[Congressional Record Volume 150, Number 52 (Wednesday, April 21, 2004)]
[Senate]
[Pages S4226-S4231]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. FEINGOLD:
  S. 2326. A bill to modify the optional method of computing net 
earnings from self-employment; to the Committee on Finance.
  Mr. FEINGOLD. Mr. President, I rise today to address an injustice in 
the Tax Code that is threatening family farmers and other self-employed 
individuals. A number of my constituents, primarily Wisconsin farmers, 
have requested Congress's assistance to correct the Tax Code so they 
can protect their families. The legislation I introduce today, the 
Farmer Tax Fairness Act of 2004, will solve the problem for today and 
into the future.
  Farming is vital to Wisconsin. Wisconsin's agricultural industry 
plays a large and important role in the growth and prosperity of the 
entire State. Wisconsin's status as ``America's Dairyland,'' is central 
to our State's agriculture industry. Wisconsin's dairy farmers produce 
approximately 23 billion pounds of milk and 25 percent of the country's 
butter a year. But Wisconsin's farmers produce much more than milk; 
they also are national leaders in the production of cheese, potatoes, 
ginseng, cranberries, various processing vegetables, and many organic 
foods. So when the hard-working farmers of Wisconsin need help, I will 
do all I can to assist.
  One concern of Wisconsin farmers is that the Tax Code can limit their 
eligibility for social safety net programs, including old age, 
survivors, and disability insurance, OASDI, under Social Security and 
the hospital insurance HI part of Medicare. There programs are paid for 
through payroll taxes on workers and through the self-employment tax on 
the income of self-employed individuals. To be eligible for OSADI and 
HI benefits an individual must be fully insured and must have earned a 
minimum amount of income in the years immediately preceding the need 
for coverage. Every year, the Social Security Administration, SSA, sets 
the amount of earned income that individuals must pay taxes on to earn 
quarters of coverage, QCs, and maintain their benefits. An individual's 
eligibility requirements depend upon the age at which death or 
disability occurs, but for workers over 31 years of age, they must have 
earned at least 20 QCs within the past 10 years.
  Self-employed individuals can have highly variable income, and, 
particularly for farmers at the whim of Mother Nature, not every year 
is a good year. During lean years, individuals

[[Page S4227]]

may not earn enough income to maintain adequate coverage under OASDI 
and HI. Therefore, the Tax Code provides options to allow self-employed 
individuals to maintain eligibility for benefits. These options allow 
individuals to choose to pay taxes based on $1,600 of earned income, 
thus allowing self-employed entrepreneurs to maintain the same Federal 
protections even when their income varies.
  Unfortunately, both the options for farmers and nonfarmers--Social 
Security Act Sec. 211(a) and I.R.C. Sec. 1402(a)--have not kept pace 
with inflation, and they no longer provide security to families across 
the country. Decades ago, self-employment income of $1,600 earned an 
individual four QCs under SSA's calculations. In 2001, the amount 
needed to earn a QC rose to $830 of earned income, so individuals 
electing the optional methods were only able to earn one QC, making it 
much harder for them to remain eligible for benefits.
  Congress's failure to address this problem threatens the ability of 
self-employed individuals to maintain eligibility for OASDI and HI. I 
have heard from several of my constituent who want these options to be 
fixed so they can make sure their families will be taken care of in the 
event that something unforeseen occurs.
  Therefore, I am introducing the Farmer Tax Fairness Act of 2004 in 
order to provide farmers and self-employed individuals with a fair 
choice. Under this bill, they will continue to be able to elect the 
optional method if they so choose. When individuals do elect the 
option, this legislation provides an update to the Tax Code so farmers 
and self-employed individuals can retain full eligibility for OASDI and 
HI benefits. It indexes the optional income levels to SSA's QC 
calculations, allowing these farmers and self-employed individuals to 
claim enough earned income to qualify for four OCs annually. By linking 
the earned income level to SSA's requirements for QCs, the bill will 
ensure that the amount of income deemed to be earned under the optional 
methods will not need to be adjusted by Congress again.
  In addition to providing security to self-employed individuals and 
farmers across the country, this solution is fiscally responsible. It 
actually provides a short run increase in U.S. Treasury revenues while 
having negligible impact upon the Social Security trust fund in the 
long run.
  Let me take a moment to acknowledge the efforts of the Senator from 
Iowa, Mr. Grassley, to address this problem in the 107th Congress. As 
chairman of the Senate Finance Committee, he included similar 
legislative language in the chairman's mark for the Small Business and 
Farm Economic Recovery Act of 2002. The Senate Finance Committee held a 
markup on the legislation on September 19, 2002, but the changes to the 
optional methods did not become law.
  When incomes fall, the Tax Code provides optional methods for 
calculating net earnings to ensure that farmers and self-employed 
individuals maintain eligibility for social safety net programs. Due to 
inflation, the Tax Code has not kept up and many farmers are losing 
eligibility for some of Social Security's programs. Congress needs to 
provide security to farm families and other self-employed individuals. 
I urge my colleagues to support the Farmer Tax Fairness Act of 2004.
                                 ______
                                 
      By Mr. CAMPBELL (for himself, Ms. Collins, and Ms. Snowe)
  S. 2327. A bill to amend title 38, United States Code, to clarify 
that per diem payments by the Department of Veterans Affairs for the 
care of veterans in State homes shall not be used to offset or reduce 
other payments made to assist veterans; to the Committee on Veterans' 
Affairs.
  Mr. CAMPBELL. Mr. President, 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. 2327

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

     SECTION 1. TREATMENT OF DEPARTMENT OF VETERANS AFFAIRS PER 
                   DIEM PAYMENTS TO STATE HOMES FOR VETERANS.

       Section 1741 of title 38, United States Code, is amended by 
     adding at the end the following new subsection:
       ``(e) Payments to States pursuant to this section shall not 
     be considered a liability of a third party, or otherwise be 
     utilized to offset or reduce any other payment made to assist 
     veterans.''.
                                 ______
                                 
      By Mr. DORGAN (for himself, Ms. Snowe, Mr. Kennedy, Mr. McCain, 
        Mr. Daschle, Mr. Lott, Ms. Stabenow, Mr. Chafee, Mr. Johnson, 
        Mr. Pryor, and Mr. Feingold.
  S. 2328. A bill to amend the Federal Food, Drug, and Cosmetic Act 
with respect to the importation of prescription drugs, and for other 
purposes; to the Committee on Health, Education, Labor, and Pensions.
  Mr. DORGAN. Mr. President, today I am introducing bipartisan 
legislation to allow prescription drug importation from Canada, the 
European Union, and a few other countries. I am very pleased to be 
joined on this bill by Senators Snowe, Kennedy, McCain, Daschle, Lott, 
Stabenow, Chafee, Johnson, Pryor, and Feingold.
  This new bill, the Pharmaceutical Market Access and Drug Safety Act, 
is an important breakthrough for several reasons. First, it is a 
bipartisan effort, and as we all know, bipartisanship is the best way 
to get things done in Congress today or any day. Second, this bill 
addresses the safety issues that have been raised by some and makes 
certification by the Health and Human Services Secretary unnecessary. 
Therefore, it would take effect immediately and provide consumers with 
the urgent help they need accessing more affordable medicines.
  It is my hope that the Senate will take up and pass this legislation 
on an expedited basis because American consumers, especially senior 
citizens, State and local governments, and businesses large and small 
are desperate for action by Congress to give them relief from high drug 
prices. It has been well documented that Americans are charged the 
highest prices in the world for the exact same medicines that consumers 
in other major industrialized countries buy at a fraction of the price.
  For example, Lipitor, a cholesterol-lowering medicine that is the 
top-selling drug in the United States, is made in the same plant and 
put in the same bottle. One bottle is shipped to American pharmacies, 
and the other to Canadian Pharmacies. Both are approved by the Food and 
Drug Administration. The only difference? The price. One tablet 
purchased by a pharmacist in Canada costs $1.01; the same tablet 
purchased by an American pharmacist costs $1.86, 84 percent more than 
in Canada.
  The high prices charged for prescription drugs in the United States 
are forcing Americans and state and local governments to turn to Canada 
to buy their medicines. Dozens of State and local governments--from 
Maine to Massachusetts to North Dakota--are now implementing drug 
importation programs with Canada to save their citizens and their 
health care programs millions of dollars. Individual Americans are now 
importing more than $1.1 billion in prescription drugs from Canada.
  Unfortunately, they are doing so illegally, according to the FDA. The 
pharmaceutical industry is the only industry that benefits from a 
Congressional ban on re-imported products. The time has come to 
eliminate that barrier so American consumers, too, can benefit from the 
global marketplace.
  Big, multi-national drug companies already reap the benefits of the 
world market. In fact, more than $40 billion of the prescription drugs 
consumed by Americans in 2002 were made in other countries, such as 
Ireland, Singapore, and Japan so that the drug companies could take 
advantage of tax breaks, cheaper labor and other incentives available 
abroad.
  What's good for the goose should be good for the gander--American 
consumers, pharmacists, and drug wholesalers should be equally free to 
purchase FDA-approved medicines from Canada, Europe and elsewhere. The 
bill I am introducing today would allow just that.
  This new bill is similar in many respects to the Pharmaceutical 
Market Access Act, sometimes called the ``Gutknecht bill'', which was 
passed by the House of Representatives by a wide bipartisan margin last 
July. For instance: Both bills allow prescription drugs to be imported 
from Canada, the

[[Page S4228]]

European Union, and some other major industrialized nations. Both bills 
require pharmacies and wholesalers to register with the FDA to be able 
to import prescription drugs. Both bills provide for the importation of 
FDA-approved medicines. Both bills allow for reliance on anti-
counterfeiting technology to ensure drug safety. Both bills allow for 
drug importation to begin immediately, without first requiring 
certification by the HHS Secretary.
  However, my cosponsor and I also believe that our bill makes a number 
of improvements over the Pharmaceutical Market Access Act both in terms 
of safety and closing loopholes to ensure that a drug importation 
program will not be thwarted by the big drug manufacturers. For 
example, this bill ensures that individual Americans who import their 
prescription drugs via the Internet or mail-order are doing so from 
safe, reliable Canadian pharmacies. This bill gives the FDA the ability 
to inspect Canadian exporters to assure safety. This bill enhances the 
FDA's ability to stop those drug imports that are unsafe. This bill 
would give the FDA the resources needed to ensure the safety of 
imported medicines.
  In addition, this bill contains several provisions to close loopholes 
that would allow drug companies to circumvent drug importation. 
Unfortunately, a number of big drug companies are cutting off medicines 
to Canadian pharmacies that sell to Americans. This bill would make 
such tactics an unfair trade practice.
  We will now work with the Senate leadership to get this bill enacted 
in the Senate promptly. The Senate has voted on drug importation 
legislation three times since 2000. There is no need for a protracted 
debate. In invite my colleagues to join me in cosponsoring this bill 
and in acting soon to give our constituents relief from high drug 
prices.
  I ask unanimous consent that a summary of this bill be printed in the 
Record.
  There being no objection, the summary was ordered to be printed in 
the Record, as follows:

            Pharmaceutical Market Access and Drug Safety Act


                          I. importable drugs

       Drugs must be approved by the Food and Drug Administration 
     and manufactured in an FDA-inspected plant.
       Drugs must be patient-administered and not a controlled 
     substance, an infused or injected drug, a biologic, or a drug 
     inhaled during surgery.


     ii. commercial importation by pharmacists and drug wholesalers

       Allows importation by licensed pharmacists and wholesalers 
     from Canada within 90 days of enactment and from the current 
     European Union members, Australia, New Zealand, Japan, and 
     Switzerland beginning one year from enactment.
       Requires registration of wholesalers and pharmacies with 
     FDA, and levies capped fees to support the costs of the 
     program. Registration may only be of those entities that are 
     fully licensed in accordance with applicable state and 
     federal law to act as pharmacies or wholesalers of 
     prescription drugs.
       Importers and all resellers of imported products must 
     provide a full chain-of-custody (pedigree), tracking 
     possession of drugs from the point of manufacture to the sale 
     to the consumer.
       Drugs must be re-labeled in English to comply with FDA 
     requirements. The FDA will provide approved labeling 
     information to importers.
       FDA may ban the importation of a product that has been 
     determined to be counterfeit, contaminated, or is otherwise 
     adulterated so as not to meet the requirements of this 
     legislation. FDA may require testing of shipments of product 
     or use of approved anti-counterfeiting technologies to verify 
     the chain-of-custody of a drug.
       This bill specifically protects pharmacies, wholesalers, 
     and individuals from patient damages arising from the 
     importation of drugs.


                iii. personal importation by individuals

       Immediately upon enactment, an individual may import up to 
     a 90 day supply of a prescription drug from Canada for their 
     personal use or for the personal use of a family member, just 
     as they do now. Once the FDA has implemented regulations, 
     individuals may be shipped prescription drugs purchased via 
     mail-order or websites only from a Canadian pharmacy 
     registered under this Act. These Canadian exporters will be 
     fully inspected and approved by the FDA. Canadian pharmacies 
     must validate a U.S. prescription, review health and 
     medication history, and track shipments.
       The bill also allows individual Americans who travel 
     outside the United States to bring back with them for their 
     personal use a 90-day supply of medicine from Canada, 
     Australia, current countries in the European Union, Japan, 
     New Zealand, or Switzerland or a 14-day supply of medicine 
     from another foreign country.
       The bill continues the FDA's current ``compassionate use'' 
     policy by allowing importation for patients with special 
     needs.


                       iv. ``gaming'' the system

       The bill protects those selling or using drugs imported 
     under the program by preventing an individual from taking 
     actions that would have the effect of thwarting drug 
     importation. Any individual who takes such an action against 
     a pharmacist, wholesaler, or consumer to hinder their 
     importation of prescription drugs will be in violation of the 
     Clayton Act, and treble economic damages may be awarded.
       The proposal includes features to prevent a drug 
     manufacturer from blocking importation of drugs, such as by 
     changing the color, dosage form, or place of manufacture of 
     the drug so that it is no longer FDA-approved. Drug 
     manufacturers that make these kinds of changes would be 
     required to notify the FDA, and the FDA would be given the 
     authority to take the steps needed to approve the drug.


                    v. limiting unsafe drug imports

       Customs could seize and destroy small quantities of drugs 
     imported by individuals from foreign exporters that are 
     unapproved. The FDA would provide the individual whose drugs 
     were seized with a simple notice explaining how the 
     individual can import drugs from registered Canadian 
     exporters safely and legally.

  Mr. KENNEDY. Mr. President, I am pleased today to join my colleagues 
Senator Dorgan, Senator Snowe, Senator McCain, Senator Daschle, Senator 
Lott, Senator Chafee and others in introducing legislation to allow the 
importation of safe prescription drugs from Canada, the European Union, 
Australia, New Zealand and Japan.
  This issue is about fairness for middle class Americans who are 
struggling to afford costly prescription drugs. Americans understand 
fairness, and they know it's wrong that Americans pay far too much for 
prescription drugs--more than Canadians, more than the British, more 
than in any other country in the world. That's not right. Prescription 
drugs mean the difference between sickness and health--even life and 
death--for millions of average Americans. It's not fair that drug 
companies overcharge middle class families and patients have to do 
without the drugs they need.
  We're here to say that help is on the way.
  Our legislation will legalize safe imports of U.S.-approved drugs 
manufactured in U.S.-approved plants. It is a creative new approach to 
meeting the needs of our middle class families. We know it will be 
opposed by the drug companies, who are determined to continue to reap 
windfall profits at the expense of American patients. It will be 
opposed by the Bush Administration, which is determined to protect the 
pharmaceutical industry and its powerful campaign contributors. But it 
will be welcomed by someone else--by every family in every community in 
America who needs to fill a prescription.
  Every pharmaceutical company in the world wants its drugs approved 
for sale in the United States. We're the largest market on Earth. A 
decision by the Food and Drug Administration that a drug is safe and 
effective is the gold standard for the world. But once that drug is 
approved for use in the United States, the drug manufacturer applies a 
greedy double standard. What's fair about a system that forces American 
patients to pay sixty percent more than the British pay or the Swiss 
pay for an FDA-approved drug manufactured to FDA standards? What's fair 
when, on average, Americans pay two-thirds more than Canadians? What's 
fair when Americans pay 80 percent more than Germans and twice as much 
as Italians?
  This legislation will end that indefensible disparity, by enabling 
U.S. consumers to buy FDA-approved drugs at the same fair prices as 
they are sold abroad.
  The drug companies and the Bush Administration claim that imported 
drugs threaten the health of American consumers because of the 
possibility of counterfeiting or adulteration. Under this bill, that 
argument can't pass the laugh test.
  One-quarter of the drugs that Americans use today are already legally 
imported into the United States. The American people have no idea how 
large a percentage of the pills they take are out-sourced--produced for 
U.S. drug-makers in plants overseas,

[[Page S4229]]

where wages are cheaper. The catch is that the law allows that. Drugs 
can be legally imported by the drug companies themselves, who then sell 
them at the high U.S. price.
  If drug companies can import drugs at high prices, why can't patients 
import them at fair prices?
  Our legislation sets up iron-clad safety procedures to guarantee that 
every drug imported legally into the United States is the same FDA-
approved drug that was originally manufactured in an FDA-approved 
plant--whether the drug is manufactured abroad and shipped to the U.S., 
or whether it is manufactured in the United States, shipped abroad and 
then imported back into the United States.
  Under our bill, the FDA is given new legal authority and resources to 
enforce the law. In fact, under this legislation, the procedures to 
prevent counterfeiting or adulteration of drugs shipped into the United 
States are actually stronger than the protections against 
counterfeiting of drugs manufactured for the domestic market.
  Our legislation also includes strict rules to close the loopholes 
that drug companies may use to evade the law. Violations will be 
considered unfair trade practices under the Clayton Act, and violators 
will be subject to triple damages.
  No doubt, in the months ahead, as the election approaches and the 
political pressure builds, drug companies and their allies in the Bush 
Administration and Congress will offer an alternative program. They'll 
call it an importation bill, but consumers beware. Counterfeit drugs 
have no place in American medicine cabinets, and counterfeit proposals 
to reduce drug prices have no place in Congress.
  Year in and year out, drug companies profits are the highest of any 
industry in the United States. Year in and year out, patients are 
denied the life-saving drugs they need because those astronomical 
profits are obtained by equally astronomical prices--prices that drug 
companies can't charge anywhere else in the world because no other 
country in the world would tolerate such high prices. It's time to end 
the shameful price-gouging here at home. It's time for basic fairness. 
It's time to pass this bill, and I urge my colleagues in the Senate to 
support it.
  Mr. McCAIN. Mr. President, I am pleased to join Senators Dorgan, 
Snowe, Kennedy, Daschle, and others in introducing the Pharmaceutical 
Market Access and Drug Safety Act of 2004. This bill represents a 
strong bipartisan compromise, and is designed to establish a system for 
American consumers to safely import lower cost prescription drugs.
  American consumers are frustrated, and for good reason. We pay the 
highest prices in the world for brand name prescription drugs. Prices 
continue to rise at double digit rates--far outpacing inflation. With 
over 43 million uninsured Americans and millions more seniors without a 
substantial prescription drug benefit, filling a doctor's prescription 
is unaffordable for many people in this country. Every day, far too 
many families are forced to make difficult choices between life-
sustaining prescription drugs and other daily necessities.
  The United States represents the largest pharmaceutical market in the 
world. Our taxpayers make substantial investments into pharmaceutical 
research and development. And yet, Americans are still paying 30 to 75 
percent more for their prescriptions than consumers in Canada, the 
European Union, and elsewhere.
  In 2000, Congress passed the Medicine Equity and Drug Safety, MEDS, 
Act to provide Americans with a legal means to obtain lower cost 
prescription drugs from industrialized countries with prescription drug 
regulatory systems similar to our own. Yet here we are, four years 
later, and Americans still cannot legally access lower cost 
prescription drugs from other nations. The safety certification 
requirement contained in the MEDS Act proved to be a poison pill. In 
the bill we are introducing today, we have spelled out the safety 
measures that will be necessary for an importation program, making the 
certification requirement unnecessary.
  According to recent polls, nearly two thirds of Americans believe the 
government should make it easier to import lower cost drugs from Canada 
and other countries. And, Americans have begun to take matters into 
their own hands. Last year, Americans spent an estimated $1.1 billion 
on prescription drugs imported from Canada, twice the amount that was 
spent the previous year. And states are now taking action too.
  We also passed an enormous expansion to the Medicare program, last 
year. Unfortunately, that new law largely benefits the pharmaceutical 
industry and other special interests, and is already slated to cost 
$534 billion--$134 billion more than was estimated just a few months 
ago. That law, which will burden American taxpayers for generations to 
come and contributes substantially to the financial insolvency of the 
Medicare program, did practically nothing to rein in the cost of 
prescription drugs.
  With all of the money the Federal Government will now be spending on 
prescription drugs, very little is being done to help reduce their 
costs. In fact, the Medicare package explicitly prohibits the Secretary 
of Health and Human Services from engaging in negotiations to lower 
prescription drug costs. This must change.

  In the absence of Federal action, States such as Minnesota, Illinois, 
Iowa, Wisconsin, Vermont and New Hampshire, together with cities such 
as Springfield and Boston, MA, Montgomery, AL, and Los Angeles, CA, 
have moved this issue to the forefront. In fact, the City of 
Springfield recently announced that their drug importation program 
saved the city more than $2 million in the last 9 months alone. Despite 
these successes, our Federal regulators continue to oppose any effort 
to facilitate importation.
  Throughout the debate surrounding prescription drug importation, much 
concern has been raised regarding consumer safety and the security of 
the U.S. drug supply, with a particular focus on the dangers of 
Internet pharmacies and counterfeit drugs. Let me be clear. None of us 
want American consumers to be harmed from purchasing imported 
prescription drugs. That is why throughout the development of this 
package, consumer safety has remained our primary concern. This bill 
includes a number of measures which will make imported drugs as safe, 
if not safer, than drugs purchased through the domestic supply chain. 
With proper government oversight, such as that which would be provided 
under our legislation, Americans should be able to obtain access to 
safe lower cost prescription drugs from Canada, the EU and other 
markets.
  Under our proposal, during the first year after enactment, the bill 
would enable individual American consumers, wholesalers, and 
pharmacists to import FDA approved prescription drugs from FDA approved 
and inspected Canadian exporters. Recognizing that the Canadian market 
is too small to satisfy the American demand, one year after enactment, 
the bill would allow FDA approved pharmacists and wholesalers to import 
FDA approved drugs from a larger group of nations, including the 
European Union, Switzerland, Australia, New Zealand and Japan.
  To ensure the safety of this new system, the FDA would be required to 
regularly inspect Canadian exporters as well as domestic importers. The 
legislation also would require all importers and exporters to maintain 
a full chain of custody, or pedigree, for the drugs imported into the 
U.S.
  I want to mention my concerns over actions recently taken by several 
powerful brand companies. Putting profits before patients, they have 
limited the supply of pharmaceuticals to Canadian pharmacies and 
wholesalers who export to the United States. Such a practice is 
unacceptable. Therefore, our bill seeks to close potential loopholes 
that would allow companies to game the system and unfairly discriminate 
against pharmacists or wholesalers.
  Prescription drug importation may not be the silver bullet that will 
make prescriptions more affordable for all Americans, but it is a step 
in the right direction. At a minimum, Americans deserve fairer prices 
for the prescription drugs their tax dollars helped to develop.
  I have long supported prescription drug importation, and I find it 
remarkable that our Federal regulations still do not give American 
consumers the right to access the same markets as consumers in other 
parts of the developed world.

[[Page S4230]]

  We are under no illusions that this is a perfect bill, however, it 
does represent a solid, bipartisan compromise. We are committed to 
continuing to consider ways to technically improve the bill and ensure 
that the system we are developing is as effective and efficient as 
possible to provide all American consumers access to more affordable 
prescription drugs.
  We cannot allow election year politics to distract us from passing 
critical legislation that will substantially benefit the millions of 
Americans who struggle to afford the high cost of prescription drugs. 
Despite the challenges of passing this legislation in an election year, 
we are committed to this effort.
  I believe American consumers deserve access to safe and affordable 
imported prescription drugs. I am committed to working with my 
colleagues, on both sides of the aisle, to move this issue forward 
expeditiously and to ensure that our strong bipartisan compromise is 
enacted this year.
  I urge my colleagues to support this measure.
                                 ______
                                 
      By Mr. KYL (for himself, Mrs. Feinstein, Mr. Hatch, Mr. Leahy, 
        Mr. Frist, Mr. Daschle, Mr. McConnell, Mr. Durbin, Mr. 
        Grassley, Mr. Kennedy, Mr. DeWine, Mr. Feingold, Mr. Craig, Mr. 
        Kerry, Mr. Graham of South Carolina, Mr. Schumer, Ms. Collins, 
        Mr. Bayh, Mr. Lieberman, Mrs. Clinton, Mr. Pryor, Ms. Stabenow, 
        and Mr. Nelson of Florida):
  S. 2329. A bill to protect crime victims' rights; ordered held at the 
desk.
  Mr. LEAHY. Mr. President, this past Sunday marked the start of 
National Crime Victims' Rights Week. We set this week aside each year 
to refocus attention on the needs and rights of crime victims.
  This year, the Senate had been scheduled to mark the occasion by 
taking up S.J. Res. 1, a proposed constitutional amendment. Once again, 
we were going to devote days or weeks debating that proposal, even 
though the Republican leadership knew it had no real chance of 
garnering the two-thirds super-majority needed to pass. We went through 
a similar process four years ago, in April 2000, when the Senate 
debated an earlier version of the amendment during the last 
presidential election year.
  I noted then, during that earlier debate, the fact that I have long 
worked to protect and advance crime victims' rights. As a prosecutor, I 
worked day to day and year to year alongside victims, seeking justice 
on their behalf. I have worked on and led many legislative efforts on 
behalf of victims throughout my service in the Senate. One of the most 
recent of those efforts was the creation of the September 11 Victim 
Compensation Fund, and I am grateful to have been able to take part in 
something that has brought some relief to so many victims.
  I will never forget the victims I worked with as a prosecutor or the 
needs of the new victims minted each day through the crimes committed 
against them. I believe that victims should be notified when the 
defendant is in court or when he is about to be released. I believe 
that victims should be heard at critical stages of the prosecution. I 
believe that victims are entitled to restitution from offenders. In 
recent years, the debate was never about whether victims should be 
protected--of course they should. Rather, the debate was about how they 
should be protected, and whether the proposed constitutional amendment 
was the best way to do that.
  I did not think the proposed amendment was the best way forward. The 
one thing about which every witness who testified on this issue agreed 
was that every right provided by the Victims Rights Amendment can be, 
or already is, protected by State or federal statutory law.
  We have long had it in our power to enhance victims' rights through 
regular legislation legislation that could pass with a simple majority 
and make an immediate difference in the lives of crime victims. 
Legislative enhancements are more easily enacted, more directly applied 
and implemented, and more able to provide specific, effective remedies. 
In addition, as Chief Justice Rehnquist and others have pointed out, 
statutes are more easily corrected if we find, in hindsight, that they 
need correction, clarification or improvement.
  I am delighted to be here today with the principal sponsors of S.J. 
Res. 1, the distinguished Senators from California and Arizona, and 
with others, both supporters and opponents of the constitutional 
amendment, to join together in our support of this crime victims' 
rights statute. I commend and admire Senator Feinstein and Senator Kyl 
for their dedication to this issue. They are deeply committed to the 
cause of victims' rights as are all of us who have joined together to 
offer this bill. It is my hope that this statute will establish more 
effective and enforceable rights for crime victims in the federal 
system, and that it can do so without delay, by a majority vote.
  First, unlike S.J. Res. 1, which is limited to victims of violent 
crime, our statute establishes enhanced rights and protections for all 
victims of crime. Therefore, the elderly woman who is defrauded out of 
her life savings will have the same rights of notice and participation 
as other crime victims.
  Second, our statute spells out how these rights are to be enforced, 
using language that Senator Kennedy and I developed in S. 805, the 
Crime Victims Assistance Act. In addition to providing victims with 
standing to assert their rights in mandamus actions, our statute would 
establish an administrative authority in the Department of Justice to 
receive and investigate victims' claims of unlawful or inappropriate 
action on the part of criminal justice and victims' service providers. 
Department of Justice employees who fail to comply with the law 
pertaining to the treatment of crime victims could face disciplinary 
sanctions, including suspension or termination of employment.
  Third, our statute incorporates additional proposals from S. 805 to 
help States implement and enforce their own victims' rights laws. In 
this way, instead of replacing programs that have already been 
implemented by a majority of States, our statute enables States to 
retain their full power to protect victims in the ways most appropriate 
to local concerns and local needs.
  Fourth, our statute calls for two annual reports, one by the 
Administrative Office of the Courts, and the other by the General 
Accounting Office. These reports will provide Congress with feedback on 
how the rights and procedures established by the statute are working in 
practice. Over time, we will be able to modify and fine-tune the 
statute so that it provides an appropriate degree of protection for the 
rights of crime victims.
  I emphasize that passage of this bill will necessitate careful 
oversight of its implementation by Congress. If, as I hope, Federal 
judges and prosecutors take victims' rights seriously, there should be 
little need for victims to bring mandamus actions to enforce their 
rights. But if, for whatever reason, victims feel that they are not 
being treated fairly, we may see a wave of new litigation in the 
Federal courts, with victims and their lawyers having to insert 
themselves into criminal cases. We will need to monitor the situation 
closely.
  I am committed to giving victims real and enforceable rights. But I 
am convinced that prosecutors should be capable of protecting those 
rights, once we make them clear. In my experience, prosecutors have 
victims' interests at heart.
  Senator Kennedy and I proposed in the Crime Victims Assistance Act a 
limited-standing provision, which applied with respect to the victim's 
right to attend and observe the trial, and under which a victim could 
assert her right if the prosecutor refused to do so. Passing such a 
provision would have allowed us to observe over a period of time 
whether direct participation of victims in criminal proceedings has any 
unanticipated consequences for the administration of justice.
  This Victims' Rights Act proposes a bolder experiment, entitling 
victims to assert a panoply of rights, regardless of whether the 
prosecution is already asserting the same rights on their behalf. For 
example, at the insistence of other sponsors, this bill will enable 
victims to bring mandamus actions alleging the denial of their 
statutory right ``to be treated with fairness and with respect for the 
victim's dignity and privacy,'' which may be difficult claims to 
adjudicate.

[[Page S4231]]

  I note with some regret that our statute picks up language from S.J. 
Res. 1 denying victims a civil cause of action for damages in the event 
that their rights are violated. Allowing victims to vindicate their 
rights through separate civil proceedings instead of through mandamus 
actions in the criminal case could well be a more efficient as well as 
a more effective way of ensuring that victims' rights are honored. 
Certainly the prospect of being sued would provide a powerful incentive 
to take victims' rights seriously. But the Republican sponsors of the 
bill did not want to provide for damages.
  Similarly, some Republican Senators did not want to allow courts to 
appoint attorneys to help crime victims. It is my hope and belief that 
victims will seldom need representation, since they already have 
powerful advocates in our public prosecutors. Still, it is possible 
that a judge would want to appoint an attorney for a victim in an 
extraordinary case, as for example if there is a material conflict 
between the victim's interests and the interests of the prosecution. By 
failing to provide for this possibility, our new bill may perpetuate a 
system of unequal justice for victims, where the wealthy have the 
benefit of counsel, and the poor do not.
  Finally, I want to comment on the unusual genesis of this bill, and 
the extraordinary procedure that I expect it will follow in the Senate. 
As I mentioned earlier, the Senate was scheduled to begin work this 
week on the proposed constitutional amendment, S.J. Res. 1. On 
Wednesday, the Republican leadership moved to invoke cloture on the 
motion to proceed. I would not have opposed this motion. I voted to 
proceed to an earlier iteration of this constitutional amendment 4 
years ago, and I would have been prepared to proceed to it again this 
week. Given the time this would take and the expected outcome, it could 
be argued that the Senate already has many pressing matters on its 
agenda, but I would not have opposed a debate on the constitutional 
amendment.
  Given the Republican leadership's insistence on proceeding to the 
constitutional amendment this week, there has not been as much time as 
I would have liked to craft the statutory alternative that we introduce 
today. And because this bill will come to a vote almost immediately, we 
will not get to hold hearings on it and polish the text in Committee. I 
would have liked to get the views of the Office for Victims of Crime. 
Many victims' groups and domestic violence organizations opposed the 
constitutional amendment, as did many law professors, judges, and 
prosecutors. I would have liked to hear their views on this statute. I 
am concerned that the statute may not adequately address the special 
problems raised in domestic violence and abuse situations. Fortunately, 
however, this is a statute, not a constitutional amendment, and it can 
be modified with relative ease if the need arises.
  I commend my good friend, Senator Feinstein, for mediating this 
consensus legislation. I know that she would have preferred to pass a 
constitutional amendment--she has made that clear. Nevertheless, she 
worked hard to produce a bill that we all can support, showing once 
again that she is first and foremost a legislator who wants to get 
things done. Due in large part to Senator Feinstein's efforts, we now 
have an opportunity to advance the cause of victims' rights with 
strong, practical, bipartisan legislation. I have never doubted Senator 
Feinstein or Senator Kyl's commitment to victims' rights. I am 
delighted that we have come together to advance that common cause.
  Over more than 20 years I have sponsored and championed legislation 
to help victims. I have mentioned the recent September 11 Victim 
Compensation Fund, and I am also proud of such other advancements on 
behalf of victims as a law to provide assistance to victims of 
international terrorism, and bills to raise the cap on victims' 
assistance and compensation programs and to protect the rights of the 
victims of the Oklahoma City bombing. The legislation that we introduce 
today should provide us the opportunity to make progress on yet another 
important measure to address the needs of victims, and I urge my 
colleagues to support it.
                                 ______
                                 
      By Mr. BROWNBACK (for himself, Mr. Talent, and Mr. Allen):
  S.J. Res. 33. A joint resolution expressing support for freedom in 
Hong Kong; to the Committee on Foreign Relations.

  Mr. BROWNBACK. Mr. President, today I introduce, along with my 
colleagues Senator Talent and Senator Allen, an important resolution 
regarding recent developments in Hong Kong. Hong Kong has been a great 
friend of the United States, a key ally in the war on terrorism and an 
invaluable trading partner. In recent weeks, however, it has become 
increasingly clear that Beijing will stand in the way of Hong Kong's 
development into a full democracy. Such actions compel support from the 
members of this body.
  The Hong Kong Policy Act of 1992 sets forth the guidelines for the 
U.S. relationship with Hong Kong. It provides for a very special and 
distinct relationship with the Hong Kong Special Administrative Region, 
even as we recognize the Hong Kong is a part of China. This special 
relationship rests on the notion that Hong Kong will be governed 
differently than the rest of China.
  Unfortunately, Beijing continues to suggest that it has no intention 
of realizing Hong Kong's democratic potential. Recent decisions by the 
Standing Committee of the National People's Congress push direct 
election of Hong Kong's Chief Executive into the future. Hong Kong's 
Legislative Counsel faces a similar fate. Some observers even suggest 
Beijing will wait another 30 or 40 years to allow universal suffrage in 
the selection of executive and legislative office holders to become a 
reality. By then, the 50 year special arrangement will be near 
expiration, threatening everything the people of Hong Kong have 
achieved.
  I traveled to Hong Kong in January. My Subcommittee on East Asia and 
Pacific Affairs held a hearing last month where we heard testimony from 
Hong Kong's leading democracy advocates. A clear message emerges from 
everyone with whom I have spoken on this issue: Hong Kong is ready for 
full democracy. The people have demonstrated the ability to create a 
vibrant society and they deserve universal suffrage and the ability to 
participate fully in the functions of government.
  The resolution I submit today is simple. It recognizes the recent 
report from the State Department dealing with the U.S.-Hong Kong 
relationship. It highlights Hong Kong's autonomy as envisioned by the 
Hong Kong Policy Act, and it highlights the unfortunate steps taken in 
Beijing to frustrate Hong Kong's democratic development. As the 
resolution says, Congress ought to declare ``that the people of Hong 
Kong should be free to determine the pace and scope of constitutional 
developments'' and that anything less violates the vision of democracy 
set forth in the 1984 Joint Declaration signed by Great Britain and the 
People's Republic of China.
  When Martin Lee came to testify about the importance of democratic 
development in March, Beijing referred to him as a dreamer. They meant 
it as an insult, but Mr. Lee embraces the label as he looks to a future 
of freedom in Hong Kong. This body can make a powerful statement of 
support for Martin Lee's democratic dreams by passing this resolution, 
and I hope they will move quickly to do so.

                          ____________________