons of European ancestry, including 
     Italian or German ancestry, residing in a Latin American 
     nation during World War II.

     TITLE I--COMMISSION ON WARTIME TREATMENT OF EUROPEAN AMERICANS

     SEC. 101. ESTABLISHMENT OF COMMISSION ON WARTIME TREATMENT OF 
                   EUROPEAN AMERICANS.

       (a) In General.--There is established the Commission on 
     Wartime Treatment of European Americans (referred to in this 
     title as the ``European American Commission'').
       (b) Membership.--The European American Commission shall be 
     composed of 7 members, who shall be appointed not later than 
     90 days after the date of enactment of this Act as follows:
       (1) Three members shall be appointed by the President.
       (2) Two members shall be appointed by the Speaker of the 
     House of Representatives, in consultation with the minority 
     leader.
       (3) Two members shall be appointed by the majority leader 
     of the Senate, in consultation with the minority leader.
       (c) Terms.--The term of office for members shall be for the 
     life of the European American Commission. A vacancy in the 
     European American Commission shall not affect its powers, and 
     shall be filled in the same manner in which the original 
     appointment was made.

[[Page S12280]]

       (d) Representation.--The European American Commission shall 
     include 2 members representing the interests of Italian 
     Americans and 2 members representing the interests of German 
     Americans.
       (e) Meetings.--The President shall call the first meeting 
     of the European American Commission not later than 120 days 
     after the date of enactment of this Act.
       (f) Quorum.--Four members of the European American 
     Commission shall constitute a quorum, but a lesser number may 
     hold hearings.
       (g) Chairman.--The European American Commission shall elect 
     a Chairman and Vice Chairman from among its members. The term 
     of office of each shall be for the life of the European 
     American Commission.
       (h) Compensation.--
       (1) In general.--Members of the European American 
     Commission shall serve without pay.
       (2) Reimbursement of expenses.--All members of the European 
     American Commission shall be reimbursed for reasonable travel 
     and subsistence, and other reasonable and necessary expenses 
     incurred by them in the performance of their duties.

     SEC. 102. DUTIES OF THE EUROPEAN AMERICAN COMMISSION.

       (a) In General.--It shall be the duty of the European 
     American Commission to review the United States Government's 
     wartime treatment of European Americans and European Latin 
     Americans as provided in subsection (b).
       (b) Scope of Review.--The European American Commission's 
     review shall include the following:
       (1) A comprehensive review of the facts and circumstances 
     surrounding United States Government actions during World War 
     II that violated the civil liberties of European Americans 
     and European Latin Americans pursuant to the Alien Enemies 
     Acts (50 U.S.C. 21-24), Presidential Proclamations 2526, 
     2527, 2655, 2662, Executive Orders 9066 and 9095, and any 
     directive of the United States Government pursuant to such 
     law, proclamations, or executive orders respecting the 
     registration, arrest, exclusion, internment, exchange, or 
     deportment of European Americans and European Latin 
     Americans. This review shall include an assessment of the 
     underlying rationale of the United States Government's 
     decision to develop related programs and policies, the 
     information the United States Government received or acquired 
     suggesting the related programs and policies were necessary, 
     the perceived benefit of enacting such programs and policies, 
     and the immediate and long-term impact of such programs and 
     policies on European Americans and European Latin Americans 
     and their communities.
       (2) A review of United States Government action with 
     respect to European Americans pursuant to the Alien Enemies 
     Acts (50 U.S.C. 21-24) and Executive Order 9066 during World 
     War II, including registration requirements, travel and 
     property restrictions, establishment of restricted areas, 
     raids, arrests, internment, exclusion, policies relating to 
     the families and property that excludees and internees were 
     forced to abandon, internee employment by American companies 
     (including a list of such companies and the terms and type of 
     employment), exchange, repatriation, and deportment, and the 
     immediate and long-term effect of such actions, particularly 
     internment, on the lives of those affected. This review shall 
     include a list of all temporary detention and long-term 
     internment facilities.
       (3) A brief review of the participation by European 
     Americans in the United States Armed Forces including the 
     participation of European Americans whose families were 
     excluded, interned, repatriated, or exchanged.
       (4) A recommendation of appropriate remedies, including how 
     civil liberties can be better protected during war, or an 
     actual, attempted, or threatened invasion or incursion, an 
     assessment of the continued viability of the Alien Enemies 
     Acts (50 U.S.C. 21-24), and public education programs related 
     to the United States Government's wartime treatment of 
     European Americans and European Latin Americans during World 
     War II.
       (c) Field Hearings.--The European American Commission shall 
     hold public hearings in such cities of the United States as 
     it deems appropriate.
       (d) Report.--The European American Commission shall submit 
     a written report of its findings and recommendations to 
     Congress not later than 18 months after the date of the first 
     meeting called pursuant to section 101(e).

     SEC. 103. POWERS OF THE EUROPEAN AMERICAN COMMISSION.

       (a) In General.--The European American Commission or, on 
     the authorization of the Commission, any subcommittee or 
     member thereof, may, for the purpose of carrying out the 
     provisions of this title, hold such hearings and sit and act 
     at such times and places, and request the attendance and 
     testimony of such witnesses and the production of such books, 
     records, correspondence, memorandum, papers, and documents as 
     the Commission or such subcommittee or member may deem 
     advisable. The European American Commission may request the 
     Attorney General to invoke the aid of an appropriate United 
     States district court to require, by subpoena or otherwise, 
     such attendance, testimony, or production.
       (b) Government Information and Cooperation.--The European 
     American Commission may acquire directly from the head of any 
     department, agency, independent instrumentality, or other 
     authority of the executive branch of the Government, 
     available information that the European American Commission 
     considers useful in the discharge of its duties. All 
     departments, agencies, and independent instrumentalities, or 
     other authorities of the executive branch of the Government 
     shall cooperate with the European American Commission and 
     furnish all information requested by the European American 
     Commission to the extent permitted by law, including 
     information collected as a result of Public Law 96-317 and 
     Public Law 106-451. For purposes of the Privacy Act (5 U.S.C. 
     552a(b)(9)), the European American Commission shall be deemed 
     to be a committee of jurisdiction.

     SEC. 104. ADMINISTRATIVE PROVISIONS.

       The European American Commission is authorized to--
       (1) appoint and fix the compensation of such personnel as 
     may be necessary, without regard to the provisions of title 
     5, United States Code, governing appointments in the 
     competitive service, and without regard to the provisions of 
     chapter 51 and subchapter III of chapter 53 of such title 
     relating to classification and General Schedule pay rates, 
     except that the compensation of any employee of the 
     Commission may not exceed a rate equivalent to the rate 
     payable under GS-15 of the General Schedule under section 
     5332 of such title;
       (2) obtain the services of experts and consultants in 
     accordance with the provisions of section 3109 of such title;
       (3) obtain the detail of any Federal Government employee, 
     and such detail shall be without reimbursement or 
     interruption or loss of civil service status or privilege;
       (4) enter into agreements with the Administrator of General 
     Services for procurement of necessary financial and 
     administrative services, for which payment shall be made by 
     reimbursement from funds of the Commission in such amounts as 
     may be agreed upon by the Chairman of the Commission and the 
     Administrator;
       (5) procure supplies, services, and property by contract in 
     accordance with applicable laws and regulations and to the 
     extent or in such amounts as are provided in appropriation 
     Acts; and
       (6) enter into contracts with Federal or State agencies, 
     private firms, institutions, and agencies for the conduct of 
     research or surveys, the preparation of reports, and other 
     activities necessary to the discharge of the duties of the 
     Commission, to the extent or in such amounts as are provided 
     in appropriation Acts.

     SEC. 105. AUTHORIZATION OF APPROPRIATIONS.

       From funds currently authorized to the Department of 
     Justice, there are authorized to be appropriated not to 
     exceed $500,000 to carry out the purposes of this title.

     SEC. 106. SUNSET.

       The European American Commission shall terminate 60 days 
     after it submits its report to Congress.

      TITLE II--COMMISSION ON WARTIME TREATMENT OF JEWISH REFUGEES

     SEC. 201. ESTABLISHMENT OF COMMISSION ON WARTIME TREATMENT OF 
                   JEWISH REFUGEES.

       (a) In General.--There is established the Commission on 
     Wartime Treatment of Jewish Refugees (referred to in this 
     title as the ``Jewish Refugee Commission'').
       (b) Membership.--The Jewish Refugee Commission shall be 
     composed of 7 members, who shall be appointed not later than 
     90 days after the date of enactment of this Act as follows:
       (1) Three members shall be appointed by the President.
       (2) Two members shall be appointed by the Speaker of the 
     House of Representatives, in consultation with the Minority 
     Leader.
       (3) Two members shall be appointed by the Majority Leader 
     of the Senate, in consultation with the minority leader.
       (c) Terms.--The term of office for members shall be for the 
     life of the Jewish Refugee Commission. A vacancy in the 
     Jewish Refugee Commission shall not affect its powers, and 
     shall be filled in the same manner in which the original 
     appointment was made.
       (d) Representation.--The Jewish Refugee Commission shall 
     include 2 members representing the interests of Jewish 
     refugees.
       (e) Meetings.--The President shall call the first meeting 
     of the Jewish Refugee Commission not later than 120 days 
     after the date of enactment of this Act.
       (f) Quorum.--Four members of the Jewish Refugee Commission 
     shall constitute a quorum, but a lesser number may hold 
     hearings.
       (g) Chairman.--The Jewish Refugee Commission shall elect a 
     Chairman and Vice Chairman from among its members. The term 
     of office of each shall be for the life of the Jewish Refugee 
     Commission.
       (h) Compensation.--
       (1) In general.--Members of the Jewish Refugee Commission 
     shall serve without pay.
       (2) Reimbursement of expenses.--All members of the Jewish 
     Refugee Commission shall be reimbursed for reasonable travel 
     and subsistence, and other reasonable and necessary expenses 
     incurred by them in the performance of their duties.

     SEC. 202. DUTIES OF THE JEWISH REFUGEE COMMISSION.

       (a) In General.--It shall be the duty of the Jewish Refugee 
     Commission to review the United States Government's refusal 
     to allow Jewish and other refugees fleeing persecution in 
     Europe entry to the United States as provided in subsection 
     (b).

[[Page S12281]]

       (b) Scope of Review.--The Jewish Refugee Commission's 
     review shall cover the period between January 1, 1933, 
     through December 31, 1945, and shall include, to the greatest 
     extent practicable, the following:
       (1) A review of the United States Government's refusal to 
     allow Jewish and other refugees fleeing persecution and 
     genocide entry to the United States, including a review of 
     the underlying rationale of the United States Government's 
     decision to refuse the Jewish and other refugees entry, the 
     information the United States Government received or acquired 
     suggesting such refusal was necessary, the perceived benefit 
     of such refusal, and the impact of such refusal on the 
     refugees.
       (2) A review of Federal refugee policy relating to those 
     fleeing persecution or genocide, including recommendations 
     for making it easier for future victims of persecution or 
     genocide to obtain refuge in the United States.
       (c) Field Hearings.--The Jewish Refugee Commission shall 
     hold public hearings in such cities of the United States as 
     it deems appropriate.
       (d) Report.--The Jewish Refugee Commission shall submit a 
     written report of its findings and recommendations to 
     Congress not later than 18 months after the date of the first 
     meeting called pursuant to section 201(e).

     SEC. 203. POWERS OF THE JEWISH REFUGEE COMMISSION.

       (a) In General.--The Jewish Refugee Commission or, on the 
     authorization of the Commission, any subcommittee or member 
     thereof, may, for the purpose of carrying out the provisions 
     of this title, hold such hearings and sit and act at such 
     times and places, and request the attendance and testimony of 
     such witnesses and the production of such books, records, 
     correspondence, memorandum, papers, and documents as the 
     Commission or such subcommittee or member may deem advisable. 
     The Jewish Refugee Commission may request the Attorney 
     General to invoke the aid of an appropriate United States 
     district court to require, by subpoena or otherwise, such 
     attendance, testimony, or production.
       (b) Government Information and Cooperation.--The Jewish 
     Refugee Commission may acquire directly from the head of any 
     department, agency, independent instrumentality, or other 
     authority of the executive branch of the Government, 
     available information that the Jewish Refugee Commission 
     considers useful in the discharge of its duties. All 
     departments, agencies, and independent instrumentalities, or 
     other authorities of the executive branch of the Government 
     shall cooperate with the Jewish Refugee Commission and 
     furnish all information requested by the Jewish Refugee 
     Commission to the extent permitted by law, including 
     information collected as a result of Public Law 96-317 and 
     Public Law 106-451. For purposes of the Privacy Act (5 U.S.C. 
     552a(b)(9)), the Jewish Refugee Commission shall be deemed to 
     be a committee of jurisdiction.

     SEC. 204. ADMINISTRATIVE PROVISIONS.

       The Jewish Refugee Commission is authorized to--
       (1) appoint and fix the compensation of such personnel as 
     may be necessary, without regard to the provisions of title 
     5, United States Code, governing appointments in the 
     competitive service, and without regard to the provisions of 
     chapter 51 and subchapter III of chapter 53 of such title 
     relating to classification and General Schedule pay rates, 
     except that the compensation of any employee of the 
     Commission may not exceed a rate equivalent to the rate 
     payable under GS-15 of the General Schedule under section 
     5332 of such title;
       (2) obtain the services of experts and consultants in 
     accordance with the provisions of section 3109 of such title;
       (3) obtain the detail of any Federal Government employee, 
     and such detail shall be without reimbursement or 
     interruption or loss of civil service status or privilege;
       (4) enter into agreements with the Administrator of General 
     Services for procurement of necessary financial and 
     administrative services, for which payment shall be made by 
     reimbursement from funds of the Commission in such amounts as 
     may be agreed upon by the Chairman of the Commission and the 
     Administrator;
       (5) procure supplies, services, and property by contract in 
     accordance with applicable laws and regulations and to the 
     extent or in such amounts as are provided in appropriation 
     Acts; and
       (6) enter into contracts with Federal or State agencies, 
     private firms, institutions, and agencies for the conduct of 
     research or surveys, the preparation of reports, and other 
     activities necessary to the discharge of the duties of the 
     Commission, to the extent or in such amounts as are provided 
     in appropriation Acts.

     SEC. 205. AUTHORIZATION OF APPROPRIATIONS.

       From funds currently authorized to the Department of 
     Justice, there are authorized to be appropriated not to 
     exceed $500,000 to carry out the purposes of this title.

     SEC. 206. SUNSET.

       The Jewish Refugee Commission shall terminate 60 days after 
     it submits its report to Congress.

       Amend the title so as to read: ``A bill to establish 
     commissions to review the facts and circumstances surrounding 
     injustices suffered by European Americans, European Latin 
     Americans, and Jewish refugees during World War II.''.
                                 ______
                                 
      By Mr. GRASSLEY (for himself and Mr. Baucus):
  S. 1693. A bill to amend section 35 of the Internal Revenue Code of 
1986 to allow individuals receiving unemployment compensation to be 
eligible for a refundable, advanceable credit for health insurance 
costs; to the Committee on Finance.
  Mr. GRASSLEY. Mr. President, today I am pleased to introduce, along 
with Senator Baucus, an extension of a bipartisan policy to help reduce 
the number of people living without health insurance today.
  In simplist terms, our bill extends the 65 percent credit offered to 
people eligible for trade adjustment assistance, and to certain PBGC 
beneficiaries, to those workers eligible for unemployment insurance.
  Is it perfect policy? No. Does it ``solve'' the problem of the 
uninsured? it does not.
  But it's an important step in the right direction. I do not subscribe 
to the view that ``incrementalism'' when it comes to covering the 
uninsured, is dead.
  With census figures showing the number of Americans living without 
health insurance increasing, even small steps are steps in the right 
direction.
  Incrementalism has made a difference. For example, the few million 
people we covered with this tax credit in last year's trade promotion 
authority bill made a difference. The S-CHIP program made a difference. 
I believe Medical Savings Accounts and the small group market reforms 
we made in HIPAA all have made a difference in controlling what would 
otherwise be a much larger number of people without health insurance.
  This year, Congress, in a bipartisan way, put $50 billion into a 
reserve fund to address the rising number of uninsured. The year is 
more than almost over, and nothing has been done, or even discussed.
  I will not let a bipartisan consensus to spend $50 billion on 
improving access to health insurance lay there on the table. Iowans 
expect us to do get things done.
  And to get anything, even something small, done on a problem this 
big, it's got to be bipartisan. That's why I am glad to be building on 
my work with Senator Baucus and making this important, novel program 
available to more Americans.
  I am looking forward to exploring still more options in the Finance 
Committee on reducing the uninsured in the weeks and months ahead.
  Mr. BAUCUS. Mr. President, I rise today to introduce the Health Care 
Tax Credit Expansion Act of 2003.
  According to the most recent census figures, more than 41 million 
Americans lack health insurance coverage. More than the population of 
23 States, plus the District of Columbia. As premiums sky rocket and 
the unemployment rate remains high--despite signs of economic 
recovery--I worry that this number may grow even higher.
  For America's uninsured, the consequences of going without health 
coverage can be devastating.
  Put plainly, uninsured Americans are less healthy than those with 
health insurance. They delay seeking medical care or go without 
treatment altogether that could prevent and detect crippling illnesses. 
Illnesses like diabetes, heart disease, and cancer. The uninsured are 
far less likely to receive health services if they are injured or 
become ill. They don't fill prescriptions that their doctors recommend.
  These factors take an enormous personal toll on the lives of the 
uninsured. They are sicker and less productive. Their children are less 
likely to survive past infancy. And they must struggle with the 
knowledge that a serious injury or illness in their family might push 
them to the brink of financial ruin.
  And there is also the impact on the rest of the U.S. economy that 
must be taken into account. Because when the uninsured become so sick 
that they must finally seek emergency treatment, there is often no one 
to pay for it. No insurance company. No government program.
  So who absorbs the cost of uncompensated medical care? We all do. In 
the form of higher health care costs. Higher and higher premiums at a 
time when the cost of health care is already rising out of control.

[[Page S12282]]

  The situation is becoming critical. And I believe the time for 
talking has ended. It is time for us to examine solutions instead of 
talking about the problem.
  That is why I have joined with my colleague, chairman of the Senate 
Finance Committee, Senator Chuck Grassley, to introduce this important 
piece of legislation.
  Our bill would provide health care assistance to the unemployed--one 
specific category of those without health insurance. And one where we 
believe there is agreement to move forward.
  More specifically, this bill would expand the 65 percent refundable, 
advanceable tax credit that is currently provided under the Trade 
Adjustment Assistance program to workers receiving unemployment 
benefits.
  By building on the structure that Congress put in place last year 
under the Trade Act, we make it more likely that unemployed workers can 
receive benefits in a timely manner. Without significant implementation 
and start-up time.
  And by building on the historic agreement that we reached last year, 
we are more likely to have support for the structure and approach.
  Let me be clear. This bill is not a major overhaul of the U.S. health 
care system that several Democratic Presidential candidates have 
outlined. It was not intended and does not seek to cover everyone in 
this country without health insurance.
  Rather the proposal would use the money set aside in this year's 
budget for the uninsured--$50 billion--on a targeted policy that I 
believe both sides can agree on. It is a practical, principled, 
incremental solution.


                          Why the unemployed?

  According to the Labor Department, since February 2001, 2.6 million 
jobs have been lost. And with those jobs, an awful lot of health 
insurance has been lost, too.
  Despite assertions by economists that the recession has ended and the 
economy is experiencing signs of improvement, the unemployment rate has 
remained stubbornly high--6.4 percent in June. In fact, we are hearing 
more and more talk of the same ``jobless recovery'' that we heard about 
following the recession in the early 1990s.
  It is true that employment does not immediately improve when an 
economy emerges from recession. We read repeatedly that even if growth 
surges and business investment begins to take off tomorrow, the ranks 
of the unemployed may not thin for months.
  Unfortunately, for many, many families, this means more weeks, if not 
months, of endless job searches. And a longer period of time without 
health coverage.
  An estimated 46 percent of unemployed adults lack health insurance, 
or about 4 million unemployed workers. Less than one in three 
unemployed adults receives health coverage through their spouse or 
other family member.
  And while 65 percent may qualify for COBRA continuation coverage, 
only 7 percent can afford to enroll. That is not surprising. Premiums 
for this coverage average almost $700 a month for family coverage and 
$250 for individual coverage. A very high price, given the average 
$1,100 monthly UI check.
  Last year, when we debated the economic recovery package, both 
Republicans and Democrats proposed to expand health coverage for 
unemployed workers. There was almost universal agreement that this 
population deserved help and attention. So I think it's a good place 
for us to start from this year.


                           Why a tax credit?

  There's been a lot of debate about the best way to expand health 
insurance coverage to the uninsured. Most Democrats favor expanding 
public programs like Medicaid and CHIP, and harnessing the power of the 
group insurance market to provide affordable coverage options.
  Most Republicans, however, favor a more market-based approach that 
gives the uninsured tax breaks and allows them to use the individual 
insurance market.
  But, after years of logjams and disagreements, we were able to come 
together last year when we created the TAA tax credit. The TAA tax 
credit merges a market-based tax credit with the affordability of the 
group insurance market. This proposal simply builds on that progress. 
With the structures now in place to implement the TAA credit, a new tax 
credit for the unemployed can easily be incorporated into the new 
system.


                                Caveats

  I realize that the TAA tax credit is not a perfect model. And we may 
need to make some adjustments as full implementation kicks in this 
summer. For example, we need to ensure that the groups we intended to 
cover actually have access to coverage.
  In particular, all workers who had health insurance coverage for 3 
months before they lost their jobs should be assured of coverage they 
qualify for under TAA. I support making the technical change that would 
provide that assurance.
  I am also willing to consider other improvements, like additional 
help for low income workers.
  But I do not think these adjustments should deter us from moving 
forward with an expansion of the tax credit. Millions of unemployed 
workers and their families need our help. And they need it now.
  All told, expanding the TAA tax credit to the unemployed would 
provide health insurance coverage for 1.4 million Americans a month who 
are currently unemployed and uninsured. It's not a panacea. But it's a 
start.
  I hope my colleagues will join this fight by helping us pass this 
legislation, and taking a solid step toward providing quality, 
affordable health insurance to all Americans.
                                 ______
                                 
      By Mr. BROWNBACK:
  S. 1694. A bill to amend title 38, United States Code to authorize 
the Secretary of Veterans Affairs to provide veterans who participated 
in certain Department of Defense chemical and biological warfare 
testing to be provided health care for illness without requirement for 
proof of service-connection; to the Committee on Veterans' Affairs.
  Mr. BROWNBACK. Mr. President, I rise today to introduce the Health 
Care for Veterans of Project 112/Project SHAD Act of 2003. This bill 
will authorize health care assistance for veterans who participated in 
specific Department of Defense chemical and biological warfare testing 
without any requirements related to proof of service-connection for 
their illness.
  Project 112 consisted of a series of cold war chemical, nuclear, and 
biological tests conducted both at sea and over land from 1962 to 1973. 
This project was one of 150 military initiatives designed to identify 
U.S. military personnel and warship vulnerabilities to chemical, 
nuclear, and biological attacks. Some of the tests that were part of 
Project 112/Operation Shipboard Hazard and Defense (SHAD) involved the 
use of dangerous agents such as sarin, VX, tularemia, and anthrax. The 
Defense Department has recognized that it does not have adequate 
documentation to prove that test participants were informed of the 
potential risks, or that personnel received adequate protective gear 
during testing.
  After an extensive search for records to identify all tests conducted 
and link the dates of specific tests to the personnel on-board at the 
time, the DOD produced a comprehensive list of all tests conducted and 
each veteran involved in this project. In response to a VA request, DOD 
reviewed and declassified information concerning the exact agents used 
and other details of the Project 112 tests. This information was 
subsequently turned over to the Department of Veterans Affairs, and the 
VA began the process of contacting the veterans identified as 
participants.
  A total of 5,842 persons were identified as having been present in 
one or more of the tests. All veterans who believe they were involved 
in tests and have medical concerns have been encouraged to contact VA 
to receive medical evaluations. Although Project 112 veterans suffer 
from a broad range of ailments from cancer to hypertension, a causal 
link between the tests and their current ailments has not been 
established. Due to the amount of time that has passed and the 
relatively small number of people involved in any specific test, it is 
highly unlikely that we will ever be able to fully determine the health 
effects from the tests.
  It would be unconscionable to require Project 112 veterans to prove a 
connection between their involvement in these tests and their current 
health problems. If we cannot disprove a service connection, then we 
should assume

[[Page S12283]]

responsibility for their health care. This Health Care for Veterans of 
Project 112/Project SHAD Act of 2003 would provide priority access to 
VA hospital care, medical services, and nursing home care for veterans 
identified as participants in these tests, and not require medical 
evidence that any illnesses are attributable to such testing. This is 
an important step in bringing some finality to this issue and living up 
to our commitment to this group of veterans.
  I ask unanimous consent that the text of this legislation be printed 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1694

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Health Care for Veterans of 
     Project 112/Project SHAD Act of 2003''.

     SEC. 2. PROVISION OF HEALTH CARE TO VETERANS WHO PARTICIPATED 
                   IN CERTAIN DEPARTMENT OF DEFENSE CHEMICAL AND 
                   BIOLOGICAL WARFARE TESTING.

       Section 1710(e) of title 38, United States Code, is 
     amended--
       (1) in paragraph (1), by adding at the end the following 
     new subparagraph:
       ``(E) Subject to paragraphs (2) and (3), a veteran who 
     participated in a test conducted by the Department of Defense 
     Deseret Test Center as part of a program for chemical and 
     biological warfare testing from 1962 through 1973 (including 
     the program designated as `Project Shipboard Hazard and 
     Defense (SHAD)' and related land-based tests) is eligible for 
     hospital care, medical services, and nursing home care under 
     subsection (a)(2)(F) for any illness, notwithstanding that 
     there is insufficient medical evidence to conclude that such 
     illness is attributable to such testing.'';
       (2) in paragraph (2)(B), by striking ``paragraph (1)(C) or 
     (1)(D)'' and inserting ``subparagraph (C), (D), or (E) of 
     paragraph (1)''; and
       (3) in paragraph (3)--
       (A) by striking ``and'' at the end of subparagraph (B);
       (B) by striking the period at the end of subparagraph (C) 
     and inserting ``; and''; and
       (C) by adding at the end the following new subparagraph:
       ``(D) in the case of care for a veteran described in 
     paragraph (1)(E), after December 31, 2005.''.
                                 ______
                                 
      By Mr. LEAHY (for himself, Mr. Craig, Mr. Durbin, Mr. Sununu, and 
        Mr. Reid):
  S. 1695. A bill to provide greater oversight over the USA PATRIOT 
Act; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today I am introducing with Senators Craig, 
Sununu, Durbin, and Reid, my distinguished colleagues from Idaho, New 
Hampshire, Illinois, and Nevada, the Patriot Oversight Restoration Act 
of 2003, a short bill whose singular but important purpose is to 
provide Congress the opportunity to take a hard look at the USA PATRIOT 
Act, which we passed in the anxious weeks following the devastating 
attacks of September 11, 2001. This bipartisan bill is moderate in 
scope; it would simply expand the sunset provision already enacted in 
the PATRIOT Act, to cover a number of additional provisions. The 
ensuing debate, however, should be considerable. My hope is that, 
before the sunset expires in December 2005, Congress will methodically 
revisit PATRIOT, with an eye toward achieving a suitable balance 
between the need to address the threat of terrorism and the need to 
protect our constitutional freedoms--and with the lessons of the past 
few years to guide us.
  We recently marked the second anniversary of the September 11 
attacks. As we reflect on that terrible day, and honor those who were 
lost, I strongly believe we should take stock of where we stand in our 
fight against terrorism. In the aftermath of the attacks, Congress and 
the administration did forge a constructive partnership to write the 
USA PATRIOT Act, which was meant to help our law enforcement and 
intelligence communities prevent future attacks from occurring. The 
PATRIOT Act represented our best efforts, under difficult 
circumstances, to balance the rights and liberties of the American 
people with the very urgent need to confront a threat to our Nation.
  Even in balancing this tension, we granted the executive branch an 
unprecedented, vast new array of powers. We did so because we believed 
the administration's claim that it needed these powers to protect us, 
and because we trusted the administration's promise that it would use 
these powers appropriately. I noted at the time that PATRIOT was not 
the bill that I, or any of the sponsors, would have written if 
compromise were unnecessary. But I believed in the bill's purpose, and 
I gave it my vote and support. I worked hard to add checks and balances 
to many of its provisions, and did so.
  Unfortunately, like many Members who supported the act--and like many 
Americans nationwide--I have come to feel disappointed. Since we passed 
the PATRIOT Act in October 2001, it has grown increasingly apparent 
that the trust and cooperation Congress provided to the executive 
branch has proved to be a one-way street. In the quarter-century that I 
have served in the Senate, no administration has been more secretive, 
more resistant to congressional oversight, and more disposed to acting 
unilaterally, without the approval of the American people or their 
democratically elected representatives. Despite the administration's 
unprecedented public relations campaign to promote the PATRIOT Act--
including a 16-State, 18-city tour by the Attorney General himself--the 
administration has yet to show that it is using its PATRIOT powers 
wisely. Instead, it has been secretly drafting a sequel to PATRIOT that 
would grant it even more far-reaching powers.
  I would never oppose an open discussion of any legislative tool that 
would help in the fight against terrorism. But for such a debate to be 
fruitful, we need to know more about the tools that are already 
available, including those created by the PATRIOT Act. Which are 
working, and how well? Which are not working, and why? Which, if any, 
struck the wrong balance, threatening the civil liberties of our 
citizens while doing little or nothing to keep our Nation secure?
  Immediately after the PATRIOT Act passed, the administration draped a 
cloak of secrecy around its use. When lawmakers and citizens have 
attempted to start a dialogue on PATRIOT-related issues, the response 
has been to ignore, insult or derisively dismiss them.
  Attorney General Ashcroft has repeatedly declined to appear before 
the Judiciary Committee to answer questions, and his Department is 
painfully slow to respond to written requests for information. To quote 
my friend Senator Grassley, ``getting information from the Justice 
Department under Ashcroft is like pulling teeth.'' By ignoring 
oversight requests until answers are moot or outdated, and responding 
in only vague and conclusory fashion, if at all, the Justice Department 
frustrates our constitutional system of checks and balances, and sows 
the sort of public distrust that now accompanies the PATRIOT Act.
  Just recently, in July, the Department dumped on committee members 
literally hundreds of pages of answers to questions that had been 
submitted to Attorney General Ashcroft and other senior Department 
officials following their testimony before the committee more than a 
year earlier. To give just one example of what a travesty it is when 
oversight questions remain unanswered for a year or more, the 
Department's responses dated July 17, 2003, devoted fully 15 pages to 
answering questions about Operation TIPS--an ill-conceived program that 
Congress had already terminated more than 8 months earlier.
  Is the Department incapable of responding to congressional inquiries 
in a timely fashion? Is it deliberately stonewalling? Or does it simply 
believe that oversight is a game that it need not play?
  Even more troubling, high-level administration officials have rashly 
suggested that anyone who dares to voice their concerns as unpatriotic, 
anti-American and pro-terrorist. In one of his rare appearances before 
the Senate Judiciary Committee, Attorney General Ashcroft charged that 
``fear mongers''--those who were raising concern about the loss of 
civil liberties--were only aiding the terrorists. More recently, a 
Justice Department official dismissed the many local government 
resolutions condemning the PATRIOT Act by saying ``half are either in 
cities in Vermont, very small population, or in college towns in 
California. It's in a lot of the usual enclaves where you might see 
nuclear free zones, or they

[[Page S12284]]

probably passed resolutions against the war in Iraq.''
  It is unfortunate that the Justice Department felt it appropriate to 
ridicule these grass-roots efforts to participate in an important 
national dialogue. The opportunity to engage in public discourse is one 
of the hallmark benefits of being an American, and I am proud that 
Vermont towns are among those dedicated to thinking about and acting on 
these important issues. But more importantly, the concerns expressed in 
my home State are being echoed by Americans nationwide. To date, anti-
PATRIOT resolutions have been passed by 178 communities in 32 States 
including Idaho, New Hampshire, and Illinois. These communities 
represent millions upon millions of Americans, not just a few free-
spirited Vermonters, as the Justice Department has insinuated.
  Concerns about the administration's antiterror tactics are also 
shared by Members on both sides of aisle, many of whom supported the 
PATRIOT Act as well as the war in Iraq, but who now know that the 
administration has been less than forthright about what it has been 
doing in the name of the American people. In July, the House voted to 
nullify section 213 of the PATRIOT Act, which allows law enforcement to 
ask a court to delay notice of a search warrant where it could have 
certain adverse results. And several bills have been introduced in both 
Houses to roll back another PATRIOT Act provision, section 215, which 
gives federal agents new power to obtain records from libraries and 
bookstores. Remarkably, in response, the Justice Department then 
declassified information summarily reflecting that it has never used 
the Section 215 powers--despite expressing urgent ``need'' during pre-
PATRIOT Act debate. And almost simultaneous to this announcement, the 
President urged support for an alternative record gathering power when 
Section 215 is still on the books. One has to question the 
inconsistencies in these two positions and whether Congress should 
blindly confer data gathering powers on an administration that does not 
provide a hint of factual support for such requests. There is overall a 
growing sense in the nation that Congress moved too fast in enacting 
the PATRIOT Act, and that the Justice Department moved too slowly in 
explaining its use of this sweeping legislation.
  When we passed the PATRIOT Act in October 2001, I noted that Congress 
needed to exercise careful oversight of how the Justice Department, the 
FBI and other executive branch agencies used the newly expanded powers 
that the act provided. The need for oversight and accountability is the 
reason that former House Majority Leader Dick Armey and I insisted on a 
sunset provision for several key provisions in PATRIOT--provisions that 
blurred the lines between criminal investigation and intelligence 
gathering. We succeeded, but only in part; several PATRIOT provisions 
that should have been subject to the sunset--including a few that were 
sunset or even cut in the version of the bill reported by the House 
Judiciary Committee--were omitted from the sunset. As enacted, the 
sunset applies only to certain enhanced surveillance authorities in 
title II of the act.
  The PATRIOT Oversight Restoration Act would extend PATRIOT's sunset 
provision to other enhanced surveillance provisions in title II of the 
act. These include subsections (a) and (c) of section 203, which 
authorize the disclosure of grand jury information to foreign 
enforcement, intelligence and immigration officials; sections 210 and 
211, which broaden the types of information that law enforcement may 
obtain, upon request, from electronic communication service providers 
and cable service operators; section 213, which authorizes so-called 
``sneak and peak''--delayed notification--search warrants; sections 216 
and 222, which significantly expand when, where, and how law 
enforcement can obtain a pen register or trap and trace order; and 
section 219, which authorizes judges to sign search warrants for 
properties located outside their districts.
  In addition to these title II provisions, the PATRIOT Oversight 
Restoration Act would also extend the sunset to a handful of provisions 
in titles IV, V, VIII and X of the PATRIOT Act. These provisions 
include sections 411 and 1006, which expand the Government's authority 
to declare certain persons inadmissible to the United States; section 
412, which grants the Attorney General authority to ``certify'' that an 
alien is engaged in activity that endangers the national security, and 
to take such an alien into custody; section 505, which gives law 
enforcement greater authority to access telephone, bank, and credit 
records through the issuance of so-called ``National Security 
Letters,'' even if no criminal investigation is pending and without 
court review; sections 507 and 508, which remove certain privacy 
protections for educational records and surveys--called ``obstacles'' 
to investigating terrorism in the PATRIOT Act; section 802, which 
defines ``domestic terrorism'' in a way that could be read to include 
political protesters engaged in civil disobedience; section 806, which 
uses the aforementioned definition of ``domestic terrorism'' to expand 
the government's civil forfeiture authority; and section 1003, which 
references another section of PATRIOT that is already covered by the 
sunset.
  With the PATRIOT Act, Congress provided government investigators with 
a virtual smorgasbord of new powers from which to choose. Is the 
Government gorging itself on the secretive powers allowed for ``foreign 
intelligence'' gathering, with their less onerous procedural 
requirements, rather than relying on bedrock criminal investigatory 
techniques that are subject to more rigorous review by the Federal 
courts? Have we provided too many choices and too much power to a 
limited few? These are questions that require answers before the more 
far-reaching provisions of PATRIOT are etched into stone.
  The events of September 11, 2001, resound in our hearts and in our 
memories. We owe it to the American people to be circumspect in the 
powers and authorities we grant, even in the name of national security. 
Our country was attacked on September 11 because of the democratic 
principles that this country stands for and that we love. It would be a 
cruel twist of irony to abandon those principles in the guise of a law 
named ``PATRIOT'' that might prove to be anything but a defender or 
protector of those cherished rights and freedoms.
  The PATRIOT Oversight Restoration Act offers a cautious and sensible 
solution to evolving fears about the PATRIOT Act. It will allow 
Congress to re-examine some of the important legal issues that abruptly 
confronted us in the weeks following September 11, and to re-assess our 
efforts with the benefit of hindsight and the luxury of time.
  Mr. President, I ask unanimous consent that the text of the bill and 
an analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             The PATRIOT Oversight Restoration Act of 2003

       Extends the current sunset provision in section 224 of the 
     USA PATRIOT Act (Pub. L. 107-56) to the following additional 
     sections of that law.:
       203(a) and (c), which authorize the disclosure of grand 
     jury information to foreign enforcement, intelligence and 
     immigration officials;
       210 and 211, which broaden the types of information that 
     law enforcement may obtain, upon request, from electronic 
     communication service providers and cable service operators;
       213, which authorizes so-called ``sneak and peak'' (delayed 
     notification) search warrants;
       216 and 222, which expand when, where, and how law 
     enforcement can obtain a pen register or trap and trace 
     order;
       219, which authorizes judges to sign search warrants for 
     properties located outside their districts;
       358, which establishes greater reporting requirements by 
     financial institutions for bank records and removes privacy 
     protections under the law for the same records;
       411 and 1006, which expand the government's authority to 
     declare certain persons inadmissible to the United States;
       412, which grants the Attorney General authority to 
     ``certify'' that an alien is engaged in activity that 
     endangers the national security, and to take such an alien 
     into custody;
       505, which gives law enforcement greater authority to 
     access telephone, bank, and credit records through the 
     issuance of so-called ``National Security Letters'';
       507 and 508, which remove certain privacy protections for 
     educational records and surveys;
       802, which defines ``domestic terrorism'' in a way that 
     could be read to include political protesters engaged in 
     civil disobedience.
       806, which uses the aforementioned definition of ``domestic 
     terrorism'' to expand the government's civil forfeiture 
     authority; and

[[Page S12285]]

       1003, which references another section of PATRIOT (section 
     217, ``Interception of computer trespasser communications'') 
     that is already covered by the sunset.
       Clarifies that after these provisions sunset on December 
     31, 2005, the law shall revert to what it was before the USA 
     PATRIOT Act was enacted.

                                S. 1695

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``PATRIOT Oversight 
     Restoration Act of 2003''.

     SEC. 2. EXTENSION AND CLARIFICATION OF PATRIOT SUNSET 
                   PROVISION.

       The USA PATRIOT Act (Public Law 107-56) is amended by--
       (1) striking section 224;
       (2) adding at the end of title X the following:

     ``SEC. 1017. SUNSET.

       ``(a) In General.--Except as provided in subsection (b), 
     the following sections of this Act and any amendments made by 
     such sections shall cease to have effect on December 31, 
     2005, and any provision of law amended or modified by such 
     sections shall take effect January 1, 2006, as in effect on 
     the day before the effective date of this Act:
       ``(1) In title II, all sections other than sections 201, 
     202, 204, 205, 208, and 221, and the first sentence of 
     section 222.
       ``(2) In title III, section 358.
       ``(3) In title IV, sections 411 and 412.
       ``(4) In title V, sections 505, 507, and 508.
       ``(5) In title VIII, sections 802 and 806.
       ``(6) In this title, sections 1003 and 1006.
       ``(b) Exception.--With respect to any particular foreign 
     intelligence investigation that began before the date on 
     which the provisions referred to in subsection (a) cease to 
     have effect, or with respect to any particular offense or 
     potential offense that began or occurred before the date on 
     which such provisions cease to have effect, such provisions 
     shall continue in effect.''; and
       (3) in the table of contents for such Act, by--
       (A) striking the item for section 224 and inserting the 
     following:

``Sec. 224. [Stricken see section 1017].'';

     and
       (B) inserting after the item for section 1016 the 
     following:

``Sec. 1017. Sunset.''.

  Mr. CRAIG. Mr. President, I am pleased to join the distinguished 
Senator from Vermont, Senator Leahy, and our other colleagues in 
introducing the PATRIOT Oversight Restoration Act of 2003.
  I am one of those who voted in favor of the USA PATRIOT Act to 
respond to the unprecedented, tragic attacks of September 11, 2001. 
However, even at the time of that vote, I raised my reservations about 
the new authorities being granted under the act, and pledged that there 
would be aggressive oversight by the legislative branch to make sure 
PATRIOTS implementation did not compromise civil liberties.
  Since that time, this lengthy and complex law has been subjected to 
considerable dissection and discussion both inside and outside of 
Congress, and concerns have been raised about many of its provisions. 
The low boil of discontent around the Nation exploded in the other 
Chamber some weeks ago with a strong vote to prohibit the use of 
appropriated funds for requesting delayed notice of a search warrant 
under the act.
  To its credit, the Bush administration has lately worked to address 
criticism of the law and demonstrate there have been no abuses by 
Federal law enforcement. I greatly appreciate those efforts and believe 
it is vitally important to continue that dialog with the Congress and 
the American people.
  At the same time, in light of the serious concerns that have been 
raised, I think it is appropriate for us to add some triggers to the 
law that will force Congress to review and affirmatively renew these 
authorities. That is what the PATRIOT Oversight Restoration Act would 
accomplish, by sunsetting additional provisions that are not currently 
set to expire. I do not think this will create a burden for law 
enforcement; on the contrary, if these authorities are indeed critical 
to the protection of our Nation, it should not be difficult to convince 
Congress to renew them. Furthermore, the knowledge that such a case 
must be made at a time certain in the future will serve as an 
additional immediate check against potential abuses.
  The security of our Nation is the first responsibility of the Federal 
Government. Our bill will ensure that responsibility is carried out 
thoughtfully and in our country's great tradition of balance and 
restraint in the enforcement of our laws. I urge all our colleagues to 
join us in supporting the PATRIOT Oversight Restoration Act.
                                 ______
                                 
      By Mr. CAMPBELL (for himself and Mr. Inouye)
  S. 1696. A bill to amend the Indian Self-Determination and Education 
Assistance Act to provide further self-governance by Indian tribes; to 
the Committee on Indian Affairs.
  Mr. CAMPBELL. Mr. President, today I am pleased to be joined by 
Senator Inouye in introducing the Department of Health and Human 
Services Tribal Self Governance Amendments of 2003, a bill that will 
usher in the next phase in Indian Self Governance in health and health-
related programs.
  Up to 1970 the U.S. Government was the sole provider of all or nearly 
all services to Indian tribes and their members.
  For many it is hard to recall that little more than 30 years ago the 
Federal bureaucracy and its employees provided all police, fire, 
resource husbandry, education, and health care services in Indian 
communities.
  The effects on tribal governments were negative and, by crowding out 
the tribes, undermined tribal efforts at self-government.
  The Federal monopoly in services was ended in 1970 when President 
Nixon issued his now-famous Special Message to Congress on Indian 
Affairs that called for a greater tribal role in designing and 
implementing Federal services and programs and in re-building tribal 
governments.
  Nixon's Message led to the enactment of the Indian Self Determination 
and Education Assistance Act of 1975, Pub. L. 93-638.
  Since then Congress has systematically devolved to Indian tribes the 
authority and responsibility to manage Federal programs and assume 
control over their own affairs.
  Tribal Self Governance aims to foster strong tribal governments and 
healthy reservation economies as mechanisms to further tribal self-
government. Self Governance has resulted in a reduction in the Federal 
bureaucracy and an improvement in the quality of services delivered to 
tribal members.
  Instead of Federal micro-management, the Indian tribes can tailor the 
programs to unique local conditions and better serve their members.
  For good reason, Tribal Self Governance has been embraced and 
expanded by Congress and the executive repeatedly with amendments 
enacted in 1984, 1988, 1994, and 2000.
  Building on the solid successes of the early years, the amendments 
made permanent Self Governance in the Bureau of Indian Affairs and 
launched additional demonstrations in the Indian Health Service. In 
2000, I introduced a bill that was enacted to make Self Governance in 
Health Care permanent at the IHS.
  The bill I am introducing today will create a demonstration project 
for non-Indian Health Service programs in the Department of Health and 
Human Services.
  I urge my colleagues to join me in supporting this important bill.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1696

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Department of Health and 
     Human Services Tribal Self-Governance Amendments Act of 
     2003''.

     SEC. 2. AMENDMENT.

       The Indian Self-Determination and Education Assistance Act 
     is amended by striking title VI (25 U.S.C. 450f note; Public 
     Law 93-638) and inserting the following:

   ``TITLE VI--TRIBAL SELF-GOVERNANCE DEMONSTRATION PROJECT FOR THE 
                DEPARTMENT OF HEALTH AND HUMAN SERVICES

     ``SEC. 601. DEFINITIONS.

       ``In this title:
       ``(1) Compact.--The term `compact' means a compact under 
     section 604.
       ``(2) Construction project.--The term `construction 
     project' has the meaning given the term in section 501.
       ``(2) Demonstration project.--The term `demonstration 
     project' means the demonstration project under this title.
       ``(3) Funding agreement.--The term `funding agreement' 
     means a funding agreement under section 604.
       ``(4) Included program.--The term `included program' means 
     a program that is eligible for inclusion under a funding 
     agreement under section 604(c) (including any portion of such 
     a program and any function,

[[Page S12286]]

     service, or activity performed under such a program).
       ``(5) Indian tribe.--The term `Indian tribe', in a case in 
     which an Indian tribe authorizes another Indian tribe, an 
     inter-tribal consortium, or a tribal organization to plan for 
     or carry out an included program on its behalf in accordance 
     with section 603(a)(3), includes the other authorized Indian 
     tribe, inter-tribal consortium, or tribal organization.
       ``(6) Inter-tribal consortium.--The term `inter-tribal 
     consortium' has the meaning given the term in section 501.
       ``(7) Secretary.--The term `Secretary' means the Secretary 
     of Health and Human Services.
       ``(8) Self-governance.--The term `self-governance' has the 
     meaning given the term in section 501.
       ``(9) Tribal share.--The term `tribal share' has the 
     meaning given the term in section 501.

     ``SEC. 602. ESTABLISHMENT OF DEMONSTRATION -PROJECT.

       ``(a) Demonstration.--For a period of not more than 5 years 
     after the date of enactment of the Department of Health and 
     Human Services Tribal Self-Governance Amendments Act of 2003, 
     the Secretary shall carry out a project to demonstrate the 
     effectiveness of tribal operation of the included programs 
     under self-governance principles and authorities.
       ``(b) Administration.--The management and administration of 
     the demonstration project shall be in the Office of the 
     Secretary.

     ``SEC. 603. SELECTION OF PARTICIPATING INDIAN TRIBES.

       ``(a) In General.--
       ``(1) Continuing participation.--Not more than 50 Indian 
     tribes that meet the eligibility criteria specified in 
     subsection (b) shall be entitled to participate in the 
     demonstration project.
       ``(2) Additional participants.--If more than 50 eligible 
     Indian tribes request participation, the Secretary may select 
     additional Indian tribes to participate in the demonstration 
     project.
       ``(3) Other authorized indian tribe, inter-tribal 
     consortium, or tribal government.--If an Indian tribe 
     authorizes another Indian tribe, an inter-tribal consortium, 
     or a tribal organization to plan for or carry out an included 
     program on its behalf under this title, the authorized Indian 
     tribe, inter-tribal consortium, or tribal organization shall 
     have the rights and responsibilities of the authorizing 
     Indian tribe (except as otherwise provided in the authorizing 
     resolution).
       ``(b) Eligibility.--An Indian tribe shall be eligible to 
     participate in the demonstration project if the Indian tribe, 
     as of the date of enactment of the Department of Health and 
     Human Services Tribal Self-Governance Amendments Act of 2003, 
     is a party to a compact or funding agreement under this Act.
       ``(c) Selection.--The Secretary shall select Indian tribes 
     that request participation in the demonstration project by 
     resolution or other official action by the governing body of 
     each Indian tribe to be served.
       ``(d) Planning and Negotiation Grants.--
       ``(1) In general.--Subject to the availability of 
     appropriations, the Secretary shall establish a program to 
     allow Indian tribes that meet the eligibility requirements of 
     this title to be awarded a planning grant or negotiation 
     grant, or both.
       ``(2) Receipt of Grant Not Required.--Receipt of a grant 
     under paragraph (1) by an Indian tribe is not a requirement 
     for the Indian tribe to participate in the demonstration 
     project.

     ``SEC. 604. COMPACTS AND FUNDING AGREEMENTS.

       ``(a) In General.--
       ``(1) New compact and funding agreement.--Not later than 60 
     days after the date of submission by an Indian tribe of a 
     request to participate in the demonstration project, the 
     Secretary shall negotiate and enter into a written compact 
     and funding agreement with the Indian tribe in a manner that 
     is consistent with the trust responsibility of the Federal 
     Government, treaty and statutory obligations, and the 
     government-to-government relationship between Indian tribes 
     and the United States.
       ``(2) Existing compact.--Rather than enter into a new 
     compact under paragraph (1), an Indian tribe may use an 
     existing compact negotiated under title V for purposes of the 
     demonstration project.
       ``(b) Compacts.--
       ``(1) Contents.--A compact under subsection (a) shall 
     designate--
       ``(A) congressional policies regarding tribal self-
     governance;
       ``(B) the intent of the demonstration project;
       ``(C) such terms as shall control from year to year; and
       ``(D) any provisions of this title that are requested by 
     the Indian tribe.
       ``(2) Effective date.--The effective date of a compact 
     shall be the date of execution by the Indian tribe and the 
     Secretary or another date agreed on by the parties.
       ``(3) Duration.--A compact shall remain in effect so long 
     as permitted by Federal law or until terminated by agreement 
     of the parties.
       ``(4) Amendment.--A compact may be amended only by 
     agreement of the parties.
       ``(c) Funding Agreements.--
       ``(1) Scope.--A funding agreement under subsection (a) 
     shall, at the option of the Indian tribe, authorize the 
     Indian tribe to plan, conduct, and administer included 
     programs administered by the Secretary through an agency of 
     the Department of Health and Human Services, set forth in 
     paragraphs (2) through (4).
       ``(2) Initial included programs.--The following programs 
     are eligible for inclusion in a funding agreement under this 
     title:
       ``(A) Administration on aging.--Grants for Native Americans 
     under title VI of the Older Americans Act of 1965 (42 U.S.C. 
     3057 et seq.);
       ``(B) Administration for children and families.--
       ``(i) The tribal temporary assistance for needy families 
     program under section 412(a)(1) of the Social Security Act 
     (42 U.S.C. 612(a)(1) et seq.).
       ``(ii) The Low-Income Home Energy Assistance Program under 
     the Low-Income Home Energy Assistance Act of 1981 (42 U.S.C. 
     8621 et seq.).
       ``(iii) The Community Services Block Grant Program under 
     the Community Services Block Grant Act (42 U.S.C. 9901 et 
     seq.).
       ``(iv) The Child Care and Development Fund under the Child 
     Care and Development Block Grant Act (42 U.S.C. 9858 et 
     seq.).
       ``(v) The native employment works program under section 
     412(a)(2) of the Social Security Act (42 U.S.C. 612(a)(2)).
       ``(vi) The Head Start Program under the Head Start Act (42 
     U.S.C. 9831 et seq.).
       ``(vii) Child welfare services programs under part B of 
     title IV of the Social Security Act (42 U.S.C. 620 et seq.).
       ``(viii) The promoting safe and stable families program 
     under part B of title IV of the Social Security Act (42 
     U.S.C. 620 et seq.).
       ``(ix) Family violence prevention grants for battered 
     women's shelters under the Family Violence Prevention and 
     Services Act (42 U.S.C. 10401 et seq.);
       ``(C) Substance abuse and mental health services 
     administration.--Targeted capacity expansion program under 
     title V of the Public Health Service Act (42 U.S.C. 290aa et 
     seq.);
       ``(D) Block grants regarding mental health and substance 
     abuse.--Mental health and substance abuse block grant 
     programs under title XIX of the Public Health Services Act 
     (42 U.S.C. 300x et seq.);
       ``(E) Health resources and services administration.--
     Community health center grants under section 330 of the 
     Public Health Service Act (42 U.S.C. 254b).
       ``(3) Additional included programs.--The Secretary may 
     identify not more than 6 additional programs annually for 
     inclusion in the demonstration project, including--
       ``(A) all other programs in which Indian tribes are 
     eligible to participate;
       ``(B) all other programs for which Indians are eligible 
     beneficiaries; and
       ``(C) competitive grants for which an Indian tribe receives 
     an individual or cooperative award, on the condition that the 
     Indian tribe agree in the funding agreement to restrictions 
     regarding program redesign and budget reallocation for any 
     competitive awards.
       ``(4) Contents.--A funding agreement--
       ``(A) shall specify--
       ``(i) the services to be provided;
       ``(ii) the functions to be performed; and
       ``(iii) the responsibilities of the Indian tribe and the 
     Secretary;
       ``(B) shall provide for payment by the Secretary to the 
     Indian tribe of funds in accordance with section 605;
       ``(C) shall not allow the Secretary to waive, modify, or 
     diminish in any way the trust responsibility of the United 
     States with respect to Indian tribes and individual Indians 
     that exist under treaties, Executive orders, and Acts of 
     Congress; and
       ``(D) shall allow for retrocession of included programs 
     under section 105(e).

     ``SEC. 605. TRANSFER OF FUNDS.

       ``(a) Transfer.--
       ``(1) In general.--Under any compact or funding agreement 
     entered into under this title, the Secretary shall transfer 
     to the Indian tribe all funds provided for in the funding 
     agreement.
       ``(2) Timing.--Unless the funding agreement provides 
     otherwise, at the request of the Indian tribe--
       ``(A) funding shall be paid in 1 annual lump sum payment; 
     and
       ``(B) the transfer shall be made not later than 10 days 
     after the apportionment of funds by the Office of Management 
     and Budget to the Department of Health and Human Services.
       ``(b) Amount of Funding.--
       ``(1) Funding formulas.--
       ``(A) In general.--Any statutory funding formula for an 
     included program--
       ``(i) shall be waived for the demonstration project under 
     this title; and
       ``(ii) shall be used to determine the amount of funding 
     provided to an Indian tribe.
       ``(B) Adequacy.--Subject to the availability of 
     appropriations--
       ``(i) the funding amount shall be adequate to permit the 
     successful implementation of the demonstration project; and
       ``(ii) the Secretary and the participating Indian tribe 
     shall determine the funding amount through negotiation.
       ``(2) Matching requirement.--An Indian tribe may request a 
     waiver of any matching requirement applicable to an included 
     program, and the Secretary shall liberally grant such 
     reasonable waiver requests.
       ``(3) Contract support costs.--There shall be added to the 
     amount required by paragraph (1) contract support costs as 
     specified in paragraphs (2), (3), (5), and (6) of section 
     106(a).
       ``(4) Administrative fund shares.--
       ``(A) In general.--An Indian tribe may negotiate for a 
     tribal share of administrative

[[Page S12287]]

     funds without regard to the organizational level at which the 
     included programs are carried out.
       ``(B) Inclusion.--A tribal share under subparagraph (A) 
     shall include a share for training and technical assistance 
     services performed by a contractor.

     ``SEC. 606. GENERAL PROVISIONS.

       ``(a) Redesign, Consolidation, and Reallocation.--
       ``(1) In general.--To the extent allowed under the 
     statutory provisions of the included programs included in the 
     funding agreement, and subject to the terms of the funding 
     agreement, an Indian tribe may--
       ``(A) redesign or consolidate the included programs under 
     the funding agreement if the Indian tribe agrees to abide by 
     the statutory purposes of the program; and
       ``(B) reallocate or redirect funds for the included 
     programs, among the included programs under the funding 
     agreement, so long as all demonstration project costs using 
     those funds meet allowable cost standards as required by 
     section 506(c).
       ``(2) Waivers.--
       ``(A) In general.--At the request of an Indian tribe, if 
     the Secretary determines that a waiver would further the 
     purposes of this Act, the Secretary shall grant a waiver of 
     program requirements for the duration of the demonstration 
     project to facilitate the ability of an Indian tribe to 
     redesign included programs or reallocate funds under 
     paragraph (1).
       ``(B) Documentation.--The Secretary shall document all 
     requests for a waiver under subparagraph (A), including a 
     description of--
       ``(i) the reasons for each request;
       ``(ii) the effect of the waiver on the Indian tribe making 
     the request; and
       ``(iii) the views of the Indian tribe regarding the 
     requested waiver.
       ``(b) Inability To Agree on Compact or Funding Agreement.--
       ``(1) Final offer.--If the Secretary and an Indian tribe 
     are unable to agree, in whole or in part, on the terms of a 
     compact or funding agreement (including funding levels), the 
     Indian tribe may submit a final offer to the Secretary.
       ``(2) Determination.--Not later than 45 days after the date 
     of submission of a final offer, or as otherwise agreed to by 
     the Indian tribe, the Secretary shall review and make a 
     determination with respect to the final offer.
       ``(3) No timely determination.--If the Secretary fails to 
     make a determination with respect to a final offer within the 
     time specified in paragraph (2), the Secretary shall be 
     deemed to have agreed to the final offer.
       ``(4) Rejection of final offer.--
       ``(A) In general.--If the Secretary rejects a final offer, 
     the Secretary shall--
       ``(i) submit to the Indian tribe a written statement 
     clearly setting forth the reasons for rejecting the final 
     offer; and
       ``(ii) provide the Indian tribe with a hearing on the 
     record (except that the Indian tribe may, in lieu of such a 
     hearing, file an appeal of the rejection to the Intra-
     Departmental Council on Native American Affairs, the decision 
     of which shall be final and not subject to judicial review).
       ``(B) Burden of proof.--In a hearing or appeal under 
     subparagraph (A)(ii), the Secretary shall have the burden of 
     proving by clear and convincing evidence the validity of the 
     grounds for rejecting the final offer.
       ``(c) Other Funding.--Participation by an Indian tribe in 
     the demonstration project under this title shall not affect 
     the amount of funding that the Indian tribe would receive 
     under the laws (including regulations) governing the included 
     programs if the Indian tribe did not participate.
       ``(d) Duplication of Eligibility.--To the maximum extent 
     practicable, an Indian tribe shall make efforts to coordinate 
     with appropriate States to identify dually eligible 
     individuals to address the potential for the provision of 
     duplicate benefits.
       ``(e) Appeals.--Except as provided in subsection (b)(2), a 
     compact or funding agreement under this title shall be 
     considered to be a contract for the purposes of section 110.
       ``(f) Regulations; Other Agency Statements.--
       ``(1) Regulations.--An Indian tribe shall comply with final 
     regulations for the included programs in connection with the 
     demonstration project.
       ``(2) Other agency statements.--Unless expressly agreed to 
     by an Indian tribe in a compact or funding agreement, the 
     Indian tribe shall not be subject to any agency circular, 
     policy, manual, guidance, or rule that is promulgated by 
     regulation.
       ``(g) Applicability of Other Provisions.--The following 
     provisions of this Act shall apply to a compact or funding 
     agreements entered into under this title:
       ``(1) Section 102(d).
       ``(2) Section 506(b) (conflicts of interest).
       ``(3) Section 506(c)(1) (Single Agency Audit Act).
       ``(4) Section 506(c)(2) (cost principles).
       ``(5) Section 506(c) (records).
       ``(6) Section 507(c)(1)(A) (grounds for rejecting a final 
     offers).
       ``(7) Section 508(g) (prompt payment).
       ``(8) Section 506(h) (nonduplication).
       ``(9) Section 508(h) (interest or other income on 
     transfers).
       ``(10) Section 508(i) (carryover of funds).
       ``(11) Section 509 (construction projects)
       ``(12) Section 510 (Federal procurement laws)
       ``(13) Section 512(b) (regulation waivers).

     ``SEC. 607. REPORT.

       ``(a) In General.--The Secretary shall annually submit to 
     Congress a report on the relative costs and benefits of the 
     demonstration project using evaluation and reporting data 
     provided by participating Indian tribes.
       ``(b) Baseline Measurements.--
       ``(1) In general.--A report under subsection (a) shall be 
     based on baseline measurements developed jointly by the 
     Secretary and participating Indian tribes.
       ``(2) Financial assistance.--The Secretary shall provide 
     financial assistance to Indian tribes to assist Indian tribes 
     in evaluating and reporting on the demonstration project.
       ``(c) Contents.--A report under subsection (a) shall--
       ``(1) verify that the participating Indian tribes met the 
     statutory purposes of the included programs;
       ``(2) confirm that key self-governance principles were 
     carried out as Indian tribes operated the included programs; 
     and
       ``(3) separately include Federal and tribal viewpoints 
     regarding--
       ``(A) the merger of included programs operated under this 
     title and self-governance principles; and
       ``(B) the impact on program beneficiaries.

     ``SEC. 608. AUTHORIZATION OF APPROPRIATIONS.

       ``There are authorized to be appropriated such sums as are 
     necessary to carry out this title, to remain available until 
     expended.''.
                                 ______
                                 
      By Mr. DODD (for himself, Mr. Sarbanes, and Mr. Reed):
  S. 1697. A bill to establish the elderly housing plus health support 
demonstration program to modernize public housing for elderly and 
disabled persons; to the Committee on Banking, Housing, and Urban 
Affairs.
  Mr. DODD. Mr. President, I rise today to introduce a bill that will 
help address a growing problem in America--our ability to provide safe 
and affordable housing that meets the needs of older Americans. 
Currently there are 35 million Americans over 65 years old. That number 
will double within the next 30 years. By 2030, 20 percent of the U.S. 
population will be over 65 years old.
  Nearly one third of all public housing units are occupied by senior 
citizens. This figure has been steadily growing in recent years and 
will undoubtedly continue to grow in the future. It is critically 
important that we remain committed to providing low-income seniors with 
safe and affordable housing.
  The bill I am introducing will promote the development of assisted 
living programs to provide a wide range of services, including medical 
assistance, housekeeping services, hygiene and grooming, and meals 
preparation. Providing these services will in turn give older Americans 
greater opportunities to decide for themselves where they live and how 
they exercise their independence.
  The Elderly Housing Plus Supportive Health Support Demonstration Act, 
will provide Federal grants to allow public housing authorities around 
the country to develop new strategies for providing better housing for 
senior citizens. The bill will give public housing authorities the 
tools they need to improve our public housing stock so our seniors will 
not be prematurely forced out of their homes. The bill authorizes 
competitive grants through the Department of Housing and Urban 
Development to upgrade and reconfigure elderly buildings, and buildings 
with elderly and non-elderly disabled residents. The bill will also 
provide funding for service coordinators and/or congregate services 
programs.
  Unfortunately, as we examine the public housing stock across the 
country from the perspective of older Americans, we find a bleak 
situation. Over 66 percent of existing public housing units are more 
than 30 years old and most are not designed to meet the needs of older 
Americans. For example, too few of our housing units are equipped to 
facilitate mobility for those in wheelchairs. Even such simple things 
as having a kitchen counter top that can be reached from a wheelchair 
may make the difference between a senior being able to stay in his or 
her home or having to leave, often to be sent to an institution where 
seniors have less independence and control over their lives.
  Because most public housing seniors are Medicaid-eligible, the bill 
will also open a path to reducing Medicaid costs, 42 percent of which 
goes to housing elders in costly nursing homes. The cost to the 
Medicaid program of a beneficiary living in public housing converted to 
assisted living has been shown to be as much as one-third that paid to 
a nursing home on a long-term per capita basis.

[[Page S12288]]

  The scarceness of affordable assisted living units has other social 
costs that we must consider as we set national housing policies for the 
future. Often, the cost of taking care of an aging family member can be 
devastating to American families. Too often, working men and women are 
torn between the need to maintain their jobs and the desire to provide 
the best possible care to their aging family members.
  Advances in medicine are allowing us to live longer, healthier lives. 
Longevity is a great blessing, but it also poses significant challenges 
for individuals, families, and society as whole. One of the greatest 
challenges we will face in the decades ahead is the challenge of 
developing new kinds of housing that respond to the needs of our 
growing elderly population.
  It is my hope that this bill will generate earnest discussion on 
these important matters and will ultimately lead to action to ensure 
that every American senior can live in security and dignity.
  I ask unanimous consent that the text of the Elderly Housing Plus 
Health Support Demonstration Act be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1697

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Elderly Housing Plus Health 
     Support Demonstration Act''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds that--
       (1) there are at least 34,100,000 Americans who are 65 
     years of age and older, and persons who are 85 years of age 
     or older comprise almost one-quarter of that population;
       (2) the Bureau of the Census of the Department of Commerce 
     estimates that, by 2030, the elderly population will double 
     to 70,000,000 persons;
       (3) according to the Department of Housing and Urban 
     Development report ``Housing Our Elders--A Report Card on the 
     Housing Conditions and Needs of Older Americans'', the 
     largest and fastest growing segments of the older population 
     include many people who have historically been vulnerable 
     economically and in the housing market--women, minorities, 
     and people over the age of 85;
       (4) many elderly persons are at significant risk with 
     respect to the availability, stability, and accessibility of 
     affordable housing;
       (5) one-third of public housing residents are approximately 
     62 years of age or older, making public housing the largest 
     Federal housing program for senior citizens;
       (6) the elderly population residing in public housing is 
     older, poorer, frailer, and more racially diverse than the 
     elderly population residing in other assisted housing;
       (7) two-thirds of the public housing developments for the 
     elderly, including those that also serve the disabled, were 
     constructed before 1970 and are in dire need of major 
     rehabilitation and configuration, such as rehabilitation to 
     provide new roofs, energy-efficient heating, cooling, utility 
     systems, accessible units, and up-to-date safety features;
       (8) many of the dwelling units in public housing 
     developments for elderly and disabled persons are undersized, 
     are inaccessible to residents with physical limitations, do 
     not comply with the requirements under the Americans with 
     Disabilities Act of 1990, or lack railings, grab bars, 
     emergency call buttons, and wheelchair accessible ramps;
       (9) a study conducted for the Department of Housing and 
     Urban Development found that the cost of the basic 
     modernization needs for public housing for elderly and 
     disabled persons exceeds $5,700,000,000;
       (10) a growing number of elderly and disabled persons face 
     unnecessary institutionalization because of the absence of 
     appropriate supportive services and assisted living 
     facilities in their residences;
       (11) for many elderly and disabled persons, independent 
     living in a non-institutionalization setting is a preferable 
     housing alternative to costly institutionalization, and would 
     allow public monies to be more effectively used to provide 
     necessary services for such persons;
       (12) congregate housing and supportive services coordinated 
     by service coordinators is a proven and cost-effective means 
     of enabling elderly and disabled persons to remain in place 
     with dignity and independence;
       (13) the effective provision of congregate services and 
     assisted living in public housing developments requires the 
     redesign of units and buildings to accommodate independent 
     living;
       (14) most of the elderly who reside in public housing are 
     eligible for Medicaid to pay for the cost of their being 
     institutionalized in nursing homes;
       (15) nursing home costs now exceed 42 percent of the entire 
     Medicaid program; and
       (16) by providing a nursing home resident the choice of 
     assisted living in public housing instead, the Federal 
     Government can save as much as three-quarters of the long 
     term per capita Medicaid costs and at the same time allow a 
     frail senior to age in place.
       (b) Purposes.--The purposes of this Act are--
       (1) to establish a demonstration program to make 
     competitive grants to provide state-of-the-art, health-
     supportive housing with assisted living opportunities for 
     elderly and disabled persons;
       (2) to provide funding to enhance, make safe and 
     accessible, and extend the useful life of public housing 
     developments for the elderly and disabled and to increase 
     their accessibility to supportive services;
       (3) to provide elderly and disabled public housing 
     residents a readily available choice in living arrangements 
     by utilizing the services of service coordinators and 
     providing a continuum of care that allows such residents to 
     age in place;
       (4) to incorporate congregate housing service programs more 
     fully into public housing operations; and
       (5) to accomplish such purposes and provide such funding 
     under existing provisions of law that currently authorize all 
     activities to be conducted under the program.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Assisted living facility.--The term ``assisted living 
     facility'' means any public housing project for the elderly, 
     or for the elderly and the non-elderly disabled, that is 
     operated in accordance with applicable laws and provides to 
     the residents any combination of the following services:
       (A) Meal service adequate to meet nutritional need.
       (B) Housekeeping aid.
       (C) Personal assistance.
       (D) Transportation services.
       (E) Health-related services.
       (F) Such other services as are considered important for 
     maintaining independent living.
       (2) Elderly and disabled families.--The term ``elderly and 
     disabled families'' means families in which 1 or more persons 
     is an elderly person or a person with disabilities.
       (3) Elderly person.--The term ``elderly person'' means a 
     person who is 62 years of age or older.
       (4) Person with disabilities.--The term ``person with 
     disabilities'' has the same meaning as in section 3(b)(3)(E) 
     of the United States Housing Act of 1937 (42 U.S.C. 
     1437a(b)(3)(E)).
       (5) Public housing agency.--The term ``public housing 
     agency'' has the same meaning as in section 3(b)(6)(A) of the 
     United States Housing Act of 1937 (42 U.S.C. 
     1437a(b)(6)(A)).
       (6) Secretary.--The term ``Secretary'' means the Secretary 
     of Housing and Urban Development.

     SEC. 4. AUTHORITY FOR ELDERLY HOUSING PLUS HEALTH SUPPORT 
                   PROGRAM.

       The Secretary shall establish an elderly housing plus 
     health support demonstration program (referred to in this Act 
     as the ``demonstration program'') in accordance with this Act 
     to provide coordinated funding to public housing projects for 
     elderly and disabled families selected for participation 
     under section 5, to be used for--
       (1) rehabilitation or re-configuration of such projects or 
     the acquisition and rehabilitation of an existing assisted 
     living facility in cases where the public housing agency has 
     no elderly housing stock suitable for conversion;
       (2) the provision of space in such projects for supportive 
     services and community and health facilities;
       (3) the provision of service coordinators for such 
     projects; and
       (4) the provision of congregate services programs in or 
     near such projects.

     SEC. 5. PARTICIPATION IN PROGRAM.

       (a) Application and Plan.--To be eligible to be selected 
     for participation in the demonstration program, a public 
     housing agency shall submit to the Secretary--
       (1) an application, in such form and manner as the 
     Secretary shall require; and
       (2) a plan for the agency that--
       (A) identifies the public housing projects for which 
     amounts provided under this Act will be used, limited to 
     projects that are designated or otherwise used for 
     occupancy--
       (i) only by elderly families; or
       (ii) by both elderly families and disabled families; and
       (B) provides for local agencies or organizations to 
     establish or expand the provision of health-related services 
     or other services that will enhance living conditions for 
     residents of public housing projects of the agency, primarily 
     in the project or projects to be assisted under the plan.
       (b) Selection and Criteria.--
       (1) Selection.--The Secretary shall select public housing 
     agencies for participation in the demonstration program based 
     upon a competition among public housing agencies that submit 
     applications for participation.
       (2) Criteria.--The competition referred to in paragraph (1) 
     shall be based upon--
       (A) the extent of the need for rehabilitation or re-
     configuration of the public housing projects of an agency 
     that are identified in the plan of the agency pursuant to 
     subsection (a)(2)(A);
       (B) the past performance of an agency in serving the needs 
     of elderly public housing residents or non-elderly, disabled 
     public housing residents given the opportunities in the 
     locality;

[[Page S12289]]

       (C) the past success of an agency in obtaining non-public 
     housing resources to assist such residents given the 
     opportunities in the locality; and
       (D) the effectiveness of the plan of an agency in creating 
     or expanding services described in subsection (a)(2)(B).

     SEC. 6. CONFIGURATION AND CAPITAL IMPROVEMENTS.

       (a) Grants.--
       (1) In general.--The Secretary shall make grants to public 
     housing agencies selected for participation under section 5, 
     to be used only--
       (A) for capital improvements to rehabilitate or configure 
     public housing projects identified in the plan submitted 
     under section 5(a)(2)(A);
       (B) to provide space for supportive services and for 
     community and health-related facilities primarily for the 
     residents of projects identified in the plan submitted under 
     section 5(a)(2)(A); and
       (C) for the cost of acquisition by a public housing agency 
     of an existing assisted living facility that is in need of 
     rehabilitation in cases where the public housing agency has 
     no elderly housing stock suitable for conversion.
       (2) Source of funds.--Grants shall be made under this 
     section from funds made available for the demonstration 
     program in accordance with subsection (c).
       (3) Inapplicability of other provisions.--Section 9(c)(1) 
     of the United States Housing Act of 1937 (42 U.S.C. 
     1437g(c)(1)) does not apply to grants made under this 
     section.
       (b) Allocation.--Grants funded in accordance with this 
     section shall--
       (1) be allocated among public housing agencies selected for 
     participation under section 5 on the basis of the criteria 
     established under section 5(b)(2); and
       (2) be made in such amounts and subject to such terms as 
     the Secretary shall determine.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated for the demonstration program, to make 
     grants in accordance with this section--
       (1) $100,000,000 for fiscal year 2004; and
       (2) such sums as may be necessary for fiscal year 2005 and 
     each subsequent fiscal year.

     SEC. 7. SERVICE COORDINATORS.

       (a) Grants.--
       (1) In general.--The Secretary shall make grants to public 
     housing agencies selected for participation under section 5, 
     to be used only--
       (A) for public housing projects for elderly and disabled 
     families for whom capital assistance is provided under 
     section 6; and
       (B) to provide service coordinators and related activities 
     identified in the plan of the agency pursuant to section 
     5(a)(2), so that the residents of such public housing 
     projects will have improved and more economical access to 
     services that support the health and well-being of the 
     residents.
       (2) Source of funds.--Grants shall be made under this 
     section from funds made available for the demonstration 
     program in accordance with subsection (c).
       (3) Inapplicability of other provisions.--Section 9(c)(1) 
     of the United States Housing Act of 1937 (42 U.S.C. 
     1437g(c)(1)) does not apply to grants made under this 
     section.
       (b) Allocation.--The Secretary shall provide a grant 
     pursuant to this section, in an amount not to exceed 
     $100,000, to each public housing agency that is selected for 
     participation under section 5.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated for the demonstration program, to make 
     grants in accordance with this section--
       (1) $2,000,000 for fiscal year 2004; and
       (2) such sums as may be necessary for fiscal year 2005 and 
     each subsequent fiscal year.

     SEC. 8. CONGREGATE HOUSING SERVICES PROGRAMS.

       (a) Grants.--
       (1) In general.--The Secretary shall make grants to public 
     housing agencies selected for participation under section 5, 
     to be used only--
       (A) in connection with public housing projects for elderly 
     and disabled families for which capital assistance is 
     provided under section 6; and
       (B) to carry out a congregate housing service program 
     identified in the plan of the agency pursuant to section 
     5(a)(2) that provides services as described in section 
     202(g)(1) of the Housing Act of 1959 (12 U.S.C. 1701q(g)(1)).
       (2) Source of funds.--Grants shall be made under this 
     section from funds made available for the demonstration 
     program in accordance with subsection (c).
       (3) Inapplicability of other provisions.--Other than as 
     specifically provided in this section--
       (A) section 9(c)(1) of the United States Housing Act of 
     1937 (42 U.S.C. 1437g(c)(1)) does not apply to grants made 
     under this section; and
       (B) section 202 of the Housing Act of 1959 (12 U.S.C. 
     1701q) does not apply to grants made under this section.
       (b) Allocation.--The Secretary shall provide a grant 
     pursuant to this section, in an amount not to exceed 
     $150,000, to each public housing agency that is selected for 
     participation under section 5.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated for the demonstration program, to make 
     grants in accordance with this section--
       (1) $3,000,000 for fiscal year 2004; and
       (2) such sums as may be necessary for fiscal year 2005 and 
     each subsequent fiscal year.

     SEC. 9. SAFEGUARDING OTHER APPROPRIATIONS.

       Amounts authorized to be appropriated under this Act to 
     carry out this Act are in addition to any amounts authorized 
     to be appropriated under any other provision of law, or 
     otherwise made available in appropriations Acts, for 
     rehabilitation of public housing projects, for service 
     coordinators for public housing projects, or for congregate 
     housing services programs.
                                 ______
                                 
      By Mr. ENZI (for himself, Mr. Gregg, Mr. Bond, and Mr. Santorum):
  S. 1698. A bill to amend title I of the Employee Retirement Income 
Security Act of 1974 and the Internal Revenue Code of 1986 to promote 
the provision of retirement investment advice to workers managing their 
retirement income assets; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. ENZI. Mr. President, with the passage of the Sarbanes-Oxley Act, 
Congress acted swiftly and surely to restore investor confidence in our 
capital markets. Something needed to be done to assure people that it 
was OK for them to start investing in and relying on the market again. 
People wanted to feel certain that the rules had been fixed and the 
market was fair for all.
  Although I am proud we were able to do that, we all knew that there 
was still more that needed to be done to help the millions of American 
workers whose retirement savings are fueled by the financial markets.
  There's a gap that still threatens the retirement security of the 42 
million Americans who participate in defined contribution plans, like 
401(k) plans. In defined contribution plans, the employee--not the 
employer--decides how much and how to invest retirement assets. As 
anyone who has been investing their hard earned dollars through their 
employer provided plans knows, there are quite a few choices out there. 
They each have their own risks and rewards, but they have one thing in 
common--they require an employee who is investing his or her pay to 
have a good sense of the market. Employees find themselves having to 
navigate bull and bear markets, weather changes in personal and 
professional circumstances, and use long-term planning to set a course 
that leads to retirement security.
  401(k) plans provide great opportunity as well as risk. The 
difference between the employee who can maximize opportunity and 
minimize risk and the employee who cannot is sound investment advice. 
Unfortunately, only 16 percent of plan participants have an investment 
advisory service available to them through their retirement plans. This 
survey by the Spectrum Group confirms the existence of an advice gap 
that must be addressed. The legislation I am introducing today is 
intended to close the advice gap and help workers choose wisely and 
chart their course to retirement security.
  Both workers and employers are acutely aware of the advice gap. 
According to the 2002 Transamerica Small Business Retirement Survey, 76 
percent of employees felt they don't know as much about retirement 
investing as they should--up from 65 percent in 2001. This view is held 
even more strongly by employers, with 91 percent believing their 
workers don't know enough about retirement investing.
  There is another gap that exists with respect to retirement 
investment advice. Wealthier individuals or high-level executives are 
more likely to have access to quality investment advice than rank-and-
file workers. The Retirement Security Advice Act of 2003 will bring 
access to quality investment advice, and thereby retirement security, 
to rank-and-file workers who need it most, particularly those employed 
at small businesses.

  Access to investment advice has not kept pace with either the 
increasing number of workers participating in 401(k) plans or the 
increasing complexity of investment options. What accounts for the gulf 
between the need for and the supply of investment advice?
  The 1974 Employee Retirement Income Security Act (ERISA) imposes 
outdated barriers to the provision of investment advice to workers 
participating in 401(k) plans. ERISA prevents investment advisors who 
have an affiliation with the investment options available under the 
plan from providing investment advice to plan participants. This 
restriction might have

[[Page S12290]]

seemed reasonable in 1974 when retirement plans were dominated by 
traditional defined benefit pension plans. However, the explosion in 
401(k) plans--and thus the need to provide workers with investment 
advice services--was not imagined in 1974.
  This bill will allow employers to provide their employees with access 
to quality investment advice so long as the advisors fully and clearly 
disclose their fees and any potential conflicts of interest. 
Furthermore, investment advisors are subject to ERISA's stringent 
fiduciary obligations, which requires them to act solely in the best 
interest of plan participants. Investment advisors who breach this 
fiduciary duty are subject to a lawsuit by the worker, another plan 
fiduciary, the plan itself, or the Department of Labor. Employers also 
have the fiduciary obligation of prudently selecting and periodically 
reviewing advice providers.
  Let us remember that workers are not required to either seek or 
follow the investment advice. All advice given is strictly voluntary. 
With clear and full disclosure of fee arrangements and potential 
conflicts of interest, plan participants can decide for themselves 
whether or not to act on it.
  Some of my colleagues might argue that only independent investment 
advisors should be allowed to provide investment advice to plan 
participants. This ignores both the realities of the marketplace for 
investment advice and the needs of employees and employers. Excluding 
many of the most qualified financial services companies from offering 
investment advice to plan participants will leave a large void in the 
401(k) advice marketplace. Conversely, increasing competition in this 
marketplace will promote better quality and lower costs--both to the 
benefit of plan participants.
  Restricting the provision of investment advice services to 
independent advisors ensures that the advice gap will remain wide--
particularly at small businesses. Employers would be required to look 
outside of their plan's current administrative arrangement and hire 
another financial institution to provide investment advice services to 
employees. For small companies like those in Wyoming, meeting this 
criteria would be almost impossible. Small employers face unique 
resource and personnel limitations. The cost of researching, selecting, 
and paying for the services of an independent advice provider will 
deter small employers from providing this valued benefit to employees.
  The key to retirement security for 401(k) participants is quality 
investment advice, tailored to the needs of each worker. The key to 
expanding the number of workers getting such advice is increasing 
competition in the marketplace for investment advice while providing 
meaningful protection and disclosure to workers. The Retirement 
Security Advice Act will open the door to both.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1698

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

       This Act may be cited as the ``Retirement Security Advice 
     Act of 2003''.

     SEC. 2. PROHIBITED TRANSACTION EXEMPTION FOR THE PROVISION OF 
                   INVESTMENT ADVICE.

       (a) Amendments to the Employee Retirement Income Security 
     Act of 1974.--
       (1) Exemption from prohibited transactions.--Section 408(b) 
     of the Employee Retirement Income Security Act of 1974 (29 
     U.S.C. 1108(b)) is amended by adding at the end the following 
     new paragraph:
       ``(14)(A) Any transaction described in subparagraph (B) in 
     connection with the provision of investment advice described 
     in section 3(21)(A)(ii), in any case in which--
       ``(i) the investment of assets of the plan is subject to 
     the direction of plan participants or beneficiaries,
       ``(ii) the advice is provided to the plan or a participant 
     or beneficiary of the plan by a fiduciary adviser in 
     connection with any sale, acquisition, or holding of a 
     security or other property for purposes of investment of plan 
     assets, and
       ``(iii) the requirements of subsection (g) are met in 
     connection with the provision of the advice.
       ``(B) The transactions described in this subparagraph are 
     the following:
       ``(i) the provision of the advice to the plan, participant, 
     or beneficiary;
       ``(ii) the sale, acquisition, or holding of a security or 
     other property (including any lending of money or other 
     extension of credit associated with the sale, acquisition, or 
     holding of a security or other property) pursuant to the 
     advice; and
       ``(iii) the direct or indirect receipt of fees or other 
     compensation by the fiduciary adviser or an affiliate thereof 
     (or any employee, agent, or registered representative of the 
     fiduciary adviser or affiliate) in connection with the 
     provision of the advice or in connection with a sale, 
     acquisition, or holding of a security or other property 
     pursuant to the advice.''.
       (2) Requirements.--Section 408 of such Act is amended 
     further by adding at the end the following new subsection:
       ``(g) Requirements Relating to Provision of Investment 
     Advice by Fiduciary Advisers.--
       ``(1) In general.--The requirements of this subsection are 
     met in connection with the provision of investment advice 
     referred to in section 3(21)(A)(ii), provided to an employee 
     benefit plan or a participant or beneficiary of an employee 
     benefit plan by a fiduciary adviser with respect to the plan 
     in connection with any sale, acquisition, or holding of a 
     security or other property for purposes of investment of 
     amounts held by the plan, if--
       ``(A) in the case of the initial provision of the advice 
     with regard to the security or other property by the 
     fiduciary adviser to the plan, participant, or beneficiary, 
     the fiduciary adviser provides to the recipient of the 
     advice, at a time reasonably contemporaneous with the initial 
     provision of the advice, a written notification (which may 
     consist of notification by means of electronic 
     communication)--
       ``(i) of all fees or other compensation relating to the 
     advice that the fiduciary adviser or any affiliate thereof is 
     to receive (including compensation provided by any third 
     party) in connection with the provision of the advice or in 
     connection with the sale, acquisition, or holding of the 
     security or other property,
       ``(ii) of any material affiliation or contractual 
     relationship of the fiduciary adviser or affiliates thereof 
     in the security or other property,
       ``(iii) of any limitation placed on the scope of the 
     investment advice to be provided by the fiduciary adviser 
     with respect to any such sale, acquisition, or holding of a 
     security or other property,
       ``(iv) of the types of services provided by the fiduciary 
     adviser in connection with the provision of investment advice 
     by the fiduciary adviser,
       ``(v) that the adviser is acting as a fiduciary of the plan 
     in connection with the provision of the advice, and
       ``(vi) that a recipient of the advice may separately 
     arrange for the provision of advice by another adviser, that 
     could have no material affiliation with and receive no fees 
     or other compensation in connection with the security or 
     other property,
       ``(B) the fiduciary adviser provides appropriate 
     disclosure, in connection with the sale, acquisition, or 
     holding of the security or other property, in accordance with 
     all applicable securities laws,
       ``(C) the sale, acquisition, or holding occurs solely at 
     the direction of the recipient of the advice,
       ``(D) the compensation received by the fiduciary adviser 
     and affiliates thereof in connection with the sale, 
     acquisition, or holding of the security or other property is 
     reasonable, and
       ``(E) the terms of the sale, acquisition, or holding of the 
     security or other property are at least as favorable to the 
     plan as an arm's length transaction would be.
       ``(2) Standards for presentation of information.--
       ``(A) In general.--The notification required to be provided 
     to participants and beneficiaries under paragraph (1)(A) 
     shall be written in a clear and conspicuous manner and in a 
     manner calculated to be understood by the average plan 
     participant and shall be sufficiently accurate and 
     comprehensive to reasonably apprise such participants and 
     beneficiaries of the information required to be provided in 
     the notification.
       ``(B) Model form for disclosure of fees and other 
     compensation.--The Secretary shall issue a model form for the 
     disclosure of fees and other compensation required in 
     paragraph (1)(A)(i) which meets the requirements of 
     subparagraph (A).
       ``(3) Exemption conditioned on making required information 
     available annually, on request, and in the event of material 
     change.--The requirements of paragraph (1)(A) shall be deemed 
     not to have been met in connection with the initial or any 
     subsequent provision of advice described in paragraph (1) to 
     the plan, participant, or beneficiary if, at any time during 
     the provision of advisory services to the plan, participant, 
     or beneficiary, the fiduciary adviser fails to maintain the 
     information described in clauses (i) through (iv) of 
     paragraph (1)(A) in currently accurate form and in the manner 
     described in paragraph (2) or fails--
       ``(A) to provide, without charge, such currently accurate 
     information to the recipient of the advice no less than 
     annually,
       ``(B) to make such currently accurate information 
     available, upon request and without charge, to the recipient 
     of the advice, or
       ``(C) in the event of a material change to the information 
     described in clauses (i) through (iv) of paragraph (1)(A), to 
     provide, without charge, such currently accurate information 
     to the recipient of the advice at a

[[Page S12291]]

     time reasonably contemporaneous to the material change in 
     information.
       ``(4) Maintenance for 6 years of evidence of compliance.--A 
     fiduciary adviser referred to in paragraph (1) who has 
     provided advice referred to in such paragraph shall, for a 
     period of not less than 6 years after the provision of the 
     advice, maintain any records necessary for determining 
     whether the requirements of the preceding provisions of 
     this subsection and of subsection (b)(14) have been met. A 
     transaction prohibited under section 406 shall not be 
     considered to have occurred solely because the records are 
     lost or destroyed prior to the end of the 6-year period 
     due to circumstances beyond the control of the fiduciary 
     adviser.
       ``(5) Exemption for plan sponsor and certain other 
     fiduciaries.--
       ``(A) In general.--Subject to subparagraph (B), a plan 
     sponsor or other person who is a fiduciary (other than a 
     fiduciary adviser) shall not be treated as failing to meet 
     the requirements of this part solely by reason of the 
     provision of investment advice referred to in section 
     3(21)(A)(ii) (or solely by reason of contracting for or 
     otherwise arranging for the provision of the advice), if--
       ``(i) the advice is provided by a fiduciary adviser 
     pursuant to an arrangement between the plan sponsor or other 
     fiduciary and the fiduciary adviser for the provision by the 
     fiduciary adviser of investment advice referred to in such 
     section,
       ``(ii) the terms of the arrangement require compliance by 
     the fiduciary adviser with the requirements of this 
     subsection, and
       ``(iii) the terms of the arrangement include a written 
     acknowledgment by the fiduciary adviser that the fiduciary 
     adviser is a fiduciary of the plan with respect to the 
     provision of the advice.
       ``(B) Continued duty of prudent selection of adviser and 
     periodic review.--Nothing in subparagraph (A) shall be 
     construed to exempt a plan sponsor or other person who is a 
     fiduciary from any requirement of this part for the prudent 
     selection and periodic review of a fiduciary adviser with 
     whom the plan sponsor or other person enters into an 
     arrangement for the provision of advice referred to in 
     section 3(21)(A)(ii). The plan sponsor or other person who is 
     a fiduciary has no duty under this part to monitor the 
     specific investment advice given by the fiduciary adviser to 
     any particular recipient of the advice.
       ``(C) Availability of plan assets for payment for advice.--
     Nothing in this part shall be construed to preclude the use 
     of plan assets to pay for reasonable expenses in providing 
     investment advice referred to in section 3(21)(A)(ii).
       ``(6) Definitions.--For purposes of this subsection and 
     subsection (b)(14)--
       ``(A) Fiduciary adviser.--The term `fiduciary adviser' 
     means, with respect to a plan, a person who is a fiduciary of 
     the plan by reason of the provision of investment advice by 
     the person to the plan or to a participant or beneficiary and 
     who is--
       ``(i) registered as an investment adviser under the 
     Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.) or 
     under the laws of the State in which the fiduciary maintains 
     its principal office and place of business,
       ``(ii) a bank or similar financial institution referred to 
     in section 408(b)(4) or a savings association (as defined in 
     section 3(b)(1) of the Federal Deposit Insurance Act (12 
     U.S.C. 1813(b)(1))), but only if the advice is provided 
     through a trust department of the bank or similar financial 
     institution or savings association which is subject to 
     periodic examination and review by Federal or State banking 
     authorities,
       ``(iii) an insurance company qualified to do business under 
     the laws of a State,
       ``(iv) a person registered as a broker or dealer under the 
     Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.),
       ``(v) an affiliate of a person described in any of clauses 
     (i) through (iv), or
       ``(vi) an employee, agent, or registered representative of 
     a person described in any of clauses (i) through (v) who 
     satisfies the requirements of applicable insurance, banking, 
     and securities laws relating to the provision of the advice.
       ``(B) Affiliate.--The term `affiliate' of another entity 
     means an affiliated person of the entity (as defined in 
     section 2(a)(3) of the Investment Company Act of 1940 (15 
     U.S.C. 80a-2(a)(3))).
       ``(C) Registered representative.--The term `registered 
     representative' of another entity means a person described in 
     section 3(a)(18) of the Securities Exchange Act of 1934 (15 
     U.S.C. 78c(a)(18)) (substituting the entity for the broker or 
     dealer referred to in such section) or a person described in 
     section 202(a)(17) of the Investment Advisers Act of 1940 (15 
     U.S.C. 80b-2(a)(17)) (substituting the entity for the 
     investment adviser referred to in such section).''.
       (b) Amendments to the Internal Revenue Code of 1986.--
       (1) Exemption from prohibited transactions.--Subsection (d) 
     of section 4975 of the Internal Revenue Code of 1986 
     (relating to exemptions from tax on prohibited transactions) 
     is amended--
       (A) in paragraph (14), by striking ``or'' at the end;
       (B) in paragraph (15), by striking the period at the end 
     and inserting ``; or''; and
       (C) by adding at the end the following new paragraph:
       ``(16) any transaction described in subsection (f)(7)(A) in 
     connection with the provision of investment advice described 
     in subsection (e)(3)(B)(i), in any case in which--
       ``(A) the investment of assets of the plan is subject to 
     the direction of plan participants or beneficiaries,
       ``(B) the advice is provided to the plan or a participant 
     or beneficiary of the plan by a fiduciary adviser in 
     connection with any sale, acquisition, or holding of a 
     security or other property for purposes of investment of plan 
     assets, and
       ``(C) the requirements of subsection (f)(7)(B) are met in 
     connection with the provision of the advice.''.
       (2) Allowed transactions and requirements.--Subsection (f) 
     of such section 4975 (relating to other definitions and 
     special rules) is amended by adding at the end the following 
     new paragraph:
       ``(7) Provisions relating to investment advice provided by 
     fiduciary advisers.--
       ``(A) Transactions allowable in connection with investment 
     advice provided by fiduciary advisers.--The transactions 
     referred to in subsection (d)(16), in connection with the 
     provision of investment advice by a fiduciary adviser, are 
     the following:
       ``(i) the provision of the advice to the plan, participant, 
     or beneficiary;
       ``(ii) the sale, acquisition, or holding of a security or 
     other property (including any lending of money or other 
     extension of credit associated with the sale, acquisition, or 
     holding of a security or other property) pursuant to the 
     advice; and
       ``(iii) the direct or indirect receipt of fees or other 
     compensation by the fiduciary adviser or an affiliate thereof 
     (or any employee, agent, or registered representative of the 
     fiduciary adviser or affiliate) in connection with the 
     provision of the advice or in connection with a sale, 
     acquisition, or holding of a security or other property 
     pursuant to the advice.
       ``(B) Requirements relating to provision of investment 
     advice by fiduciary advisers.--The requirements of this 
     subparagraph (referred to in subsection (d)(16)(C)) are met 
     in connection with the provision of investment advice 
     referred to in subsection (e)(3)(B), provided to a plan or a 
     participant or beneficiary of a plan by a fiduciary adviser 
     with respect to the plan in connection with any sale, 
     acquisition, or holding of a security or other property for 
     purposes of investment of amounts held by the plan, if--
       ``(i) in the case of the initial provision of the advice 
     with regard to the security or other property by the 
     fiduciary adviser to the plan, participant, or beneficiary, 
     the fiduciary adviser provides to the recipient of the 
     advice, at a time reasonably contemporaneous with the initial 
     provision of the advice, a written notification (which may 
     consist of notification by means of electronic 
     communication)--
       ``(I) of all fees or other compensation relating to the 
     advice that the fiduciary adviser or any affiliate thereof is 
     to receive (including compensation provided by any third 
     party) in connection with the provision of the advice or in 
     connection with the sale, acquisition, or holding of the 
     security or other property,
       ``(II) of any material affiliation or contractual 
     relationship of the fiduciary adviser or affiliates thereof 
     in the security or other property,
       ``(III) of any limitation placed on the scope of the 
     investment advice to be provided by the fiduciary adviser 
     with respect to any such sale, acquisition, or holding of a 
     security or other property,
       ``(IV) of the types of services provided by the fiduciary 
     adviser in connection with the provision of investment advice 
     by the fiduciary adviser,
       ``(V) that the adviser is acting as a fiduciary of the plan 
     in connection with the provision of the advice, and
       ``(VI) that a recipient of the advice may separately 
     arrange for the provision of advice by another adviser, that 
     could have no material affiliation with and receive no fees 
     or other compensation in connection with the security or 
     other property,
       ``(ii) the fiduciary adviser provides appropriate 
     disclosure, in connection with the sale, acquisition, or 
     holding of the security or other property, in accordance with 
     all applicable securities laws,
       ``(iii) the sale, acquisition, or holding occurs solely at 
     the direction of the recipient of the advice,
       ``(iv) the compensation received by the fiduciary adviser 
     and affiliates thereof in connection with the sale, 
     acquisition, or holding of the security or other property is 
     reasonable, and
       ``(v) the terms of the sale, acquisition, or holding of the 
     security or other property are at least as favorable to the 
     plan as an arm's length transaction would be.
       ``(C) Standards for presentation of information.--The 
     notification required to be provided to participants and 
     beneficiaries under subparagraph (B)(i) shall be written in a 
     clear and conspicuous manner and in a manner calculated to be 
     understood by the average plan participant and shall be 
     sufficiently accurate and comprehensive to reasonably apprise 
     such participants and beneficiaries of the information 
     required to be provided in the notification.
       ``(D) Exemption conditioned on making required information 
     available annually, on request, and in the event of material 
     change.--The requirements of subparagraph (B)(i) shall be 
     deemed not to have been met in connection with the initial or 
     any subsequent provision of advice described in subparagraph 
     (B) to the plan, participant, or beneficiary if, at any time 
     during the provision of advisory services to the plan, 
     participant, or beneficiary, the fiduciary adviser

[[Page S12292]]

     fails to maintain the information described in subclauses (I) 
     through (IV) of subparagraph (B)(i) in currently accurate 
     form and in the manner required by subparagraph (C), or 
     fails--
       ``(i) to provide, without charge, such currently accurate 
     information to the recipient of the advice no less than 
     annually,
       ``(ii) to make such currently accurate information 
     available, upon request and without charge, to the recipient 
     of the advice, or
       ``(iii) in the event of a material change to the 
     information described in subclauses (I) through (IV) of 
     subparagraph (B)(i), to provide, without charge, such 
     currently accurate information to the recipient of the 
     advice at a time reasonably contemporaneous to the 
     material change in information.
       ``(E) Maintenance for 6 years of evidence of compliance.--A 
     fiduciary adviser referred to in subparagraph (B) who has 
     provided advice referred to in such subparagraph shall, for a 
     period of not less than 6 years after the provision of the 
     advice, maintain any records necessary for determining 
     whether the requirements of the preceding provisions of this 
     paragraph and of subsection (d)(16) have been met. A 
     transaction prohibited under subsection (c)(1) shall not be 
     considered to have occurred solely because the records are 
     lost or destroyed prior to the end of the 6-year period due 
     to circumstances beyond the control of the fiduciary adviser.
       ``(F) Exemption for plan sponsor and certain other 
     fiduciaries.--A plan sponsor or other person who is a 
     fiduciary (other than a fiduciary adviser) shall not be 
     treated as failing to meet the requirements of this section 
     solely by reason of the provision of investment advice 
     referred to in subsection (e)(3)(B) (or solely by reason of 
     contracting for or otherwise arranging for the provision of 
     the advice), if--
       ``(i) the advice is provided by a fiduciary adviser 
     pursuant to an arrangement between the plan sponsor or other 
     fiduciary and the fiduciary adviser for the provision by the 
     fiduciary adviser of investment advice referred to in such 
     section,
       ``(ii) the terms of the arrangement require compliance by 
     the fiduciary adviser with the requirements of this 
     paragraph,
       ``(iii) the terms of the arrangement include a written 
     acknowledgment by the fiduciary adviser that the fiduciary 
     adviser is a fiduciary of the plan with respect to the 
     provision of the advice, and
       ``(iv) the requirements of part 4 of subtitle B of title I 
     of the Employee Retirement Income Security Act of 1974 are 
     met in connection with the provision of such advice.
       ``(G) Definitions.--For purposes of this paragraph and 
     subsection (d)(16)--
       ``(i) Fiduciary adviser.--The term `fiduciary adviser' 
     means, with respect to a plan, a person who is a fiduciary of 
     the plan by reason of the provision of investment advice by 
     the person to the plan or to a participant or beneficiary and 
     who is--
       ``(I) registered as an investment adviser under the 
     Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.) or 
     under the laws of the State in which the fiduciary maintains 
     its principal office and place of business,
       ``(II) a bank or similar financial institution referred to 
     in subsection (d)(4) or a savings association (as defined in 
     section 3(b)(1) of the Federal Deposit Insurance Act (12 
     U.S.C. 1813(b)(1))), but only if the advice is provided 
     through a trust department of the bank or similar financial 
     institution or savings association which is subject to 
     periodic examination and review by Federal or State banking 
     authorities,
       ``(III) an insurance company qualified to do business under 
     the laws of a State,
       ``(IV) a person registered as a broker or dealer under the 
     Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.),
       ``(V) an affiliate of a person described in any of 
     subclauses (I) through (IV), or
       ``(VI) an employee, agent, or registered representative of 
     a person described in any of subclauses (I) through (V) who 
     satisfies the requirements of applicable insurance, banking, 
     and securities laws relating to the provision of the advice.
       ``(ii) Affiliate.--The term `affiliate' of another entity 
     means an affiliated person of the entity (as defined in 
     section 2(a)(3) of the Investment Company Act of 1940 (15 
     U.S.C. 80a-2(a)(3))).
       ``(iii) Registered representative.--The term `registered 
     representative' of another entity means a person described in 
     section 3(a)(18) of the Securities Exchange Act of 1934 (15 
     U.S.C. 78c(a)(18)) (substituting the entity for the broker or 
     dealer referred to in such section) or a person described in 
     section 202(a)(17) of the Investment Advisers Act of 1940 (15 
     U.S.C. 80b-2(a)(17)) (substituting the entity for the 
     investment adviser referred to in such section).''.

  Mr. BOND. Mr. President, I rise today to cosponsor the Retirement 
Security Advice Act of 2003, introduced by my good friend from Wyoming, 
Senator Mike Enzi. I do so because this bill holds important 
implications for small businesses in this county and for the millions 
of Americans they employ.
  In 1996, we created the Savings Incentive Match Plans for Employees 
(SIMPLE) as a pension-plan option for small firms in this country. The 
goal was a simple one: provide a pension plan with low administrative 
costs for employers so they can offer pension benefits to encourage 
employees to save for their retirement. I am pleased that these plans 
have become quite popular, and together with the other pension 
simplifications and improvements enacted since then, they have 
contributed to better access to pension benefits by small businesses 
and their employees.
  Greater retirement savings, however, have raised new and complex 
issues for many employees who have seen their pension accounts grow 
substantially. As a member of both the Senate Small Business Committee 
and the Health, Education, Labor, and Pension Committee, I have heard 
many constitents raise difficult questions in this area: What are 
appropriate investments for my personal circumstances and risk 
tolerance? Should I buy stocks, bonds, annuities, or something else? 
How should I diversify my investments? When should I modify my 
investment mix? And so on.
  The importance of these questions has increased substantially in 
light of recent high-profile business failures and economic downtown. 
Gone are the days of the momentum market where any dollar invested 
seemed to grow with little effort or no risk.
  The return to more cautious investing has left employees who 
participate in employer-sponsored pension plans in a real dilemma--hire 
an outside investment advisor or go it alone in most cases. Why? 
Current pension rules effectively preclude most employers from offering 
investment advice to their employees. In fact, recent estimates are 
that only about 16 percent of participants have access to investment 
advice through their pension plan. In today's complex investment 
environment that is simply too little help for employees who are trying 
to manage their retirement security.
  Senator Enzi's bill addresses this situation in a responsible way. 
For most businesses, and particularly small firms, the logical place to 
look for an investment advisor would be the company that manage's the 
plan's investment options or an affiliated firm. Under Senator Enzi's 
bill that option would now be available, opening the door for countless 
businesses to offer this important benefit at a low cost to their 
employees who participate in the company's pension plan. In addition, 
by allowing more businesses to offer investment-advice benefits, the 
bill creates an opportunity for increased competition among investment 
advisors, which can lead to better advice products and lower costs 
overall.
  Senator Enzi's bill, however, does not simply change the rules to 
help the business community. It also includes critical protections for 
the plan participants. Investment advisors must satisfy strict 
requirements concerning their qualifications, and they must disclose on 
a regular basis all their business relationships, fees, and potential 
conflicts of interest directly to the participants. In addition, and 
arguably most importantly, the investment advisor must assume fiduciary 
liability for the investment advice it renders to the employee 
participants in the plan. In short, if the investment advisor does not 
act solely in the interest of the participant, it will be liable for 
damages resulting from the breach of its fidicuary duty. Together, the 
bill's provisions provide substantive safeguards to protect the 
interests of the plan participants who take advantage of the new 
investment-advice benefit.
  Some have contended that a better alternative is to force small 
businesses to engage an independent third party to provide investment 
advice. I disagree. The result would simply be the same as under 
current law. Cost is a real issue for small businesses seeking to offer 
benefits like pension plans and related investment advice--hence, the 
genesis of the SIMPLE pension plan. As under the current rules, if the 
only option is a costly outside advisor, the small firm will not offer 
the investment-advise benefit. As a result, we would not move the ball 
even a yard further--employers would still be left to their own devices 
to figure out the complex world of investing or they would have to seek 
out and hire their own advisor, which few have the wherewithal to do.
  More to the point, nothing under the Enzi bill prevents a business 
from engaging an independent advisor if the employer deems that the 
best alternative. The standard under the Enzi bill for selecting the 
investment advisor is prudence; the same criteria that the employer 
must exercise under current law when selecting the company

[[Page S12293]]

that manages the pension plan and its investment options. If a prudent 
person would not hire or retain the investment advisor, then under the 
Enzi bill, the employer should not do so either or face liability for 
breach of fiduciary duty. Again, additional protection for the plan 
participants.
  In my assessment, investment advice is an increasingly important 
benefit that employers want and need. Morover, small businesses in 
particular need the flexibility to offer benefits that keep them 
competitive with big companies as they seek to hire and retain the very 
best employees possible. And when we talk about small businesses, we 
are not dealing with an insignificant employer in this country. In 
fact, according to Small Business Administration data, small businesses 
represent 99 percent of all employers and provide 60 to 80 percent of 
the net new jobs annually in this country.
  The Retirement Security Advice Act provides a carefully balanced and 
responsible solution to this situation. Most importantly, it provides a 
solution that employers will actually use to offer the investment 
advice sought by their employers who struggle to put money aside in the 
hopes of having a nest egg that someday will provide them with a 
comfortable retirement. I am pleased to co-sponsor this bill and look 
forward to working with my colleague from Wyoming to see it enacted 
into law.
                                 ______
                                 
      By Mr. INHOFE:
  S. 1699. A bill to amend the Head Start Act to require parental 
consent for nonemergency intrusive physical examinations; to the 
Committee on Health, Education, Labor and Pensions.
  Mr. INHOFE. Mr. President, today I am introducing legislation to 
require parental consent for intrusive physical exams, genital exams, 
administered under the Head Start program.
  Young children attending Head Start programs should not be subjected 
to these invasive exams without the prior knowledge or consent of their 
parents. While the Department of Health and Human Services has 
administered general exam guidelines to agencies, the U.S. Code is not 
clear about prohibiting them without parental consent. My bill will 
clarify the Code by not allowing any non-emergency invasive genital 
exam by a Head Start agency without parental consent.
  As a father and grandfather, I believe it is vital for parents to be 
informed about what is happening to their children in the classroom. I 
hope that my colleagues will join me in support of this important bill.
                                 ______
                                 
      By Mr. HATCH (for himself, Mr. Biden, Mr. Specter, Mr. Leahy, Mr. 
        DeWine, Mrs. Feinstein, Mr. Smith, Mr. Kennedy, Ms. Collins, 
        Mr. Schumer, Mr. Warner, Mr. Durbin, Mr. Campbell, Mr. Kohl, 
        Mrs. Clinton, Ms. Cantwell, Mrs. Murray, and Ms. Landrieu):
  S. 1700. A bill to eliminate the substantial backlog of DNA samples 
collected from crime scenes and convicted offenders, to improve and 
expand the DNA testing capacity of Federal, State, and local crime 
laboratories, to increase research and development of new DNA testing 
technologies, to develop new training programs regarding the collection 
and use of DNA evidence, to provide post-conviction testing of DNA 
evidence to exonerate the innocent, to improve the performance of 
counsel in State capital cases, and for other purposes; to the 
Committee on the Judiciary.
  Mr. HATCH. Mr. President, I rise today to introduce a comprehensive 
bipartisan bill which will ensure the full use and availability of DNA 
technology in our criminal justice system. This bill, which enacts the 
President's DNA technology initiative, announced by Attorney General 
Ashcroft on March 11, 2003, will provide over $1 billion in funding and 
assistance over the next 5 years to the criminal justice system in 
order to realize the full potential of DNA technology to solve crimes, 
protect the public and exonerate the innocent.
  The legislation I am introducing today represents a bipartisan 
compromise which was reached through extensive negotiations among 
Senators on the Judiciary Committee and members from the House 
Committee on the Judiciary. I want to first commend my counterpart, 
Chairman Sensenbrenner, for his steady leadership on this issue and his 
commitment to reaching an agreement, and note the commitment and 
dedication of Representatives Conyers, Coble, LaHood, and Delahunt to 
this important initiative.
  I also want to commend my colleagues here in the Senate: Senators 
Biden, Specter, Leahy, DeWine, and Feinstein--who each have a long-
standing commitment to issues included in this comprehensive DNA bill. 
We have worked together on DNA issues for many years, and thanks to 
each of their efforts we now are in the position to enact bipartisan 
legislation that enhances the use of DNA technology in our criminal 
justice system. I want to express my personal thanks to all of them for 
their leadership and contributions to this important piece of 
legislation.
  Also, I want to highlight specifically the accomplishment today of 
the ranking member of our Judiciary Committee, Senator Leahy. For 
several years, Senator Leahy has dedicated himself to the issue of DNA 
technology and ensuring that such technology is used to protect the 
integrity of our criminal justice system by exonerating the innocent 
while punishing the guilty. He has worked tirelessly in this area as 
the sponsor of the Innocence Protection Act. While we both shared a 
common goal of protecting the integrity of our criminal justice system, 
we differed on the means to accomplish that end.
  Today, I am proud to support the compromise proposal we have 
negotiated, and join together with my friend, Senator Leahy, to 
introduce the Innocence Protection Act of 2003 as part of this 
legislative package. I want to specifically congratulate Senator Leahy 
for his accomplishment and for his dedication to this important issue.
  It is perhaps fitting that 50 years after the discovery of DNA by Dr. 
James Watson in 1953, we are now proposing to enact the most far-
reaching and comprehensive expansion of DNA technology to promote 
public safety, to bring to justice violent criminals who can be 
identified through DNA technology, and to ensure the accuracy of our 
criminal justice system.
  Let me take a moment to highlight the important provisions of this 
bill.
  The bill enacts the President's comprehensive DNA initiative, 
``Advancing Justice Through DNA Technology,'' and will authorize 
funding of $755 million for the Debbie Smith DNA Backlog Grant Program 
in order to eliminate the current backlog of unanalyzed DNA samples in 
our Nation's crime labs. It is critical that such funding be 
appropriated to ensure that unanalyzed evidence from violent crime 
scenes, such as rape and murder, are compared against known DNA samples 
to solve these terrible crimes and apprehend the perpetrators.
  As many of you know, Debbie Smith is the courageous survivor of 
a horrific sexual assault, and has become a leading spokesperson for 
women and crime victims across the country. Debbie Smith waited 6 years 
before Norman Jimmerson, a current inmate in a Virginia prison, was 
identified as her attacker through DNA. Debbie testified against 
Jimmerson, who is now serving two life sentences plus 25 years with no 
chance of parole.

  Debbie Smith has dedicated herself to the elimination of the backlog 
in the processing of DNA evidence and samples. By eliminating the 
substantial backlog of DNA samples for the most serious violent 
offenses, we can solve more crimes, protect the public and apprehend 
more violent criminals. The National Institute of Justice estimates 
that the current backlog of rape and homicide cases is at least 350,000 
cases. NIJ also estimates that there are between 300,000 and 500,000 
collected, but untested convicted offender samples. In addition, the 
Justice Department estimates that there are between 500,000 and 
1,000,000 convicted offender samples which have not yet been collected 
as required by law.
  The President has directed the Justice Department to eliminate these 
backlogs completely within 5 years, and I am committed to doing 
everything in my power to make that a reality to ensure that the 
evidence is analyzed, the crimes solved and the criminals punished to 
the fullest extent of the law.

[[Page S12294]]

  The proposed legislation also will solve more crimes by expanding 
State and local crime lab capacity to test DNA. Crime laboratories face 
increasing workloads and increased DNA analysis demands. Only 10 
percent of public crime labs have automated facilities needed to 
process DNA testing, and help is needed in this area. We must expand 
the capacity of these laboratories to meet current demand and build for 
future needs. That is what the bill will do.
  The bill also will increase research and development of new 
technologies to test DNA; provides training of criminal justice 
professionals to enhance collection and understanding of DNA evidence; 
and expands existing programs to train medical personnel who typically 
are the first to have contact with sexual assault victims so that they 
can collect and preserve critical biological evidence for DNA testing 
and comparison purposes.
  Some have suggested that focusing exclusively on DNA technology 
ignores the significant need for funding and assistance to State and 
local crime labs for non-DNA forensic analyses. The proposed bill 
expands the Paul Coverdell Grant Program to provide assistance to the 
States to eliminate non-DNA forensic evidence backlogs. I recognize 
that forensic examination of ballistics evidence, fingerprints, 
suspected illegal drugs, and other evidence is critical to our criminal 
justice system. I am committed to addressing these needs as well in 
order to protect the public.
  The legislation will not only speed the apprehension and prosecution 
of the guilty, but will protect the innocent from wrongful prosecution. 
DNA technology allows us to exclude innocent people as suspects early 
in an investigation, and allows law enforcement to focus on finding the 
true perpetrator.
  The Innocence Protection Act of 2003, developed under the leadership 
of Senator Leahy, which is included as Title III of this bill, creates 
a federal post-conviction DNA testing scheme which authorizes DNA 
testing and relief for a convicted defendant, where the defendant 
claims he is ``actually innocent'' of the crime, and demonstrates that 
such testing shows that they did not commit the crime. DNA testing will 
not be permitted where such a test would only muddy the waters and be 
used by the defendant to fuel a new and frivolous series of appeals. 
Under the Act, DNA testing in capital cases will be prioritized and 
conducted on a ``fast track,'' so that these important cases are 
handled quickly.

  In order to discourage a flood of baseless claims, the act authorizes 
the prosecution of defendants who make false claims of innocence in 
support of a DNA testing request. Each defendant will be required to 
assert under penalty of perjury that they are, in fact, innocent of the 
crime. When DNA testing reveals that the defendant's claim of innocence 
was actually false, the defendant can then be prosecuted and, if 
convicted, will be subject to a consecutive term of imprisonment of 3 
years. Further, the act allows DNA test results to be entered into the 
CODIS database and compared against unsolved crimes. If the test result 
shows that the defendant committed another crime, the defendant may 
then be prosecuted for the other crime.
  With respect to the States, the act encourages States to create 
similar DNA testing procedures, and provides funding assistance to 
those States that have existing DNA testing programs or that implement 
such DNA testing programs after enactment of this act. In honor of Kirk 
Bloodsworth, a death row inmate, who was eventually freed through post-
conviction DNA testing, the bill creates and names a grant program 
after Mr. Bloodsworth to help the States conduct appropriate post-
conviction DNA testing. With the new source of funding, more States 
will enact DNA testing programs, and will provide such testing on an 
expedited basis.
  While DNA testing is now standard in pretrial criminal investigations 
today, the integrity of our criminal justice system and in particular, 
our death penalty system, can be enhanced with the appropriate use of 
DNA testing. No one disagrees with the fact that post-conviction DNA 
testing should be made available to defendants when it serves the ends 
of justice. I am convinced that the proposed legislation does so fairly 
and effectively with proper regard for the rights of the defendant and 
the interests of victims and their families.
  Finally, Title III of the bill creates a new grant program to improve 
the performance of counsel--prosecutors and defense counsel--handling 
State capital cases. The issue of the death penalty in our country 
continues to spark significant debate. The recent Supreme Court 
decisions addressing capital punishment underscore the importance of 
this issue to the American people. It is an issue that engenders great 
passion, both among its supporters and among its opponents. A large 
majority of the American people believe in the death penalty, 
especially for terrorists who have killed thousands of Americans. And 
all of us agree that the death penalty must be imposed fairly and 
accurately.
  I have stated on numerous occasions my views on the death penalty. It 
is the ultimate punishment and it should be reserved only for those 
defendants who commit the most heinous of crimes. I am firmly convinced 
that we must be vigilant in ensuring that capital punishment is meted 
out fairly against those truly guilty criminals. We cannot and should 
not tolerate defects in the capital punishment system. No one can 
disagree with this ultimate and solemn responsibility.
  I have disagreed with others on the committee as to the state of our 
Nation's capital punishment system, the quality of representation in 
State capital cases, and whether such sentences are meted out fairly. I 
am proud, however, to support this proposal where we can all agree--we 
can improve the performance of counsel on both sides by awarding grants 
to States. These funds will be equally divided between prosecutors and 
defense counsel, and are designed to reduce to the maximum extent 
possible the occurrence of error in the conduct of capital trials in 
our States. We all agree that reducing trial error is a laudable goal. 
By doing so, we enhance the fairness of our capital punishment system.
  Every defendant in our criminal justice system is afforded the 
guarantee by the sixth amendment of our Constitution of competent and 
effective counsel. The Supreme Court has enforced this right in 
numerous decisions in order to ensure that all defendants are afforded 
the constitutional protections guaranteed to them.
  At the same time, the public is entitled to quality representation by 
prosecutors who handle capital cases. Training and monitoring the 
performance of prosecutors who handle these important cases will ensure 
that States and the public are fully and effectively served in the 
trial of capital cases.
  Contrary to the view of some, I do not believe that our capital 
punishment is broken. However, I do believe that our justice system can 
always be improved. The grants proposed under the act will enable 
states to improve the performance of prosecutors and defense counsel to 
ensure that capital cases are handled more efficiently and effectively, 
and that every capital defendant will receive a fair trial under our 
justice system.
  DNA technology has the power to convict the guilty and protect the 
innocent and will move our criminal justice system into a new era that 
is both fair and efficient. The President's DNA initiative is a 
forward-looking measure, which will improve significant aspects of 
federal, state and local criminal justice systems. We are poised to 
enter that new era. With this comprehensive proposal, we will ensure 
the use of DNA technology and protect the public safety.
  I strongly urge my colleagues to join with me in promptly passing 
this important legislation.
  Mr. President, I ask unanimous consent to print in the Record a 
section-by-section analysis.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          Advancing Justice Through DNA Technology Act of 2003


                      section-by-section analysis

     Overview
       The Advancing Justice Through DNA Technology Act increases 
     Federal resources available to State and local governments to 
     combat crimes with DNA technology, and provides safeguards to 
     prevent wrongful convictions and executions. The bill enacts 
     the President's DNA Initiative, which provides

[[Page S12295]]

     over $1 billion in the next five years to assist Federal and 
     State authorities to realize the full potential of DNA 
     technology to solve crimes and protect the innocent.
       Title I and II, the DNA Sexual Assault Justice Act and the 
     Rape Kits and DNA Evidence Backlog Elimination Act, [of the 
     bill] authorize the Debbie Smith DNA Backlog Grant Program, 
     which provides $755 million over five years to address the 
     DNA Backlog crisis in the nation's crime labs. The bill also 
     establishes over $500 million in new grant programs [together 
     with grant programs] to reduce other forensic science 
     backlogs, train criminal justice and medical personnel in the 
     use of DNA evidence, and promote the use of DNA technology to 
     identify missing persons.
       Title III of the bill, the Innocence Protection Act, 
     provides access to post-conviction DNA testing in federal 
     cases, helps States improve the quality of legal 
     representation in capital cases, and increases compensation 
     in Federal cases of wrongful conviction. In addition, Title 
     III authorizes the Kirk Bloodsworth Post-Conviction DNA 
     Testing Program and provides $25 million over five years to 
     defray the costs of post-conviction DNA testing.


  TITLE I--RAPE KITS AND DNA EVIDENCE BACKLOG ELIMINATION ACT OF 2003

       Sec. 101. Short Title. This title may be cited as the 
     ``Rape Kits and DNA Evidence Backlog Elimination Act of 
     2003.''
       Sec. 102 [The]Debbie Smith DNA Backlog Grant Program. 
     Reauthorizes and expands the DNA Analysis Backlog Elimination 
     Act of 2000 (42 U.S.C. 14135), increasing the authorized 
     funding levels for the DNA Analysis Backlog Elimination 
     program to $151 million annually for the next five years, as 
     proposed in the President's DNA initiative.
       Subsection (a) names the Backlog Elimination Act grant 
     program in honor of Debbie Smith, a rape survivor and leader 
     in promoting the use of the DNA technology to solve crimes. 
     In addition, subsection (a) amends he eligibility provisions 
     to add ``units of local government'' as [a] potential 
     grantees, so that Federal resources can meet local needs more 
     quickly.
       Subsection (b)(1) provides a single annual authorization 
     for the program, and modifies existing program objectives by: 
     (1) adding the collection of DNA samples from convicted 
     offenders as a specific program purpose (proposed 42 U.S.C. 
     14135(a)(4)); (2) ensuring that DNA testing and analysis of 
     samples from crime scenes (such as rape kits and biological 
     material found at homicide scenes), including sexual assault 
     and other serious violent crimes, are carried out in a timely 
     manner (proposed 42 U.S.C. 14135(a)(5)); and (3) revising the 
     existing objective in 41 U.S.C. 14135(a)(3), to clarify that 
     funds can be used to increase the capacity of public 
     laboratories to carry out analysis of DNA samples.
       Subsection (c) modifies 42 U.S.C. 14135(c) to provide for 
     the disbursement of grant funds by the Attorney General in 
     conformity with a formula that maximizes the effective use of 
     DNA technology to solve crimes and protect public safety, and 
     addresses areas where significant backlogs exist. A minimum 
     grant amount of 0.50 percent is to be awarded to each State, 
     and a specified percentage of remaining funds will be awarded 
     to conduct DNA analyses of samples from casework [or victims 
     of crime].
       Conversion of the Backlog Elimination Act grant program 
     into a formula grant program will ensure that funds will be 
     fairly distributed among all eligible jurisdictions. It is 
     expected that the factors given weight in the formula will 
     include the magnitude and nature of the DNA backlogs and 
     current DNA work demands in the jurisdictions that seek 
     funding; deficits in public laboratory capacity for the 
     timely and efficient analysis of DNA samples in these 
     jurisdictions, and cost requirements for remedying these 
     deficits; and the ability of these jurisdictions to use the 
     funds to increase DNA analysis and public laboratory capacity 
     for such analysis. It is further expected that the formula 
     will target funding on the use of DNA analysis to solve the 
     most serious violent crimes, including rapes and murders, 
     whose solution through DNA testing promises the greatest 
     return in promoting public safety.
       Subsection (k) reserves no more than 1 percent of the grant 
     amounts to assist State and local crime labs to become 
     accredited, and to undergo regular external audits, in order 
     to ensure that such labs fully comply with Federal quality 
     assurance standards.
       Sec. 103. Expansion of Combined DNA Index System. Amends 
     the statute governing the Combined DNA Index System (CODIS) 
     to allow States to include in the DNA index the DNA profiles 
     of all persons whose DNA samples have been collected under 
     applicable legal authorities, including those authorized by 
     State law, all felons convicted of Federal crimes, and 
     qualifying military offenses.
        Sec. 104. Tolling of State of Limitations [Limitation 
     Period for Prosecution in Cases Involving DNA 
     Identification]. Provides that, in a case where DNA testing 
     implicates an identified person in the commission of a 
     felony, except for a felony offense under chapter 109A, no 
     statute of limitations would preclude prosecution of the 
     offense until a time period equal to the statute of 
     limitations has elapsed from the date of identification of 
     the perpetrator.
       Sec. 105. Legal Assistance for Victims of Dating Violence. 
     Amends the Violence Against Women Act to include legal 
     assistance for victims of ``dating violence,'' defined as 
     violence committed by a person: (1) who is or has been in a 
     romantic or intimate relationship with the victim; and (2) 
     where the existence of such relationship is determined based 
     upon consideration of its length and its type, and upon the 
     frequency of interaction between the persons involved.
       Sec. 106. Ensuring Private Laboratory Assistance in 
     Eliminating DNA Backlog. Clarifies that grants may be made 
     through vouchers and contracts to private for-profit 
     laboratories to assist in collection of DNA samples from 
     offenders and processing of crime scene DNA evidence.


            title ii--dna sexual assault justice act of 2003

       Sec. 201. Short Title. This title may be cited as the ``DNA 
     Sexual Justice Act of 2003.''
       Sec. 202. Ensuring Public Crime Laboratory Compliance with 
     Federal Standards. Requires that eligible State and local 
     government public crime labs are accredited and undergo 
     external audits, not less than once every 2 years, to 
     demonstrate compliance with Federal standards established by 
     the Federal Bureau of Investigation.
       Sec. 203. DNA Training and Education for Law Enforcement, 
     Correctional Personnel, and Court Officers. Authorizes grants 
     to provide training, technical assistance, educational and 
     information relating to the identification, collection, 
     preservation, analysis and use of DNA samples and DNA 
     evidence by law enforcement personnel and other first 
     responders who collect or examine crime scene evidence; court 
     officers, including prosecutors, defense lawyers and judges; 
     forensic science professionals; and corrections personnel. 
     The grant program is authorized through 2009 at $12.5 million 
     per year.
       Sec. 204. Sexual Assault Forensic Exam Program Grants. 
     Authorizes grants to provide training, technical assistance, 
     education and information relating to the identification, 
     collection, preservation, analysis and use of DNA samples and 
     DNA evidence by medical personnel and other personnel, 
     including doctors, medical examiners, coroners, nurses, 
     victim service providers, and other medical professionals, 
     including existing sexual assault and sexual assault 
     examination programs (Sexual Assault Nurse Examiner (SANE), 
     Sexual Assault Forensic Examiner (SAFE), and Sexual Assault 
     Response Team (SART)). The grant program is authorized 
     through 2009 at $30 million per year.
       Sec. 205. DNA Research and Development. Authorizes grants 
     for research and development to improve forensic DNA 
     technology, including funding of demonstration projects 
     involving law enforcement agencies and criminal justice 
     participants to evaluate the use of forensic DNA technology. 
     Also authorizes the Attorney General to establish a new 
     Forensic Science Commission, composed of members from the 
     forensic science and criminal justice communities, which will 
     be responsible for examining various issues, including: 
     (1) maximizing the use of forensic sciences to solve 
     crimes and protect public safety; (2) increasing the 
     number of qualified forensic scientists; (3) disseminating 
     best practices concerning the collection and analyses of 
     forensic evidence; and (4) assessing Federal, State and 
     local privacy protection statutes, regulations and 
     practices relating to DNA samples and DNA analyses. 
     Programs are authorized through 2009 at $15 million per 
     year.
       Sec. 206. FBI DNA Programs. Authorizes $42.1 million per 
     year through 2009 for FBI DNA programs and activities, 
     including (1) nuclear DNA analysis; (2) mitochondrial DNA 
     analysis; (3) regional mitochondrial DNA laboratories; (4) 
     the Combined DNA Index System; (5) the Federal Convicted 
     Offender DNA Program; and (6) DNA research and development.
       Sec. 207. DNA Identification of Missing Persons. Authorizes 
     $2 million per year through 2009 for grants to promote the 
     use of forensic DNA technology to identify missing persons 
     and unidentified human remains.
       Sec. 208. Enhanced Criminal Penalties for Unauthorized 
     Disclosure or Use of DNA Information. Modifies the existing 
     criminal provision for unauthorized disclosure of DNA 
     information to include unauthorized ``use'' of such 
     information, and increases the potential fine to $100,000 for 
     each criminal offense.
       Sec. 209. Tribal Coalition Grants. Amends the eligibility 
     criteria for discretionary grants under the Violence Against 
     Women Act to include tribal coalitions, and thereby directly 
     support nonprofit, nongovernmental tribal domestic violence 
     and sexual assault coalitions [in Indian country.]
       Sec. 210. Expansion of the Paul Coverdell Forensic Sciences 
     Improvement Grant Program. Expands existing grant program to 
     permit funds to be used to eliminate a backlog in the 
     analysis of forensic science evidence, and extends 
     authorization of appropriations through 2009, at $20 million 
     a year. Current authorizations are $128,067,000 for 2004, 
     $56,733,000 for 2005, and $42,067,000 for 2006. [Sec. 210. 
     Forensic Backlog Elimination Grant Program. Authorizes $10 
     million a year through 2009 for grants to States, units of 
     local government, and tribal governments, to eliminate the 
     backlog in the analysis of any area of forensic science, 
     including firearms examination, latent prints, toxicology, 
     and controlled substances.]
       Sec. 211. Report to Congress. Requires the Attorney General 
     to submit a report, not later than 3 years after enactment, 
     relating to implementation of titles I and II of this Act.

[[Page S12296]]

              title iii--innocence protection act of 2003

       Sec. 301. Short Title. This title may be cited as the 
     ``Innocence Protection Act of 2003.''

        Subtitle 1--Exonerating the Innocent Through DNA Testing

       Sec. 311. Federal Post-Conviction DNA Testing. Establishes 
     rules and procedures governing applications for DNA testing 
     by inmates in the Federal system. A court shall order DNA 
     testing if the applicant asserts under penalty of perjury 
     that he or she is actually innocent of a qualifying offense, 
     and the proposed DNA testing would produce new material 
     evidence that supports such assertion and raises a reasonable 
     probability that the applicant did not commit the offense. 
     Limitations on access to testing are imposed where the 
     applicant seeks to interfere with the administration of 
     justice rather than to support a valid claim. Penalties are 
     established in the event that testing inculpates the 
     applicant. Where test results are exculpatory, the court 
     shall grant the applicant's motion for a new trial or 
     resentencing if the test results and other evidence establish 
     by a preponderance of the evidence that a new trial would 
     result in an acquittal of the offense at issue.
       This section also prohibits the destruction of biological 
     evidence in a federal criminal case while a defendant remains 
     incarcerated, absent a knowing and voluntary waiver by the 
     defendant or prior notification to the defendant that the 
     evidence may be destroyed. Nothing in this section supersedes 
     any statute, regulation, court order, or other provision of 
     law requiring that evidence, including biological evidence, 
     be preserved. Intentional violations of this preservation 
     provision to prevent evidence from being tested or used in 
     court are punishable by a term of imprisonment.
       Sec. 312. Kirk Bloodsworth Post-Conviction DNA Testing 
     Grant Program. Authorizes $5 million a year in grants through 
     2009 to help States to defray the costs of post-conviction 
     DNA testing. This program is named in honor of Kirk 
     Bloodsworth, the first death row inmate to be exonerated by 
     DNA testing.
       Sec. 313. Incentive Grants to States to Ensure 
     Consideration of Claims of Actual Innocence. Reserves the 
     total amount of funds appropriated to carry out sections 203, 
     205, 207, and 312 of this Act for states that have adopted 
     adequate procedures for providing post-conviction DNA testing 
     and preserving biological evidence for this purpose.

 Subtitle 2--Improving the Quality of Representation in State Capital 
                                 Cases

       Sec. 321. Capital Representation Improvement Grants. 
     Authorizes a grant program, to be administered by the 
     Attorney General, to improve the quality of legal 
     representation provided to indigent defendants in State 
     capital cases. Grants shall be used to establish, implement, 
     or improve an effective system for providing competent legal 
     representation in capital cases, but may not be used to fund 
     representation in specific cases. An effective system is 
     one in which a public defender program or other entity 
     establishes qualifications for attorneys who may be 
     appointed to represent indigents in capital cases; 
     establishes and maintains a roster of qualified attorneys 
     and assigns attorneys from the roster (or provides the 
     trial judge with a choice of attorneys from the roster); 
     trains and monitors the performance of such attorneys; and 
     ensures funding for the full cost of competent legal 
     representation by the defense team and any outside 
     experts.
       Sec. 322. Capital Prosecution Improvement Grants. As part 
     of the same program established in section 321, authorizes 
     grants to improve the representation of the public in State 
     capital cases. Grants shall be used to design and implement 
     training programs for capital prosecutors; develop, 
     implement, and enforce appropriate standards and 
     qualifications for such prosecutors and assess their 
     performance; establish programs under which prosecutors 
     conduct a systematic review of cases in which a defendant is 
     sentenced to death in order to identify cases in which post-
     conviction DNA testing is appropriate; and assist the 
     families of murder victims.
       Sec. 323. Applications. Establishes requirements for States 
     applying for grants under this subtitle, including a long-
     term strategy and detailed implementation plan that reflects 
     consultation with the judiciary, the organized bar, and State 
     and local prosecutor and defender organizations, and 
     establishes as a priority improvement in the quality of 
     trial-level representation of indigents charged with capital 
     crimes and trial-level prosecution of capital crimes in order 
     to enhance the reliability of capital trial verdicts. Funds 
     received under this subtitle shall be allocated equally 
     between the programs established in sections 321 and 322.
       Sec. 324. State Reports. Requires States receiving funds 
     under this subtitle to submit an annual report to the 
     Attorney General identifying the activities carried out with 
     the funds and explaining how each activity complies with the 
     terms and conditions of the grant.
       Sec. 325. Evaluations by Inspector General and 
     Administrative Remedies. Directs the Inspector General of the 
     Department of Justice to submit periodic reports to the 
     Attorney General evaluating the compliance of each State 
     receiving funds under this subtitle with the terms and 
     conditions of the grant. In conducting such evaluations, the 
     Inspector General shall give priority to States at the 
     highest risk of noncompliance. If, after receiving a report 
     from the Inspector General, the Attorney General finds that a 
     State is not in compliance, the Attorney General shall take a 
     series of steps to bring the State into compliance and report 
     to Congress on the results.
       Sec. 326. Authorization of Appropriations. Authorizes $100 
     million a year for five years to carry out this subtitle.

          Subtitle 3--Compensation of the Wrongfully Convicted

       Sec. 331. Increased Compensation in Federal Cases. 
     Increases the maximum amount of damages that the U.S. Court 
     of Federal Claims may award against the United States in 
     cases of unjust imprisonment from a flat $5,000 to $50,000 
     per year in non-capital cases, and $100,000 per year in 
     capital cases.
       Sec. 332. Sense of Congress Regarding Compensation in State 
     Death Penalty Cases. This section expresses the sense of 
     Congress that States should provide reasonable compensation 
     to any person found to have been unjustly convicted of an 
     offense against the State and sentenced to death.

  Mr. BIDEN. Mr. President, I rise along with the distinguished senior 
Senator from Utah, Senator Hatch and several others of my colleagues, 
Senators Spector, Leahy, DeWine, and Feinstein, to introduce the 
Advancing Justice Through DNA Act, a bill that harnesses the power of 
DNA to give prompt justice to victims of sexual assault crimes and to 
free the wrongly convicted. This bill takes every component of DNA 
technology and makes it accessible and more useful to Federal, State 
and local law enforcement, to prosecutors and defense attorneys, to 
medical personnel and to victims of crime.
  Promoting and supporting DNA technology as a crime-fighting tool is 
not a new endeavor for me. A provision of my 1994 crime bill created 
the Combined DNA Index System, called ``CODIS'', which is an electronic 
database of DNA profiles, much like the FBI's fingerprint database. 
CODIS includes two kinds of DNA information--convicted offender DNA 
samples and DNA from crime scenes. CODIS uses the two indexes to 
generate investigative leads in crimes where biological evidence is 
recovered from the scene. In essence, CODIS facilitates the DNA match. 
And once that match is made, a crime is solved because of the 
incredible accuracy and durability of DNA evidence.
  Ninety-nine.nine percent--that is how accurate DNA evidence is. One 
in 30 billion--those are the odds someone else committed a crime if a 
suspect's DNA matches evidence at the crime scene. Twenty or 30 years--
that is how long DNA evidence from a crime scene lasts.
  Just 10 years ago DNA analysis of evidence could have cost thousands 
of dollars and taken months, now testing one sample costs $40 and can 
take days. Ten years ago forensic scientists needed blood the size of a 
bottle cap, now DNA testing can be done on a sample the size of a 
pinhead. The changes in DNA technology are remarkable, and mark a sea 
change in how we can fight crime, particularly sexual assault crimes.
  The FBI reports that since 1998 the national DNA database has helped 
put away violent criminals in over 9,000 investigations in 50 States. 
How? By matching the DNA crime evidence to the DNA profiles of 
offenders. Individual success stories of DNA cold hits in sexual 
assault cases make these numbers all too real.
  Just last year, Alabama authorities charged a man in the rape of an 
85-year-old woman almost 10 years ago after he was linked to the case 
by a DNA sample he was compelled to submit while in prison on unrelated 
charges.
  In Colorado, prosecutors brought to trial a case against a man 
accused of at least 14 rapes and sexual assaults. Due to the national 
DNA database, prosecutors were able to trace the defendant to rapes and 
assaults that occurred in Colorado, California, Arizona, Nevada and 
Oklahoma between 1999 and 2002.
  Or take for example a 1996 case in St. Louis were two young girls 
were abducted from bus stops and raped at opposite ends of the city. 
The police were unable to identify a suspect. In 1999, the police 
decided to re-run the DNA testing to develop new leads. In January 
2000, the DNA database matched the case to a 1999 rape case, and police 
were able to identify the perpetrator.
  Last spring, the New York Police Department arrested a man linked to 
the rape of a woman years ago. In 1997, a woman was horribly beaten, 
robbed and raped--there were no suspects. Five years later, the 
perpetrator submitted

[[Page S12297]]

a DNA sample as a condition of probation after serving time for 
burglary. The DNA sample matched the DNA from the 1997 rape. Crime 
solved, streets safer.
  Undoubtedly, DNA matching by comparing evidence gathered at the crime 
scene with offender samples entered on the national DNA database has 
proven to be the deciding factor in solving stranger sexual assault 
cases--it has revolutionized the criminal justice system, and brought 
closure and justice for victims. A laboratory expert testified that 
Virginia has a 48 percent hit rate because the State collects samples 
from all convicted felons and aggressively analyzes crime scene 
evidence with no backlog. This means that almost 1 out of every 2 
violent crimes could be solved by the national DNA database.
  In light of the past successes and the future potential of DNA 
evidence, the reported number of untested rape kits and other crime 
scene evidence waiting in police warehouses is simply shocking--300,000 
to 500,000. It is a national problem, plaguing both urban and rural 
areas, that deserves national attention and solutions. Last year, a 
Michigan newspaper reported that its State police forensic unit is 
expected to have a 10-year backlog of items in need of DNA testing. The 
Florida crime lab system is facing a backlog of more than 2,400 rape, 
murder and assault and burglary cases waiting for DNA testing. South 
Carolina has 10,000 untested samples from convicted offenders. In June 
2003, the New Jersey police department reported that over 1,200 
criminal cases--most of them sexual assault cases--were waiting for DNA 
analysis. Behind every single one of those rape kits is a victim who 
deserves recognition and justice.
  One woman in particular has reminded State and Federal lawmakers that 
we cannot ignore even one rape kit sitting on a shelf gathering dust. 
That woman is Debbie Smith. In 1989, Mrs. Smith was taken from her home 
and brutally raped. There were no known suspects, and Mrs. Smith lived 
in fear of her attacker's return. Six years later, the Virginia crime 
laboratory discovered a DNA match between the rape scene evidence and a 
State prisoner's DNA sample. That cold hit gave Mrs. Smith her first 
moment of real security and closure, and since then she has traveled 
the country to advocate on behalf of assault victims and champion the 
use of DNA to fight sexual assault.
  Today's bill provides over $755 five years to eliminate the backlog 
in rape kits and other crime scene evidence, eliminate the backlog of 
convicted offender samples awaiting DNA testing, and improve State 
laboratory capacity to conduct DNA testing. I am pleased that the 
backlog elimination grant program in the Advancing Justice Through DNA 
Technology Act is entitled, ``The Debbie Smith DNA Backlog Grants.'' It 
is a fitting tribute. I also want to take a moment to thank my 
colleagues Senators Kohl and DeWine who began this effort with the DNA 
Backlog Elimination Act of 2000, and acknowledge their ongoing 
commitment.
  But the DNA testing is only useful if the crime scene evidence is 
carefully collected and preserved. Towards that end, the Advancing 
Justice through DNA Technology Act creates two important grant 
programs: 1. a $62.5 million DNA training and education grant program 
for law enforcement, correctional personnel and court officers; and 2. 
a $50 million grant program to provide training, education and 
assistance to sexual assault forensic examiner programs, often known as 
SANE or SART programs.
  The Advancing Justice Through DNA Technology Act is a natural 
extension to the Violence Against Women Act, which requires the 
Attorney General to evaluate and recommend standards for training and 
practice for licensed health care professionals performing sexual 
assault forensic exams. So I knew that any DNA bill aimed at ending 
sexual assault must include resources for sexual forensic examiners. 
This bill ensures that sexual forensic nurses, doctors, and response 
teams are all eligible for assistance. These program should be in each 
and every emergency room to bridge the gap between the law and the 
medicine.
  Today's bill also makes two small, but important, amendments to the 
Violence Against Women Act. First, it amends the law to include legal 
assistance for victims of dating violence, and it amends the 
eligibility criteria for discretionary programs so that tribal domestic 
violence and sexual assault coalitions can directly receiving grants 
funds, including those funds unreleased from past fiscal years.
  I started looking at the issue of improved prosecution of sexual 
assault crimes almost two decades ago when I began drafting the 
Violence Against Women Act. The DNA Sexual Justice Act of 2003 is the 
next step, a way to connect the dots between the extraordinary strides 
in DNA technology and my commitment to ending violence against women. 
We must ensure that justice delayed is not justice denied.
  I am also gratified that this legislation includes the Innocence 
Protection Act, which I cosponsored last year, and which passed the 
Judiciary Committee. I have long advocated in this Committee for the 
changes that it will implement.
  The Innocence Protection Act will immeasurably improve the 
administration of justice in our legal system, particularly where 
justice is most important, and where we can least afford to make 
mistakes--imposition of the death penalty.
  I advocate for this bill not as an opponent of the death penalty 
looking to curtail it, but as a supporter of the death penalty who 
authored the first constitutional federal death penalty law after the 
Supreme Court declared the death penalty unconstitutional.
  But we who support the death penalty also have a duty to ensure that 
it is fairly administered. The advent of DNA testing has provided us 
with a wealth of opportunities to make certain that we are prosecuting 
the right people. Just as we use DNA to help prosecutions, we must make 
testing available to those who can use it to prove their innocence. 
This legislation makes post-conviction testing to federal inmates who 
assert that they did not commit the crime for which they have been 
imprisoned. It also incentivizes States to take similar measures to 
ensure that individuals have a proper opportunity to prove their 
innocence. It also mandates proper preservation of DNA evidence so that 
the DNA can be tested if appropriate.
  As for competent counsel in death penalty cases, nobody can look me 
in the eye and tell me that our system for representation in capital 
cases works as it should. This bill will take a big step toward fixing 
that by providing money for grants to States to improve their systems 
of representation, on both the prosecution and defense side, in capital 
cases.
  Our goal must be an error-free system of criminal justice. To err is 
human, but it should never be acceptable. Our job is to do all we can 
to eliminate errors in the criminal justice system and to see to it 
that a lack of resources does not delay bringing rapists and murderers 
to justice. This bill means we are doing our job.
  I would be remiss if I did not pause to thank some of the many people 
who have helped bring about the introduction of this bill. In 
particular, I wish to thank Senators Hatch and Leahy, the chairman and 
ranking member of the Senate Judiciary Committee, for devoting so much 
of their time and effort to developing this legislation. Similarly, 
Chairman Sensenbrenner and Ranking Member Conyers have worked with us 
every step of the way to get this bill done. In addition, Senators 
Specter, DeWine and Feinstein, and Congressmen Delahunt and Coble, 
among others, have spent countless hours contributing their ideas to 
this bill. I wish to thank all of these members for their leadership on 
this matter.
  Mr. HATCH. Mr. President, will the Senator from Delaware yield for a 
question?
  Mr. BIDEN. Of course.
  Mr. HATCH. Mr. President, it is my understanding that this 
legislation makes certain of its grants contingent on States providing 
a process for post-conviction testing available. For those States that 
already have enacted a statute providing such testing, that statute 
must ensure a meaningful process for resolving a claim of actual 
innocence. As I understand it, almost all of the State statutes already 
in existence, including those of Ohio, Utah, Delaware and Pennsylvania, 
would pass

[[Page S12298]]

muster and would qualify for the grants at issue. Is that the 
understanding of the Senator from Delaware?
  Mr. BIDEN. Yes, I thank the Senator from Utah for his question, and 
wholeheartedly agree with his understanding of this provision. I 
believe all of the drafters of this legislation are in agreement that 
most of the States that already have passed statutes, except for the 
few that limit post-conviction DNA testing to capital crimes, would 
pass muster. For example, even if a State's statute differs from the 
Federal law by imposing a meaningful time limit for filing of 
applications for testing, or excluding guilty pleas from eligibility, 
it would qualify. Specifically, Utah, Delaware, Ohio and Pennsylvania, 
among others, under their statutes, or the re-enactment of those 
statutes where they have expired, would be eligible for such grants. 
However, States that have not yet enacted a statute would be required 
to enact a statute, or follow a rule, regulation or practice, that met 
a higher standard--the statute, rule, regulation or practice would need 
to be ``comparable'' to the Federal law in order for the State to 
qualify for the grants. I see the Senator from Pennsylvania on the 
Floor. I would be happy to yield to the distinguished Senator to hear 
his thoughts on this matter.
  Mr. SPECTER. I thank the Senator for yielding time. I would just say 
that I completely agree with the understanding of the Senators from 
Delaware and Utah on this.
  Mr. HATCH. Would the Senator yield?
  Mr. BIDEN. It would be my pleasure.
  Mr. HATCH. I would just like to make clear that the understanding of 
the Senator from Delaware comports completely with mine.
  Mr. SPECTER. Would the Senator yield for another question?
  Mr. BIDEN. Of course.
  Mr. SPECTER. As the Senator knows, a second requirement for States to 
qualify for these grants is that--whether by State statute, State or 
local rule, regulation or practice--they preserve biological evidence 
in a reasonable way. Do the Senators from Delaware and Utah agree with 
me that States would qualify so long as they preserve evidence in a way 
sufficient to permit the testing provided for in their State statutes? 
For example, if a State law provides a three year time limit on post-
conviction DNA testing, a practice of preserving evidence throughout 
those three years would qualify as ``reasonable'' under this 
legislation. Thus, for example, Pennsylvania, Delaware, Ohio and Utah 
would qualify.
  Mr. BIDEN. Yes, that has been, and remains, my understanding.
  Mr. HATCH. And mine as well.
  Mr. LEAHY. Mr. President, three years ago, Senator Smith, Senator 
Collins and I joined together to introduce the Innocence Protection 
Act, a modest and practical package of reforms aimed at reducing the 
risk of error in capital cases. The reforms we proposed were designed 
to create a fairer system of justice, where the problems that have sent 
innocent people to death row would not occur, and where victims and 
their families could be more certain of the accuracy, and finality, of 
the results.
  During the last Congress, the Innocence Protection Act gained 
enormous momentum, with 32 Senators and 250 Representatives--well over 
half the House--signed on in support. Hearings were held in each House, 
and a version of the bill was reported out of the Senate Judiciary 
Committee by a bipartisan vote of 12 to 7. Now is the time to finish 
the job and enact this important legislation.
  I am pleased, today, to introduce the Innocence Protection Act of 
2003. This legislation is a piece of a larger bill called the Advancing 
Justice through DNA Technology Act of 2003, which provides an infusion 
of Federal funds to eliminate the current backlog of unanalyzed DNA 
samples in the Nation's crime labs and to improve the capacity of 
Federal, State and local crime labs to conduct DNA analyses.
  The Innocence Protection Act of 2003 proposes two critical reforms. 
First, it provides greater access to post-conviction DNA testing in 
appropriate cases, where it can help expose wrongful convictions, and 
authorizes $25 million in grants over 5 years to help defray the costs 
of such testing. Second, the bill addresses what all the statistics and 
evidence show is the single most frequent cause of wrongful 
convictions--inadequate defense representation at trial. By far the 
most important reform we can undertake is to help States establish 
minimum standards of competency and funding for capital defense.
  Other provisions of the Innocence Protection Act establish standards 
for preserving biological evidence in criminal cases, and substantially 
increase the maximum amount of compensation that may be awarded in 
Federal cases of wrongful conviction.
  Today's Innocence Protection Act is a modified version of the bill 
that the Senate Judiciary Committee approved last year. These 
modifications follow many months of negotiation and deliberation, and 
were made to build further on the groundswell of support for the bill, 
both here on Capitol Hill and across America. More than ever, the bill 
is a collaborative product of which we all can be proud--an exercise of 
bipartisanship that is in the best tradition of the United States 
Congress.
  I want to thank and commend the Senators and Representatives who 
worked so hard this summer and fall to come to agreement on a bill that 
we can all strongly support.
  First and foremost, I want to thank my partner in this endeavor, 
Representative Bill Delahunt of Massachusetts, who has worked 
tirelessly over many years to achieve this goal. I also want to thank 
our lead Republican sponsors in both houses, Senators Gordon Smith and 
Susan Collins, and Representative Ray LaHood of Illinois, all of whom 
have been steadfast in their commitment to this effort.
  The Chairman of the Senate Judiciary Committee, Orrin Hatch, deserves 
high praise for his leadership in our recent negotiations, as does the 
Chairman of the House Judiciary Committee, Jim Sensenbrenner, and I 
thank them both. Senator Hatch and I have debated these issues for 
years. I have always appreciated his thoughtful approach and serious 
commitment to improving the criminal justice system. Representative 
Sensenbrenner played an instrumental role in this process and I do not 
believe we could have come so far without his dedication. In addition, 
I want to extend my heartfelt thanks to Senator Feinstein, who has 
devoted countless hours over the years to reconciling the policy 
differences that prevented this legislation from moving forward.
  I am sorry that Senator DeWine could not be with us earlier today to 
announce the introduction of the bill, and appreciate his willingness 
to allow us to proceed. I have long worked with Senator DeWine on 
funding important forensic science tools for law enforcement, and we 
are currently working on a proposal with regard to how the mentally 
retarded are treated by the criminal justice system. His leadership on 
these issues is important and greatly appreciated.
  Thanks, too, to the many members on both sides of the aisle, in the 
Senate and in the House, who have supported this legislation over the 
years. Working together, we can finally begin to address the many 
problems facing our capital punishment system.
  Capital Representation Improvement Grants: I would like to take a 
moment now to elaborate on the capital defense representation 
provisions of the bill, both because they are the more important 
provisions and because they have been the principal subject of the 
recent revisions to the bill.
  The new version of the Innocence Protection Act establishes a grant 
program for States to improve the systems by which they appoint and 
compensate lawyers in death cases. States that authorize capital 
punishment may apply for these grants or not, as they wish. However, if 
a State chooses to accept the money, it must open itself up to a set of 
requirements designed to ensure that its system truly meets basic 
standards. After all, the point of the bill is not to throw money at 
the problem of inadequate representation; the point is to fix it.
  Earlier versions of the Innocence Protection Act took more of a 
``carrot and stick'' approach to the counsel issue. The ``carrot'' was 
the same as in the current version: millions of dollars in Federal 
grants to help achieve adequate representation in capital cases. The 
``stick''--which is no longer in the bill--has evolved over the years. 
At one

[[Page S12299]]

time, we proposed that States that failed to meet basic competent 
counsel standards would have their death sentences given less deference 
and subjected to more rigorous Federal court review. In some versions 
of the bill, non-complying States would also have forfeited some 
Federal prison grant funding over time. In the version that the 
Judiciary Committee approved last year, if a State chose not to 
participate in the new Federal grant program, the Attorney General 
would award the money to one or more defender organizations within the 
State, to be used for capital defense work.

  Each of these various mechanisms would have helped ensure cooperation 
on the part of the States, and I am disappointed that I was unable to 
prevail upon my colleagues to include any one of them. Still, I believe 
that the current formulation is a good first step and will make a 
difference, provided that the grant program is fully funded and that 
the States which are most in need of reform elect to participate.
  As reported by the Senate Judiciary Committee last year, the bill 
aimed to ensure full funding of the counsel program by providing that, 
if Congress failed to appropriate sufficient funding for the program, 
up to 10 percent of the Byrne block grant would be used for this 
purpose. I regret that this provision has been dropped from the bill; 
it seemed to me a good way to express our commitment to ensuring that 
the program is funded. However, given the tremendous support for this 
legislation in both houses, and on both sides of the aisle, I am 
confident that Congress will speak with one voice in ensuring that our 
years of effort are not undermined by a failure to appropriate the 
money needed to make this legislation effective.
  Getting States to participate in the program may be more difficult. 
Indeed, the States that are in most need of reform may be the least 
inclined to participate, given that they will have the most to do to 
bring their indigent defense systems into compliance with the terms and 
conditions of the grant. While I am hopeful that States will want to 
improve their systems, and will welcome the infusion of Federal funds 
for this purpose, Congress will need to monitor this program carefully 
to ensure that it is meeting its stated objective of improving the 
quality of legal representation provided to indigent defendants in 
State capital cases and, if it is not, to take additional remedial 
action.
  Kirk Bloodsworth Post-Conviction DNA Testing Grant Program: We have 
also established a $25 million grant program to help defray the costs 
of post-conviction DNA testing. This program is named in honor of Kirk 
Bloodsworth, the first death row inmate to be exonerated by DNA 
testing.
  I first met Kirk in February 2000, when he came to me as a man who 
had been exonerated after almost nine years of wrongful imprisonment. I 
am proud to say that we have become close friends and partners in the 
fight to reform capital punishment in America. I am also delighted that 
Kirk can finally feel truly free. Just a few weeks ago, the State of 
Maryland charged another man with the crime for which Kirk was 
convicted and sentenced to death, after prosecutors finally ran the DNA 
evidence in the case through the DNA database. The prosecutor who sent 
Kirk to death row, and who had previously refused to acknowledge his 
innocence, went to his home to apologize to him.
  Kirk Bloodsworth's battle to prove his own innocence has been won. 
But his nightmare of wrongful conviction has been repeated again and 
again across the country. Since the reinstatement of capital punishment 
in the 1970s, more than 110 individuals who were convicted and 
sentenced to death have been released from death row with evidence of 
their innocence, according to the Death Penalty Information Center. In 
addition, since the introduction of forensic DNA typing into the legal 
system in the early 1990s, many more individuals who were sentenced to 
long terms of imprisonment have been exonerated by post-conviction DNA 
testing. The Kirk Bloodsworth Post-Conviction DNA Testing Grant Program 
will help assist others who have experienced wrongful conviction.
  Debbie Smith DNA Backlog Grant Program: As I noted earlier, this 
version of the Innocence Protection Act is being introduced as part of 
a larger package of criminal justice reforms, titled the Advancing 
Justice Through DNA Technology Act of 2003, which will substantially 
increase Federal resources available to State and local governments to 
combat crimes with DNA technology. Among other things, this legislation 
creates the Debbie Smith DNA Backlog Grant Program, which authorizes 
$755 million over the next five years to reduce the current backlog of 
unanalyzed DNA samples in the Nation's crime labs.
  I have worked with the proponents of this program to revise the 
allocation formula, so that each State is guaranteed a minimum 
allocation of .50 percent of the total amount appropriated in a fiscal 
year. This will make the program fair for all States, including smaller 
States like Vermont.
  As DNA testing has moved to the front lines of the war on crime, 
forensic laboratories nationwide have experienced a significant 
increase in their caseloads, both in number and complexity. Funding has 
simply not kept pace with this increasing demand, and forensic labs 
nationwide are now seriously bottlenecked.
  Backlogs have seriously impeded the use of DNA testing in solving 
cases without suspects--and reexamining cases in which there are strong 
claims of innocence--as labs are required to give priority status to 
those cases in which a suspect is known. Solely for lack of funding, 
critical evidence remains untested while rapists and killers remain at 
large. The Debbie Smith DNA Backlog Grant Program will give States the 
help they desperately need to carry out DNA analyses of backlogged 
evidence, and I strongly support its passage and full funding.
  Expansion of the Paul Coverdell Forensic Sciences Improvement Grant 
Program: The bill also expands and extends for another three years an 
existing grant program, named after our late colleague, Senator Paul 
Coverdell. Congress passed the Paul Coverdell National Forensic 
Sciences Improvement Act three years ago, with the goal of improving 
the quality and timeliness of State and local forensic science 
services. I was proud to cosponsor that legislation, and have worked 
since its passage to secure full funding for the grant program it 
establishes. Unfortunately, despite my efforts and those of other 
Members, and notwithstanding the urgent pleas of lab directors 
nationwide, the President has never requested funding for Paul 
Coverdell grants, and Congress has never appropriated sufficient funds 
to make the program effective. The legislation we introduce today 
renews our commitment to this important initiative.
  Our bill also expands the purposes for which Paul Coverdell grants 
may be used, to include the elimination of a non-DNA forensic evidence 
backlog. The need for this measure was highlighted earlier this year at 
a subcommittee hearing on funding forensic sciences. Witness after 
witness testified that DNA evidence is not the only evidence that is 
going untested for lack of resources. Crime labs are also facing 
substantial backlogs with respect to other types of forensic science 
evidence, including firearms, latent prints, controlled substances, 
toxicology, trace evidence, questionable documents, and forensic 
pathology. We need to ensure that our labs are equipped to address the 
full range of issues that they are called upon to handle.
  We have had a constructive debate. We have shown that the death 
penalty system is broken, and we have built a bipartisan coalition 
supporting reforms. It is now time to act. Our bill reflects a 
principled consensus on the most basic and essential reforms; it raises 
no serious constitutional or law enforcement concerns; it will improve 
criminal justice in America considerably; and it may well save innocent 
lives. I am therefore proud to sponsor it, and I urge its speedy 
passage into law.




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