[Congressional Record Volume 151, Number 28 (Thursday, March 10, 2005)]
[Senate]
[Pages S2424-S2428]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005--
                               Continued

  Mr. LEAHY. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I understand there will be a vote on the 
Leahy-Sarbanes amendment at 2 o'clock; is that correct?
  The PRESIDING OFFICER. The Senator is correct.


                            Amendment No. 83

  Mr. LEAHY. Mr. President, this amendment Senator Sarbanes and I have 
pending is going to moderately preserve the current conflict-of-
interest standards for investment banks. They might safeguard the 
integrity of the bankruptcy process. Senators understand that well 
before I was born we have had in bankruptcy law provisions to cover 
conflicts of interest of investment bankers. For some reason this was 
taken out in the pending legislation. The pending legislation would 
eliminate the now 67-year-old conflict-of-interest standards that 
prohibit investment banks which served as underwriters of a company's 
securities from playing a major advisory role in the company's 
bankruptcy process.
  In other words, it means if you had an investment bank that advised 
or underwrote securities for WorldCom or Enron at a time when, as we 
now know, they were cooking the books--they were the ones who advised 
them how to do this before bankruptcy--then they could be hired to 
represent the interests of the defrauded creditors during the 
bankruptcy proceeding.
  It is kind of the fox guarding the chicken coop. You advise one of 
these

[[Page S2425]]

companies how to cook the books, make a lot of money--it is going to 
defraud a lot of people--but if the bubble breaks and you go into 
bankruptcy and the people who have been defrauded try to get a little 
bit of money back--try to get back some of the money they are owed, 
even though it is going to be cents on the dollar, people who had their 
pensions built into this, had their retirement built into this--you 
could have the very same investment banker saying, ``We will represent 
you. We are the guys who got you in the problem in the first place, 
where you lost all your pension and the money you are owed, but we will 
help you get it back.''
  It is ironic that firms that had a part in the company's deception 
could stay on the payroll in bankruptcy and profit handsomely from 
their own fraud.
  For 67 years we said, wisely: Enough. You can't do that. Nobody 
seemed to have a problem with it, but for some reason, that prohibition 
was dropped here. I have to ask what kind of message are we sending to 
investors and pensioners who are suffering from corporate misdeeds and 
ensuing bankruptcies if we allow this to happen. They deserve better.
  What we have suggested, what a lot of people seem to support, is: All 
right, we won't put the total blanket prohibition in, but we will at 
least say that if you were involved within 5 years of this bankruptcy 
you cannot come back and handle the rights of the creditors. In other 
words, if you are the one who lost all the money of the creditors, you 
lost all the money of the pensioners, you lost all the money of the 
investors, you are not the one who is going to come back in and say now 
you can pay us to get back what little bit is left.
  The National Bankruptcy Review Commission, agreeing with us, strongly 
recommended that Congress keep the current conflict-of-interest 
standards in place. They said:

       Strict disinterestedness standards are necessary because of 
     the unique pressures inherent in the bankruptcy process.

  Of course there are. Of course there are pressures. The larger the 
bankruptcy, the greater the pressures. Which assets do you sell? Which 
assets do you keep? Which assets should go to the creditors? What we 
want to do is monitor section 414. I would like to go back to the 
blanket prohibition, but we said at least make it 5 years. In fact, 
Fifth Circuit Court of Appeals Judge Edith Jones, well respected, very 
conservative member of the Fifth Circuit and member of the Bankruptcy 
Commission, urged Congress to remove section 414. She said:

       If professionals who have previously been associated with 
     the debtor continue to work for the debtor during a 
     bankruptcy case, they will often be subject to conflicting 
     loyalties that undermine their foremost fiduciary duty to the 
     creditors. Strict disinterestedness, required by current law, 
     eliminates such conflicts or potential conflicts. . . . 
     Section 414, in removing investment bankers from a rigorous 
     standard of disinterestedness, is out of character with the 
     rest of this important legislation and should be eliminated.

  Then the chairman of the Securities and Exchange Commission wrote to 
us. He said, speaking for the Commission:

       We believe that it would be a mistake to eliminate the 
     exclusion in a similar one-size-fits-all manner at a time 
     when investor confidence is fragile.

  Think of what he said. A lot of investors, since Enron and WorldCom, 
have lost confidence. If we perpetuate the things that perpetuate that 
lack of confidence, loss of confidence, then shame on us. We can easily 
go in with a very commonsense exclusion of conflicts of interest.
  How can any one of us go back and say to our constituents: We were in 
favor of keeping the people who advised and got the enormous bankruptcy 
in the first place. Now we are in favor of putting them in to guard 
what little bit of assets the creditors and the investors might have. 
Try to explain that to somebody who is trying to recover because they 
relied on what these same people had said and now they are trying to 
recover their life savings, or trying to recover their business which 
itself may go bankrupt because of money owed them. Try to convince them 
that we are trying to protect you by letting the same people who made 
this mess now be responsible for getting payment to you.
  The amendment Senator Sarbanes and I offer is a modest compromise. We 
limit it to 5 years before the bankruptcy. It only applies in the 5 
years immediately preceding the bankruptcy. It doesn't say you are 
precluded forever, as current law does. But it says you are precluded 
if you were involved within 5 years of this collapse. Then you are not 
going to be involved in getting people back their money.
  With Enron and WorldCom and others, this is the last time in the 
world that the Senate should weaken conflict-of-interest standards. 
Certainly the investors and the public are not going to like it. What 
we are trying to do, we are trying to get us back in line with the SEC 
and others, to restore public confidence in financial transactions with 
greater accountability and increased investor protection.
  As I said earlier, I will yield to the distinguished senior Senator 
from Maryland.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Mr. SARBANES. Mr. President, I again commend my able colleague from 
Vermont for coming forward with this amendment. I am very pleased to 
join with him in cosponsoring it, and I urge its adoption upon our 
colleagues.
  First, I want to underscore, the Senator from Vermont has tried very 
hard to work out a very reasonable proposal. The existing law prohibits 
the investment bankers from playing any part in the bankruptcy, if a 
company for which they were an investment banker goes into bankruptcy.
  They can't come along and then become an adviser to the bankrupt 
company. The rationale for that is strong because often the investment 
bankers, because of their own activity, need to be examined and 
reviewed, and they may be held accountable.
  The argument has been made: Well, suppose they were the investment 
banker 20 years ago and they have not had a connection with this 
company since. Why should they be precluded from possibly being taken 
on in the bankruptcy? Recognizing that argument, Senator Leahy's 
proposal has a 5-year ban period. In other words, if you have been the 
investment banker in the last 5 years, you can't then be engaged when 
the company goes bankrupt. The investment bankers are intimately 
involved in the financial structure of the company. Often, they can be 
held liable in one way or another for what has taken place. Certainly 
there is the appearance of impropriety if the very people who were the 
investment bankers to this company in the recent period, and they then 
go bankrupt, and they are taken on subsequent to bankruptcy.
  Only a while back, Gretchen Morgenson, writing in the New York 
Times--I ask unanimous consent that the statement be printed in the 
Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1)
  Mr. SARBANES. She said:

       Do you think Solomon Smith Barney, the brokerage firm that 
     bankrolled WorldCom and advised it on a business and 
     financial strategy that failed rather spectacularly, should 
     be allowed to represent the interests of the company's 
     employees, bondholders and other creditors while WorldCom is 
     in bankruptcy?

  She said:

       If you answered no, you win a gold star for common sense 
     and for knowing right from wrong.

  Elizabeth Warren, a very distinguished professor at Harvard Law 
School, commenting about this problem--I understand that financial 
firms are eager to earn money from bankruptcy advice. There is often 
very big money to be made. They have been lobbying this issue very 
hard. This doesn't preclude any investment banker, just the ones who 
have been providing advice to the company leading up to the company's 
failure, with the Leahy modified amendment, just in the 5-year period 
prior to the bankruptcy.
  Elizabeth Warren says:

       There is reason why the professionals who have worked for a 
     business that collapses into bankruptcy are not permitted to 
     stay on. The company must go back after bankruptcy and 
     reexamine its old transactions. Having the same professionals 
     review their own work is not likely to yield the most 
     searching inquiry.

  Obviously, having the same professionals review their own work is not 
likely to yield the most searching inquiry.
  Arthur Levitt, former Chairman of the SEC, said:

       I haven't read a single argument made by the investment 
     banks that would persuade

[[Page S2426]]

     me that the prohibition should be changed. What we are 
     talking about is a significant potential conflict of 
     interest, and I think it is outrageous that investment banks 
     would even try to go down this road.

  This prohibition has existed in law ever since 1938, which has been 
reaffirmed by the Bankruptcy Study Commission, by all the experts in 
the field, those who have no vested interest in the outcome, who come 
objective, people who are in favor of modifying the bankruptcy law, 
people not in favor of it, but they all come together and agree on this 
issue.

  Professor Warren said:

       It is not a provision to ensure investor confidence, or to 
     enhance protection for employees, pensioners, or creditors of 
     failing companies. This is a provision to enrich an already 
     wealthy interest group, nothing more.

  It needs to be understood that an investor bank that advised on the 
creation of a company's capital structure before a bankrupt filing may 
itself be exposed to potential liability. If it is brought in to work 
out the deal that permits the company to emerge from bankruptcy, you 
are opening the door that they may be tempted to prefer the creditors 
who have a potential claim against the investment bank. Don't open this 
stable door.
  The Leahy proposal is an extraordinarily reasonable proposal. It 
actually is more accommodating than what the experts are telling us 
because the experts want to continue the complete ban which exists in 
current law. But what Senator Leahy has done in this proposal--this is 
a 5-year ban. If you are earlier than the 5 years, you can be 
considered, but if you are within the 5-year period, it is not going to 
be permitted because we don't want to run the risk of the inherent 
conflict of interest which would exist in that situation. When a 
company goes bankrupt, you need a fresh look at what is going on, and 
you won't get that from the same investment bankers who represented the 
company before.
  This is the point that has been made by the Securities and Exchange 
Commission. In fact, as Chairman Donaldson expressed his personal view 
at a hearing--Senator Leahy and I wrote to him, and he conveyed to us 
the view of the Commission, saying how cautiously Congress should 
proceed before loosening any conflict of interest restrictions.
  He noted that they were aware of the arguments of proponents of the 
amendment that the current statutory exclusion is too broad because it 
covers firms that participated even if it was years ago and the firms 
have no further involvement with the debtor. However, if the exclusion 
is eliminated entirely, we are concerned that the general protection in 
the statute would be insufficient. It may well be insufficient. That is 
the problem.
  I plead with my colleagues, given what we have been through and given 
what investors have suffered across the country, given the effort now 
to eliminate these conflicts of interest, don't open this major door to 
a very severe potential conflict of interest, and the way that we are 
going to do that is to support the Leahy amendment.
  I urge it upon my colleagues.
  Mr. WARNER. Mr. President, I rise today in support of Leahy amendment 
No. 83 to the bankruptcy reform bill. This amendment offers a common-
sense solution to a thorny issue in current bankruptcy law.
  While I am a strong supporter of the underlying bankruptcy reform 
bill, and look forward to voting for its final passage, I am concerned 
about section 414, which amends the disinterested person definition in 
the conflict of interest standards of the Bankruptcy Code.
  Under current law, a firm that serves as an underwriter for a 
company's securities may be barred absolutely from advising that 
company in a bankruptcy reorganization. The existing law is probably an 
over-broad response to the fear of potential abuse. For example, there 
is little potential for abuse in bankruptcy if an investment bank 
underwrote securities for a company 50 years ago, and had not done so 
since.
  Section 414 in this bankruptcy reform bill essentially does away with 
the current ban, and gives bankruptcy judges the discretion to 
determine whether the investment bank has a material adverse interest. 
If the judge decides that no such adverse interest exists, then the 
bank would be able to advise the debtor company, even if some of the 
bank's advice helped contribute to the bankruptcy in the first place.
  In my view, while the current law is over-broad, section 414 swings 
the pendulum too far the other way. I agree with the Chairman of the 
Securities and Exchange Commission, William Donaldson, who recently 
wrote to Members of the Senate on behalf of the SEC. Chairman Donaldson 
noted that the SEC believes that ``it would be a mistake to eliminate 
the exclusion in a similar one-size-fits-all manner at a time when 
investor confidence is fragile.''
  Given the number of high-profile corporate bankruptcies over the past 
few years, it is paramount that we completely avoid the slightest 
appearance of impropriety in these bankruptcies. In my view, the Leahy 
amendment achieves that goal, and strikes a solid middle ground in this 
important debate.
  On the one hand, the amendment does not attempt to reinstate the 
overly broad current law. On the other hand, the amendment recognizes 
that it is important for Congress to set out some uniform policy in 
this area rather than leaving it up to hundreds of individual 
bankruptcy judges.
  Instead, the Leahy amendment imposes a reasonable 5-year waiting 
period under which an investment bank that underwrote securities for a 
company would be precluded from advising that same company in 
bankruptcy.
  In my view, this amendment would protect against any possibility of 
abuse, would safeguard against the appearance of impropriety, and would 
not unduly harm investment banks from rightfully participating in the 
bankruptcy process.
  Mr. LEAHY. Mr. President, am I correct that the yeas and nays have 
been ordered?
  The PRESIDING OFFICER (Mr. Chambliss). The yeas and nays have been 
ordered. There is 2 minutes equally divided prior to the vote.
  Who seeks time?
  Mr. CRAIG. Mr. President, I think this side is prepared to yield back 
the time.
  Mr. LEAHY. Mr. President, I think both Senator Sarbanes and I have 
made our case. We just want to eliminate this blatant conflict of 
interest.
  We yield back our time.
  The PRESIDING OFFICER. Time has been yielded.
  The question is on agreeing to amendment No. 83.
  The yeas and nays have been ordered, and the clerk will call the 
roll.
  The bill clerk called roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 44, nays 55, as follows:

                      [Rollcall Vote No. 39 Leg.]

                                YEAS--44

     Akaka
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Collins
     Conrad
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Reed
     Reid
     Rockefeller
     Salazar
     Sarbanes
     Schumer
     Snowe
     Specter
     Voinovich
     Warner
     Wyden

                                NAYS--55

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Pryor
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter

                             NOT VOTING--1

       
     Clinton
       
  The amendment (No. 83) was rejected.


                           amendment no. 112

  The PRESIDING OFFICER. Under the previous order, the next vote will 
be on Durbin amendment No. 112.

[[Page S2427]]

There are 2 minutes equally divided. Who seeks time?
  The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, this amendment will exempt from the 
bankruptcy bill's means test those disabled veterans whose indebtedness 
occurred primarily during a period of military service. They have given 
us their arms, their legs, very important parts of their lives.
  After 2 weeks of debate, after scores of amendments that have failed, 
I ask my colleagues, just once, in the consideration of this bill, 
whether they will take into their consideration those who, because of 
misfortunes they could not control, have had their lives seriously 
changed. We need to honor these veterans who have given so much to 
America.
  If the Senate owes a great debt to the credit card industry, don't we 
owe a greater debt to these brave soldiers? I ask you to vote aye.
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Mr. President, I agree with the Senator from Illinois. I 
think the Congress agrees with him, the House agrees with him. I ask 
the Senate to support the amendment.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the amendment.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced --- yeas 99, nays 0, as follows:

                      [Rollcall Vote No. 40 Leg.]

                                YEAS--99

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Carper
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                             NOT VOTING--1

       
     Clinton
       
  The amendment (No. 112) was agreed to.
  Mr. McCONNELL. Mr. President, I move to reconsider the vote.
  Mr. BENNETT. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Kentucky.


                           AMENDMENT NO. 129

  Mr. McCONNELL. Mr. President, I ask unanimous consent that we now 
proceed to a vote in relation to the Schumer amendment No. 129 with all 
other provisions of the agreement still in place.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. McCONNELL. We can expect two more votes right now, first on the 
Schumer amendment and then on the underlying Talent amendment. Then 
there will be a break before we have another series of votes.
  I yield the floor.
  The PRESIDING OFFICER. There are 2 minutes equally divided. Who seeks 
time?
  The Senator from New York.
  Mr. SCHUMER. Mr. President, I will address both the Schumer second-
degree amendment and the underlying Talent amendment. This all relates 
to the millionaire's loophole.
  Mr. TALENT. Will the Senator yield for a second? Does the Senator 
want to ask unanimous consent to have 4 minutes at once here, which we 
talked about before?
  Mr. SCHUMER. I think that is what the Chair called for. Am I right?
  The PRESIDING OFFICER. That is correct.
  Mr. TALENT. So it is 4 minutes equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered. It is 4 
minutes equally divided, 2 minutes on each side.
  Mr. SCHUMER. Mr. President, we have debated this before when I 
offered an amendment to close the millionaire's loophole. My colleagues 
may recall the millionaire's loophole will allow a millionaire to 
shield his or her assets in a certain type of trust. It would not be 
susceptible to bankruptcy. The millionaire could then declare 
bankruptcy, shed his debts, and still have the assets in the trust. It 
is an egregious abuse.
  Unfortunately, my amendment was voted down. My friend from Missouri 
has offered an amendment that frankly keeps the status quo. I 
understand many on the other side are sort of pained that they had to 
vote against this amendment, but let me tell colleagues what the Talent 
amendment does.
  It requires a showing of intent to defraud in order to not shield the 
assets. Well, give me a break. Or as my kids would say: Hello.
  Which millionaire is going to hire a lawyer and say, make sure you 
leave a paper trail so they can prove intent? Of course, one cannot 
prove intent, particularly if the actual intent is to hide the assets.
  So in all due respect to my good friend from Missouri, this amendment 
is simply a subterfuge. Make no mistake about it, the Talent amendment 
will not rectify the millionaire's loophole, will not provide cover for 
people who seek cover. If we want to correct the Talent amendment, vote 
for the Schumer second-degree to Talent, which eliminates the intent 
requirement.
  One more point. Aside from the intent issue----
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. SCHUMER. I guess there are no more points.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks time?
  The Senator from Utah.
  Mr. HATCH. Mr. President, one can have self-settled trusts. What the 
amendment of the distinguished Senator from New York does is do away 
with essentially all self-settled trusts. Frankly, Senator Schumer's 
amendment is so broad that it covers all settled trusts, not just 
fraud.
  The amendment of the distinguished Senator from Missouri covers 
fraud, and he does it in the appropriate way, a legal way, the way it 
should be done.
  I yield the remainder of my time to the distinguished Senator from 
Missouri.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. TALENT. I thank the Senator from Utah.
  Very briefly, we should not allow criminals to hide their assets and 
avoid paying their bills. This amendment makes certain that dishonest 
people can't hide their assets, especially if they have caused others 
to lose their jobs, retirement pensions, health care benefits and, in 
some cases, their life savings.

  One of the reasons the economy plunged into a recession a few years 
back was because of corporate fraud. And those crimes caused companies 
to fail, eliminating thousands of jobs. It is fundamentally unfair to 
allow these crooks to abuse the trust laws of certain States to hide 
their wealth.
  My amendment is simple. It closes the asset protection trust loophole 
by empowering bankruptcy courts to go back 10 years to take away 
fraudulent transfers that criminals have sheltered away in an attempt 
to avoid paying back their debts.
  Here is a little background on the problem. Asset protection trusts 
are trusts that a person forms to shield assets for his or her own 
benefit.
  Although the law has historically allowed property owners to create 
trusts

[[Page S2428]]

for others, courts have historically refused to permit someone to tie 
up his or her own property in such a way that he or she can still enjoy 
it but prevent his or her creditors from ever reaching it.
  My amendment states clearly that these trusts cannot be used in 
bankruptcy to allow a person to shelter their assets to avoid repaying 
their debts because of a judgment in criminal, civil, or bankruptcy 
court.
  In addition, my amendment closes the loophole that the New York Times 
wrote a good article about. That article noted how difficult it is to 
determine how much money these crooks have sheltered into these asset 
protection trusts. Some estimate that criminals have stashed away 
billions of dollars in these types of trusts.
  This amendment allows victims to go after any resource transferred 
into the trust by a corporate criminal over the previous 10 years. 
Current laws says that if a corporate executive is convicted of a 
crime, victims can only go after resources transferred into these 
trusts over the last year. The bankruptcy bill, without my amendment, 
would have made it only 2 years.
  But, that is still not enough time to go after the criminals who set 
up these asset protection trusts.
  There is a gap of several years where criminals could have put 
billions in assets into these trusts and the Federal and State 
bankruptcy courts might not be able to touch them. My amendment closes 
the loophole for criminals.
  I urge my colleagues to support this amendment--it simply cracks down 
on criminals.
  I yield back my time.
  Mr. SCHUMER. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER (Mr. Coleman). Is there a sufficient second?
  There appears to be.
  The question is on agreeing to amendment No. 129 to amendment No. 
121.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 43, nays 56, as follows:

                      [Rollcall Vote No. 41 Leg.]

                                YEAS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Chafee
     Conrad
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sarbanes
     Schumer
     Stabenow
     Wyden

                                NAYS--56

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Carper
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--1

       
     Clinton
       
  The amendment (No. 129) was rejected.
  Mr. McCONNELL. Mr. President, I move to reconsider the vote. I move 
to lay that motion on the table.


                           Order of Procedure

  Mr. McCONNELL. Mr. President, I ask unanimous consent that following 
the next vote the Senate proceed to consideration of Calendar No. 39, 
S. 250, the Vocational and Technical Education Act; provided that the 
committee-reported substitute amendment be agreed to, there be 30 
minutes for debate equally divided between the chairman and ranking 
member, no other amendments be in order, and that following the debate, 
the bill, as amended, be read a third time, and the Senate proceed to 
vote on passage of the bill first in the next series of votes with no 
intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                         Vote on Amendment 121

  Mr. McCONNELL. Mr. President, I ask for the yeas and nays on the 
Talent amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to amendment No. 121. The clerk will call 
the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 73, nays 26, as follows:

                      [Rollcall Vote No. 42 Leg.]

                                YEAS--73

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Cantwell
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kohl
     Kyl
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Salazar
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--26

     Akaka
     Bayh
     Boxer
     Carper
     Durbin
     Feingold
     Feinstein
     Inouye
     Jeffords
     Kennedy
     Kerry
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Murray
     Obama
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--1

       
     Clinton
       
  The amendment (No. 121) was agreed to.

                          ____________________