[Congressional Record Volume 151, Number 104 (Wednesday, July 27, 2005)]
[Senate]
[Pages S9059-S9086]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      PROTECTION OF LAWFUL COMMERCE IN ARMS ACT--MOTION TO PROCEED

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
resume consideration of the motion to proceed to S. 397, which the 
clerk will report.
  The legislative clerk read as follows:

       A bill (S. 397) to prohibit civil liability actions from 
     being brought or continued against manufacturers, 
     distributors, dealers, or importers of firearms or ammunition 
     for damages, injunctive or other relief resulting from the 
     misuse of their products by others.

  The PRESIDENT pro tempore. Under the previous order, the time from 10 
to 2 p.m. shall be equally divided, with the majority in control of the 
first hour and the Democrats in control of the second hour, rotating in 
that fashion until 2 p.m.


                   Recognition of the Majority Leader

  The PRESIDENT pro tempore. The majority leader is recognized.


                                Schedule

  Mr. FRIST. Mr. President, this morning we are returning to the motion 
to proceed to the Protection of Lawful Commerce in Arms Act, otherwise 
known as the gun manufacturers liability legislation. Yesterday we 
invoked cloture on the motion to proceed. We now have an order to begin 
the bill at 2 p.m. today. The debate will be equally divided until 2 
o'clock today. I understand a rollcall vote will not be necessary, and 
we will have a voice vote at 2 p.m. and then be on the bill.
  Senators can expect a cloture vote on the underlying bill to occur on 
Friday, unless we change that time by consent. As I stated repeatedly 
over the last several days, we are going to have a very busy session as 
we address a range of issues, including energy and highways and the 
Interior funding bill, the gun manufacturers liability bill, veterans 
funding, nominations, and other issues.
  Just a quick update on several of these. In terms of the Energy bill, 
after 5 years of hard work, the energy conferees are now done. I expect 
that that legislation will be filed shortly. This is a major 
accomplishment that will cause serious and dramatic changes in how we 
produce, deliver, and consume energy. We simply would not be at this 
point without the hard work, the perseverance, and the patience of 
Senator Domenici and his partner, Senator Bingaman, as well as 
Congressman Barton. We will pass that conference report this week. Our 
country will be all the better for it.
  I was talking to the Secretary of Energy earlier this morning. We 
were discussing the absolute importance of passing this bill to 
establish a framework of policy from this legislative body. He again 
referred to the great good this bill will do.

  On highways, it has taken this Congress 3 tough years of work to come 
to this point, but with just a little more work, we will have a bill 
that the President will sign. Our conferees are working and should 
complete the writing of it today. I spent time with several of the 
conferees yesterday and with the Speaker, as we coordinate completion 
of this highway bill.
  The good news for the American people is, as they see what is 
sometimes confusing on the floor of the Senate as these bills come in, 
this particular highway bill will make our streets and our highways 
safer. It will make our economy more productive. It will create many 
new jobs.
  I mentioned veterans funding. Yesterday, the House and Senate 
majority agreed to ensure that $1.5 billion of needed funding will be 
given to the Department of Veterans Affairs this fiscal year. Veterans 
can be assured that their health care will remain funded. I know it is 
confusing what you hear on the floor, but that action is being taken.
  I mentioned Interior funding. Yesterday both Houses agreed to fund 
many of the programs that affect many of our public lands held in trust 
for Americans throughout the country. We intend to complete action on 
this conference report this week as well.
  Late last night, the conferees completed work on the Legislative 
Branch appropriations bill, and we will be attempting to clear that 
legislation as well this week.

[[Page S9060]]

  I mentioned all these to give my colleagues an update because there 
is so much activity going on right now, in addition to the very 
important legislation that is on the floor.
  After several months of aggressive work, we can now look back and say 
that we have brought the Cabinet full strength for the President's 
second term in effect. We have accomplished very important class action 
legislation, after years and years and years of delay. We finished 
bankruptcy reform, which we have worked on in the Congress, both 
Houses, since the late 1990s. We completed writing one of the fastest 
budgets in congressional history with the goal, which we are 
accomplishing, of pushing down the deficit, keeping our economy 
growing, and creating jobs, funding our efforts to confront the 
terrorist challenge overseas, confirming, after what was tough for us 
all, many of the judicial nominees that have been held up for years. 
All of that is what we have done.
  Now we have the opportunity over the next 3 to 4 days of completing 
action on the very necessary, very important bills which I have 
mentioned--bills that will make a real difference in the everyday lives 
of Americans. We are talking about funding for health care, veterans, 
highways, and energy. We are demonstrating governing with meaningful 
solutions to everyday problems of Americans.
  These bills will affect people's lives directly, will create 
opportunities for new jobs, help people to fulfill the American dreams 
they might have, as well as address critical national needs. By the 
time we get to the recess--I mention that because we have a long 
recess. A recess is the time that we can use to go back and be with our 
constituencies. We do have a long recess in August. I say that to 
preface how important it is that we complete all of our work this week. 
The American people expect us to complete action on the items I have 
mentioned. There is a tendency to think the recess is going to start 
maybe a day early. It certainly looks like, because we are going to be 
so busy, that we will be working through Friday of this week. I will be 
in constant consultation with the Democratic leader. We will have the 
opportunity to talk several times throughout the day.
  At this point, we cannot rule out a Saturday session, if it is 
absolutely necessary. I think we can finish our work earlier, but we 
simply can't rule out a Saturday session at this point.
  I do ask for Members to keep their schedules flexible until we get 
through this legislative calendar. We will in a bipartisan way have a 
lot to be proud of once we leave for our August recess.


                              Health Care

  Mr. President, most of what I have said has to do with 
accomplishments, challenges, and schedule. I want to turn to an issue 
that I care passionately about, an issue that most, if not all 
Americans, care about, and that is health care.
  As I travel around the country, in part because I am a physician but 
in larger part because of the reality of the problem, the cost of 
health care, as well as the safety and quality of health care, is among 
the first and foremost issues on the minds of the American people. They 
want us to lower the cost. You do that by improving quality and getting 
rid of waste, and we are doing just that.
  I am pleased to report that after years of challenging work, 
difficult work, and a lot of negotiation among ourselves on both sides 
of the aisle, the House is expected to join the Senate in passing a 
bill called the Patient Safety and Quality Improvement Act. I am 
hopeful they will pass that bill today. We passed it not too long ago. 
I mention it because it focuses on getting waste out of the system, and 
it does so by putting the emphasis on patients.
  A patient-centered system is what I strongly believe we need to move 
to in the future. This does just that. Patient safety is something that 
concerns me. We have an obligation, as physicians, as nurses, as the 
health care sector, but also as a public policy body, to make sure that 
patient safety is maximized. People say: Of course, you do. But if you 
look back at the Institute of Medicine's report not too long ago that 
really started a lot of this debate, they estimated that up to 98,000 
deaths are caused each year by medical errors. That would make medical 
errors, that are occurring every day in hospitals and clinics, and even 
at home when people are taking medicines, the eighth leading cause of 
death each year. That is more than car accidents, HIV/AIDS, or breast 
cancer. People dispute the number. Is it 98,000? Is it 125,000? Is it 
75,000? The exact number doesn't matter. The fact that there are 
thousands and thousands of needless deaths being caused is inexcusable. 
This body has acted. The House will act. And I am hopeful the President 
will be able to sign that important legislation in the next several 
days.
  What is so obvious to me as a physician, having spent 20 years in the 
medical arena, every day in the healing profession, is that the tragedy 
of all these deaths is compounded by the fact that these deaths and the 
many errors that result in prolonged hospitalization, more misery, 
greater cost, can be prevented, can absolutely be prevented. Simple 
reporting procedures, sharing of information, improved technology, a 
systems approach--all can reduce these preventable errors, and thereby 
improve hundreds of thousands of lives and actually save tens of 
thousands of lives.

  So people ask, What is the problem? The fear of litigation has kept 
many health care providers--doctors, nurses, and lab technicians in the 
hospitals--from sharing information if a mistake is inadvertently made. 
Everybody makes mistakes, but if you have a mistake that is made, you 
need to be able to share it with people so you can develop a system to 
keep it from happening in the future. We all do that in our everyday 
lives.
  For example, in hospitals, there is a tendency not to do that because 
if you share your mistake, there is a predatory trial lawyer who will 
swoop in and find that error and take you to court and destroy you and 
the system. It is human nature to say, if that is the case, Yes, I made 
a mistake, I will improve, but I am not going to share it because it 
will destroy my future. People are afraid of sharing their internal 
data, such as their collection of reporting of infections that could 
have been prevented with preventable techniques or a medical error that 
might expose them to a ruinous lawsuit. That drives the reporting of 
these medical errors underground.
  The bill will change all of that, and it will lift this threat of 
litigation and allow health care providers, doctors, nurses, and other 
health care professionals to share information and to develop effective 
solutions and to develop effective systems whereby those mistakes will 
never occur again. That is the way this patient safety bill will 
improve lives but also save lives of tens of thousands of people.
  This type of nonpunitive reporting isn't new. I began flying small 
planes fairly young, when I was a teenager. Over the years, I have 
watched how self-reporting in that field has revolutionized safety in 
general aviation, private aviation, and in the airline industry as 
well. In 1975, I had been flying for about 7 years. I remember it 
because it was a big deal at the time. Similar to what we are doing now 
with the patient safety bill, the FAA established a system called the 
Aviation Safety Reporting System. It encouraged everyone in the 
aviation system--mechanics, pilots, air traffic controllers, flight 
attendants, and the general public--to voluntarily report--I remember 
the blue cards you reported on--potential or actual safety problems, 
and you could do so without fear of recrimination.
  That is why this voluntary aspect is so important. Because that 
information in the aviation field was shared internally and with 
others, accidents went down and overall safety went up dramatically. 
Everyone improved. Quality improved and safety improved by learning 
from others.
  The patients safety bill that is before the House of Representatives 
today--the same bill that passed in this body last Thursday--promises 
exactly the same kind of benefits, in parallel, that were passed in 
1975, and this is 2005, 30 years later than it should have been. Under 
the provisions of this act, hospitals and physicians and other health 
professionals will be able to share this information about their 
practices with independent PSOs, or patient safety organizations, 
without the fear of lawsuits, and this transparency will improve 
quality.
  America has the absolute best health care in the world. I have seen 
it by

[[Page S9061]]

doing heart transplants, using the best of lasers to resect tumors out 
of the trachea or windpipe, and with developing ventricular assist 
devices. I was in Tanzania some weeks ago working at a small clinic out 
in the bush, and when you look back at America, we have the most 
advanced health care in the world, with new treatments and techniques, 
improving millions of lives every day.
  Through this bill, we are putting that same sort of American 
ingenuity to work in improving patient safety in hospitals and clinics 
and thus getting rid of waste and improving the overall quality of 
care. This bill is a major step forward to making health care safer and 
less costly, driving up the quality, driving down costs, and getting 
out the waste.
  I can tell you, this is the first major health bill in this Congress. 
But I hope in the very near future we will pass other important 
legislation we are working on in a similarly bipartisan way--namely, 
information technology to have privacy-protected, electronic medical 
records available to everybody who wants it. It is a bipartisan effort. 
We have come a long way, and I am hopeful that we can do that in the 
near future.
  We are establishing interoperability standards--working with the 
private sector to establish interoperability standards which will allow 
the 6,000 hospitals and 900,000 physicians out there to be able to 
communicate in a seamless way, with privacy-protected information. 
Again, it is another bill that would get rid of waste, drive down the 
cost of health care, and improve quality.
  I am excited about these health initiatives. I thank my colleagues 
who have specifically been involved in this bill, including Chairman 
Mike Enzi, Senator Judd Gregg, Senator Jim Jeffords, who has been at it 
as long as anybody--this particular bill on patient safety--and, of 
course, Senator Ted Kennedy. On the House side, Chairman Joe Barton and 
ranking member John Dingell have done a tremendous job as well 
shepherding through, the Patient Safety and Quality Improvement Act. We 
are saving lives and moving American medicine forward.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I understand that the Republican side has 
from 10 until 11, is that correct, under the unanimous consent 
agreement?
  The PRESIDENT pro tempore. That is correct. The first hour is under 
the control of the majority, the second hour is under the control of 
the minority, and it reverts back to the majority and then the 
minority.
  Mr. CRAIG. Mr. President, I send to the desk a list of 61 cosponsors 
of S. 397, the Protection of Lawful Commerce in Arms Act that is 
currently pending before the Senate, and I ask unanimous consent that 
it be printed in the Record.
       There being no objection, the material was ordered to be 
     printed in the Record, as follows:

                          Cosponsors, By Date

       Sen. Baucus, Max [D-MT]--2/16/2005*, Sen. Bunning, Jim [R-
     KY]--2/16/2005*, Sen. Chambliss, Saxby [R-GA]--2/16/2005*, 
     Sen. Collins, Susan M. [R-ME]--2/16/2005*, Sen. Craig, Larry 
     [R-ID], Sen. Crapo, Mike [R-ID]--2/16/2005*, Sen. Ensign, 
     John [R-NV]--2/16/2005*, Sen. Hutchison, Kay Bailey [R-TX]--
     2/16/2005*, Sen. Isakson, Johnny [R-GA]--2/16/2005*, Sen. 
     Kyl, Jon [R-AZ]--2/16/2005*, Sen. Murkowski, Lisa [R-AK]--2/
     16/2005*, Sen. Santorum, Rick [R-PA]--2/16/2005*, Sen. Snowe, 
     Olympia J. [R-ME]--2/16/2005*, Sen. Thomas, Craig [R-WY]--2/
     16/2005*, Sen. Sununu, John E. [R-NH]--2/16/2005*, Sen. 
     Vitter, David [R-LA]--2/17/2005, Sen. DeMint, Jim [R-SC]--3/
     1/2005.
       Sen. Dorgan, Byron L. [D-ND]--3/1/2005, Sen. Gregg, Judd 
     [R-NH]--3/1/2005, Sen. Hatch, Orrin G. [R-UT]--3/1/2005, Sen. 
     Frist, William H. [R-TN]--3/3/2005, Sen. Graham, Lindsey [R-
     SC]--3/4/2005, Sen. Cochran, Thad [R-MS]--3/9/2005, Sen. 
     Shelby, Richard C. [R-AL]--3/9/2005, Sen. Burr, Richard [R-
     NC]--3/10/2005, Sen. Specter, Arlen [R-PA]--3/14/2005, Sen. 
     Pryor, Mark L. [D-AR]--3/16/2005, Sen. Roberts, Pat [R-KS]--
     3/17/2005, Sen. Bennett, Robert F. [R-UT]--4/12/2005, Sen. 
     McCain, John [R-AZ]--7/21/2005, Sen. Byrd, Robert C. [D-WV]--
     7/25/2005, Sen. Alexander, Lamar [R-TN]1--2/16/2005*, Sen. 
     Burns, Conrad R. [R-MT]--2/16/2005*, Sen. Coburn, Tom [R-
     OK]--2/16/2005*.
       Sen. Cornyn, John [R-TX]--2/16/2005*, Sen. Domenici, Pete 
     V. [R-NM]--2/16/2005*, Sen. Enzi, Michael B. [R-WY]--2/16/
     2005*, Sen. Inhofe, James M. [R-OK]--2/16/2005*, Sen. 
     Johnson, Tim [D-SD]--2/16/2005*, Sen. Lincoln, Blanche L. [D-
     AR]--2/16/2005*, Sen. Nelson, E. Benjamin [D-NE]--2/16/2005*, 
     Sen. Sessions, Jeff [R-AL]--2/16/2005*, Sen. Stevens, Ted [R-
     AK]--2/16/2005*, Sen. Thune, John [R-SD]--2/16/2005*, Sen. 
     Allen, George [R-VA]--2/17/2005, Sen. Landrieu, Mary L. [D-
     LA]--2/17/2005, Sen. Dole, Elizabeth [R-NC]--3/1/2005, Sen. 
     Grassley, Chuck [R-IA]--3/1/2005, Sen. Hagel, Chuck [R-NE]--
     3/1/2005.
       Sen. Lott, Trent [R-MS]--3/2/2005, Sen. Talent, Jim [R-
     MO]--3/3/2005, Sen. Allard, Wayne [R-CO]--3/7/2005, Sen. 
     Martinez, Mel [R-FL]--3/9/2005, Sen. Brownback, Sam [R-KS]--
     3/10/2005, Sen. Bond, Christopher S. [R-MO]--3/14/2005, Sen. 
     McConnell, Mitch [R-KY]--3/15/2005, Sen. Coleman, Norm [R-
     MN]--3/16/2005, Sen. Voinovich, George V. [R-OH]--4/12/2005, 
     Sen. Smith, Gordon H. [R-OR]--4/27/2005, Sen. Salazar, Ken 
     [D-CO]--7/21/2005, Sen. Rockefeller, John D. [D-WV]--7/26/
     2005.

  Mr. CRAIG. Mr. President, the reason I sent that list of cosponsors 
to the desk is to demonstrate to all of our colleagues that 61 
Senators--60 plus myself--are now in support of the legislation that is 
pending before the Senate that we will move to active consideration of 
this afternoon at 2 o'clock. I think it demonstrates to all of us the 
broad, bipartisan support this legislation has and a clear recognition 
that the time for S. 397 has arrived.
  This legislation prohibits one narrow category of lawsuits: suits 
against the firearms industry for damages resulting from the criminal 
or unlawful misuse of a firearm or ammunition by a third party.
  It is very important for everybody to understand that it is that and 
nothing more. These predatory lawsuits are aimed at bankrupting the 
firearms industry. The courts of our Nation are supposed to be a forum 
for resolving controversies between citizens and providing relief where 
it is warranted, not a mechanism for achieving political ends that are 
rejected by the people's representatives, the Congress of the United 
States.
  Time and time again down through history, that rejection has occurred 
on this floor and the floor of the other body.
  Interest groups, knowing that clear well, have now chosen the court 
route to attempt to destroy this very valuable industry in our country.
  Over two dozen suits have been filed on a variety of theories, but 
all seek the same goal of forcing law-abiding businesses selling a 
legal product to pay for damages from the criminal misuse of that 
product. I must say, if the trial bar wins here, the next step could be 
another industry and another product.
  While half of these lawsuits have already been fully and finally 
dismissed, other cases are still on appeal and pending. Hundreds of 
millions of dollars are still being spent. The bill would require the 
dismissal of existing suits, as well as future suits that fit this very 
narrow category of description. It is not a gun industry immunity bill 
because it does not protect firearms or ammunition manufacturers, 
sellers, or trade associations from any other lawsuits based on their 
own negligence or criminal conduct.
  This bill gives specific examples of lawsuits not prohibited--product 
liability, negligence or negligent entrustment, breach of contract, 
lawsuits based on violations of States and Federal law. And yet, we 
already heard the arguments on the floor yesterday, and I am quite 
confident we will hear them again and tomorrow, that this is a sweeping 
approach toward creating immunity for the firearms industry.
  I repeat for those who question it, read the bill and read it 
thoroughly. It is not a long bill. It is very clear and very specific.
  The trend of abusive litigation targeting the firearms industry not 
only defies common sense and concepts of fundamental fairness, but it 
would do nothing to curb criminal gun violence. Furthermore, it 
threatens a domestic industry that is critical to our national defense, 
jeopardizes hundreds of thousands of good-paying jobs, and puts at risk 
access Americans have to a legal product used for hundreds of years 
across this Nation for lawful purposes, such as recreation and self-
defense.
  Thirty-three States enacted similar gun lawsuit bans or civil 
liability protection. In other words, already 33

[[Page S9062]]

States, because of our silence, have felt it necessary to speak up to 
protect law-abiding citizens from this misuse of our courts.
  Yesterday, opponents repeatedly charged that negligent businesses and 
people would be let off the hook by this bill. It was even stated that 
this bill would bar virtually all negligence and product liability 
cases in States and Federal courts. I repeat, nothing can be further 
from the truth. For those who come to this floor to make that charge, 
my challenge to them is to read the bill. Obviously they have not. They 
are simply following the script of the anti-gun community of this 
Nation. That is not fair to Senators on this floor to be allowed to 
believe what this legislation simply does not do nor does it say.
  The bill affirmatively allows lawsuits brought against the gun 
industry when they have been negligent. The bill affirmatively allows 
product liability action. Any manufacturer, distributor, or dealer who 
knowingly violates any State or Federal law can be held civilly liable 
under the bill. This bill does not shut the courthouse door.
  Under S. 397, plaintiffs will have the opportunity to argue that 
their case falls under the exception, such as violations of Federal and 
State law, negligent entrustment, knowingly transferring to a dangerous 
person. That is what that all means, that you have knowingly sold a 
firearm to a person who cannot legally have it or who you have reason 
to believe could use it for a purpose other than intended. That all 
comes under the current definition of Federal law.
  Breach of contract or the warranty or the manufacture or sale of a 
defective product--these are all well-accepted legal principles, and 
they are protected by this bill. Current cases where a manufacturer, 
distributor, or dealer knowingly violates a State or Federal law will 
not be thrown out.
  Opponents have complained about the Senate considering this bill at 
the same time and even have impugned the motives of the Senators who 
support it. The votes yesterday speak for themselves. Sixty-six 
Senators said it is time we got this bill before the Senate, and that 
is where we are today. When a supermajority of the Senate speaks, there 
is no question that the Senate moves, as it should, in that direction. 
The Senate could not muster the votes needed to invoke cloture on the 
Defense authorization bill which would have moved us to a final vote on 
that measure possibly by tonight. But the Senate, as I have said, by a 
wide margin spoke yesterday to the importance of dealing with this 
issue. Sixty-six Senators said let's deal with it now, and I have just 
sent to the desk 61 signatures of the cosponsors of this bill that 
demonstrate broad bipartisan support.
  I think it is appropriate to consider all of this in the context of 
the Defense authorization bill because the reckless lawsuits we are 
seeking to stop are aimed at businesses that supply our soldiers, our 
sailors, and our airmen with their firepower. Stop and think about it. 
Would there ever be a day when all of our military would be armed with 
weapons manufactured in a foreign nation? There are many in this 
country, in driving or attempting to drive our firearm manufacturers 
from this country, who would have it that way.

  Clearly, it is within the appropriate context as we deal with Defense 
authorization that we ought to be talking about the credibility and the 
assurance we are able to sustain the firearm manufacturing industry in 
this country. In fact, the United States is the only major world power 
that does not have a firearm factory of its own. That is something that 
simply ought not be tolerated. Thirty-eight of our colleagues of both 
parties signed on to a letter to Majority Leader Frist making this very 
point: the importance of protecting America's small firearms industries 
against reckless lawsuits.
  I would read from that letter, but I see that my colleague from 
Oklahoma is now on the floor wishing to discuss this legislation.
  Mr. President, I yield the floor in recognition of Senator Coburn.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Oklahoma.
  Mr. COBURN. Mr. President, first, I thank the Senator from Idaho for 
his unwavering faithfulness to the Constitution and upholding his oath 
as a Senator, as a Member of this body.
  The Bill of Rights is important to us, and I rise today in support of 
that Bill of Rights and, in particular, the second amendment. Not only 
do I believe the right to bear arms is guaranteed by the U.S. 
Constitution, I exercise that right personally as a gun owner. I stand 
on behalf of the people of Oklahoma who adamantly believe in the second 
amendment and the right to carry arms and against the attack on that 
right by the frivolous lawsuits that have come about of late.
  We have seen many attempts to curtail the second amendment. Nearly a 
decade ago anti-gun activists tried to limit the right of law-abiding 
citizens under the banner of ``terrorism'' legislation by slipping in 
anti-gun provisions.
  In another line of attack, the anti-gun lobby responded to decreasing 
enthusiasm for limiting handguns by promoting a new form of gun 
control--a cosmetic ban on guns labeled with the inflammatory title 
``assault weapons.'' While that ban expired in 2004, we will likely see 
Members of this body attempt to add a renewal and expansion of that ban 
on this bill today.
  Now anti-gun activists have found another way to constrict the right 
to bear arms and attack the Bill of Rights and attack the Constitution, 
and that is through frivolous litigation. They have not succeeded in 
jailing thousands of law-abiding Americans for having guns, or making 
the registration and purchase process so onerous that nobody bothers to 
buy a gun. They have failed to get their cosmetic weapons ban renewed. 
So now they must attack the arms industry financially through 
lawsuits--frivolous lawsuits, I might say.
  This is why we are here today--to put a stop to the unmeritorious 
litigation that threatens to bankrupt a vital industry in this country.
  As an important aside, I strongly believe it is important that we not 
write legislation that provides immunity for an industry that knowingly 
harms consumers.
  It is also important that those who commit crimes, with or without 
the use of firearms, should be punished for their actions. I have 
always been a strong supporter of tough crime legislation. However, 
make no mistake, the lawsuits that will be prohibited under this 
legislation are intended to drive the gun industry out of business. 
With no gun industry, there is no second amendment right because there 
is no supply.
  These lawsuits against gun manufacturers and sellers are not directed 
at perpetrators of crime. Instead, they are part of a stealth effort to 
limit gun ownership, and I oppose any such effort adamantly.
  Anti-gun activists have failed to advance their agenda at the ballot 
box. They failed to advance their agenda in the legislatures. 
Therefore, they are hoping these cases will be brought before 
sympathetic activist judges--activist judges--who will determine by 
judicial fiat that the arms industry is responsible for the action of 
third parties.
  Additionally, trial lawyers are working hand in glove with the anti-
gun activists because they see the next litigation cash cow, the next 
cause of action that will create a fortune for them in legal fees.
  As a result of some of the efforts of the anti-gun activists and some 
trial lawyers, the gun manufacturing and sales industry face huge costs 
that arise from simply defending unjustified lawsuits, not to mention 
the potential of runaway verdicts. This small industry has already 
experienced over $200 million in such charges. Even one large verdict 
could bankrupt an entire industry.
  Since 1988, individuals and municipalities have filed dozens of novel 
lawsuits against members of the firearms industry. These suits are not 
intended to create a solution. They are intended to drive the gun 
industry out of business by holding manufacturers and dealers liable 
for the intentional and criminal act of third parties over whom they 
have absolutely no control.
  In testimony before a House subcommittee in 2005, the general counsel 
of the National Shooting Sports Foundation, Inc., said:

       I believe a conservative estimate of the total, industry-
     wide cost of defending ourselves to date now exceeds $200 
     million.


[[Page S9063]]


  What does that produce in our country other than waste and abnormal 
enrichment of the legal system?
  This is a huge sum for a small industry such as the gun industry. The 
firearms industry taken together would not equal the value of a Fortune 
500 company.
  The danger that these lawsuits could destroy the gun industry is 
especially threatening because our national security and our civil 
liberties are at stake.
  First, the gun industry manufactures firearms for America's military 
forces and law enforcement agencies, the 9, the 11. Due in part to 
Federal purchasing rules these guns are made in the U.S. by American 
workers. Successful lawsuits could leave the U.S. at the mercy of small 
foreign suppliers.
  Second, by restricting the gun industry's ability to make and sell 
guns and ammunition, the lawsuits threaten the ability of Americans to 
exercise their second amendment right to bear arms.
  Finally, if the firearms industry must continue to spend millions of 
dollars on litigation or eventually goes bankrupt, thousands of people 
will lose their jobs. Secondary suppliers to gunmakers will also have 
suffered and will continue to suffer.
  This is why it is not surprising that the labor unions, representing 
workers at major firearms plants, such as the International Association 
of Machinists and Aerospace Workers in East Alton, IL, support this 
bill. This union's business representatives stated that the jobs of 
their 2,850 union members ``would disappear if trial lawyers and 
opportunistic politicians get their way.''
  The economic impact of this problem may be felt in other ways. In my 
home State of Oklahoma, hunting and fishing creates an enormous 
economic impact. It is tremendously positive. Hunters bring in retail 
sales of over $292 million per year; 6,755 jobs in Oklahoma are 
dependent on hunting; $137,122,000 in salaries and wages in Oklahoma 
alone; and $22 million in State sales tax per year. The financial 
insolvency of gun manufacturers and sellers would have a devastating 
effect on my State and many other States similar to Oklahoma.
  Insurance rates for firearm manufacturers have skyrocketed since 
these suits began, and some manufacturers are already being denied 
insurance and seeing their policies canceled, leaving them unprotected 
and vulnerable to bankruptcy.
  That is the ultimate goal of these suits--bankruptcy and the 
elimination of this arms industry. Because of that, 33 State 
legislatures have acted to block similar lawsuits, either by limiting 
the power of localities to file suit or by amending State product 
liability laws. However, it only takes one lawsuit in one State to 
bankrupt the entire industry, making all of those State laws 
inconsequential. That is why it is essential that we pass Federal 
legislation.

  Additionally, plaintiffs in these suits demand enormous monetary 
damages and a broad variety of injunctive relief relating to the 
design, the manufacture, the distribution, the marketing, and the sale 
of firearms.
  Some of their demands: One-gun-a-month purchase restrictions not 
required by State laws; requiring manufacturers and distributors to 
``participate in a court-ordered study of lawful demand for firearms 
and to cease sales in excess of lawful demand; ``prohibition on sales 
to dealers who are not stocking dealers with at least $250,000 of 
inventory--in other words, we are going to regulate how much you have 
to have in inventory before you can be a gun seller; a permanent 
injunction requiring the addition of a safety feature for handguns that 
will prevent their discharge by ``those who steal handguns''; and a 
prohibition on the sales of guns near Chicago that by their design are 
unreasonably attractive to criminals.
  These lawsuits are frivolous. Anti-gun activists want to blame 
violent acts of third parties on manufacturers of guns for simply 
manufacturing guns and sellers of guns for simply selling them. This 
doesn't make any sense. This would be the equivalent of holding a car 
dealer responsible for a person who intentionally runs down a 
pedestrian simply because the car that was sold by the dealer was used 
by a third party to commit negligent homicide.
  Guns, like many other things, can be dangerous in the wrong hands. 
The manufacturer or seller of a gun who is not negligent and obeys all 
applicable laws should not be held accountable for the unforeseeable 
actions of a third party. This is a country based on personal 
accountability, and when we start muddying that aspect of our law and 
culture we will see all sorts of unintended consequences.
  Most of the victims of gun injuries I have seen in the emergency room 
as a practicing physician were people who were intentionally shot by 
other people. The gun was the mechanism that was used, but it was the 
individual who carried out that act. The gun was a tool. Should we ban 
all tools that are capable of committing homicide or committing injury? 
These people were not injured by defective guns or defective 
ammunition. The individuals who shot these patients deserve aggressive 
prosecution, not the industry that made the guns or the legal sellers 
of the guns. Even when I treated individuals who injured themselves 
with guns, these tragedies were accidents. It was not part of a quality 
or product defect. It was an act of stupidity on the part of people. 
Part of our freedom comes with the ability to make wise choices. If we 
limit our ability to make choices, then we limit our freedom.
  These lawsuits are part of an anti-gun activist effort to make an end 
run around the legislative system. We have seen that in multiple areas 
in our country. When you can't pass it in the legislature, you get an 
activist judge to get done what you wanted to do in the first place, 
even though a majority of Americans and a majority of legislatures 
don't want it. But one judge decides for the rest of us.
  We are coming up on a judicial nomination for the Supreme Court. One 
of the questions that has to be asked is what is the proposal, What is 
the role in terms of judges making law rather than interpreting law? It 
will be a key question.
  So far judges have not been convinced by their arguments. Here are a 
few examples. The Louisiana Supreme Court struck down the right of New 
Orleans to bring a suit in the face of a State law forbidding it, in an 
opinion stating clearly:

       This lawsuit constitutes an indirect attempt to regulate 
     the lawful design, manufacture, marketing and sale of 
     firearms.

  Judge Berle M. Schiller of the U.S. District Court for the Eastern 
District of Pennsylvania struck the nail on the head when dismissing 
all of Philadelphia's allegations, stating that ``the city's action 
seeks to control the gun industry by litigation, an end the city could 
not accomplish by passing such an ordnance.''
  The Delaware Superior Court adeptly stated that ``the Court sees no 
duty on the manufacturer's part that goes beyond their duties with 
respect to design and manufacture. The Court cannot imagine that a 
weapon can be designed that operates for law-abiding people but not for 
criminals.''
  A word of caution. Most new tort ideas took a while to work. All it 
would take is one multimillion-dollar lawsuit to severely damage this 
industry. This bill is limited in scope. It protects only licensed and 
law-abiding firearms and ammunition manufacturers and sellers from 
lawsuits that seek to hold manufacturers and sellers responsible for 
the crime that third party criminals commit with their nondefective 
products.
  Manufacturers and sellers are still responsible for their own 
negligent or criminal conduct and must operate entirely within the 
Federal and State laws.
  Firearms and ammunition manufacturers or sellers may be held liable 
for negligent entrustment or negligence per se; violation of a State or 
Federal statute applicable to the sale or marketing of the product 
where the violation was the proximate cause of the harm for which 
relief is sought; breach of contract or warranty; and product defect. 
They still are responsible for all that through this bill. It takes 
none of that away. It holds personal accountability solid and 
steadfast. It does not infringe on it. Claimants may still go to court 
to argue that their claims fall under one of the exceptions.
  In my opinion, gun manufacturers and sellers are already policed 
enough, too much, through hundreds of pages of

[[Page S9064]]

statutes, hundreds of pages of regulations. To name a few sources of 
regulations of guns and ammunition: the Internal Revenue Code, 
including the National Firearms Act postal regulations restricting 
shipping of handguns; Federal explosive law; regulations for gunpowder 
and ammunition manufacture; the Arms Export Control Act; the Commerce 
Department export regulations; the Department of Transportation 
regulations on ammunition explosives and hazardous material transport.
  In addition to keeping explicit records that can be inspected by 
BATF, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
licensed dealers have to conduct a Federal criminal background check on 
their retail sales either directly by the FBI through its national 
instant criminal background check or through State systems that also 
use the NICS system. All retail gun buyers are screened to the best of 
the Government's ability.
  Additionally, the industry has voluntary programs to promote safe gun 
storage and to help dealers avoid sales to potential illegal 
traffickers.
  Manufacturers also have a time-honored tradition of acting 
responsibly to make recalls or make repairs as they become aware of 
product defects.
  In the past, Congress has found it necessary to protect other 
classes; for example, the light aircraft industry. Jim Inhofe, a 
Senator from Oklahoma, moved that through the House and ultimately 
through the Senate, an industry that was killed, literally destroyed by 
frivolous lawsuits. Community health centers, same thing; the aviation 
industry; the medical implant makers; Amtrak--we have created a special 
exception for Amtrak--the computer industry members who are affected by 
Y2K. We took the nonsense out of the courts and put it where it 
belongs, into statutes with common sense that requires personal 
accountability and responsibility.
  Furthermore, Congress may enact litigation reform when lawsuits are 
affecting interstate commerce. In many of these lawsuits cities and 
individuals are trying to use the State court to restrict the conduct 
of the firearms industry nationally, often contrary to state policies 
expressed through their own legislatures.

  A single verdict in favor of an anti-gun plaintiff could bankrupt or 
regulate an entire segment of the economy--and of America's national 
defense. It could be out of business, but most importantly, my right, 
Oklahomans' right, all of America's right to a guarantee of the second 
amendment to the Bill of Rights secured for them in their ability to 
own and use firearms responsibly.
  This bill will protect our national security. It will protect our 
constitutional rights. It will protect an industry responsibly, and it 
will protect thousands of jobs. It also will ensure that people who 
have suffered a real injury from a real cause of action can be heard 
and taken seriously while law-abiding manufacturers and dealers of 
firearms may continue to serve the law-abiding citizens exercising 
their constitutionally guaranteed second amendment rights.
  Mr. President, I thank you, and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. Mr. President, I just came from our Republican Senate 
cloakroom doing an interview on this important piece of legislation, 
and I thought that in the course of that interview there was an 
interesting comment made by the person on the other end of the line: 
Why are you doing this now? And I thought it would be important for me 
to put it in the appropriate context because there is a tremendous 
number of important issues before the U.S. Congress at this time that 
the American people are highly concerned about because we are headed 
toward the end of the week. As the leader said a few moments ago, we 
are headed toward the August recess, which means Congress, in its 
traditional way, will take the month of August off for personal time 
and family vacation as do many Americans, and we reconvene after Labor 
Day.
  So why now are you addressing the Protection of Lawful Commerce in 
Arms Act, S. 397? It was stated in the context that the Senate really 
can only chew gum or dribble a ball, but it can't do both. What I think 
is important for those who might be listening to understand is that we 
can chew gum and dribble a ball at the same time, and probably keep 
multiple balls in the air. That is exactly what the leader is doing at 
this moment.
  Last night, I signed, and I think the Presiding Officer signed, a 
document that we are very proud of that has been 6 years in coming to 
the desk of the President of the United States, and now comes to this 
President because of his very clear urging, and that is the national 
energy policy.
  Yes, the Congress of the United States has completed its work on a 
national energy policy, and we believe we can take up the conference 
report now on the floor of the Senate during the remainder of the week 
before we recess, and we hope that all of our colleagues would let us 
step back for a moment from this legislation to do so before we move to 
final passage.
  It is very possible that we could also do the transportation 
conference report. We have extended the legal authority under the 
Transportation Act 11 times while the Senate and the House did its 
work, and I hope we would not extend it anymore. So, clearly, there are 
multiple things we can do, and I trust we will do, before we adjourn 
for the August recess. But I think the Presiding Officer and I would 
agree that when our President came to town, now, nearly 6 years ago--
and I remember President George W. Bush elect in the leader's office 
saying: While I spent a good deal of the campaign time talking about 
education and a variety of other issues, I am here now to talk about 
national energy. And the first thing I am going to do as a President-
elect and a sworn-in President is to name a task force headed by the 
Vice President to recommend to the Congress the development of a 
national comprehensive energy policy.
  He did, but we did not. He pushed, but we could not produce. He 
continued to push, and now we have produced, and finally we have a 
comprehensive energy policy before us. So I would say to those 
listening and to all of our colleagues, I hope we can dribble a ball 
and chew gum at the same time and get all of this work done before the 
August recess. If reasonable heads prevail, we should get it all done 
by late Friday night. But the leader also said we do have Saturday, and 
we will get our work done. By early afternoon today, we will be on S. 
397, the Protection of Lawful Commerce in Firearms Act.
  What I would like to do at this time is read a letter that we sent to 
Majority Leader Frist that we think sets into the right context exactly 
why we are here today and tomorrow debating this important legislation.
  The letter goes something like this: Dear Majority Leader Frist--and 
this was sent on July 12, signed by a great many Senators, Democrats, 
and Republicans alike, Max Baucus, who is my cosponsor of this 
legislation, and I, along with a good many others. We said:

       In the early days of World War II, President Franklin 
     Roosevelt foresaw that America ``must be the great arsenal of 
     democracy.'' Americans rose to that challenge, producing 
     unprecedented quantities of arms, not only for U.S. forces 
     but also for our allies around the world.
       That tradition continues during today, during our Global 
     War on Terror. In 2004-2005, the United States--the only 
     major world power without a government firearms factory of 
     its own--

  I said, in earlier statements this morning, we are the only major 
world power where the Government does not own a firearms factory. They 
are all owned by private citizens--

     has contracted to buy over 200,000 rifles, pistols, machine 
     guns, and other small arms for our soldiers, sailors, airmen 
     and Marines. In addition, the U.S. Army alone uses about 2 
     billion rounds of ammunition each year--about half of it made 
     by private industry. Those guns and ammunition are made in 
     the U.S. and provide good jobs for hardworking Americans.

  Those gun manufacturing facilities and ammunition facilities are 
spread across the United States.

       Unfortunately, our military suppliers are in danger. Anti-
     gun activists have taken to the courts to promote their 
     agenda of more restrictive gun control. The very same 
     companies that arm our men and women on the

[[Page S9065]]

     front line against terrorism have been sued all over the 
     country, where plaintiffs blame them for the acts of 
     criminals.
       These lawsuits defy all the rules of traditional tort law. 
     While many have been rejected in the court--

  And that is many of the lawsuits, some 24-plus filed, about half of 
them now rejected--

     even one verdict for plaintiffs would risk irreparable harm 
     to a vital defense industry.
       These are some of the reasons I have cosponsored S. 397, 
     the Protection of Lawful Commerce in Arms Act. This bill 
     would protect America's small arms industry against these 
     lawsuits, while allowing legitimate, recognized types of 
     suits against companies that make defective products, or 
     against gun dealers who break the law.

  I was very clear earlier today that S. 397 sets that out in clear 
fashion.
  The letter goes on to say:

       We urge you to help safeguard our ``great arsenal of 
     democracy'' by bringing S. 397 to the Senate floor before the 
     August recess, and working to pass it without any amendments 
     that would jeopardize its speedy enactment into law.

  That is why we are here today, because a substantial majority of the 
Senate has urged our leader to bring this important legislation to the 
floor. We have asked the Senate to be flexible, as is typical in the 
Senate. While we have legislation on the floor and conference reports 
on major bills pending, we wanted to come forward to be able to set 
aside the legislation and to deal with those, and I trust we will, at 
least three: conference report on energy, the national energy policy, a 
conference report on transportation, and a conference report on the 
Interior appropriations bill, which has some critical veterans money in 
it that I and others have worked for over the last good number of 
weeks, and we hope all of that can be effectively accomplished before 
we complete our work by late Friday night or Saturday.
  I think that with full cooperation from all of our colleagues, we can 
get all of this legislation done in a timely amount of time.
  Another question was asked of me a few moments ago by the person I 
did the interview with, who said, well, these are very big companies 
that make a lot of money and are you not protecting them a great deal?
  Let me put that into the right context. I am not going to name names, 
but I will say that I know of at least three firearms companies that 
have around $100 million worth of sales a year apiece, not collectively 
but apiece.
  They were comparing it in this interview with the tobacco industry. I 
said, Well, gee, I know of those companies alone, they were selling 
$1.1 billion, $1.2 billion, some of them $2 billion industries in their 
collective value. So we are talking apples and oranges, an industry 
that is very limited in its capability that is now being sucked to 
death by the trial bar and these frivolous lawsuits to the tune of 
hundreds of thousands, if not millions, of dollars a year, in necessary 
legal defenses.
  So that is why we have been very specific in the law. It is not the 
gun industry immunity bill. It is important that we say that and say it 
again because it does not protect firearms or ammunitions 
manufacturers, sellers or trade associations from any lawsuits based on 
their own negligence or criminal conduct. The bill gives specific 
examples of lawsuits not prohibited. Let me repeat, not prohibited:
  Product liability, in other words, a gun that is defective, that 
misfires, that does damage to the operator of it, those definitions are 
clearly spelled out within the law. Negligence or negligent 
entrustment, breach of contract, lawsuits based on a violation of State 
and Federal law, it is very straightforward, and we think it is very 
clear.
  The trend of abusive litigation targeting the firearms industry not 
only defies common sense and concepts of fundamental fairness, but it 
would do nothing to curb criminal violence, and we know that.
  Furthermore, it threatens the domestic industry that I think is 
critical, as I have mentioned earlier, to the national defense of this 
country.
  It would be a tragedy, and I do not know of a soldier serving today 
or one who has served that would want to serve with a firearm at his or 
her side being made by a foreign manufacturer. It does not make sense 
whatsoever. Yet that is the end product of the effort that is under way 
today, to simply put firearms manufacturers out of business. If they 
can be pushed overseas, then other forms of law can be used to block 
access to firearms or access to the importation of firearms from 
foreign countries. The argument would be foreign nations are attempting 
to flood the American consumer with a foreign product. I have heard the 
argument on the floor by those who have attempted to ban certain types 
of importation over the years.
  It is an argument well spelled out and well used by many. Faulty as 
it may be, it is an argument that oftentimes resonates to the American 
consumer. But when the American consumer finds out that they have been 
denied access to a quality U.S. product or that product does not exist, 
then the argument turns around.
  That is why we are on the floor today. That is why we are dealing 
with this important legislation. It is my understanding that we have 
arrived at a unanimous consent agreement that brings us on to the bill 
by 2 this afternoon. I hope at that time many of my colleagues who are 
cosponsors would join with me so that we can move this legislation 
expeditiously through the Senate. I know there are several amendments 
that will probably be brought to the floor, most of them destructive to 
the intent of the bill, marginalizing it at best. As a result, I urge 
all of my colleagues to stay with us on the construct of S. 397, to be 
able to pass it from the Senate as clean as possible, hopefully, very 
clean, so the House can act on it immediately and move it to our 
President's desk.
  That is the intent. As we move through S. 397 over the course of 
today and tomorrow, I trust we will also be able to deal with the 
conference reports I have mentioned that I think are extremely 
important for this country and for all of us to have prior to the 
August recess.
  I see no other of my colleagues on the floor wishing to speak at this 
moment and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Graham). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, I take a moment to explain the effect of 
our proceeding to this gun bill. We are putting aside an important 
debate on national security and the needs of our troops in a time of 
war. Last Friday I listed a number of the amendments that still were 
pending that would affect the National Guard and our Reserve troops and 
also provide additional kinds of protections for the service men and 
women. The decision by the Republican leadership was that we had spent 
enough time on the legislation, even though we chose to spend 2 weeks 
earlier in the year on the credit card industry and on bankruptcy and a 
similar amount of time on the class action legislation which benefited 
special interest groups. The credit card industry will profit about $6 
billion more this year than last year because of the actions taken. We 
also spent time on the special interest legislation dealing with class 
actions. We spent the time on that, but we are not on the Defense 
authorization bill.
  We had an important amendment on the whole policy of the 
administration in developing new nuclear weapons which has profound 
implications in terms of the issues of nuclear proliferation and 
nuclear safety. We looked forward to having an opportunity to debate 
that issue. That was put aside by the Republican leadership because 
they were concerned about a provision that had been introduced to the 
Defense authorization bill last Thursday. Senator Levin, Senator Reed, 
Senator Rockefeller, and I introduced an amendment to create an 
independent commission to examine the administration's policy 
surrounding the detention and interrogation of detainees as an 
amendment to the Defense authorization bill.
  The response of the White House was instant and negative. The 
President announced he would veto the Defense authorization bill, all 
$442 billion of it, if it included any provisions to restrict the 
Pentagon's treatment of detainees or creating a commission to 
investigate detainee operations. No other response could have 
demonstrated so

[[Page S9066]]

clearly the urgent need to establish a commission than that this 
imperial White House considers itself immune from restraints by 
Congress on its powers no matter what the Constitution says.
  It is appalling that the administration is so afraid of the truth 
that they are even willing to veto the Defense bill which includes 
billions of dollars for our troops, pay raises for our troops, and 
funds for armored humvees to protect our troops in Iraq. But the 
administration was prepared to veto that legislation because of this 
amendment that had been offered by Senator Levin, Senator Reed, Senator 
Rockefeller, and myself.
  Now the Senate Republican leaders have pulled the Defense bill from 
the floor. It is interesting that Republican leaders hatched this plan 
after Vice President Cheney visited with Senate Republicans last week. 
He told them the White House does not want votes on amendments to 
require an inquiry into their detention policies and practices. The 
White House has not only threatened to veto a national defense bill to 
avoid accountability, but is preventing us from voting on the issue. It 
is already obvious that the administration's detention and 
interrogation policy failed to respect the longstanding rules that have 
guided our policy in the past, rejecting the collective wisdom of our 
career military and State Department officials. In today's newspapers 
we see the result of this action once again with the use of dogs 
against detainees.
  We need to return to our core values of openness and accountability. 
The facts we know so far about torture and other abuses, about 
indefinite detention, have already become recruiting tools for 
terrorists. But if we act now to uphold our principles, we can end the 
outrage, we can end the coverups, and hold officials accountable at the 
highest levels. We need to disavow the abuses and harsh techniques. We 
need to ensure our actions do not become an excuse for our enemies to 
torture American troops when they are captured in the future or to 
attack innocent Americans in any part of the world.
  The reports of abuse also undermine our own security efforts at home. 
The vast majority of Muslim Americans and Arab Americans are willing to 
help identify potential terrorists, help prevent charitable donations 
from being misused, and act as eyes and ears of a community uniquely 
capable of identifying potential threats. When the reports of abuses go 
unanswered, they undermine the community's willingness to provide that 
assistance. It is impossible for many Muslim Americans and Arab 
Americans to be persuaded to help against such threats if they feel 
their own religious beliefs have been targeted.
  The reality is our safety and security depend on accountability. It 
is not enough to pretend that problem does not exist, but that is how 
the President has responded to the flow of reports about abuses. 
Contrary to the protests of the administration, we do not have the 
answers we need. So far, we have had 12 separate so-called 
investigations of allegations, but not a single report has adequately 
examined the role that civilian authorities have played in crafting the 
policies that led to our missteps. Twelve investigations and counting, 
and the coverup continues.
  The administration and its proxies in the coverup have vilified 
anyone who calls for a full inquiry into the policies. They even 
stooped to claiming a request for full accounting is somehow a smear 
against our troops. The real smear is that the administration continues 
to prosecute only a few low-level offenders without holding accountable 
the higher-ups who laid the groundwork for all the abuses. The real 
disservice to our troops and to our country is done by those who leave 
those at the bottom of the chain of command holding the bag while 
officials at the top are promoted and rewarded.

  We need a commission independent of political influence to find the 
relevant facts, not just the facts that suit the partisan needs of the 
administration. We need an investigation of the country's so-called 
rendition policy which sends detainees to other countries where torture 
is well known. We need answers about the administration's reaction to 
FBI complaints about abuse. We need a thorough assessment of the legal 
regime that is currently in effect.
  With its willingness to conceal the truth, the administration will 
never tell the American people about this practice of rendition on its 
own. We need an independent commission to examine our policies and 
practices and make appropriate recommendations. The American people 
deserve to understand the choices made by this President and to 
evaluate them.
  In sum, our interrogation and detention policies need much more 
thorough review. In avoiding accountability, the administration has 
made it clear it won't accept responsibility for giving our Nation the 
clear answers it deserves. As Benjamin Franklin said, half a truth is 
often a great lie. Until now we have been fed half truths and coverups 
by the administration.
  With the recent veto threat, the White House has declared war on any 
full and honest accounting of responsibility. The safety of our troops 
and our citizens depends on finding out the whole truth and acting on 
it. An independent commission of respected professionals with 
backgrounds in law and military policy and international relations is 
the only way we can learn the truth about what has happened so we can 
end the suppression and establish a policy for the future that is 
worthy of our Nation and worthy of our respect of all nations.
  Administration secrecy doesn't stop with their interrogation policy. 
This administration has a systematic disregard for oversight and 
openness. Government is intended to be ``of the people, by the people, 
and for the people.'' Democracy requires informed citizens, and to be 
informed, citizens need to have information about the government. 
Congress and the executive branch are supposed to be open and 
accountable, so the American people know what is being done in their 
name. But under the Bush administration, openness and accountability 
have been replaced by secrecy and evasion of responsibility. They abuse 
their power, conceal their actions from the American people, and refuse 
to hold officials accountable.
  No one disputes the necessity of classifying information critical to 
protecting our national security--military operations, weapon designs, 
intelligence sources, and similar information. But in the post-9/11 
world, the administration is making secrecy the norm and openness the 
exception. It has used the tragedy of 9/11 to classify unprecedented 
amounts of information. Material off-limits to the public has become so 
extensive that no other conclusion is possible. The Bush administration 
has a pervasive strategy to limit access to information in order to 
avoid independent evaluation of its actions by Americans whose job it 
is to observe and critique their government. When even Congressmen, 
journalists, and public interest groups complain about limits on access 
to information, we know the difficulties faced by ordinary Americans 
seeking information from their government.
  At a hearing last August in the House Subcommittee on National 
Security, the Director of the Government's Information Security 
Oversight Office, J. William Leonard, testified that ``it is no secret 
that the government classifies too much information. Too much 
classification unnecessarily impedes effective information sharing.''
  The Deputy Under Secretary of Defense for Counterintelligence and 
Security, Carol A. Haave, said that as much as half of all classified 
information doesn't need to be classified.
  Last year, a record 15.6 million documents were classified by the 
Bush administration at a cost of $7.2 billion, many under newly 
invented categories with fewer requirements for classification.
  The administration argues that all this secrecy is necessary to win 
the war on terrorism. But the 9/11 Commission Report said that too much 
government secrecy had hurt U.S. intelligence capability even before 9/
11. ``Secrecy stifles oversight, accountability, and information 
sharing,'' says the report. They know from their own experience.
  In July 2003, the 9/11 Commission's cochairmen, Thomas Kean and Lee 
Hamilton, complained publicly that the administration was failing to 
provide requested information.

[[Page S9067]]

  In October 2003, the Commission had no choice, after repeated 
requests, but to subpoena records from the FAA.
  In November 2003, after multiple requests, the Commission again had 
to subpoena information, this time from the Department of Defense.
  For the rest of that fall and spring, the administration repeatedly 
tried to deny access to presidential documents important to the 
Commission's investigation, until public outcry grew loud enough to 
convince the administration otherwise.
  Key members of the administration balked at testifying, until public 
opinion again swayed their stance.
  And then, in an ironic twist, 28 pages of the 9/11 Commission Report 
itself was classified. So, is all this secrecy really about protecting 
us from the terrorists? Or is it just to avoid accountability?
  This administration, once in office, wasted no time challenging those 
who would hold them accountable. In May 2001, Vice President Cheney's 
energy task force issued its report recommending more oil and gas 
drilling to solve our energy problems. In light of his former 
employment at Halliburton, the recommendation was hardly astonishing. 
What was astonishing was the Vice President's refusal to identify the 
people and groups who helped write the policy. In June 2001, the GAO, 
the nonpartisan, investigative arm of Congress, requested information 
on the energy task force, following reports that campaign contributors 
had special access while the public was shut out. GAO's request was 
simple. It asked, ``Who serves on this task force; what information is 
being presented to the task force and by whom is it being given; and 
the costs involved in the gathering of the facts.'' Considering that 
the task force wrote the nation's energy policy, it was not an 
unreasonable request.

  The administration refused to comply, even though GAO's request was 
not out of the ordinary. President Clinton's task forces on health care 
and on China trade relations were both investigated by GAO. The Clinton 
administration turned over detailed information on the participants and 
proceedings of the task forces.
  But the Bush administration argued that GAO did not have the 
authority to conduct the investigation. For the first time in its 80-
year history, GAO was forced to file suit against an administration to 
obtain requested information. But the court sided with the 
administration in Walker v. Cheney, and GAO's investigative oversight 
authority was effectively reduced. Independent oversight is critically 
important when one party controls both Congress and the White House, 
and GAO is critical to that oversight.
  On October 12, 2001, John Ashcroft wrote a memo outlining the Justice 
Department's views on Freedom of Information Act requests. The memo set 
the tone for an administration hostile to such requests. It discouraged 
executive branch agencies from responding to Freedom of Information Act 
requests, even when the agencies had the option to respond. He 
basically reversed the longstanding policy of prior administrations.
  The Clinton administration policy, set forth by Attorney General 
Janet Reno, was that if a document could be released without harm, an 
agency should do so, even if there were technical grounds for 
withholding it. They knew that government openness was essential to an 
informed public.
  When the Bush administration came to office, Attorney General 
Ashcroft disagreed--he wrote that if there is any technical ground for 
withholding a document under the Freedom of Information Act, an agency 
should withhold it. The Clinton policy had been ``release if at all 
possible.'' The Bush policy was ``keep secret if at all possible.''
  Why should the public know what the administration is doing? Why 
release documents that might be embarrassing to the White House or its 
friends in business?
  Some organizations claim, based on their experience, that this 
obsession with secrecy goes even farther, and that executive branch 
agencies are being told to withhold information until it is subpoenaed. 
Sean Moulton, a senior policy analyst at OMB Watch, argued that ``if 
there are documents the government doesn't want to release but doesn't 
have any legal basis for withholding, unless you're willing to go to 
court, you're not getting those documents.''
  Since the tragedy of September 11, this administration has 
effectively shut down inquiry after inquiry:
  In November 2001, energy companies were planning a natural gas 
pipeline through the Blue Ridge Mountains of Virginia. Local citizens, 
led by former U.S. Army Ranger Joseph McCormick, asked the Federal 
Energy Regulatory Commission for a map of the planned pipeline. These 
citizens weren't being nosy--they wanted to know if a large new 
pipeline for natural gas would be going through their backyards. FERC 
denied the citizens' request in the name of national security, even 
though this type of information had been public before 9/11. Clearly, 
national security concerns are legitimate. But without knowledge of the 
pipeline's location, how could these citizens defend their property? 
Joseph McCormick put it bluntly: ``There certainly is a balance,'' he 
said. ``It's about people's right to use the information of an open 
society to protect their rights.''
  In the fall of 2002, the chemical compound perchlorate was found in 
the water supply of Aberdeen, Maryland--near the Army's famous Aberdeen 
Proving Ground. Perchlorate is a main ingredient of rocket fuel. It 
also stunts the metabolism and brain growth of newborns. A group of 
citizens organized, and worked with the Army to protect their drinking 
water from further contamination. But a few months later, the Army 
began censoring maps and information that would help determine which 
areas were contaminated, supposedly in the interest of national 
security--if citizens could find out where the water was contaminated, 
then terrorists could find it too. The head of the citizens' group was 
a 20-year army veteran. His water well was only a mile and a half away 
from the proving ground. ``It's an abuse of power,'' he said. ``The 
government has to be transparent.''
  Even Members of Congress have had to subpoena information in order to 
do their work. Last October, Congressmen Christopher Shays and Henry 
Waxman, the chairman and ranking Democrat on the House Government 
Reform Subcommittee on National Security, Emerging Threats and 
International Relations, asked for an audit of the Development Fund for 
Iraq. The copy they received had over 400 items blacked out. They had 
so much difficulty obtaining an unredacted report from the Defense 
Department that they had to prepare a subpoena. Once they finally 
received an unredacted copy, guess what had been blacked out? More than 
$218 million in charges from Halliburton. So far, no one has been held 
accountable.
  It has now been 744 days without a White House investigation into the 
CIA leak case. It took 85 days for the administration even to require 
its staff to turn over evidence relating to the leak. Senate 
Republicans held 20 hearings on accusations against President Clinton 
and the Whitewater case, but they have held zero hearings on the leak 
of the covert identity of CIA agent Valerie Plame. So far, no one has 
been held accountable.
  Last week, the Defense Department refused to cooperate with a federal 
judge's order to release secret photographs and videotapes of prisoner 
abuse at Abu Ghraib. The ACLU had sued to obtain release of 87 
photographs and 4 videotapes, but the administration filed sealed 
documents resisting the order. They are so obsessed with secrecy that 
they even make secret arguments to keep their secrets. So far, no one 
has been held accountable.
  Also last week, the administration submitted an initial report on 
progress in training Iraqi security forces. It has been more than 2 
years since the fall of Baghdad, and a reliable assessment of our 
progress in training those forces was long overdue. The key questions 
that the American people want to know are how many Iraqi security 
forces are capable of fighting on their own and what our military 
requirements will be the months ahead. But the answers remain 
classified. The American people deserve to know the facts about our 
policy. They want to know how long it will take to fully train the 
Iraqis and when our military mission will be completed. They can deal 
with the truth, and they deserve it.

[[Page S9068]]

  No one wants to do anything that would help the insurgents. But the 
administration must do a better job of responding to the legitimate 
concerns of the American people. The administration still isn't willing 
to be candid. It needs to find a way to shed some of the secrecy and 
answer these questions in good faith for the American people. The 
silence is deafening.
  There is also a pattern of withholding information from members of 
Congress on the administration's nominations. In 2003, Miguel Estrada 
was nominated for a Federal judgeship. We requested legal memoranda he 
wrote as Assistant Solicitor General, and we were repeatedly denied. In 
2004, Alberto Gonzales was nominated to be Attorney General. We 
requested various memoranda he authorized on administration torture 
policy, and we were repeatedly denied. Earlier this year, John Bolton 
was nominated to be Ambassador to the United Nations. We requested 
documents to determine if he acted appropriately in his previous job, 
and we have been repeatedly denied.
  Instead of coming clean and providing the information to the 
Congress, we have been stonewalled. Our questions have gone unanswered. 
And now, the President appears to be poised to abuse his power further, 
rub salt in the wound, and send John Bolton to the United Nations 
anyway with a recess appointment of dubious constitutionality.
  Now John Roberts has been nominated to a lifetime seat on the Supreme 
Court. We hope this nomination will not be another occasion for 
administration secrecy, but press accounts suggest otherwise. Even 
before we asked for any documents, the administration announced it will 
not release many of the memoranda written by John Roberts. The White 
House spokesman says they will claim attorney-client privilege, but 
many of the memos vital to our consideration of Judge Roberts for the 
Supreme Court were written while he worked as a top political and 
policy official in the Solicitor General's office. That office works 
for all the American people--not just the President. Attorney-client 
privilege clearly has never been a bar to providing the Senate with 
what it needs to process a nomination.
  As we all know, no one is simply entitled to serve on the Supreme 
Court of the United States. One has to earn that right. And one earns 
that right by getting the support of the American people, reflected in 
the vote here in the United States Senate. And that is what the 
confirmation process is all about. We know that the administration is 
familiar with and aware of Judge Roberts' positions on various issues. 
They have had a year to study it and had their associates talk with him 
and with those who worked with him. The real question is: Shouldn't the 
American people have the opportunity to get the same kind of 
information so that they can form their own impression and so that the 
Senate can make a balanced, informed judgment and see whether or not 
the balance in the Supreme Court will be furthered? That is the issue 
and it appears that the administration is continuing to withhold 
important information that would permit the Congress the ability to do 
so.
  Yes, the administration has consistently used the horror of 9/11 and 
its disdain of congressional oversight to get its way and avoid 
accountability. It consistently uses this secrecy to roll back the 
rights of average Americans. But even its best spin doctors can't 
conceal some of the administration's most flagrant abuses of power.
  Last August, the New York Times reported that ``health rules, 
environmental regulations, energy initiatives, worker-safety standards 
and product-safety disclosure policies have been modified in ways that 
often please business and industry leaders while dismaying interest 
groups representing consumers, workers, drivers, medical patients, the 
elderly and many others.'' Often, this has been done in silence and 
near secrecy.
  In 2000, Congress responded to the disclosure of defects in Firestone 
tires, which may have been responsible for as many as 270 deaths, by 
passing legislation which would make information on auto safety and 
related defects readily available. But in July 2003, the National 
Highway Traffic Safety Administration decided that reports of defects 
would cause ``substantial competitive harm'' to the auto industry, and 
exempted warranty claims and consumer complaints from the Freedom of 
Information Act. Clearly, that was another abuse of power that protects 
big business while putting the American public at greater risk.
  In 2003, the administration knowingly withheld cost estimates of its 
Medicare prescription drug bill--one of the most important pieces of 
legislation that year. The estimates showed costs over $100 billion 
more than the administration claimed, but the information was withheld 
because of fears that the actual numbers would persuade Members of 
Congress to vote no. Administration officials threatened to fire Chief 
Actuary Richard Foster ``so fast his head would spin,'' if he informed 
Congress of the real cost estimate. I wrote a letter to the 
administration on this subject, but they never responded to my 
questions.
  In 2003, the Food and Drug Administration kept secret a report that 
children on antidepressants were twice as likely to be involved in 
suicide-related behavior. The FDA also prevented the author of the 
study--their expert on the issue--from presenting his findings to an 
FDA advisory committee. Dr. Joseph Glenmullen, a Harvard psychiatrist, 
said ``Evidence that they're suppressing a report like this is an 
outrage, given the public health and safety issues at stake . . . For 
the FDA to issue an ambiguous warning when they had unambiguous data 
like this is an outrage.''
  In November 2003, the White House told the Appropriations Committees 
in both Houses of Congress that it would only respond to requests for 
information if they were signed by the committee chairman. In a time of 
one-party rule, this tactic made congressional oversight almost 
completely impossible.

  In April 2004, the ranking member of the Environment and Public Works 
Committee, Senator Jeffords, was forced to place holds on several EPA 
nominees after the administration refused to respond to twelve 
outstanding information requests, including information on air 
pollution.
  In August 2004, under pressure from the Department of Homeland 
Security, the FCC decided to make telephone service outage reports 
confidential, and exempt them from Freedom of Information Act requests. 
The FCC argued it was because companies could use competitors' service 
outages in ad campaigns. You may not be able to make informed decisions 
on your phone company, but at least the company will be protected from 
nasty advertising.
  Last month, we discovered that the administration had blocked studies 
criticizing the Central American Free Trade Agreement--after it had 
already paid for them. In 2002, the Department of Labor hired the 
International Labor Rights Fund to back up its argument that Central 
American countries had improved on labor issues. The contractor found 
the opposite, and posted its results on its Web site in March 2004. The 
Labor Department ordered its removal from the website, banned its 
release, and barred the contractor's employees from discussing the 
report. The Department of Labor denied a Congressman's request for the 
report under the Freedom of Information Act. These are the American 
people's tax dollars. But when the administration didn't like an 
answer, it abused its power to avoid accountability--at their expense.
  Yesterday, the Wall Street Journal disclosed yet another list of 
abuses in Iraq reconstruction. Ten billion dollars of no-bid contracts 
were awarded; $89 million was doled out without contracts at all; $9 
billion is unaccounted for, and may have been embezzled. An official 
fired for incompetence was still giving out millions of dollars in aid, 
weeks after his termination. A contractor was paid twice for the same 
job. A third of all U.S. vehicles that Halliburton was paid to manage 
are missing. It is a staggering display of incompetence and cover-up, 
so that no one will be held accountable.
  Americans deserve better. They deserve the information necessary to 
become informed, effective citizens. We as lawmakers are better able to 
represent our constituents when we have access to the critical 
information held by the executive branch. We must never forget who we 
work for--the American people. Congress is a co-equal branch of 
government, and we

[[Page S9069]]

have a duty to hold the administration accountable for its actions.
  Mr. President, on the matter we have before the Senate at the present 
time, here we go again on the issue of legal immunity for the gun 
industry. Without shame, the Republican leadership has brought back 
this special interest, anti-law enforcement bill that strips away the 
rights of victims to go to court.
  Why the urgency to take up this bill now? This is a critical moment 
in this country's future. Surely, the Republican leadership can take 
some time to address other priorities before attempting to give a free 
pass to the gun industry. Why aren't we completing our work on the 
Defense authorization bill? That is what was before the Senate. Why 
have we displaced a full and fair debate on the issue of the Defense 
authorization bill--which has so many provisions in there concerning 
our fighting men and women in Iraq and about the National Guard and 
defense--in order to consider special interest legislation?
  That is what is before the Senate, and that is what we are 
considering at the present time, as a result of the Republican 
leadership. Surely, the Congress can do more for our citizens than rush 
to pass unprecedented special interest legislation. We can and should 
be acting to meet our real challenges.
  Last year, the Federal Government recalled a water pistol, the Super 
Soaker, just a few days before the assault weapons ban expired. America 
does more to regulate the safety of toy guns than real guns, and it is 
a national disgrace. The gun industry has worked hard to avoid Federal 
consumer safety regulation. Where are our priorities? Where is the 
logic in passing a bill that makes it harder to sue for harm caused by 
real guns than harm caused by a plastic toy gun?
  The industry has conspicuously failed to use technology to make guns 
safer. It has attempted to insulate itself from its distributors and 
dealers, once guns leave the factory. Under this bill, it will not even 
matter if the guns are stolen by factory employees and snuck out of the 
factory in the middle of the night.
  The overwhelming majority of Americans believe gun dealers and gun 
manufacturers should be held accountable for their irresponsible 
conduct, similar to everyone else.
  Cities, counties, and States incur billions of dollars in costs each 
year as a result of gun violence. Studies estimate that the public cost 
of firearm-related injuries is over $1 million for each shooting 
victim. Yet this bill would take a fierce toll and dismiss even pending 
cases where communities are trying to get relief.
  This bill would bar the legal rights of hard-working law enforcement 
officers, such as Ken McGuire and David Lemongello. These two police 
officers from Orange, NJ, were seriously wounded in a shootout with a 
burglary suspect. The gun used by the suspect was one of 12 guns sold 
by a West Virginia pawnshop to an obvious straw purchaser for an 
illegal gun trafficker. Fortunately for the officers, this bill did not 
become law last year, and their case was able to proceed.
  Recently, David Lemongello was able to obtain a $1 million 
settlement. Significantly, the settlement required the dealer and other 
area pawnshops to adopt safer practices. These reforms go beyond the 
requirements of current law and are not imposed by any manufacturers or 
distributors. This is not about money. This is about public safety, and 
I commend these brave officers for their courageous battle to change 
the system.
  It is clear what will happen if Congress gives the gun industry this 
unprecedented legal immunity, on top of its existing exemption from 
Federal consumer safety regulations. Guns will be more dangerous. Gun 
dealers will be more irresponsible. More guns will be available to 
terrorists and criminals. There will be more shootings and more dead 
children.
  The Nation's response to this death toll has been unacceptable. Yet, 
year after year, little changes in our approach to regulating guns. How 
can we justify this neglect? How can we continue to ignore the vast 
discrepancy in gun deaths in the United States compared to other 
nations? How can we possibly justify this effort to give the gun 
industry even greater protection for irresponsible behavior?
  Mr. President, this bill is nothing short of Congress aiding and 
abetting the provision of guns to criminals. It takes the gun industry 
off the hook when their guns are sold to the wrong people who are out 
to hurt us. Under this administration, we have seen the budget cuts to 
the Bureau of Alcohol, Tobacco and Firearms, so our law enforcement do 
not have the resources they need to keep guns out of criminal hands. 
That is why these citizen lawsuits are so important. If the police 
cannot do their job, then citizens should be able to do it. But this 
legislation will throw the citizens out of court. It is wrong.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I come to the floor to speak in 
opposition to the motion to proceed on the gun liability bill.
  Before I begin, I want to say I find it incongruous that we had the 
Defense Authorization bill up, an important bill--we were about to 
consider some amendments affecting enemy combatants and detainees, I 
think very important amendments, by Senator McCain, Senator Warner, and 
Senator Graham. The bill was up for an unprecedented short time, and 
had to have cloture, according to the Republican side. Well, some of us 
wanted to hear what Senators McCain, Warner, and Graham had to say. So, 
we voted against cloture. Then, the leader took down the bill, and now 
we are on a bill for a real special interest in this country, the 
National Rifle Association.
  Mr. President, I have carefully reviewed this bill, and in my 
assessment is it is mistitled. The Protection of Lawful Commerce in 
Arms Act has nothing to do with protecting lawful commerce; rather, it 
protects one segment of industry against the lawful interests of our 
States in remedying and deterring negligent conduct.
  The bill pretends to be part of the long-ranging and important debate 
about gun regulation. Its proponents argue that lawsuits need to be 
stopped in order to defend their view of the second amendment. But that 
is pretense. This bill is a simple giveaway to one industry--the gun 
lobby. It is a special-interest windfall.
  I, for one, do not believe we should be giving the gun industry 
sweeping and unprecedented protection from the type of lawsuits that 
are available to every individual involving every other industry 
anywhere in America.
  We have to recognize that guns in America are responsible for the 
deaths of 30,000 Americans a year. If we remove this one avenue for 
enforcing responsibility, individuals will have no recourse. Gun owners 
and gun victims alike will be left virtually powerless against an 
industry that is already immune from so many other consumer 
protections. So we find ourselves today on the cusp of yet another NRA 
victory.
  Simply put, we are considering legislation that would ensure that it 
is not in the financial interests of gun manufacturers or sellers to 
take reasonable care in administering their business. We are removing 
the incentives of the tort system to encourage responsible behavior. No 
longer will those incentives to responsible behavior be present.
  Let me be clear, if this bill is approved, it will not be a victory 
for law-abiding gun owners who might someday benefit from the ability 
to sue a manufacturer or dealer for their negligent conduct. No, this 
will be a victory for those who have turned the NRA into a political 
powerhouse, unconcerned with the rights of a majority of Americans who 
want prudent controls over firearms and who want to maintain their 
basic legal right in our civil law system.
  Now, I do not support meritless lawsuits against the gun industry. I 
do not think anybody does. It is my belief gun manufacturers and 
dealers should be held accountable for irresponsible marketing and 
distribution practices, as anyone else would be, particularly when 
these practices may cause guns to fall into the hands of criminals, 
juveniles or mentally ill people.
  This legislation has one simple purpose: to prevent lawsuits from 
those harmed by gun violence as a result of the wrongful conduct of 
others. These include lawsuits filed by cities and

[[Page S9070]]

counties responding to crimes often committed using guns that flood the 
illegal market, with the full knowledge of the distributors that the 
legal market could not possibly be absorbing so many of these weapons--
that is why so many mayors have written strongly against this 
legislation--and lawsuits filed by organizations on behalf of their 
members and victims of violent crimes and their families who are 
injured or killed as a result of gun violence facilitated by the 
negligence of gun manufacturers or sellers.
  This issue is not an abstract one. The bill is going to hurt real 
people--victims not only of criminal misuse by a well-designed firearm, 
but victims of guns that have been marketed in ways which, quite 
frankly, should be illegal.
  Essentially, this bill prohibits any civil liability lawsuit from 
being filed against the gun industry for damages resulting from the 
criminal or unlawful misuse of a gun by a third party, with a number of 
narrow exceptions.
  In doing so, the bill effectively rewrites traditional principles of 
liability law which generally hold that persons and companies may be 
liable for their negligence, even if others are liable as well. This 
bill would essentially give the gun industry blanket immunity from 
civil liability cases of this type, an immunity no other industry in 
America has today. This is truly a remarkable aspect of the 
legislation. It is a radical approach to our Nation's laws and the 
principles of federalism.
  The bill does allow certain cases to move forward, as its supporters 
have pointed out, but these cases can proceed only on the narrowest of 
circumstances. Countless experts have now said that this bill would 
stop virtually all of the suits against gun dealers and manufacturers 
filed to date which are based on distribution practice, many of which 
are vital to changing industry practice and compensating victims who 
have been horribly injured through the clear negligence or even 
borderline criminal conduct of some gun dealers and manufacturers.
  With any other business or product, in every other industry, a seller 
or manufacturer can be liable if that seller or manufacturer is 
negligent, but not here. Since money, rather than life or liberty, is 
at stake in a civil case, the standard of proof is lower. There need 
not be a criminal violation to recover damages. In the overwhelming 
majority of civil cases, there is no criminal violation. But here, 
contrary to general negligence law covering almost every other product, 
the bill allows negligent gun dealers and manufacturers to get off the 
hook unless they violated a criminal law. This is dreadful. It is 
despicable. This bill would create a special area of law for gun 
manufacturers and says that unless they violate a law, they can be 
careless in how they stock, secure, and sell dangerous weapons.
  The judge in Washington State, presiding over the case brought by the 
DC area sniper victims--the case where a sniper lay in the trunk of a 
car with a hole punched through the trunk, went to different gasoline 
stations, schools, parks, and stores, and simply fired at people, 
indiscriminately killing them--has ruled twice that the dealer of the 
weapon used in the shooting, Bull's Eye Shooters Supply, and its 
manufacturer, Bushmaster Firearms, may be liable in negligence for 
enabling the snipers to obtain their weapon. But even with the new 
modifications of this bill, the sniper victims' cases will likely be 
thrown out of court under this legislation. So guess whose side this 
Senate is coming down on. Not the side of the victims of the DC sniper 
but the side of Bull's Eye Shooters Supply and the manufacturer, 
Bushmaster Firearms.
  Let's make that clear. This is the most notorious sniper case in 
America. There is negligence on the part of the gun dealer who sold 
that gun. He didn't report it until very late. He allowed the snipers 
to get the gun. Now we are passing a law to prevent the victims from 
suing under civil liability. Nowhere else in the law does this concept 
exist in this form. It is a special carve-out for the DC sniper gun 
manufacturer and gun seller.
  In another case, a Massachusetts court has ruled that gun 
manufacturer Kahr Arms may be liable for negligently hiring drug-
addicted criminals and enabling them to stroll out the plant door with 
unmarked guns to be sold to criminals. But with these proposed changes, 
the case against Kahr Arms would be dismissed. A case would be 
dismissed where a gun manufacturer negligently hired drug-addicted 
criminals and let them go out the plant door with unmarked guns to be 
sold to criminals. That is what this does.
  This conduct, though outrageous, violated no law--negligent, yes; 
criminal, no. Contrary to current law which allows judges and juries to 
apportion blame and damages, this bill would bar any damages against a 
manufacturer if another party was liable due to a criminal act.
  Why should firearms get special treatment? In our society, we hold 
manufacturers liable for the damage their negligence causes. We do this 
across the board for every industry, such as the automobile industry if 
they build a faulty gas tank or if they are negligent putting it 
together. Lawsuits filed against the gun industry provide a way for 
those harmed to seek justice from the damages and destruction caused by 
firearms. Just as important, they create incentives to reform practices 
proven to be dangerous. I will bet Kahr Arms will make every effort not 
to hire drug addicts to sell guns to criminals. If that case is 
dismissed, they can hire them. They can sell to criminals. That is not 
going to make a difference.
  When this bill was introduced in the last Congress and again in this 
Congress, its supporters spoke about the need to protect the industry 
from frivolous lawsuits and the need to protect the industry from the 
potential loss of jobs brought on by future lawsuits. These claims are 
unfounded. This bill is simply the latest attempt of the gun lobby to 
evade industry accountability. The suits against the gun industry come 
in varying forms, but they all have one goal in common--forcing the 
firearms industry to become more responsible. What is wrong with that? 
Under the principles of common law, all individuals and industries have 
a duty to act responsibly. What is special about the gun industry that 
they should be exempt from this most basic of civil responsibilities? 
Answer: Nothing. This is an industry that is less accountable under law 
than any other in America right now. The only avenue of accountability 
left is the courtroom. This bill attempts to slam the courtroom door in 
the face of those who would hold the industry responsible for its 
negligent actions.
  We ought to hold the industry responsible for taking the proper 
precautions to ensure law-abiding citizens are able to obtain the guns 
they choose while criminals and other prohibited individuals are not.
  Let me read from a letter that was sent by more than 50 full 
professors from law schools all across this Nation, from the University 
of Michigan School of Law, UCLA Law School, the University of Oregon 
School of Law, Indiana University School of Law, Harvard Law School, 
Syracuse University College of Law, Brooklyn Law School, Georgetown 
University Law Center, Lewis and Clark Law School, Roger Williams 
University School of Law, Northwestern School of Law, University of 
Chicago Law School, William Mitchell College of Law, University of 
Colorado School of Law, Duke Law School, Albany Law School, University 
of California Hastings College of Law, Houston Law Center, Widener 
University School of Law, Rutgers, Tulane, Boston, Albany, Temple 
University Beasley School of Law, Case Western Reserve University 
School of Law, Cornell Law School, Salmon P. Chase College of Law, 
Northern Kentucky University, NYU School of Law, The George Washington 
University Law School, Boston College Law School, Tulane University Law 
School, Columbia Law School, New York Law School, University of Alabama 
School of Law, Emory University School of Law, University of California 
Boalt School of Law, and on and on.
  Let me tell you what they say. I will read parts of it. They have 
reviewed this bill, S. 397.

       No other industry enjoys or has ever enjoyed such a blanket 
     freedom from responsibility for the foreseeable and 
     preventable consequences of negligent conduct.
       S. 397 . . . would abrogate this firmly established 
     principle of tort law. Under this bill, the firearms industry 
     would be the one and only business in which actors would be 
     free utterly to disregard the risk, no matter how high or 
     foreseeable, that their conduct

[[Page S9071]]

     might be creating or exacerbating a potentially preventable 
     risk of third party misconduct. Gun and ammunition makers, 
     distributors, importers, and sellers would, unlike any other 
     business or individual, be free to take no precautions 
     against even the most foreseeable and easily preventable 
     harms resulting from the illegal actions of third parties. 
     And they could engage in this negligent conduct persistently, 
     even with the specific intent of profiting from the sales of 
     guns that are foreseeably headed to criminal hands.

  They could engage in the conduct in an unlimited way and profit from 
the sales of guns that are foreseeably headed for criminal hands.

       Under this bill, a firearms dealer, distributor, or 
     manufacturer could park an unguarded open pickup truck full 
     of loaded assault weapons on a city street corner, leave it 
     there for a week, and yet be free from any negligence 
     liability if and when the guns were stolen and used to do 
     harm.

  Mr. President, this is what we are doing. This isn't just my view, 
this is the view of more than 50 professors of law at major law schools 
all across the Nation. We are facilitating criminal conduct by 
providing this protection against liability.
  It goes on to say:

       A firearms dealer, in most states, could sell 100 guns to 
     the same individual every day, even after the dealer is 
     informed that these guns are being used in crime--even, say, 
     by the same violent street gang.

  That is a direct quote. So you are facilitating a situation where 
somebody could sell a hundred guns a day to a street gang and have no 
liability for that action. That is what I think is really despicable--
all because of the power of one lobby.
  Again, it goes on to say:

       It might appear from the face of the bill that S. 397 and 
     H.R. 800 would leave open the possibility of tort liability 
     for truly egregious misconduct, by virtue of several 
     exceptions set forth in Section 4(5)(I). Those exceptions, 
     however, are in fact quite narrow and would give those in the 
     firearm industry little incentive to attend to the risks of 
     foreseeable third party misconduct.
       One exception, for example, would purport to permit certain 
     actions for ``negligent entrustment.'' The bill goes on, 
     however, to define ``negligent entrustment'' extremely 
     narrowly.
       The exception applies only to sellers, for example, and 
     would not apply to distributors or manufacturers, no matter 
     how egregious their conduct.

  So when somebody comes to the floor and argues this bill provide for 
negligent entrustment, don't believe it. It is so limited that it 
doesn't cover the whole field of those who handle firearms.
  And then it goes on to say:

       Even as the sellers, the exception would apply only where 
     the particular person to whom a seller supplies a firearm is 
     one whom the seller knows or ought to know will use it to 
     cause harm. The ``negligent entrustment'' exception would, 
     therefore, not permit any action based on reckless 
     distribution practices, negligent sales to gun traffickers 
     who supply criminals--

  That is the pickup that is parked on the street corner containing 
loaded assault weapons and sold to anybody who comes by.

       The negligent entrustment exception would, therefore, not 
     permit any action based on reckless distribution practices, 
     negligent sales to gun traffickers who supply criminals, 
     careless handling of firearms, lack of security, or any of a 
     myriad of potentially negligent acts.
       Another exception would leave open the possibility of 
     liability for certain statutory violations, variously 
     defined, including those described under the heading of 
     negligence per se. Statutory violations, however, represent 
     just a narrow special case of negligence liability. No 
     jurisdiction attempts to legislate standards of care as to 
     every detail of life, even in a regulated industry; and there 
     is no need. Why is there no need? Because general principles 
     of tort law make clear that the mere absence of a specific 
     statutory prohibition is not carte blanche for unreasonable 
     or dangerous behavior. S. 397 and H.R. 800 would turn this 
     traditional framework on its head, and free those in the 
     firearms industry to behave as carelessly as they would like, 
     so long as the conduct has not been specifically prohibited. 
     If there is no statute against leaving an open truckload of 
     assault weapons on a street corner, or against selling 
     hundreds of guns to the same individual, under this bill 
     there could be no tort liability.

  That is what this bill is opening up.

       Again, this represents a radical departure from traditional 
     tort principles.

  Again, this isn't just me saying this; this is more than 50 law 
professors from almost 50 different law schools.

       As currently drafted, this bill would not simply protect 
     against the expansion of tort liability, as has been 
     suggested, but would in fact dramatically limit the 
     application of longstanding and otherwise universally 
     applicable tort principles. It provides to firearm makers and 
     distributors a literally unprecedented form of tort immunity 
     not enjoyed, or even dreamed of, by any other industry.

  Mr. President, I know the motion to proceed will pass. I also know 
that what is being engaged upon is the most stringent test of 
germaneness I have ever seen take place in this body to prevent 
amendments from being offered once cloture is invoked, which is going 
to happen. This Senate is going to do the people it represents an 
enormous harm. They are going to protect the most powerful lobby in the 
United States and open millions of Americans to egregious injury from 
negligent practices by distributors and sellers of firearms in this 
country.
  That is not what we were elected to do. No one in this body was 
elected to be the Senator from the National Rifle Association. Although 
they have a point of view, and although this point of view is popular 
in many places, the question is, do we still protect the public 
welfare?
  I say to you we do not protect the public welfare, as more than 50 
professors of law have pointed out.
  Additionally, I will put into the Record a letter of opposition from 
law enforcement. I ask unanimous consent that it be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    July 26, 2005.
     U.S. Congress,
     U.S. Senate,
     Washington, DC.
       Dear Senator: As active and retired law enforcement 
     officers, we are writing to urge your strong opposition to 
     any legislation granting the gun industry special legal 
     immunity. S. 397 would strip away the legal rights of gun 
     violence victims, including law enforcement officers and 
     their families, to seek redress against irresponsible gun 
     dealers and manufacturers.
       The impact of this bill on the law enforcement community is 
     well illustrated by the lawsuit brought by former Orange, New 
     Jersey police officers Ken McGuire and David Lemongello. On 
     January 12, 2001, McGuire and Lemongello were shot in the 
     line of duty with a trafficked gun negligently sold by a West 
     Virginia dealer. The dealer had sold the gun, along with 11 
     other handguns, in a cash sale to a straw buyer for a gun 
     trafficker. In June 2004, the officers obtained a $1 million 
     settlement from the dealer. The dealer, as well as two other 
     area pawnshops, also have implemented safer practices to 
     prevent sales to traffickers, including a new policy of 
     ending large-volume sales of handguns. These reforms go 
     beyond the requirements of current law and are not imposed by 
     any manufacturers or distributors.
       If immunity for the gun industry had been enacted, the 
     officers' case would have been thrown out of court and 
     justice would have been denied. Police officers like Ken 
     McGuire and Dave Lemongello put their lives on the line every 
     day to protect the public. Instead of honoring them for their 
     service, legislation granting immunity to the gun industry 
     would deprive them of their basic rights as American citizens 
     to prove their case in a court of law. We stand with officers 
     McGuire and Lemongello in urging you to oppose such 
     legislation.
           Sincerely,
         International Brotherhood of Police Officers (AFL-CIO 
           Police union); Major Cities Chiefs Association 
           (Represents our nation's largest police departments); 
           National Black Police Association (Nationwide 
           organization with more than 35,000 members); Hispanic 
           American Police Command Officers Association (Serving 
           command level staff and federal agents); National 
           Latino Peace Officers Association; The Police 
           Foundation (A private, nonprofit research institution); 
           Michigan Association of Chiefs of Police; Rhode Island 
           State Association of Chiefs of Police; Maine Chiefs of 
           Police Association.
       Departments listed for identification purposes only:
         Sergeant Moises Agosto, Pompton Lakes Police Dept. (NJ); 
           Sheriff Drew Alexander, Summit County Sheriff's Office 
           (OH); Sheriff Thomas L. Altiere, Trumbull County 
           Sheriff's Office (OH); Director Anthony F. Ambrose III, 
           Newark Police Dept. (NJ); Chief Jon J. Arcaro, Conneaut 
           Police Dept. (OH); Officer Robert C. Arnold, Rutherford 
           Police Dept. (NJ); Chief Ron Atstupenas, Blackstone 
           Police Dept. (MA); Sheriff Kevin A. Beck, Williams 
           County Sheriff's Office (OH); Detective Sean Burke, 
           Lawrence Police Dept. (MA); Chief William Bratton, Los 
           Angeles Police Dept. (CA); Special Agent (Ret) Ronald 
           J. Brogan, Drug Enforcement Agency; Chief Thomas V. 
           Brownell, Amsterdam Police Dept. (NY).
         Chief (Ret) John H. Cease, Wilmington Police Dept. (NC); 
           Chief Michael Chitwood, Portland Police Dept. (ME); 
           Chief William Citty, Oklahoma Police Dept. (OK); Chief 
           Kenneth V. Collins,

[[Page S9072]]

           Maplewood Police Dept. (MN); President Lynn N. Cripps, 
           Iowa State Police Association, Marshalltown Police 
           Dept. (IA); Chief Daniel G. Davidson, New Franklin 
           Police Dept. (OH); Asst. Director Jim Deal, U.S. Dept. 
           of Homeland Security, Reno/Lake Tahoe Airport (NV); 
           Chief Gregory A. Duber, Bedford Police Dept. (OH); 
           Captain George Egbert, Rutherford Police Dept. (NJ); 
           Sterling Epps, President, Association of Former Customs 
           Agents, Northwest Chapter (WA); Chief Dean Esserman, 
           Providence Police Dept. (RI).
         Officer Daniel Fagan, Boston Police Patrolman's Assoc., 
           Boston Police Dept (MA); Captain Mark Folsom, Kansas 
           City Police Dept. MO); Chief Charles J. Glorioso, 
           Trinidad Police Dept. (CO); Superintendent Jerry G. 
           Gregory (ret), Radnor Township Police Dept. (PA); Chief 
           Jack F. Harris, Phoenix Police Dept. (AZ); Chief (Ret.) 
           Thomas K. Hayselden, Shawnee Police Dept. (KS); Terry 
           G. Hillard, Retired Superintendent, Chicago Police 
           Dept. (IL); Steven Higgins, Director (Ret.) ATF; 
           Officer Rick L. Host, Sec/Treasurer, Iowa State Police 
           Assoc., Des Moines Police Dept. (IA); Officer David 
           Hummer, Ft. Worth Police Officers Association, Ft Worth 
           Police Dept. (TX); Officer H. Husberg, Ft. Worth Police 
           Officers Association, Ft Worth Police Dept. (TX); Chief 
           Ken James, Emeryville Police Dept. (CA).
         Chief Calvin Johnson, Dumfries Police Dept. (VA); Chief 
           Gil Kerlikowske, Seattle Police Dept. (WA); Deputy 
           Chief Jeffrey A. Kumorek, Gary Police Dept. (IN); 
           Detective John Kotnour, Overland Park Police Dept. 
           (KS); Detective Curt Lavarello, Sarasota County 
           Sheriffs Office (FL); Chief Michael T. Lazor, Willowick 
           Police Dept. (OH); Sheriff Simon L. Leis, Jr., Hamilton 
           County Sheriffs Dept. (OH); Sheriff Ralph Lopez, Bexar 
           County Sheriff (TX); Chief Cory Lyman, Ketchum Police 
           Dept. (ID); Chief David A. Maine, Euclid Police Dept. 
           (OH); Chief J. Thomas Manger, Montgomery County Police 
           Dept. (MD); Chief Burnham E. Matthews, Alameda Police 
           Dept. (CA); Chief Michael T. Matulavich, Akron Police 
           Dept. (OH).
         Chief Randall C. McCoy, Ravenna Police Dept. (OH); 
           Sergeant Michael McGuire, Essex County Sheriff's Dept. 
           (NJ); Chief William P. McManus, Minneapolis Police 
           Dept. (MN); Chief Roy Meisner, Berkley Police Dept. 
           (CA); Sheriff Al Myers, Delaware County Sheriff's 
           Office (OH); Chief Albert Najera, Sacramento Police 
           Dept. (CA); Detective Michael Palladino, Executive Vice 
           President, National Association of Police 
           Organizations, President, Detectives' Endowment 
           Association of New York City; Chief Mark S. Paresi, 
           North Las Vegas Police Dept. (NY); President Thomas R. 
           Percich, St. Louis Police Leadership Organization, St. 
           Louis Police Dept. (MO); Sheriff Charles C. Plummer, 
           Alameda County Sheriffs Department (CA).
         Chief Edward Reines, Yavapat-Prescott Tribal Police Dept. 
           (AZ); Chief Cel Rivera, Lorain Police Dept. (OH); 
           Officer Kevin J. Scanell, Rutherford Police Dept. (NJ); 
           Robert M. Schwartz, Executive Director, Maine Police 
           Dept. (ME); Chief Ronald C. Sloan, Arvada Police Dept. 
           (CO); Chief William Taylor, Rice University Police 
           Dept. (TX); Asst. Chief Lee Roy Villareal, Bexar County 
           Sheriffs Dept (TX); Chief (Ret) Joseph J. Vince, Jr., 
           Crime Gun Analysis Branch, ATF (VA); Chief Garnett F. 
           Watson Jr., Gary Police Dept. (IN); Hubert Williams, 
           President, The Police Foundation (DC); President Greg 
           Wurm, St. Louis Police Leadership Organization, St. 
           Louis Police Dept. (MO).

  Mrs. FEINSTEIN. This letter of opposition details the case that 
Senator Kennedy mentioned, involving two law enforcement officers from 
Orange, NJ, and points out that that case would have been thrown out of 
court. It is signed by numerous chiefs of police and major law 
enforcement entities.
  The American Bar Association states in their letter of opposition:

       S. 397 would preempt State substantive legal standards for 
     most negligence and product liability actions for this one 
     industry, abrogating State law in cases in which the 
     defendant is a gun manufacturer, gun seller, or gun trade 
     association, and would insulate this new class of protected 
     defendants from almost all ordinary civil liability actions.

  It goes on to say:

       There is no evidence that Federal legislation is needed or 
     justified. There is no hearing record in Congress or other 
     evidence to contradict the fact that the State courts are 
     handling their responsibilities competently in this area of 
     the law.

  So all those people who believe in States rights are taking States 
rights away for the National Rifle Association.
  The American Bar Association also says:

       There is no data of any kind to support claims made by the 
     industry that it is incurring extraordinary costs due to 
     litigation, that it faces a significant number of suits, or 
     that current State law is in any way inadequate. The Senate 
     has not examined the underlying claims of the industry about 
     State tort cases, choosing not to hold a single hearing on S. 
     397 or its predecessor bills in the two previous Congresses.

  That is amazing to me. It continues:

       Proponents of this legislation cannot, in fact, point to a 
     single court decision, final judgment, or award that has been 
     paid out that supports their claims of a crisis. All evidence 
     points to the conclusion that State legislatures and State 
     courts have been and are actively exercising their 
     responsibilities in this area of law with little apparent 
     difficulty.

  This letter goes on and again concludes this is going to be the only 
industry in the United States with this kind of immunity. There is no 
crisis that merits this. There is no hearing record that documents the 
need. This really worries me.
  Maybe I am biased because I have been a mayor, because I have seen 
what happens on the streets. I have seen how guns are misused. I have 
seen the threats that criminals with a firearm can be. I have watched, 
over the years, as firearms have grown much more sophisticated. Their 
killing power is greatly enhanced. The copycat, or the civilian 
version, of the 16--the .50 caliber weapon now that is out there--can 
send a bullet as large as my hand from Arlington Cemetery into the 
Capitol. Don't you think how those weapons are sold and distributed 
should prevent negligence? I do.
  I guess in all my years in this body I have never been more 
disillusioned about how we proceed or why we proceed. We have the 
PATRIOT Act that is ready to come to the floor, and we are doing this. 
We have an asbestos bill that is ready to come to the floor, and we are 
doing this. I am ranking on Military Construction appropriations. We 
have passed out a military construction bill with $70 billion in it for 
veterans benefits, and we are doing this. There are a number of other 
appropriations bills that are ready for floor action. The conference on 
the Energy bill just concluded, and we are doing this. The Calendar of 
Business contains 100 items ready for Senate floor action, and we are 
doing this. There is no hearing record for the previous two Congresses. 
More than 50 law professors point out this is a giveaway to one special 
industry that no other industry enjoys in the United States of America, 
and 30,000 people a year are killed with firearms in this country. I 
find it extraordinarily disillusioning.
  I know we are going to lose on the motion to proceed. The latest is 
that we are not even going to have a vote. It will be voice-voted 
because it is so ironclad that this bill is going to swim through. And 
then we will watch them try to stop us from putting any amendments on 
the bill. It is a sad day in the Senate. It is a regretful day. It is 
an extraordinarily disillusioning day.
  I thank the Chair and yield the floor. I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Mr. President, it is my understanding that the majority 
has control of this next hour under the agreement.
  The PRESIDING OFFICER. That is correct.
  Mr. GRAHAM. At this time, I will yield to Senator Cornyn 15 minutes.
  The PRESIDING OFFICER. The Senator from Texas is recognized.


                    Nomination of Judge John Roberts

  Mr. CORNYN. Mr. President, I would like to take a few minutes to 
comment on the nomination of Judge John Roberts to serve on the U.S. 
Supreme Court. In particular, I would like to provide some context in a 
brief response to some statements that have been made by our colleague 
on the other side of the aisle, the senior Senator from New York.
  My colleague has repeatedly stated his intention to ask Judge Roberts 
during the confirmation proceedings dozens of questions about his 
positions on particular constitutional rights, as well as his views of 
particular cases that have been decided by the U.S. Supreme Court.

[[Page S9073]]

  He provided Judge Roberts a copy of these questions last week when 
the two of them met and has stated that he will take ``responsibility 
to make sure that those questions are answered.''
  Any of our colleagues can, of course, ask whatever questions they 
want, but the notion that Judge Roberts puts his confirmation at risk 
if he does not answer the questions on the list from the Senator from 
New York is contrary to the traditional practice of this body. Nearly 
every single one of the questions on that list involves an issue that 
is likely to come before the Supreme Court during Justice Roberts's 
tenure. Every single Justice confirmed in recent memory has declined to 
answer questions of the sort contained on that list.
  As Justice Ginsburg has noted:

       In accord with longstanding norm, every member of the 
     current Supreme Court declined to furnish such information to 
     the Senate.

  Every member of the Court has declined to answer such questions 
because it has long been understood that forcing nominees to take sides 
on issues while under oath compromises their ability to rule 
impartially in cases presenting those issues once they sit on the 
Court.
  Judges are supposed to decide cases after hearing the evidence 
presented by the parties involved and the arguments presented by their 
lawyers. They are supposed to keep an open and impartial mind.
  As Justice Ginsburg has also noted, ``the line each [Justice] drew in 
response to preconfirmation questioning is . . . crucial to the health 
of the Federal judiciary.''
  Judges in our system are like umpires in a baseball game. They are 
not supposed to take sides before the game has begun. Judges are not, 
for example, supposed to pledge to the Senate that they will be ``on 
the side of labor'' or ``on the side of corporations'' once confirmed 
to the bench. We should not demand of judges that they are biased on 
behalf of a particular party before they have even gotten to the bench 
and heard the facts and the arguments of counsel.
  The only side that a judge should be on is on the side of the law. 
Indeed, that is the oath that each of them take when they are sworn 
into office. Sometimes corporations should win in court, and sometimes 
they should lose. Sometimes labor should win in court, and sometimes 
labor should lose. But it depends on the facts of the case and on the 
law that applies to those facts. Any judge worth their salt would 
decline to make a commitment ahead of time about how that hypothetical 
controversy would come out, not knowing what those facts are or how the 
question would be presented.
  The Senator from New York has said that his questions do not threaten 
Judge Roberts's impartiality because he is not asking about specific 
cases that are already pending before the Supreme Court. He 
acknowledges that asking questions about those cases--in other words, 
cases that are actually pending--would be inappropriate. But I would 
ask my colleague to review, as I have, the Supreme Court's pending 
cases for the session set to begin in October because it clearly shows 
that this proposed list of questions would force Judge Roberts to 
prejudge the very pending cases that the Senator has said should be off 
limits.
  Take, for example, the question of whether Judge Roberts ``believes 
Roe v. Wade was correctly decided.'' That is one of the Senator's 
questions. The Senator has said specifically that this is a ``question 
that should be answered.''
  Demanding that Judge Roberts answer questions about Roe v. Wade will 
undoubtedly force him to prejudge a case that is currently pending on 
the Court's docket. On November 30, the Supreme Court will hear 
arguments in Ayotte v. Planned Parenthood, a case involving the 
constitutionality of a New Hampshire law requiring a minor to notify 
her parents before having an abortion.
  It is nearly certain that some party in that litigation, perhaps even 
an amicus party, will ask the Court to revisit or overturn Roe v. Wade 
because one party does so in nearly every abortion case that reaches 
the U.S. Supreme Court.
  Thus, whether Roe v. Wade should be overturned is not only an issue 
likely to come before the Court during Judge Roberts's tenure, it is 
already before the Court.
  Accordingly, demanding an answer to a question about Roe v. Wade will 
force Judge Roberts to prejudge at least one of the issues in the 
Ayotte case, and, no doubt, many others while he is on the bench.
  Perhaps an even better example is the Senator's question about 
whether ``the Americans with Disabilities Act requires State buildings 
to be accessible to the disabled . . . or [whether] sovereign immunity 
exempts the States?'' Again, on November 9, the Supreme Court is 
scheduled to hear a case called Goodman v. Georgia, a case involving a 
suit by a disabled prisoner against the State of Georgia. The only 
question in that case is whether the Americans with Disabilities Act 
can force States to make prisons accessible to the disabled. Again, 
this is precisely the question that the Senator warned Judge Roberts 
that he would not have to answer but which, in fact, he is now being 
asked to answer.
  It is clear then that the questions proposed by the Senator from New 
York will force Judge Roberts to prejudge pending cases. This is 
something that surely all of us can agree is inappropriate. Thus, 
surely all of us can agree in this Chamber that Judge Roberts should be 
permitted to decline to answer at least some of the questions that the 
Senator from New York has said he will ask him and others like those 
questions.

  But once it is acknowledged that Judge Roberts should be permitted to 
decline to answer the questions involving issues already pending before 
the Supreme Court, it becomes clear that Judge Roberts should be 
permitted to decline the rest of the questions propounded by the 
Senator as well.
  There are literally hundreds of cases at this very moment in lower 
Federal courts raising virtually all of the questions posed by the 
Senator from New York. Judge Roberts should not be forced to guess 
which one of them will or will not one day make their way to the High 
Court. This is why the Canons of Judicial Ethics counsel judges against 
answering questions about issues that are not only already before the 
Court, but also those that are likely to come before the Court.
  Any case pending in the lower courts meets this definition because it 
could be and, indeed, many will be appealed to the U.S. Supreme Court.
  Indeed, the danger of demanding that Judge Roberts answer such 
questions, even though some may not now be pending before the Court, is 
clear from an event involving one of the sitting Justices, Justice 
Scalia.
  Two years ago, after delivering a speech, Justice Scalia was asked 
whether he thought the phrase ``under God''--that is the reference in 
the Pledge of Allegiance--was constitutional. There was not at that 
time any case involving that question before the Court, so Justice 
Scalia answered the question. But there was, as it turns out, a case 
involving that precise question pending before a lower Federal court 
and, as we all know, that case eventually made its way to the Supreme 
Court. As we also know, Justice Scalia was then forced to recuse 
himself from hearing that case because the rules of ethics prevent 
judges from publicly commenting on pending or impending cases.
  We should not force Judge Roberts to choose between confirmation and 
recusal. If Judge Roberts is forced to recuse himself in all of the 
cases, all of the issues on the Senator's list, then the Supreme Court 
will be left shorthanded for much of his tenure.
  The Senator from New York says that his list includes some of the 
most important questions of the day, and that may well be true. But 
surely we want all nine Justices on the Supreme Court to answer those 
important questions in those cases as they are presented.
  Judge Roberts should be permitted to do what we have always permitted 
nominees to do, and that is to decline to answer questions that might 
call into question his impartiality at a later date. We have always 
respected the right of nominees to decline to answer questions that 
make them feel as though their ability to do their job would be 
compromised. That is in the interest of a value that we all hold dear, 
and that is the independence of the judiciary.

[[Page S9074]]

  I hope and expect that we will not break that longstanding tradition 
with Judge Roberts.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Madam President, the current Congress has taken a stand 
against frivolous lawsuits, and we have done so in a number of ways as 
we paint a portrait of the fact that frivolous lawsuits today are not 
in the interest of the American people. We addressed it in class action 
reform. We addressed it to a degree with bankruptcy reform, returning 
to personal responsibility. We will do it with asbestos reform, an 
issue that has for the last 10, 15, 20 years unfairly resulted in the 
trial lawyers doing very well, but the patient with cancer, 
mesothelioma, not being compensated, the victims not being compensated. 
We will be addressing medical liability at some point in time, 
hopefully in this Congress, and then gun liability, the Protection of 
Lawful Commerce in Arms Act, which is being addressed today and 
tomorrow and possibly the next day.
  This bill is directed at the frivolous lawsuits that today are aimed 
at gun manufacturers and people who are selling firearms. The bill 
places responsibility on the criminal for the unlawful use of guns, and 
that is where that responsibility belongs.
  Many people believe that the whole gun manufacturing industry is a 
hugely profitable industry, and that is wrong. It is not. The gun 
industry is relatively modest. In 1999, the most recent year I have 
seen, there was an industry total profit of about $200 million. If we 
put all the manufacturers of firearms together, they would not even 
make the Fortune 500 list.
  More important than size is the hard-working people who are 
manufacturing guns. I have had the opportunity, as many of our 
colleagues have, to go to these wonderful facilities with hard-working 
Americans, typically in rural communities, who are manufacturing and 
putting together these guns.
  The firearm maker I visited was in a rural area with not that many 
employees. They were putting together shotguns which many of us use to 
hunt over the course of the year. Right now my favorite avocation is 
taking my sons hunting on the weekend, to be together and share 
fellowship.
  I mention that because when one tours these gun manufacturing 
facilities, they realize that frivolous lawsuits drive people out of 
the business, which is a loss of jobs. Those jobs happen to be 
predominantly in rural communities. Anti-gun crusaders say that the 
firearm business, which today is one of the most regulated industries 
in America, should be responsible for the criminal acts of others. They 
believe it is OK to use lawsuits to circumvent the democratic process 
and legislate actually from the bench, and they say so themselves.
  If we turn to the trial attorneys and look at the quotations, one 
trial attorney claims that what has happened is that the legislatures 
have failed. Lawyers are taking up the slack, said the trial attorney. 
Another anti-gun trial lawyer says that trial lawyers are ``the new arm 
of government,'' replacing the legislative branch ``that's not working 
anymore.'' These trial lawyers apparently believe they are above the 
voters, that they are above the legislative process. I do not agree, 
most Americans do not agree, and thus, we have the bill today.
  Most Americans think there is too much litigation and not too little 
litigation in this country. Legislatures in 33 States have passed laws 
to preempt frivolous gun lawsuits. They recognize that our Constitution 
protects the right to keep and bear arms. In fact, 53 percent of 
American households today own a gun. Still, the anti-gun crusaders, 
aided and abetted by powerful trial lawyers, charge ahead. They know 
that all it takes is one successful lawsuit to drive a manufacturer out 
of business. As one chapter of the United Steelworkers of America 
points out, ``we are just one defeat away from bankruptcy.''
  Since 1997, more than 30 cities and counties have sued firearms 
companies in an attempt to force them to change the way they make and 
sell guns. Firearm manufacturers have already spent more than $200 
million in legal fees to defend themselves. Meanwhile, most of these 
cases have been dismissed. The Supreme Court of New York says:

       [The] courts are the least suited, least equipped, and thus 
     the least appropriate branch of government to regulate and 
     micro-manage the manufacturing, marketing, distribution and 
     sale of handguns.

  The Florida Third District Court of Appeals agrees, adding:

       The power to legislate belongs not to the judicial branch 
     of government but to the legislative branch.

  Some cases, however, are still pending and are slated to go forward. 
Thus, it is critical that we act now, that we pass this legislation 
now.
  In California, former Governor Gray Davis signed legislation 
explicitly authorizing lawsuits against gunmakers. Because the firearms 
business is relatively small, just one big verdict--maybe not even 
big--a substantial verdict could bankrupt the entire industry. In 
California, that is a real possibility. If the gun industry is forced 
into bankruptcy, the right to keep and bear arms will be a right in 
name only. Even if some gunmakers are able to hold on, the prices for 
firearms, whether it is the shotgun one buys to go hunting with or 
whatever the firearm might be, will go sky-high.
  There is another important issue, which is little recognized, and it 
has been mentioned on the Senate floor, but I wanted to mention it 
again because I am sure others will come forward because the problem is 
so real, it is so apparent, and that is that America relies on private 
gun manufacturers to equip our soldiers and our law enforcement 
officers with the arms they need to protect us or to fight for our 
freedom. The guns our police officers and soldiers carry are made in 
the United States by hard-working Americans.
  The main manufacturer of guns in my home State, just as one example, 
supplies important small arms to the military. So far, this middle 
Tennessee company has not been sued. In fact, Tennessee passed some 
liability protections back in 1999. But if they are sued and put out of 
business, the military would lose a critically important supplier, and 
70 Tennesseans for this one small company, one small employer, would 
lose their jobs.
  We all agree that guns need to be kept out of the hands of criminals, 
and that is why we have innumerable, countless laws and regulations to 
stop illegal gun sales. But we also cannot let frivolous lawsuits strip 
our police officers and our soldiers of the guns they need to protect 
us. We cannot allow unfair litigation to cripple our national security.
  Our sympathies always first and foremost go to crime victims and 
families, and no one in any way deserves to be harmed by a criminal 
wielding any kind of a weapon, be it a gun or a knife or anything else. 
But we have to place the blame where it belongs, not on the people 
working in that factory I visited that makes these firearms. We need to 
place it at the feet of the violent criminals themselves, those who 
commit the crimes and threaten our communities. They are the ones 
responsible, and they are the ones who should be held accountable. 
Blaming gun manufacturers misses the real problem. It punishes law-
abiding owners and undermines our constitutionally protected rights. 
Even if litigation managed to bankrupt law-abiding gun manufacturers, 
it is not going to stop the criminals from getting guns elsewhere.
  So I urge my colleagues to help stop frivolous gun litigation. We can 
accomplish that by allowing this legislation first to come to the floor 
and then passing this legislation. A vote for reform is a vote for 
security, and a vote for reform is a vote for common sense.
  The PRESIDING OFFICER. The majority whip.


                    following the ginsburg standard

  Mr. McCONNELL. Madam President, I rise to speak on the nomination of 
Judge John Roberts to be the next Justice of the Supreme Court of the 
United States. As we are beginning to learn, the President has selected 
one of the foremost legal minds of his generation. Many of my 
colleagues have already spoken Judge Roberts' praises on

[[Page S9075]]

this floor, and I agree with all of them. Judge Roberts possesses a 
keen intellect, an open mind, very importantly, a judicious 
temperament, and a sterling reputation for integrity. He will 
faithfully apply the Constitution, not legislate from the bench. He 
should be confirmed in time for the Court to operate at full strength 
by October 3.
  Looking to recent history, and looking more specifically to the most 
recent Supreme Court nominations of Justices Ruth Bader Ginsburg and 
Stephen Breyer, I would think that I should not have cause to worry how 
this nominee will be treated. Then, as now, the President's party 
controlled the Senate. Then, as now, the President nominated a jurist 
whose credentials could not be questioned. The only difference is that 
the occupant of the White House then was a Democrat, and the current 
President is a Republican.
  But that one simple fact may make all the difference to some of my 
friends on the other side of the aisle.
  In recent weeks I have begun to worry that some of my Democratic 
friends have forgotten the standard to which the Senate held Justices 
Breyer and Ginsburg when they were nominees. Judge Roberts deserves the 
same standard, no more or no less, than the nominees of President 
Clinton. But I fear that ``the Ginsburg-Breyer standard''--which I will 
call the ``Ginsburg standard'' for short--is giving way to a double 
standard. I would like to remind my colleagues of recent history, so we 
may draw some lessons from the confirmation processes of Justices 
Breyer and Ginsburg.
  Both Ruth Bader Ginsburg and Stephen Breyer came to the Senate with a 
distinguished record and a deserved reputation for a fine legal mind. 
But Justice Ginsburg also came with a long record of liberal advocacy 
and thought-provoking, to put it mildly, statements. Yet the Senate 
handled her nomination in a manner that brought credit to the 
institution. It followed a respectful process. Indeed, it can be said 
that ``respect''--both for the President and his nominee--was a 
hallmark of her nomination, and the nomination of Stephen Breyer.
  In the Ginsburg nomination, the Senate recognized that most judicial 
nominees, including Justice Ginsburg, have at one point been private 
practitioners of the law. The Senate recognized that it is unfair to 
attribute to lawyers the actions of their clients. Lawyers are zealous 
advocates for their clients. Lawyers speak for their clients, not 
themselves.
  After all, if a lawyer defends a client accused of stealing a 
chicken, it does not then follow that the lawyer is a chicken thief. 
Again, if a lawyer defends a client accused of stealing a chicken, it 
does not then follow that the lawyer is a chicken thief. By following 
this standard, the Senate did not hold against Justice Ginsburg the 
policy positions of her most famous client, the American Civil 
Liberties Union.
  As we know, the ACLU takes consistently liberal positions on high-
profile issues, positions that many Americans strongly disagree with. I 
respect that. I do not often agree with the ACLU, but its members 
believe strongly, and they fight for their beliefs. There is certainly 
nothing but admiration we can have for that.
  During Justice Ginsburg's tenure as a general counsel and a member of 
its board, the ACLU, for example, opposed restrictions on pornography. 
Yet even though her client had adopted controversial policy positions, 
the Senate did not attribute them to Justice Ginsburg, let alone 
disqualify her from service on the Supreme Court because of them.
  In addition, this country values a healthy ``market-place of ideas.'' 
So, the Senate did not block Justice Ginsburg's nomination because she 
made controversial and thought-provoking statements in her private 
capacity as a legal thinker. Those thoughts ranged from suggesting a 
constitutional right to prostitution, to proposing abolishing 
``Mother's Day'' and ``Father's Day'' in favor of a unisex ``Parent's 
Day.'' Why did we not hold those views against her? Because by a 96-3 
margin, we decided she had the integrity to apply the law fairly to 
each case, despite some rather, to put it mildly, provocative personal 
views that had been expressed over the years in her writing.
  With both the Ginsburg and Breyer nominations, the Senate also 
continued its long-standing practice of respecting a nominee's right 
not to disclose personal views or to answer questions that could 
prejudge cases or issues. Senators may ask a nominee whatever questions 
they want. But the nominee also has the right not to comment on matters 
the nominee feels could compromise their judicial independence.
  For example, during his Supreme Court confirmation hearing in 1967, 
Thurgood Marshall, before the Senate Judiciary Committee, declined to 
answer a question regarding the Fifth Amendment. He explained.

        I do not think you want me to be in a position of giving 
     you a statement on the Fifth Amendment and then, if I am 
     confirmed, sit on the Court and when a Fifth Amendment case 
     comes up, I will have to disqualify myself.

  Justice O'Connor, whom our Democratic colleagues have been citing so 
glowingly in the last few weeks, also demurred regarding questions she 
thought would compromise her independence. One of those questions asked 
her view of a case that had already been decided, Roe v. Wade; and in 
explaining her position, she said:

       I feel it is improper for me to endorse or criticize a 
     decision which may well come back before the Court in one 
     form or another and indeed appears to be coming back with 
     some regularity in a variety of contexts. I do not think we 
     have seen the end of that issue or that holding and that is 
     the concern I have about expressing an endorsement or 
     criticism of that holding.''

  The Senate continued this practice with the Breyer and Ginsburg 
nominations. It did not require them to state their private views, or 
to prejudge matters before they had read one word of a brief or heard 
one word of oral argument.
  Justice Breyer explained why he had to be careful about pre-
committing to matters:

       I do not want to predict or to commit myself on an open 
     issue that I feel is going to come up in the Court. . . . 
     There are two real reasons. The first real reason is how 
     often it is when we express ourselves casually or express 
     ourselves without thorough briefing and thorough thought 
     about a matter that I or some other judge might make a 
     mistake. . . . The other reason, which is equally important, 
     is . . . it is so important that the clients and the lawyers 
     understand that judges are really open-minded.

  The Senate respected Justice Breyer's concerns about prejudging and 
confirmed him by an overwhelming 87-9 margin. This respect extended to 
cases that had already been decided. For example, our late colleague, 
Senator Thurmond, asked Justice Breyer about Roe v. Wade, a case that 
had been decided 21 years earlier. Like Justice O'Connor, Justice 
Breyer declined to comment, stating:

       The questions that you are putting to me are matters of how 
     that basic right applies, where it applies, under what 
     circumstances. And I do not think I should go into those for 
     the reason that those are likely to be the subject of 
     litigation in front of the Court.

  Senator Thurmond respected Justice Breyer's position, and did not 
hold against Justice Breyer his decision not to answer that question. 
Other Senators did the same on a host of issues.
  Justice Breyer also declined to give his personal views. He 
explained, ``The reason that I hesitate to say what I think as a person 
as opposed to a judge is because down that road are a whole host of 
subjective beliefs, many of which I would try to abstract from.'' As 
result, he declined to give his personal views on whether the death 
penalty was cruel and unusual, what the scope of the exclusionary rule 
should be and whether he supported tort reform.
  Justice Ginsburg also invoked her prerogative not to answer questions 
that could compromise her independence, and both sides of the aisle 
respected her decision. Indeed, Senator Biden, who was then chairman, 
encouraged her not to answer questions that would preview her position 
on a legal issue. He told her:

       I will have statements that I made during the process read 
     back to me. But I do think it is appropriate to point out, 
     Judge, that you not only have a right to choose what you will 
     answer and not answer, but in my view you should not answer a 
     question of what your view will be on an issue that clearly 
     is going to come before the Court in 50 different forms, 
     probably, over your tenure on the Court.

  Justice Ginsburg's effort to remain unbiased--like Justices O'Connor 
and Breyer--included not commenting on cases that had already been 
decided.

[[Page S9076]]

For example, Justice Ginsburg was asked how she would have ruled in 
Rust v. Sullivan, an abortion case that had already been decided. She 
declined to answer, explaining her position with a metaphor of the 
slippery slope:

       I sense that I am in the position of a skier at the top of 
     that hill, because you are asking me how I would have voted 
     in Rust v. Sullivan. Another member of this committee would 
     like to know how I might vote in that case or another one. I 
     have resisted descending that slope, because once you ask me 
     about this case, then you will ask me about another case that 
     is over and done, and another case. . . . If I address the 
     question here, if I tell this legislative chamber what my 
     vote will be, then my position as a judge could be 
     compromised.

  Indeed, Justice Ginsburg declined to comment 55 times on a variety of 
legal questions. That is 55 times. These included: If the second 
amendment guarantees an individual right to bear arms; If the death 
penalty is cruel and unusual punishment under the eighth amendment; If 
school vouchers for children are constitutional under the Establishment 
Clause; If the Supreme Court had interpreted too narrowly the Voting 
Rights Act; If the first amendment was intended to erect a wall of 
separation between church and state; and If the Federal Government may 
prohibit abortion clinics from using Federal funds to advocate 
performing abortions.
  That is a lot of ``ifs'' she declined to answer and yet was confirmed 
overwhelmingly.
  Both Justices Ginsburg and Breyer were reported out of the committee 
promptly; Republicans did not try to delay the committee vote. Nor did 
Republicans try to deny these nominees the courtesy of an up-or-down 
vote on the Senate floor.
  As I mentioned, Justice Ginsburg was confirmed 96-3 after 2 days of 
debate. Justice Breyer was confirmed 87-9 after only a single day of 
debate. By giving these nominees up-or-down votes, the Senate continued 
the practice it had followed with even contested Supreme Court 
nominees, like Robert Bork and Clarence Thomas. The average time for 
Senate consideration of the Ginsburg and Breyer nominations was 58 
days. For Justice Ginsburg's nomination, the entire process lasted only 
42 days from nomination to confirmation.
  It troubles us on this side of the aisle, and it should trouble all 
Americans, when different standards are applied to different people for 
no valid reason. Unfortunately, this already appears to be happening 
with respect to the nomination of Judge John Roberts.
  Judge Roberts will no doubt be as forthcoming as he properly can be 
when he testifies. However, as with all nominees, there are some 
questions that he will not be able to answer. His decision ought to be 
respected as were the decisions of Justice Ginsburg and Justice Breyer.
  But our colleague Senator Schumer has declared that for this 
nomination--forget all the prior nominees--``Every question is a 
legitimate question, period.'' And he plans on asking Judge Roberts 
some 70 questions. These include specific issues that will likely come 
before the Court. In addition, he wants Judge Roberts to discuss how he 
would have voted in specific cases, such as New York Times v. Sullivan 
and United States v. Lopez.
  If our friend from New York insists that Judge Roberts answers these 
types of questions, it will be a radical departure from the practice 
that the committee followed with Justice O'Connor, Justice Breyer, 
Justice Ginsburg and other Supreme Court nominees. These nominees were 
given discretion in not answering questions on issues that might come 
before the Court. It was agreed that it would be improper for a 
potential justice to pre-commit on a matter.
  We on this side of the aisle are not asking the Senate to change its 
practices or standards. We are not asking that this President be 
treated better than his immediate predecessor. We are asking for equal 
treatment. In short, we are simply asking that the Senate follow the 
Ginsburg standard, not a double standard.
  I am hopeful that the courtesy and respect the Senate showed 
President Clinton's nominees, and prior Supreme Court nominees, will 
continue with Judge Roberts. After all, it's only fair.
  I yield the floor.
  Mr. HATCH. It is my understanding the Senator from South Carolina 
would like to take 2 minutes. If I can be recognized after that, I 
would appreciate it.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Madam President, I rise to speak in support of S. 397, 
protecting gun manufacturers from lawsuits that basically would hold 
the manufacturer liable if someone bought a gun and intentionally 
committed a crime with it, was irresponsible in its use. I believe 
everybody should have their day in court for a legitimate grievance. 
But it is not legitimate, in my opinion, to sue someone who makes a gun 
lawfully, that is not defective, and that person is held responsible in 
court because some other person who bought the gun decides to misuse 
it, to commit a crime with it. That would ruin our economy. It would 
fundamentally change personal responsibility in America. This bill is a 
cultural moment in American history.
  The second amendment gives us a right to bear arms, but it is not 
unlimited. We have to be responsible. We have to responsibly use that 
right. The idea that you could sue someone who is lawfully in business 
because someone else chooses to do something bad will destroy the way 
America works. It is a ridiculous concept.
  Suing gun manufacturers for defective products is included in this 
bill. Everyone should stand behind what they make and put in the stream 
of commerce. That has not changed. The only thing that has changed is 
we are cutting off a line of legal reasoning that has extended to fast 
food now: ``The reason I have health problems is because you served me 
food that was bad for me.'' The bottom line is, if we go down this 
road, we are going to make America noncompetitive in the 21st century, 
and we are going to rewrite the way America works--to our detriment.
  The rule should be simple. If you make a lawful product and someone 
chooses to buy it and they decide to misuse it, it is not your fault, 
it is theirs. You are not going to have your money taken because 
somebody else messed up. Madam President, $200 million in legal fees 
have already been incurred by gun manufacturers because of this line of 
reasoning. You win in America; you still lose.
  If you want to make sure our country is secure in the future, let's 
make sure people can manufacture arms in America and we are not 
dependent on foreign sources for arms for the public or the military. 
There is a lot at stake here. I enthusiastically support this 
limitation on what I think would be not only a frivolous lawsuit, but a 
dangerous concept that will change America for the worse.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Madam President, I rise today to express my continued, 
strong support of S. 397, the gun liability bill.
  As I outlined yesterday, this legislation is a necessary and vital 
response to the growing problem of unfounded lawsuits filed against gun 
manufacturers and sellers. These suits are being filed in no small part 
with the intention of trying to drive them out of business.
  These lawsuits, citing deceptive marketing or some other pretext, 
continue to be filed in a number of States, and they continue to be 
unsound.
  These lawsuits claim that sellers give the false impression that gun 
ownership enhances personal safety or that sellers should know that 
certain guns will be used illegally. That is pure bunk. Let's look at 
the truth.
  The fact is that none of these lawsuits are aimed at the actual 
wrongdoer who kills or injures another with a gun--none. Instead, the 
lawsuits are focused on legitimate, law-abiding businesses.
  It is this kind of rampant, race-to-sue mentality, that fuels our 
tort-happy, litigious culture. It has to stop.
  In its Statement of Administration Policy, the White House has urged 
us to pass a clean bill, in order to ensure enactment of the 
legislation this year. Amendments that would delay enactment beyond 
this year are simply unacceptable.
  The administration knows what we also know: This is a modest bill to 
help prevent the gun industry from a tidal wave of baseless lawsuits.
  It is also highly relevant, I believe, that the leading suppliers of 
small

[[Page S9077]]

arms to our Armed Forces are the same targets of these reckless 
lawsuits: Beretta, Bushmaster, Remington, Smith & Wesson.
  These are the companies we rely on for small arms for the military.
  But if the proliferation of lawsuits against them continues, it could 
jeopardize the supplies we receive and need for our military.
  This bill does nothing more than prohibit--with five exceptions 
lawsuits against manufacturers or sellers of guns and ammunition for 
damages ``resulting from the criminal or unlawful misuse'' of 
nondefective guns and ammunition.
  Let me repeat that: ``resulting from the criminal or unlawful 
misuse'' of nondefective guns and ammunition.
  This bill is not a license for the gun industry to act irresponsibly. 
If a manufacturer or seller does not operate entirely within Federal 
and State law, it is not entitled to the protection of this 
legislation.
  I should also note that this bill carefully preserves the right of 
individuals to have their day in court with civil liability actions 
where negligence is truly an issue, or where there were knowing 
violations of laws on gun sales.
  It is also noteworthy that in a recent poll by Moore Information 
Public Opinion Research, 79 percent of Americans do not believe that 
firearms manufacturers should be held legally responsible for violence 
committed by armed criminals.
  Seventy-nine percent!
  And in this poll, 71 percent of Democrats hold this view. So this 
should not be a partisan issue.
  Let me just read a postcard from one of the thousands of people who 
have written me in support of this bill from Utah. This Utahn, from the 
city of Hyde Park, writes:

       Dear Senator Hatch: Please give your full support for S. 
     397 with no anti-gun amendments. As a business woman I know 
     the strength of America is productive businesses that keep 
     America strong and my fellow citizens employed!

  These are the people I represent. I not only represent them, I am 
proud to be one of them. I am proud to help small businesses. And I am 
proud to help gun owners.
  Let me just say a word about the precedents for this legislation. 
Congress has the power--and the duty--to prevent activists from abusing 
the courts to destroy interstate commerce.
  We did this in the General Aviation Revitalization Act of 1994 where 
we protected manufacturers of small planes against personal injury 
lawsuits. That act superseded State law, as does the gun liability 
bill.
  There are many other precedents for abusive lawsuit protection, 
including light aircraft manufacturers, food donors, charitable 
volunteers, medical implant manufacturers and makers of anti-terrorism 
technology, just to mention a few.
  There is simply no reason the gun makers should have to continue to 
defend these types of meritless lawsuits. We must protect against the 
potential harm to interstate commerce. The gun industry has already had 
to bear over $200 million in defense costs thus far.
  The bottom line is that this is a reasonable measure to prevent a 
growing abuse of our civil justice system.
  The bill provides carefully tailored protections for legitimate 
lawsuits, such as those where there are knowing violations of gun sale 
laws, or those based on traditional grounds including negligent 
entrustment or breach of contract.
  We simply should not force a lawful manufacturer or seller to be 
responsible for criminal and unlawful misuse of its product by others. 
We do not hold the manufacturers of matches responsible for arson for 
this same reason.
  Individuals who misuse lawful products should be held responsible, 
not those who make the lawful products.
  In closing, I leave my colleagues with one last thought.
  These abusive gun liability actions usurp the authority of the 
Congress and of State legislators. They are an obvious and desperate 
attempt to enact restrictions that have been widely rejected.
  It is for this reason that many States have enacted statutes to 
prevent this type of litigation. Congress should do the same.
  As with class action lawsuits, the few States that allow jackpot 
jurisdictions can create a disastrous economic effect across the entire 
country, and across an entire industry.
  We cannot allow this to happen. We must stop these abusive lawsuits.
  I urge my colleagues to vote for this important legislation.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. I thank my colleague from Utah for relinquishing the rest 
of the time, and I join my colleague in strong support of S. 397, the 
gun liability bill. But I also wanted to address a topic that continues 
to draw much heat and discussion here on this floor and in the media. 
In the heat of political rhetoric over Iraq and the administration's 
prosecution of the global war on terror, much has been lost and not all 
the facts are being presented in the matter. Unfortunately, some are 
quick to exploit the situation in Iraq and the global war on terror 
and, by extension, the brave men and women prosecuting these conflicts 
as cannon fodder in their attacks on the President from the media and 
others. These folks hope to undermine the administration's credibility 
with a keen eye on gaining political advantage. However, in the end, 
those efforts serve only to undermine the noble efforts of our Armed 
Forces, the men and women of our intelligence community who take the 
fight to the enemy every day. Most damning, however, is that we have 
yet to see those who strongly criticize the President's policies 
present any comprehensive, workable or viable alternatives.
  This kind of politicizing only serves to erode the morale of the men 
and women in the field who do the heavy lifting. It is nothing short of 
shameful when these warriors' leaders in Congress bicker about 
nonsubstantive issues while they in the field are united and committed 
to the missions of freedom and keeping our country safe. The armed 
conflicts in which our young men and women sacrifice so much should be 
the topic of thoughtful debate.
  However, there is no place for this kind of posturing in the business 
of war because it merely emboldens the enemy and belittles the efforts 
of our troops.
  Let's look at the facts. Some argue there is no connection between 
Iraq and 9/11. Look at the facts. In late 1994 or early 1995, Saddam 
Hussein met with a senior Iraqi intelligence officer in Khartoum. In 
March 1998, after bin Laden's public fatwah against the United States, 
two al-Qaida members reportedly went to Iraq to meet with Iraqi 
intelligence. In July, an Iraqi delegation traveled to Afghanistan to 
meet first with the Taliban and then bin Laden. ``One reliable source 
reported bin Laden's having met with Iraqi officials, who `may have 
offered him asylum'.'' These are quotes from the bipartisan 9/11 
Commission Report published in July 2004.
  I do not think one could argue that these facts are either agenda-
driven or biased. These facts demonstrate that prior to the 9/11 
attacks, al-Qaida and bin Laden himself maintained contacts with the 
Iraqi regime and that the Iraqis even offered to harbor bin Laden.
  Accordingly, a categorical denial that ``Iraq had nothing to do with 
9/11'' cannot be made responsibly.
  Next contention: Iraq had and has nothing to do with the global war 
on terror. That is flat dead wrong. Hardly anyone can refute the fact 
that Iraq has become the gathering place for Sunni extremists who wish 
to wage war against the United States. From their optic, the terrorists 
have a plethora of targets with the presence of U.S. forces in Iraq. 
They are also motivated to combat our policy of fostering a 
pluralistic, open, and democratic government in Iraq. True meaning.
  Instead, the terrorists wish to distort Islam's true meaning, wage an 
unholy war against Iraq's Shi'a, and induce a sectarian civil war 
during the aftermath of which the terrorists would like to establish a 
Taliban-like state in Iraq. These same terrorists are also motivated by 
their desire to evict U.S. forces not only from Iraq but from the 
Greater Arab Middle East, and they view our mission in Iraq as an act 
of occupation when it is a battle of liberation. The battle is one of 
hearts and minds; a battle, however, that the Iraqi people are 
determined to win, along with our assistance, as demonstrated

[[Page S9078]]

by the 58-percent voter turnout in January, where they elected a new 
national government, and also by the continuing willingness of Iraqis--
to face the danger of terrorist suicide attacks--to sign up to serve to 
keep the peace.
  But terrorism is not a new phenomenon in Iraq. Chief among the 
terrorists in Iraq today, Abu Musab al-Zarqawi, was known to have been 
in Baghdad since at least mid-2002. You might ask, how can a terrorist 
of Zarqawi's notoriety operate, let alone live, in a Stalinist police 
state such as that of Saddam's Iraq, without the former regime's 
knowledge, if not consent. The answer is simple. Saddam knew Zarqawi 
was there, undoubtedly.
  When asked about Iraq's al-Qaida relationship by CNN's Wolf Blitzer, 
on February 5, 2003, the vice chair of our Senate Intelligence 
Committee agreed that his presence in Iraq before the war was 
troubling. He said, ``The fact that Zarqawi is very close to bin Laden 
puts at rest, in fairly dramatic terms, that there is at least 
substantial connection between Saddam and al-Qaida.''
  However, long before Zarqawi descended upon Iraq, Abu Nidal, the 
secular Palestinian terrorist leader and founder of the Abu Nidal 
organization, lived in Iraq from 1998 until he died in 2002. Over the 
years, that organization carried out terrorist attacks in 20 countries, 
killing or injuring almost 900 people, including hijacking of Pan Am 
flight 373 in Karachi in 1986 and the assassination of a Jordanian 
diplomat in Lebanon in 1994. Abu Nidal was arguably the world's most 
ruthless terrorist until the rise of Saddam Hussein. He lived and 
flourished in Saddam's Iraq for 4 years.

  In 1993, the Iraqi Intelligence Service directed and pursued an 
attempt to assassinate, through the use of a powerful car bomb, former 
President George Bush and the Emir of Kuwait. Kuwait authorities 
thwarted the terrorist plot and arrested 16 suspects led by two Iraqi 
nationals.
  Finally, Abdul Rahman Yasin, who was indicted in the United States 
for mixing the chemicals in the bomb that exploded beneath the World 
Trade Center in 1993, arrived in Baghdad during July of 1994. Upon his 
arrival, Yasin traveled freely and received both a house and a monthly 
stipend from the Iraqi Government during his stay.
  Next contention: Iraq did not present a danger to the United States 
at the time we commenced Operation Iraqi Freedom. Listen to the people 
who looked at the situation. During a July 28, 2004, Senate Armed 
Services Committee hearing, the former head of the Iraq survey group 
who went in and looked at the situation in Iraq after we occupied it, 
Dr. David Kay, noted, ``It was reasonable to conclude that Iraq posed 
an imminent threat. What we learned during the inspection made Iraq a 
more dangerous place potentially than in fact we thought it was even 
before the war.'' He went on to say, ``I think the world is far safer 
with the disappearance and removal of Saddam Hussein. This may be one 
of these cases where he was more dangerous than we thought.'' The head 
of the Iraqi survey group.
  Next contention: Iraq would have supplied WMD to terrorists. During 
that same hearing Dr. Kay added, ``After 1998, Iraq became a regime 
that was totally corrupt. Individuals were out for their own 
protection, and in a world where we know others are seeking WMD, the 
likelihood at some point in the future of a seller and a buyer meeting 
up would have made Iraq a far more dangerous country than even we 
anticipated.''
  The 9/11 Commission during the 1990s found:

       Bin Ladin sought the capability to kill on a mass scale. 
     Bin Ladin's aides received word that a Sudanese military 
     officer who had been a member of the previous government 
     cabinet was offering to sell weapons grade uranium. After a 
     number of contacts were made through intermediaries, the 
     officer set the price at $1.5 million which did not deter Bin 
     Ladin. Al-Qaida representatives asked to inspect the uranium 
     and were shown a cylinder about 3 feet long and one thought 
     he could pronounce it genuine.

  Al-Qaida apparently purchased it, and it turned out that it was not a 
legitimate one.
  Given al-Qaida's demonstrated desire to acquire WMD and the Iraqi 
Government's likelihood of sharing WMD technology or actual devices 
with anyone for the right price, no one can dispute that the liberation 
of Iraq from Saddam's dictatorial and corrupt regime was a prudent 
offensive strike in the war on terror.
  Finally, some would argue Iraq is a quagmire and not winnable. But 
listen to the troops. They say otherwise. These are the boots on the 
ground, the soldiers, the marines. During a recent trip to Iraq, 
journalist Michael Graham spoke to more than 100 soldiers, sailors, 
airmen, and marines, with different ranks and duties, at their forward 
operating bases, and they overwhelmingly had the same things to say 
about the war in Iraq. And he went on to say that these 100 American 
troops made the following points: We believe in the mission. We are 
making progress. The Iraqis are making progress too. We are going to 
win.
  I believe that says it all. I ask unanimous consent that a copy of 
his article be printed in the Record after my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BOND. I believe that article says it all. Michael Graham's 
sampling of U.S. military personnel was random, varied, not controlled 
by the Pentagon. The sample may be small, but 100 troops believe in the 
war in Iraq and that we are going to win.
  History teaches us that the first casualty of war is truth. The first 
casualty of political battles can often be the men and women fighting 
the real battles while executing our Nation's policies. Let us not 
debase the memories of those who have laid such a sacrifice on the 
altar of freedom with meaningless finger-pointing exercises. Let's 
speak with truth about the issues and facts at hand.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. BOND. I thank the Chair, and I yield the floor.

                               Exhibit 1

                          Handing Over the Mic


                         Troops talk from Iraq

                          (By Michael Graham)

       I just spent a week in Iraq and Kuwait cultivating a skill 
     that I, as a talk-show host, have found nearly impossible to 
     master: shutting up.
       Turns out, it was easier than I thought, at least in Iraq. 
     When you're listening to a 20-year-old kid from Indiana tell 
     how he earned his second Purple Heart, speechlessness is the 
     natural reaction.
       I was there as part of the much-maligned ``Truth Tour'' 
     organized by Move America Forward, a conservative group based 
     in California. According to reports in the mainstream media, 
     I was part of a ``propaganda'' junket paid for by the 
     Pentagon to buy some desperately needed positive coverage of 
     the unwinnable military quagmire. All I can say is: If this 
     was a junket, it was the worst-run junket in the history of 
     public relations.
       My radio station and I had to pay all my expenses, I slept 
     on a bare cot in a tent in the desert, and at some locations 
     the only available ``food'' (and I use that term under 
     protest) were MREs--which stands for ``Meals Ready to Eat . . 
     . assuming you've already eaten both shoes and most of your 
     undergarments.''
       This alleged ``junket'' failed in another way, too. The 
     Pentagon didn't control what went out over the airwaves. Then 
     again, neither did I. I left it all up to the soldiers.
       I traveled about Iraq from Camp Victory at the Baghdad 
     International Airport to Camp Prosperity on the very edge of 
     the Red Zone, then down the Baghdad Highway to Camp Falcon, 
     and on to the Command Headquarters in the heart of the city 
     and, eventually, to the deserts of Kuwait and Camp Arifjan. 
     And everywhere I went, I flipped on my mic, sat back, and let 
     the troops tell their story.
       These soldiers weren't stooges from Public Affairs or 
     handpicked flag wavers foist on me by media handlers. I found 
     some in the mess hall, others working security checkpoints; 
     others sought me out because they have family living in the 
     D.C. area where my radio show is broadcast. The least 
     fortunate were the soldiers in Humvees stuck with ``tourist 
     duty,'' four friendly but serious young men who got stuck 
     with a couple of bonehead radio hosts riding along on patrol.
       In all, I spoke to more than 100 soldiers, sailors, airmen, 
     and Marines, with different ranks and different duties at 
     their FOBs (forward operating base), and yet they 
     overwhelmingly had the same things to say about the war in 
     Iraq:
       ``We believe in the mission.''
       ``We're making progress.''
       ``The Iraqis are making progress, too.''
       And, perhaps most important of all: ``We're going to win.''
       I expected to hear this sort of positive assessment from 
     General George Casey, commander of operations in Iraq, when I 
     interviewed him at his headquarters deep inside the 
     International Zone. When he pointed out that, one year ago, 
     there was just one standing battalion in the Iraqi army, but 
     there are

[[Page S9079]]

     107 battalions today, he was doing his job of supporting the 
     war. And I expected it from Lt. General Steve Whitcomb, 
     commanding general of the 3rd Army, as he talked about 
     successfully moving more than one million gallons of fuel 
     across Iraq every day, despite the best efforts of the 
     insurgents.
       Generals are supposed to be gung ho. It comes with the pay 
     grade.
       But I heard the same, positive assessments from 23-year-old 
     sergeants from New Iberia, La., and from PFCs from Wisconsin 
     and Alabama. I heard it from Lieutenant Li, whose Humvee had 
     been hit by IEDs so many times he'd lost count. I heard it 
     from Airman Truong, who was born in Vietnam and had recently 
     returned to his native country to marry. Two weeks after ``I 
     do,'' Airman Truong was headed back to Kuwait to do his duty 
     for his adopted country.
       Again and again, from ``white-collar'' soldiers working in 
     the relative safety of Camp Victory at the Baghdad airport to 
     the ``real'' soldiers patrolling Route Irish (a.k.a the 
     ``Highway of Death''), I heard that America and their Iraqi-
     army allies are winning the war against the insurgents. I was 
     told again and again by the soldiers themselves that their 
     (our) cause is just, the strategy is working, and the enemy 
     they fight represents evil itself.
       In other words, I heard things seldom heard on CBS or read 
     in the pages of the New York Times.
       It was only a week, and I have my obvious Bush-supporting, 
     troop-cheering biases, but how much closer can a reporter get 
     to delivering unspun, bias-free objective reporting than 
     live-mic broadcasting instantly back to the states? No edits 
     or filters or editorial meetings. Just the young men in the 
     hot desert telling what they've seen, what they've heard, and 
     what they now believe based on those experiences.
       Isn't it at least significant that not one in 100 thought 
     invading Iraq was a mistake? Was it mere coincidence that a 
     random selection of 100 soldiers all believe their mission is 
     worthwhile? Should we detect the hand of the Vast, Right-Wing 
     Conspiracy in the fact that the vast majority of the troops 
     find the media coverage of the war ignorant, harmful, or 
     both?
       I'm proud to say that, for a week, the soldiers had their 
     say. If I were the editor of a major daily newspaper or a 
     national network, I would be concerned that what they said is 
     so contrary to what I am printing or broadcasting.
       But the mainstream media don't need to hear from the 
     soldiers. They already know that the war was a terrible 
     mistake, that the world would be safer if we'd left Saddam in 
     power, and that there is no chance for victory in Iraq.
       Me, I'm not so smart. I like to let the guys on the ground 
     tell their story. I believe it is completely possible that 
     they know something that I--and the New York Times editorial 
     page--do not.
  The PRESIDING OFFICER (Mr. Chafee). The next hour is controlled by 
the minority.
  The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I am one Member, along with a number of my 
colleagues, who believes we should be debating not this gun liability 
bill but the Department of Defense authorization bill for the coming 
fiscal year. I serve on that committee. It was a good bipartisan 
effort. I was planning to offer an amendment to add $120 million for 
childcare and family support for the families of reservists and 
National Guard men and women who are called to active duty. Others had 
amendments, including one regarding BRAC, of particular note to me and 
others in Minnesota affected by that process.
  But we are not on that bill. Instead, we are dealing with the most 
special interest legislation I have encountered in my 4\1/2\ years in 
the Senate. We are going to leave at the end of this week for a month 
and we have one last window of opportunity to take up what presumably 
would be the most important measure before the Nation and the Senate. 
Instead, we get this special interest bill.
  We are not on stem cell legislation that would allow us to create a 
medically and scientifically based framework to protect the sanctity of 
human life or prohibit cloning, and yet still allow medical research 
that could save many thousands of lives for years to come. That is not 
the Republican leadership's top priority.
  Nor is the constitutional amendment to prohibit the burning or 
desecration of the American flag, of which I am a proud cosponsor, 
brought to the Senate. In my 4\1/2\ years in the Senate, not once has 
the leader brought that measure to the Senate for an up-or-down vote by 
the Senate. Evidently it won't happen this week, either, because, 
again, that does not rate as a top priority.
  No, according to the Republican leadership, the most important issue 
facing America and earning the most urgent attention of the Senate is 
the supposed need to give special immunity from the standards for 
negligence and product liability that apply to all other businesses and 
all other products. When this legislation passes, and it will pass with 
ease, because the NRA, National Rifle Association, has the money and 
the political clout to get whatever it wants around here, no matter how 
unnecessary, unfair, or ill advised it is, this bill will soon become 
the law of the land.
  One of its findings is:

       (7) The liability actions commenced or contemplated by the 
     Federal Government, States, municipalities, and private 
     interest groups and others are based on theories without 
     foundation and hundreds of years of common law and 
     jurisprudence of the United States and do not represent a 
     bona fide expansion of the common law. The possible 
     sustaining of these actions by a maverick judicial officer or 
     petit jury would expand civil liability in a manner never 
     contemplated by the framers of the Constitution, by Congress, 
     or by the legislatures of the several States. Such an 
     expansion of liability would constitute a deprivation of 
     rights, privileges and immunities guaranteed to a citizen of 
     the United States under the Fourteenth Amendment to the 
     United States Constitution.

  It goes on to say one of the purposes is to preserve a citizen's 
access to a supply of firearms and ammunition for all lawful purposes, 
something I certainly support.
  It goes on to say the purpose is to protect the right under the first 
amendment of the Constitution of manufacturers, distributors, dealers, 
and importers of firearms or ammunition products, and trade 
associations to speak freely, to assemble peacefully, and to petition 
the Government for redress of their grievances.
  This legislation is supposedly necessary to protect the first 
amendment rights of people in the lawful business of manufacturing, 
distributing, or selling firearm and buying the same.
  In the manufactured hysteria of this fabricated crisis, the 
Government or a maverick judicial officer or a petit jury evidently is 
threatening to violate the first amendment, the second amendment, and 
the 14th amendment rights of all gun manufacturers, distributors, and 
dealers in the United States of America. What utter nonsense. But if 
the National Rifle Association says the sky is green and the grass is 
blue, the majority of Congress will run for the paint.

  I strongly support the second amendment of the U.S. Constitution. I 
am a gun owner myself and a hunter. This bill does not benefit gun 
owners or hunters, who are most of the NRA members. They are being used 
to give special favors and special treatment to someone's special 
friends and someone's big contributors.
  Last year, according to industry data, there were over 1.3 million 
handguns sold in the United States. That is just handguns. Sales 
totaled $605 million. The sales of rifles and shotguns last year 
totaled $1 billion. The number of long guns sold was not available, but 
simple math puts that number well over 2 million rifles and shotguns 
sold in the United States last year.
  Given that volume of sales and weapons available, can anyone believe 
any law-abiding American's constitutional right to lawfully purchase 
and own as many guns as he or she wants is being endangered? What 
nonsense. Absolute nonsense.
  Our major gun manufacturers are certainly not in danger. Smith and 
Wesson's most recent annual report showed net product sales of $118 
million last year, an increase of almost 20 percent over the previous 
year.
  Sturm, Ruger and Company on July 20 of this year reported net sales 
for the 6 months ended June 30, 2005 as $78.7 million, an 8-percent 
increase over 2004, and the chief executive stated firearm unit 
shipments in the second quarter increased 11 percent from the prior 
year due to strong demand.
  This is not an industry being hounded out of business. Would the 
industry like to rid itself of all lawsuits stemming from products and 
sales? Of course, and so would every other industry and company in 
America. I am not here to defend our Nation's litigation practices, 
which are often excessive and sometimes even extreme, but whatever so-
called reforms are made should apply to everyone. Gun manufacturers and 
dealers are not the only people who make and sell potentially dangerous 
products or products that can be used illegally and misused. And

[[Page S9080]]

judges and juries are not indiscriminately finding against gun 
manufacturers. Most are probably gun owners and hunters as well.
  Despite what the NRA pedals to its members to justify its existence 
and their dues, the second amendment is accepted and respected by the 
overwhelming majority of Americans and there is no threat to 
responsible manufacturers, dealers, lawful buyers, or owners of the 
millions of guns in America. There is no justification for this special 
legislation and the special treatment it gives to that industry.
  Of course, the gun industry is accustomed to getting special 
treatment from Congress. Firearms and tobacco are the only two consumer 
products specifically exempt from regulation by the Consumer Products 
Safety Commission. What an exemption. I have to hand it to the NRA, 
whether I agree with them or not, they sure know how to operate around 
here. Many industries and even individual corporations pour a lot more 
money into lobbying and into political contributions than the NRA and 
they do not get nearly the special treatment, special favors from 
Congress the gun lobby does--a complete exemption from consumer product 
safety laws and regulations, and now almost complete immunity for 
lawsuits from negligence or product malfunctions. All other businesses 
and industries in America are in discount coach while the gun lobby has 
special privileges flying first class on Air America under this 
Congress and preceding Congresses.
  It is because there is that exemption from the consumer product 
safety laws of this country that some of these lawsuits, not frivolous, 
but determined by a judge or jury through the process to be legitimate 
and bona fide, and the resulting civil damages are necessary to move 
the industry to take some of the safety actions it can technologically 
and financially certainly afford to make that it probably would not do 
otherwise.
  For example, take Bushmaster. Their dealer lost the sniper's assault 
rifle along with 238 other guns that were then used by the snipers 
against the innocent victims in Washington, DC. As a result of its 
settlement with the victims of those families, they agreed also to 
inform their dealers of safer sales practices that hopefully will 
prevent other criminals from obtaining the guns, something that had 
never been done before.
  In June of 2004, two former New Jersey police officers were shot in 
the line of duty with a trafficked gun negligently sold by a West 
Virginia dealer. They won a $1 million settlement, and the dealer who 
sold the gun, along with 11 other handguns in a cash sale to a straw 
buyer for a gun trafficker--after that lawsuit that dealer, as well as 
two other area pawnshops, agreed to implement safer practices to 
prevent sales to traffickers, including a policy of ending large-volume 
sales of handguns.
  In 2004 also, Tennille Jefferson, whose 7-year-old son was 
unintentionally killed by another child with a trafficked gun, won a 
settlement from a gun dealer that amounted to $850,000. The handgun was 
one of many the dealer sold to the trafficker despite clear signs the 
guns were headed for the underground market. That, too, resulted in 
changes in policies and sales practices that hopefully will prevent 
other mothers from suffering that terrible fate of losing a child.
  I am not saying every one of those cases filed against the 
manufacturers or dealers is proper. Again, that is for the process to 
determine. But there is no evidence, no evidence at all, that there is 
anything about the nature of these suits, the outcomes of them, the 
jury awards relative to the damages that have occurred, that indicates 
this industry is being prejudiced or plagued by those who they contrive 
to be doing so, to justify this legislation. If we are going to reform 
the tort system in this country, let's do it openly and aboveboard with 
all industries, all of American businesses affected equally by those 
changes. To single out one industry, particularly one that 
manufacturers products, potentially, as dangerous as guns, is just a 
terrible day for the Senate.

  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, this is a sad day in the Senate. It is a 
sad day in two respects. Yesterday, we were debating a bill, the 
Department of Defense Authorization Act. It is an important bill. It is 
a $440 billion bill for our American military: our soldiers, sailors, 
marines, airmen, members of the Coast Guard, Guard and Reserve. We were 
trying, in that bill, to help our fighting men and women and their 
families.
  We had a long list of amendments that we wanted to consider: extra 
pay for totally disabled veterans, help for the widows and orphans of 
combat soldiers who die in the line of duty, fair compensation for 
Guard and Reserve when they are activated and they are Federal 
employees, daycare for the families of soldiers who are activated, 
quality-of-life issues for the men and women in uniform who are 
fighting for America.
  A decision was made by the Republican leadership to leave that bill, 
leave that issue, to come to this one. What could be more important for 
us to consider than the safety, the lives, and fortunes of the men and 
women who serve our country and risk their lives, on military duty, and 
their families?
  Well, in the estimation of the Republican leader, Senator Frist, 
there was one issue that was more important than talking about our men 
and women in uniform. That issue was providing immunity from liability 
for one industry in America, to say that of all the businesses in 
America that provide us with goods and services, all of the businesses 
that are currently held responsible for wrongdoing, we will create one 
exception. We will say, if the gun industry is guilty of wrongdoing, 
they cannot be sued. That is right. The firearms industry, which sells 
millions of firearms each year in the United States, should not be held 
responsible for their bad conduct and wrongdoing.
  It is hard to say those words and not shake your head. If personal 
responsibility is what it means to be an American and an American 
business man or woman, why in the world would you exempt one industry 
and say they are special, they are political royalty, they cannot be 
held liable for their misconduct? And why did we move to this bill and 
away from the Department of Defense authorization bill to help our 
soldiers and their families? The answer is too obvious. It is because 
of the political clout of the National Rifle Association and the gun 
lobby. It is the only group I can think of which would just go 
straightforward with the concept they are more important to the Senate 
calendar than the fighting men and women who are now risking their 
lives for our country. They have done it many times.
  The NRA runs certain people in this Chamber and on the other side 
when it comes to the agenda. They decide what will be taken up and what 
amendments will pass--an extremely powerful group. The NRA succeeded in 
having the Senate debate guns--and that is a rare debate--but only when 
it comes to this question of gun immunity.
  Isn't it interesting, we want to put an amendment on this bill that 
says when you sell a firearm you have to check to see if the purchaser 
is on a watch list of terrorists. Is that unreasonable? If you have 
computer access through your store--and these stores do--shouldn't you 
check to see if that person standing across the counter from you is on 
the watch list for terrorism in America? That concept is rejected by 
the National Rifle Association. Background checks: extremely limited. 
Information gathered about criminal people is to be destroyed so 
quickly that it is of little value to law enforcement.
  A March 2005 report from the Government Accountability Office found 
that between February and June of 2004, people on U.S. lists of 
suspected terrorists applied 44 times to buy guns. It is not unheard 
of. It happens in this country. In only nine instances were they turned 
down. In the months since the study ended, 12 more suspected terrorists 
had the green light to buy or carry guns.
  FBI Director Bob Mueller--whom I respect very much--said he was 
forming a group to study the problem. Why aren't we talking about this 
instead of granting immunity for the gun dealer who sells a weapon to 
someone he should have known could misuse it for a crime or for 
terrorism? We are shielding them from civil liability for not

[[Page S9081]]

living up to their responsibility when it comes to the sale of lethal 
firearms.
  Or we could talk about ways to solve the problem in America of guns 
being trafficked, many crossing State lines, and used in crimes. The 
ATF says 90 percent of the guns recovered in crimes were used by 
persons other than the original purchaser, other than ``straw men,'' 
people who bought them to sell them to criminals. One-third of all 
crime guns cross State lines.
  In my State of Illinois, 47 percent of guns traced to crimes 
committed in Illinois originated in other States. One State, 
Mississippi--the little State of Mississippi--is far and away the per 
capita leader in selling guns exported from their State and used in 
crime. Do you know why? Because firearms laws are not really strictly 
enforced in Mississippi, and some other States.

  From 2000 to 2002, Department of Justice prosecutors filed three 
cases in Mississippi for violations of gun trafficking laws. In 
contrast, 32 cases were filed in Kentucky, 28 in Tennessee. So we have 
gun dealers in Mississippi selling trunkloads of guns to people who get 
on the interstate and drive up to Illinois and, perhaps, your State, 
too, selling them to gun gangs and drug gangs on the streets, and then 
spreading out these guns to kill innocent people. And the people 
pushing this bill are arguing that we should not hold those firearms 
dealers responsible because they did not ``know'' that a crime was 
going to be committed.
  One hundred ``Saturday night specials'' to stick in the trunk of your 
car, junk guns, that you would never use for sports or hunting, and 
they didn't know? They should have known. That is a standard in law 
almost everywhere: that you knew or should have known. They are 
changing the law. They are saying, for firearms dealers, we are not 
going to hold them to this same standard that we hold every other 
business in America to when people buy products.
  There are lots of other issues we could talk about, the gun show 
loophole, and others. But I think one of the most important things we 
could talk about is why this bill is on the floor today. It is not 
because gun manufacturers and gun dealers are facing bankruptcy and a 
lot of litigation. I read into the Record yesterday--and will not 
repeat--the major gun manufacturers in this country have no problems in 
terms of profitability. In fact, one of the leading companies, Smith & 
Wesson, said:

       In the nine months ended January 31, 2005, [Smith & Wesson] 
     incurred $4,535 in [legal] defense costs, net of amounts 
     received from insurance carriers, relative to product 
     liability and municipal litigation.

  Mr. President, $4,500--does that sound like a business crisis that 
would move a gun immunity bill to the front of the calendar in front of 
the Department of Defense authorization bill? What it comes down to is 
this gun lobby has a lot of clout, and they are pushing for this 
sweeping immunity.
  What kind of cases are we talking about? I said to my staff, you can 
talk about the law. And I could stand here as a person trained in law 
school and go through the obvious problems with this bill. But I think 
it is more important to talk about real-life situations. It is more 
important to give illustrations of why this is such a terrible bill.
  Let me tell you about Anthony Oliver. Anthony Oliver was 14 years 
old. He was shot and killed on July 23 of last year while he was 
playing video games with his friend who was 13. Anthony's friend, his 
13-year-old friend, had just bought a gun on the street for $50. He 
told the police he bought the gun with his allowance near his home 
because he was intimidated by a group of kids who jumped his friend and 
threatened to beat him up. He said he thought the safety was on when he 
accidentally killed Anthony with one shot to the stomach.
  Federal investigators traced the gun. It was a ``Saturday night 
special,'' one of those cheap guns just used for crime. They traced it 
to Lou's Jewelry and Pawn store in Upper Darby, PA. From 1996 to the 
year 2000, this pawnshop in Pennsylvania sold 441 guns traced to crime. 
It ranks as the No. 1 dealer in Pennsylvania in selling guns to 
criminals and 43rd in the Nation among all gun dealers.
  In 2003, the last year for which we have statistics, Lou's sold 178 
guns traced to crime. That year, less than 1 percent of the more than 
3,000 dealers in Pennsylvania sold even one gun traced to crime. So you 
have a handful of dealers, just a small percentage, who are not paying 
attention or ignoring openly the fact that they are selling guns over 
and over and over again to gun traffickers and to straw purchasers.
  How is that done? Well, the person who has a criminal record and 
cannot buy a gun brings his girlfriend in, and while he is standing 
there picking out the guns, the girlfriend is handing over the credit 
card or the cash to pay for them. They cannot sell to him. He is a 
criminal. He has a record of felonies, so the girlfriend buys it. So 
should the gun dealer be aware of that? Why, of course. It is obvious.
  Should they be held accountable if they should have known that gun, 
through that girlfriend, is going straight into the hands of a felon, 
straight on to the street, killing innocent people? In America, a jury 
decides that. They will not be able to when this bill is passed. When 
this bill is passed, those who vote for it have decided they will be 
the jury forever when it comes to those questions of liability. We are 
taking that matter out of the hands of American citizens. We are 
putting it in the hands of a handful of Senators.
  The gun that killed Anthony was sold in 2003 by Lou's to a trafficker 
who had purchased six guns in a very short period. They bought multiple 
guns, including many ``Saturday night specials,'' which are small, 
easily concealed, low-quality handguns sought basically by kids, drug 
gangs, and those who are going to have a fast crime experience on a 
Saturday night.

  The purchase of multiple firearms at once should have been a red flag 
to Lou, but Lou doesn't pay any attention to that: Give me some cash--
I'll give you a gun; no questions asked.
  When this bill passes, the family of Anthony Oliver will lose their 
lawsuit, the lawsuit they brought against Lou's pawnshop that continues 
to sell these guns used in crime. So what a great piece of news for 
that family: the tragedy of losing your 14-year-old son to a ``Saturday 
night special'' from a pawnshop which specializes in selling guns to 
gun traffickers and criminals. This is a great bill, isn't it?
  Let me tell you about another case. Danny Guzman was a 26-year-old 
father of two from Worcester, MA, killed by a stray bullet fired 
outside of a nightclub on Christmas Eve in 1999.
  After the shooting, the loaded gun used in the shooting was found 
behind an apartment building by a 4-year-old child. The gun had no 
serial number. They determined the gun was one of several stolen from 
Kahr Arms, a Worcester gun manufacturer, by their own employees, who 
hired many of these employees and, it turns out, never checked whether 
they had criminal records.
  One of the thieves, Mark Cronin, who worked for this gun 
manufacturer, had been hired despite his history of crack addiction, 
theft, alcohol abuse, violence, and assault and battery. They did not 
check it. The gun manufacturer hired people to make guns and did not do 
a criminal background check on their employees.
  Cronin told an associate that he took guns out of the Kahr company 
``all the time'' and that he could just walk out the door with them. He 
took the gun that was used to kill Danny right off the assembly line. 
And he was pretty smart about it. He took it off the assembly line 
before it was stamped with a serial number. Smart guy. Can't be traced.
  The investigation also led to the arrest of another employee, Scott 
Anderson, who had a criminal history, who pled guilty to stealing guns 
from the company.
  Fifty Kahr firearms disappeared in a 5-year period. The local police 
captain classified the recordkeeping at that facility as ``shoddy,'' 
that it was possible to remove weapons without detection because they 
did not keep their records well.
  Danny Guzman's family brought a wrongful death suit in Massachusetts 
State court against the owner of the gun manufacturing company, saying: 
You should have kept your records so you could see that guns were being 
stolen. And you certainly should have done a background check on your 
employees. Hiring somebody who has such a criminal record to work in a 
plant

[[Page S9082]]

that makes guns is clearly a question of negligence.
  The trial judge denied the efforts of the company to dismiss the 
lawsuit, and it is still pending. Do you know what happens to that 
lawsuit by the family of Danny Guzman against that arms manufacturer if 
we pass this bill? It is immediately removed. They have no rights in 
court to pursue that. Why? Why would we say to a person who owns a 
company that makes guns that you are held to a lesser standard than a 
person who owns a company that makes toys? That is what it boils down 
to. You are doing it because the gun lobby insists on it. They want 
this immunity.

  The case that has brought many policemen forward--and I will close 
with this--involves police officers. The last time we debated this 
bill, we said: Shouldn't we at least create an exception that if the 
gun is used to kill a police officer in the line of duty, that we are 
going to hold a gun dealer responsible if they should have known that? 
Wouldn't we hold a gun manufacturer responsible if they were involved 
in supplying guns to Lou's Pawnshop, which ranks one of the highest in 
the Nation of turning guns over to criminals? So we asked for an 
exception for law enforcement. It was defeated. All the people here who 
talk about law and order and how much they love policemen in uniform 
defending our communities and neighborhoods with their lives voted 
against them when they had a chance to put that exception in the law.
  Let me give you a specific example. On January 12, 2001, police 
officers in Orange, NJ, were performing undercover surveillance at a 
gas station that had been robbed repeatedly. Someone acting 
suspiciously walked up to the gas station and then turned away. When 
Detective David Lemongello approached the man a few blocks away to 
question him, he responded by turning and opening fire. Detective 
Lemongello was hit in the chest and left arm, and the suspect fled. 
When additional officers, including Kenneth McGuire, found the man 
hiding beneath some bushes, the man started shooting again. Officer 
McGuire was hit in the abdomen and right leg. McGuire and two other 
officers returned fire and killed the man, even though they had been 
shot. Although Detective Lemongello and Officer McGuire survived, they 
have suffered serious, debilitating injuries.
  The man who shot them was wanted for attempted murder and had been 
arrested several times. So how did he get a gun? How did this man come 
into possession of a gun? Gun trafficker James Gray traveled from New 
Jersey to West Virginia to buy his guns. He and his companion, Tammi 
Lea Songer, visited Will's Jewelry and Loan, a pawnshop in South 
Charleston, WV, and Songer acted as a ``straw purchaser'' by buying the 
gun for Gray who couldn't purchase it himself because he was a three-
time convicted felon and out-of-State resident. The girlfriend bought 
the gun while he was standing there. Good old Will's Jewelry and Loan 
took the cash and handed the gun over.
  They returned to Will's 17 days later, purchased 12 more guns--see 
the pattern--which the girlfriend bought and paid for with thousands of 
dollars in cash. Should the gun dealer have been saying at this point, 
This looks a little fishy? I think so. Reasonable people would. Gray 
picked out the guns for the girlfriend to purchase in full view of 
Will's Jewelry and Loan pawnshop personnel, a clear signal this was a 
``straw purchase.'' One of those guns was the gun used to shoot these 
police officers, McGuire and Lemongello.
  Will's personnel had reservations regarding the nature of the 
transaction but went through with it anyway before contacting the ATF 
to report their suspicions. The ATF then contacted the girlfriend, 
Tammi Lea Songer, who agreed to assist them in a sting operation that 
resulted in the capture of Gray. However, in the time it took the ATF 
to set up its sting, Gray had already trafficked the gun--sold it on 
the street--which was used to shoot these police officers.
  The police officers and their families are suing the gun dealer, 
saying: You didn't use good sense and any reasonable standard of 
conduct in selling to this guy's girlfriend when you should have known 
something fishy was up. So they have a lawsuit against them and the 
manufacturer. Do you know what happens to this lawsuit from these 
policemen if this bill passes? It is over. Not another day in court. No 
chance for these wounded policemen or their families to recover.
  Will's settled, incidentally, with Officers McGuire and Lemongello 
for a million and agreed to change its practices in terms of 
underground traffickers. If the current bill passes before this 
settlement is reached and final, justice will not have been done. The 
shop would not have agreed to take the steps to make the streets safer.
  That is what we are up against--people who want to stand behind and 
protect gun dealers who are selling guns that they should know are 
going out on the street to menace and threaten innocent people.
  How in the world have we reached this point that we leave the 
Department of Defense bill to come to this? It is a sad day for the 
Senate. It is sad to think that one lobby has so much power over the 
Senate that they can move us away from the men and women in uniform, to 
whom we have a first responsibility, to protecting gun dealers like 
Will's pawnshop in Virginia or Lou's in Pennsylvania. What in the world 
are we doing here? We owe it to the men and women in uniform and the 
policemen who risk their lives for us to defeat this bill. We owe it to 
the mothers and fathers who want their kids to come home safe every 
night and not be menaced by driveby shootings and ``Saturday night 
specials'' to defeat this bill. It is time to decide who you are 
working for in the Senate. Is it the gun lobby or the policemen and 
families of America?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I realize we are up against a time limit. I 
ask unanimous consent that my comments appear as though in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Nomination of John Roberts

  Mr. LEAHY. Mr. President, I wish to take a few moments to bring 
people up to date on where we are on the John Roberts nomination to the 
Supreme Court.
  It is now a little over a week since President Bush made a dramatic 
evening announcement of his intention to nominate John Roberts to 
succeed Justice Sandra Day O'Connor on the U.S. Supreme Court. In the 
Senate, we haven't received this nomination. It has not come up yet. 
Nonetheless, we are well on the way to preparation for the Senate's 
process in considering the nomination.
  During the past weeks, some of us have met with Judge Roberts. We 
have urged him to be forthcoming at his upcoming hearing. The Judiciary 
Committee has already sent him a questionnaire seeking background 
information. Most importantly, Chairman Specter and I have already 
begun laying the groundwork for full and fair hearings which we are 
both committed to holding. I expect that we will soon be able to 
announce the Judiciary Committee's schedule for those hearings.
  Late yesterday, the White House provided some documents from Mr. 
Roberts' time when he served as special counsel to Attorney General 
William French Smith during the Reagan administration. None of us had 
requested these particular documents but, of course, we are always 
happy to receive anything they want to send. There are at least three 
categories of documents from Mr. Roberts' years in the executive branch 
that are relevant to this nomination.
  The second group relates to Mr. Roberts' work from 1982 to 1986 as an 
associate White House counsel under the supervision of White House 
Counsel Fred Fielding. These are apparently kept in the Reagan Library 
in California.
  Yesterday, in our continuing effort to expedite the process, we sent 
a letter to the White House asking that the files from those years be 
made available as quickly as possible, and to help speed it up, we 
identified by name the files we wished to be priorities. I hope the 
reported statements by White House officials over the last couple of 
days indicating they expect it will take 3 or 4 weeks to make these 
materials available are in error and, instead,

[[Page S9083]]

they can be made available on a prompt basis, not a delayed basis. 
Otherwise, it would almost appear--I certainly wouldn't want to suggest 
the White House would do this--that they are trying to make sure the 
documents arrive after the hearings and not before them or arrive so 
close to the time of the hearings, there would be no time to review 
them. I trust there will be those at the White House who would 
understand this would be the wrong way to proceed and would actually in 
the long run end up adding more time to the process.
  The third category of files is from Mr. Roberts' work when he was a 
political appointee in the Justice Department's Office of the Solicitor 
General. He served as Kenneth Starr's principal deputy during the prior 
Bush administration. The reason I say these are important, the 
President said that his work at this time was one of the reasons he 
selected Judge Roberts as his nominee. Of course, the President has 
every right to consider whatever reasons for a Supreme Court nominee. 
Having said that, however, in carrying out our responsibilities, it is 
appropriate that the Senate also be entitled to the same kind of 
information that the White House weighed in making its decision about 
this nomination. In other words, if this work is one of the reasons 
they say he is qualified to be on the Supreme Court, all the more 
reason the 100 Members of the Senate should be able to see it and make 
up our own minds.
  Actually, it might be the most informative of the documents we are 
going to seek. We could get a practical sense of how, when, and why 
politics and the law intersect for him. I am not expecting to seek 
production of all the files and the hundreds of matters on which Mr. 
Roberts worked in those critical years. Nobody is asking for that. 
Rather, in our effort to cooperate and expedite the process, we are 
putting together a targeted catalog of documents. I hope we can work 
with Chairman Specter to send a reasonable bipartisan request for a 
selected group of those files.
  In that regard, I ask unanimous consent that a copy of the letter we 
sent to the White House yesterday be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                    Washington, DC, July 26, 2005.
     Hon. George W. Bush,
     The White House,
     Washington, DC.
       Dear Mr. President: We are disappointed that the White 
     House appears to have so quickly moved to close off access by 
     the Senate to important and informative documents written by 
     Supreme Court nominee John Roberts while he was at the 
     Department of Justice. According to news reports today, your 
     Administration may be preemptively protecting thousands of 
     documents not even requested yet by the Committee--documents 
     that could very well hold important information necessary to 
     evaluate Judge Roberts' judicial philosophy and legal 
     reasoning.
       While many documents are being delivered today from Judge 
     Roberts' work for Attorney General William French Smith at 
     the Reagan Justice Department, it is far too early to 
     determine whether these documents are relevant, adequate, or 
     even helpful. It may be that this group of documents, along 
     with the upcoming hearings, will give us enough information 
     to fulfill our constitutional duty to advise and consent on 
     this nomination. But it would be premature for either the 
     Senate or the White House to make that determination now. 
     Judge Roberts spent some four years working for President 
     George H.W. Bush, and it may very well be that documents from 
     that time will be helpful to the Committee as well.
       It is our hope that the confirmation process moves swiftly 
     and smoothly over the coming weeks. We can assure you that no 
     Senator is attempting to unduly delay the proceedings. We 
     intend to work with Chairman Specter if and when further 
     requests for documents or information appear appropriate. But 
     in the meantime, we believe that judgment should be withheld 
     on which and how many documents regarding this nominee might 
     be released to the Senate. The history of past nominations is 
     varied but clear--each confirmation process is different, and 
     the type and number of documents shared between the White 
     House and the Senate has depended on the nature of the 
     debate, the needs of the Committee, and a cooperative 
     negotiation between the Senate and the White House. A blanket 
     statement that entire groups of documents are off limits is 
     both premature and ill advised.
       Finally, it is our understanding that many more publicly 
     available documents will soon be sorted and delivered to the 
     Committee. In the interests of speeding up the process, we 
     have attached a list of the document areas within that group 
     we feel would be most helpful to the Committee. To the extent 
     your staff can assist in expediting the delivery of those 
     documents, we would be grateful.
           Sincerely,
     Patrick Leahy.
     Dick Durbin.
     Joe Biden.
     Edward M. Kennedy.
     Charles Schumer.
     Dianne Feinstein.
     Russell D. Feingold.
     Herb Kohl.


                     particular matters of interest

       JGR/Law of War; JGR/Texas Redistricting; JGR/Abortion; JGR/
     Acid Rain; JGR/Affirmative Action Correspondence; JGR/
     Appointment Correspondence 1985; JGR/Appointee Memos, 
     Clearance, Announcements, etc.; JGR/Appointments Clause; JGR/
     Asbestos Legislation; JGR/DC Chadha; JGR/Change in 
     Presidential Term; JGR/Civil Rights Commission; JGR/
     Comparable Worth; JGR/Conflicts of Interest; JGR/Death Squads 
     Investigation--SSCI; JGR/DOJ Daily Reports; JGR/EECO; and
       JGR/Equal Opportunity in Education; JGR/Ethics; JGR/
     Exclusionary Rule; JGR/First Amendment; JGR/Flag, American; 
     JGR/Independent Counsel; JGR/Iran Emergency; JGR/Jones, Bob--
     Univ. Decision; JGR/Judges; JGR/Legal Services Corporation; 
     JGR/Pardons; JGR/Political Activity; JGR/Pro Bono; JGR/
     Reagan--Bush Rallies Guidance; JGR/Recess Appointments; JGR/
     School Prayer; JGR/Supreme Court; and JGR/War Powers.

  Mr. LEAHY. When we review the documents volunteered by the White 
House, obviously, we are going to be asking, Is this more of the old 
trick of flooding us with stacks of really unimportant materials in 
order to divert attention from those that matter the most? I hope the 
White House will begin to work with us instead of acting unilaterally.
  There is one very easy way. They could send up documents that make no 
sense. They could say, Here is 400 pages of something he had on his 
desk every day when he was working as a political appointee of the 
Justice Department, and send us the telephone book. That is 400 pages. 
It was on his desk. It is not very helpful.
  So the bottom line is this: The White House is eager to supply 
documents it selected and certainly provided with great fanfare, but we 
have yet to receive the documents we have, in fact, requested. It is an 
unfortunate pattern we have seen too often. Of course, the White House 
has available to it all the documents. The President has spoken about 
the designee's work in the Reagan White House and at the Bush Justice 
Department. But they have yet to share those materials with the Senate.
  Other nominations have run into trouble when this White House has 
decided to let the Senate see only what the White House wants the 
Senate to see. If the White House's midnight announcement on Monday 
that was reportedly embargoed to deny Democratic Senators an 
opportunity to comment is, contrary to appearances, actually intended 
to begin a dialog about documents, then I welcome it. Of course, if it 
is intended to unilaterally preempt a discussion about documents the 
Senate may need and is entitled to, then this is regrettable.
  Past administrations, Republican and Democratic, have been willing 
cooperatively to work with the Senate to accommodate its requests for 
documents. There are ample precedents in both parties documenting such 
cooperation. I believe the Senate is going to need the White House's 
full cooperation to expedite the scheduling of this process as the 
President has requested.
  Let us be serious. Now that the White House has gotten the stagecraft 
out of the way, let's go back to working on the substance of the 
Senate's work on this very important nomination. The President has, 
rightfully so, announced his choice. Now the Senate must rise to the 
challenge and do its work. To fulfill our constitutional duties, we 
need to consider this nomination as thoroughly and carefully as the 
American people deserve. A Supreme Court Justice is not there to 
represent either the Republican or Democratic Party; they are there to 
represent all 280 million Americans. The Senate is supposed to find, Is 
this the person the American people deserve, all 280 million of them?
  That takes time, it takes the cooperation of the nominee, and it 
takes the cooperation of the administration. It means that Republicans, 
as well as Democrats, have to take our constitutional obligations on 
behalf of the American people seriously.

[[Page S9084]]

  Let us remember this is not to see who scores political points. This 
is to determine how we protect the rights of all Americans--the 
ultimate check and balance for all Americans. This is somebody who 
could well serve until the year 2030 or beyond.
  Mr. President, I see the distinguished senior Senator from Rhode 
Island.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. REED. Mr. President, I commend the Senator from Vermont for his 
eloquent remarks. I will talk about the legislation before us, the gun 
liability legislation.
  The legislation before us cannot be all things. It cannot be an 
effective barrier against litigation to protect the gun industry and, 
at the same time, be a way to protect legitimate rights of citizens who 
have been injured or killed by guns. It is not both; it is one of them. 
It is carefully, cleverly worded legislation to immunize the entire gun 
industry from virtually any type of liability.
  There are, perhaps, minor exceptions, but the most important, 
compelling cases we have seen in recent years--the case of the DC 
snipers, the case of Police Officers Lamongello and McGuire in New 
Jersey, and the pending case of Kahr Arms in Worcester, MA--would be 
barred. I don't think that is a mere incidental coincidence. They will 
be deliberately barred.
  Thankfully, the first two cases were settled after the Senate 
rejected this legislation last year. The families of the victims of the 
Washington area snipers had their day in court and were able to go 
forward, and a settlement was reached. Officers Lamongello and McGuire 
similarly had the opportunity to press their cases, and a settlement 
was reached, but the Kahr Arms case is still pending in court.
  One of the sweeping aspects of this legislation is that it does not 
merely attempt to set the rules prospectively, as we go forward, to say 
these cases would not be heard by a court in the U.S.; it literally 
walks in and tells people who have filed cases--cases that have 
survived motions for summary judgment, cases which judges, looking at 
the facts and circumstances and the law, have said at least can go 
forward to trial and jury--it would take those cases and throw them out 
of State courts and out of Federal courts if they have been filed.
  Let's take a look at the Kahr Arms case. It is the case of Guzman v. 
Kahr Arms. It was filed under the wife's name--Hernandez, I believe. It 
involves Danny Guzman and Kahr Arms. A lawsuit was filed by the family 
of 26-year-old Danny Guzman of Worcester, MA, who was fatally wounded 
with a 9 mm handgun that was stolen from the Kahr plant by a drug-
addicted employee who had a criminal record. The manufacturer, Kahr 
Arms, operated the factory without basic security measures to protect 
against theft, such as metal detectors, security mirrors, or security 
guards. Guns were routinely taken from the factory by felons the 
company had hired without conducting background checks.
  The gun used to kill Danny Guzman was one of several removed by Kahr 
Arms employees before serial numbers had even been stamped on them, 
rendering them virtually untraceable. Some point has been made about 
the fact that it is illegal to erase serial numbers. These people were 
able to get the weapons before serial numbers were imprinted upon the 
weapons, so that law would not apply at all. The guns were then resold 
to criminals in exchange for money and drugs. The loaded gun that 
killed Mr. Guzman was found by a 4-year-old behind an apartment 
building near the scene of the shooting. Thank goodness that 4-year-old 
didn't decide to test the weapon himself or herself.
  Had Kahr Arms performed background tests or drug tests on prospective 
employees, or secured its facility to prevent theft, Danny Guzman might 
be alive today. A Massachusetts court held that the suit states a valid 
legal claim for negligence, but this bill would throw the case out of 
court, denying Danny's family their day in court.
  Again, this is the Congress reaching into a State court and telling 
that judge, we don't care what your law says, we don't care what 200 
years of legal precedent in Massachusetts or any other State in the 
country amounts to. This suit should be stricken, taken out, thrown 
out.
  This legislation is sweeping and it is unprecedented. It deals a 
serious blow to citizens throughout this country, while enhancing 
dramatically the legal protections for the gun industry. Now, the 
bill's proponents repeatedly say you cannot hold someone responsible 
for the criminal actions of another--as my colleagues have said, the 
intervening criminal actions of another.
  First of all, that is not what this case is about. And, frankly, that 
is not the law. I am surprised that my colleagues who are attorneys 
would come down and make such an erroneous statement about the law. A 
memorandum by a professor at the University of Michigan Law School 
points out that in the restatement of torts--this is as in all law--
this is the basic summary of the status of the law in the U.S. with 
respect to torts. Section 449:

       If the likelihood that a third person may act in a 
     particular manner is a hazard or one of the hazards which 
     makes the actor negligent, such an act, whether innocent, 
     negligent, intentionally tortious, or criminal, does not 
     prevent the actor from being liable from harm caused thereby.

  This is black letter law. There is no special exemption for the 
criminal act of another if you fail in your duty to the public. And the 
duty here with respect to Kahr Arms is to secure dangerous weapons and 
to have employees who are responsible. That is what they are being sued 
about. They have a duty under the law for the whole community to act in 
a way that will not unnecessarily cause harm to others. What should be 
decided in a court is whether they lived up to that duty. If this 
legislation passes, they will be denied the opportunity to determine 
whether their duty to the community was upheld.

  This is about responsibility for their actions--in this case, the 
actions of Kahr Arms Company. In the case of gun dealers, it is the 
requirement and the obligation to take precautions, to use the standard 
of care a businessperson would use in the conduct of that business--the 
standard of care any businessperson would use. Certainly, this standard 
of care should apply to those who manufacture weapons, who sell 
weapons, and the trade associations associated with them.
  The allegation in all these cases is that they failed to do that--not 
that they were unwitting, incidental victims of a criminal mind, but 
that they failed in their duty. Bull's Eye Shooter Supply in Washington 
State, for example, who supplied the Washington snipers with their 
sniper weapon, could not account for 238 weapons. They had no idea 
where they were. The evidence was overwhelming that there was no 
standard of adequate care, no effective controls on inventory. The 
owner of that gun store claimed a teenager--he didn't realize it at the 
time--must have walked in and shoplifted an automatic weapon, a 3-foot-
long sniper weapon, and carried it away, undetected, during business 
hours. In fact, this was missing without his knowledge for weeks and 
months. That is not the standard of care the community should expect 
from anyone engaged in this type of business. Is that the standard of 
care? No, it is not the standard we expect. It is particularly not the 
standard when you are dealing with weapons that can kill people. I 
would think most Americans on the streets, if you asked them, Would you 
say gun dealers and manufacturers should be a little more cautious than 
people who make other items, I think the answer would be, invariably: 
Yes, of course. These are inherently dangerous products.
  So this is not about punishing people for the criminal activities of 
others. It is about holding individuals and corporations up to the 
standard of conduct we expect from everybody. There are various 
examples. Some say, my goodness, if a store sells someone a knife that 
is then used in a crime, they should not be responsible. Others have 
talked about car dealers. But if you have the car dealer who leaves the 
keys in a car, and they have no security, and a teenager gets into that 
car and harms someone, certainly I think the parents of that individual 
harmed or that individual themselves could go to court and say this 
dealer didn't meet the rational standard of care of those in the 
automobile industry. They have to secure the car and provide security.

[[Page S9085]]

They cannot make them so easily available that a young person would 
take the car and get into an accident. That applies to automobile 
dealers.
  But if this legislation passes, common sense doesn't apply to the gun 
industry in this country. In fact, this is a license for 
irresponsibility we are considering today. Whatever precautions they 
are taking today, because they might anticipate this type of danger and 
anticipate, perhaps, litigation, there is no incentive after today to 
take those rudimentary precautions. There will be a race to the bottom, 
to the worst standards of the industry, to the worst operations of the 
worst operators.
  With this bill, we are saying, in addition to your Federal firearms 
license, you get another license; you can be irresponsible. That is not 
to suggest all dealers and manufacturers are irresponsible. But some 
are. Those very few have landed in court--very few.
  We talk about junk lawsuits. It is not a junk lawsuit when your 
husband has been shot by a sniper while sitting in a bus waiting to go 
to work, to drive his bus, to service this community, to pick people up 
and get them to work. I don't think the family of Conrad Johnson 
volunteered to be part of a social experiment. I think any suggestion 
to that effect is offensive. They have been harmed grievously. A wife 
lost her husband. Children have lost their father. The livelihood of 
this family is in question. They seek redress, as anybody would. That 
is not a junk lawsuit.
  On the contrary, these families have been harmed, in part, because of 
the negligence of someone, and that someone should pay. The suggestion 
that this legislation is in response to some avalanche of lawsuits that 
is devastating the firearms industry is without foundation. The 
industry is so stressed that they have managed to raise, preemptively, 
$100 million to protect themselves--not just in terms of going to court 
and paying claims, but also in terms of controlling documents and 
communications between themselves and their attorneys, so they can 
claim the benefits of the law, attorney-client privilege, at the same 
time they are trying to take away the benefits of the law from average 
citizens who have been harmed by guns. That is a stunning hypocrisy.
  This is not an industry that seems to be without resources. As my 
colleagues have said, and as I have said, in some of these annual 
reports to the SEC, companies have said there were adverse effects 
because of these suits, but ``don't worry, stockholders, we are not 
losing any money.'' One company reported out-of-pocket costs of $4,500 
in a period of less than a year for this type of litigation--$4,500. 
For that, we are here on this floor to take away rights of Americans 
they have enjoyed for over 200 years to go to court, to allege they 
have been harmed by a negligent industry, and let a jury of their peers 
decide it.
  We are not facing a situation where we would be without gun 
manufacturers because of these lawsuits. It is outlandish to suggest 
our national security is being jeopardized because we cannot find 
people in the United States who produce firearms, and that American 
companies cannot stand up to this torrent of lawsuits. And the 
suggestion that we have to turn to firearms suppliers for our military 
is rather odd. Indeed, today, many, if not most, of the suppliers for 
national defense are the subsidiaries of foreign companies. Browning, 
Winchester, and Fabrique Nationale, which supplies M-16 A-4 assault 
rifles and the M-2 49G squad automatic weapons are subsidiaries of 
Herstal, a Belgian firm. The Pentagon contracted with H&K, a German 
firm, to help develop the next generation of weapons.
  Clearly, the Pentagon doesn't believe American manufacturers are so 
distressed that they have to go overseas. They are going overseas 
because they are looking for what they consider to be the best product 
and best design. They are dealing with subsidiaries of foreign 
companies. The suggestion, of course, that these suits are driving 
America and the Pentagon away from acquiring American-made weapons is 
ludicrous.
  It is not about preserving our defense. It has nothing to do with our 
defense. The Pentagon is making decisions to buy foreign weapons 
because they believe they are better weapons. This is about protecting 
one industry from the legal responsibility to exercise caution, a 
responsibility every individual must exercise. All industries must do 
that or, indeed, the vast majority.
  This is not about protecting the integrity of the courts. What does 
it say to the integrity of the courts of West Virginia when a judge 
found that a suit brought by two brave New Jersey police officers 
should proceed, when we say: No, you are wrong, throw that case out. 
What will it say to Massachusetts courts if we pass this legislation 
when that case against Kahr Arms is thrown out the door? It will say we 
are meddling in the affairs of the courts in an unprecedented fashion. 
Thankfully, Officers Lemongello and McGuire were able to settle their 
legitimate case, but there are cases pending, and those cases have to 
be dealt with.
  I urge my colleagues to reject this gun industry immunity bill.
  I want to make one other point before I yield the floor. Much has 
been made of a letter from the Beretta Company about the danger of an 
avalanche of lawsuits. If you look closely, what has happened is the 
District of Columbia, their duly constituted legislative body, passed a 
strict liability bill. The courts have upheld that. They say it is 
appropriate. That is the American system, legislators pass bills. That 
is what we are trying to do today. That is a strict liability bill, and 
that may raise concerns with the gun industry. This bill goes way 
beyond strict liability. It says simple negligence is out the door, and 
to conflate those two arguments does a great disservice to the accuracy 
of the truth of this debate.
  Mr. President, I believe my time has expired. I yield the floor.
  Mr. CRAIG. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I ask unanimous consent that we stay on the 
Defense bill and that upon completion of that bill, we go to the gun 
liability legislation.
  Mr. FRIST. Reserving the right to object, Mr. President, reflecting 
on yesterday, if we had invoked cloture yesterday, we would have been 
able to complete the Department of Defense authorization bill. We were 
unable to invoke cloture. I made it clear at that time at some point we 
would return to the Department of Defense authorization bill, a very 
important bill.
  At the same time, we have about five pieces of legislation we have to 
address over the next 72 hours. We need to move on, as we will shortly 
do.
  Also, the chairman and ranking member will have the opportunity over 
the next few days and weeks to take these more than 200 amendments, 
look at those amendments and see how many are absolutely necessary, 
based on their judgment, and then we can come back and address the 
issue of defense.
  Finally, I ask that the Democratic leader consider my request from 
yesterday so that at any time determined by the majority leader, in 
consultation with the Democratic leader, then the Senate resume 
consideration of the Defense authorization bill.
  Mr. REID. Mr. President, if the Senator will withhold for one second. 
There is now before the Senate a request to stay on the Defense bill 
and finish the gun bill when the Defense bill is finished. It is my 
understanding the distinguished majority leader has asked to modify 
that request so that he would be able to call up the Defense bill at 
any time he wishes; is that the way I understand the request as 
modified?
  Mr. FRIST. Mr. President, I will phrase it that at any time 
determined by the majority leader, after consultation with the 
Democratic leader, the Senate will resume consideration of the Defense 
authorization bill.
  Mr. REID. Mr. President, I understand that. I am disappointed we are 
not going to the Defense bill. My statement has been spread on the 
Record consistently and repeatedly, so there is no need for me to give 
that speech again.

[[Page S9086]]

  Mr. KENNEDY. Reserving the right to object, can the leader give us 
some indication as to when we will go on the Defense authorization 
bill, as one who has an amendment and is glad to participate?
  Mr. FRIST. Mr. President, I am happy to say, that is why I 
specifically stated in my unanimous consent request ``in consultation 
with the Democratic leader.'' Until we get through the highway bill, 
the Energy bill, Interior appropriations, Legislative Branch 
appropriations, and gun liability, it is going to be hard for me to 
predict exactly when--plus we have a 5-week recess between now and 
then.

  The whole purpose of my unanimous consent request is I stay in touch 
through consultation with the Democratic leader to find the appropriate 
time.
  Mr. KENNEDY. Mr. President, I will not object. My feeling is, I 
regretted the fact we got off the Defense bill--particularly because of 
its importance to our national security--to go on to this gun liability 
bill. I am not going to object to the leader coming back. As one who 
has an amendment--I know many of our colleagues were eager to focus on 
those amendments. We will expect to hear from our leader as to when the 
leader will do that.
  Further reserving the right to object, is it the intention of the 
leader to permit amendments to the gun liability bill so we will, now 
that we are on that legislation, at least be able to talk about and 
offer amendments on the gun liability legislation?
  Mr. FRIST. Mr. President, it is our intention--and I will be offering 
an amendment shortly--but we will be in discussions with the leadership 
and the ranking member and chairman discussing amendments and allowing 
them to be offered accordingly in the judgment of the chairman and 
ranking member and the leadership.
  Mr. KENNEDY. Mr. President, I am not going to object to the other, 
but that sounds to me as if--having been around and familiar with the 
rules of the Senate--they can effectively let what amendments come up 
that are agreeable to the floor managers and deny other Members the 
opportunity to offer amendments. I think the Senate rules provide, when 
we are dealing with cloture, to be able to offer amendments that are 
relevant to the underlying bill. I don't understand why we are not 
going to be permitted the different options. I am not going to object 
to the leader being able to go to Defense authorization when he wants 
to, but it does seem to me we are facing a stacked deck here and 
denying Members under the Senate rules the opportunity which the rules 
provide for. It would be simple to say we are going to run 
consideration of the gun liability according to the Senate rules. That 
would be the answer most of us would have hoped. I guess there is a 
different plan ahead for the Senate, but we all want to be fully aware 
of what that means. That means some Members will be able to get their 
amendments in and others will not.
  Mr. REID. If I can say one thing, I think it was an oversight on the 
part of the majority leader, but one of the issues we have to deal with 
before we leave is Native Hawaiians also.
  Mr. FRIST. Mr. President, that is correct, and I was thinking the 
exact same thing when I was talking, and Department of Defense as well. 
We have a whole range of issues. The Democratic leader knows I am in 
constant discussion with him as to how we are going to get the business 
done, and the fact we did not get cloture yesterday on the Department 
of Defense bill, we are moving ahead in an orderly fashion, hopefully 
in a civil way, working with the other side, through the managers on 
the Democratic side and Republican side, with the leadership in order 
to complete the business this week.
  Mr. President, I guess we have a modified unanimous consent request 
that at any time determined by the majority leader, after consultation 
with the Democratic leader, the Senate resume consideration of the 
Defense authorization bill; is that correct?
  The PRESIDING OFFICER. That is correct. Is there objection to the 
request as modified? Without objection, it is so ordered.
  The PRESIDING OFFICER. Under the previous order, the hour of 2 p.m. 
having arrived, the Senate will proceed to a vote on the motion to 
proceed to the consideration of S. 397.
  The question is on agreeing to the motion.
  The motion was agreed to.

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