[Congressional Record Volume 153, Number 145 (Thursday, September 27, 2007)]
[Senate]
[Pages S12189-S12206]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2008

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of H.R. 1585, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (H.R. 1585) to authorize appropriations for fiscal 
     year 2008 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe military 
     personnel strengths for such fiscal year, and for other 
     purposes.

  Pending:

       Nelson (NE) (for Levin) amendment No. 2011, in the nature 
     of a substitute.
       Warner (for Graham-Kyl) amendment No. 2064 (to amendment 
     No. 2011), to strike section 1023, relating to the granting 
     of civil rights to terror suspects.
       Reid (for Kennedy-Smith) amendment No. 3035 (to the 
     language proposed to be stricken by amendment No. 2064), to 
     provide Federal assistance to States, local jurisdictions, 
     and Indian tribes to prosecute hate crimes.
       Motion to commit the bill to the Committee on Armed 
     Services, with instructions to report back forthwith, with 
     Reid amendment No. 3038, to change the enactment date.
       Reid amendment No. 3039 (to the instructions of the motion 
     to recommit), of a technical nature.
       Reid amendment No. 3040 (to amendment No. 3039), of a 
     technical nature.
       Casey (for Hatch) amendment No. 3047 (to amendment No. 
     2011), to require comprehensive study and support for 
     criminal investigations and prosecutions by State and local 
     law enforcement officials.
       Coburn amendment No. 2196 (to amendment No. 2011), to 
     eliminate wasteful spending and improve the management of 
     counter-drug intelligence.
       McCaskill (for Webb) modified amendment No. 2999 (to 
     amendment No. 2011), to provide for the study and 
     investigation of wartime contracts and contracting processes 
     in Operation Iraqi Freedom and Operation Enduring Freedom.

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 2 hours of debate equally divided between the two leaders prior 
to the cloture vote on amendment No. 3035 offered by the Senator from 
Massachusetts, Mr. Kennedy.
  The Senator from Massachusetts is recognized.


                                Schedule

  Mr. KENNEDY. Mr. President, briefly, let me outline the schedule for 
this morning. Under an order entered last night, there are 2 hours of 
debate equally divided prior to votes on pending cloture motions on the 
two hate crimes amendments.
  Once the votes begin, around 11 this morning, there will be very 
brief debate between the votes, so Members

[[Page S12190]]

should remain close to the floor during that time.
  Once action has concluded on the hate crime amendments, the Senate 
will then have a brief debate prior to the cloture vote on the motion 
to concur to the House amendments to the Senate amendments to the CHIP 
legislation.
  Therefore, Members can expect five rollcall votes starting around 11 
this morning.
  Mr. President, I ask unanimous consent that the 10 minutes 
immediately prior to the first vote be controlled equally between the 
two leaders, with the majority leader controlling the last 5 minutes, 
and that after the first vote, the remaining votes be limited to 10 
minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. KENNEDY. Mr. President, I ask unanimous consent if there are 
quorum calls during this time, they be evenly divided.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. KENNEDY. Mr. President, I see my friend and one of the principal 
architects of this CHIP program on the floor. I know he desires to 
speak for some time. I am glad to accommodate him. I think I am going 
to speak on both of the measures that are before the Senate, both the 
CHIP program as well as the hate crimes. So I do not know what the 
desire of the Senator from Utah would be. But I will be glad to yield 
to him.


                                  CHIP

  Mr. President, as the instructions to the Senate said, later in the 
morning, we are going to have an opportunity for the Senate to express 
itself on what is commonly known as the Children's Health Insurance 
Program, a program that has effectively been in place now for some 10 
years and has made a very significant and important difference in the 
quality of life for children.
  It has been said, and I certainly agree, that the great test of a 
nation and a civilization is how it cares about its children. Some 10 
years ago, the Senator from Utah, myself, others, were very much 
involved in the fashioning, the shaping of this legislation.
  It has made a very important difference, which we will come to in a 
moment, to the quality of health care for children in this country. The 
Senate, later this morning, is going to make a judgment whether we are 
going to continue that march for progress for children and expand that 
opportunity or whether we are going to take a different course and say 
that is not a national priority.
  Being in the Senate and voting is about priorities. Priorities. 
Members in this body express themselves in votes by indicating our 
priorities, both our priorities in the allocation of resources, our 
priorities in views with regard to foreign policy.
  This morning, we are going to be making a judgment whether we think 
it is appropriate that we continue this real march for progress for 
children in this country with this Children's Health Insurance Program 
that has proved to be so successful.
  First, I wish to show what President Bush himself has stated about 
the Children's Health Insurance Program. This is the quote of President 
Bush from the 2004 Republican Convention, not all that long ago, when 
he said:

       America's children must also have a healthy start in life. 
     In a new term, we will lead an aggressive effort to enroll 
     millions of poor children who are eligible but not signed up 
     for the Government's health insurance programs.

  That is what we are talking about, the CHIP program. Here is the 
President saying:

       In a new term, we will lead an aggressive effort to enroll 
     millions of poor children who are eligible but not signed up 
     for the Government's health insurance programs. We will not 
     allow a lack of attention, or information, to stand between 
     these children and the health care they need.

  Well, that is the issue. This is the place where that promise and 
pledge is going to be tested later this morning. Many of us are going 
to say: President Bush was absolutely right when he made that 
statement. But since he has made that statement, he has come to a 
different position where he is urging opposition to that position 
today.
  We can understand why the President came to that position because we 
can look at the record of the last 10 years. In the evaluation of the 
CHIP program, this is the Center for Medicare and Medicaid Services, it 
is an administration department, effectively known as CMS, the Center 
for Medicare and Medicaid Services, this is in the Department of Health 
and Human Services. This is their evaluation as of September 19, 2007:

       Over the past 10 years, the CHIP program has improved 
     overall access to care.

  Improved overall access to care.

       Reduced the level of unmet need.

  Reduced the level of unmet need.

       And improved access to dental care, expanded access to 
     preventive care.

  Expanded access to preventive care. Imagine the parents who may have 
taken a little time this morning and said: This is going to be an 
important vote in the Senate today. I think I will listen to it. What 
is this program all about?
  Well, here we have the President of the United States, who has 
endorsed this, said it ought to be expanded, and then we have the 
evaluation of the program, not by those of us who were there at the 
very beginning and who supported the program but by the 
administration's own evaluation. This is what they say--and who can 
differ with that? Those who have been opposed to it have been unable to 
challenge this: Improved the access to care, reduced the level of unmet 
need, improved access to dental care, expanded access to preventive 
care.
  Every parent knows the importance of preventive care for their 
children. Anyone who cares about health care policy knows that it is 
enormously important at any time and particularly in a child's life. 
And ``reduced emergency department use.'' That is the final item that 
is mentioned in this chart.

  But this has importance in a number of different ways. It means they 
are taking care of children before they need the emergency care, 
because their illness, their throat infections, ear infections, other 
infections have been addressed in preventive care, so they do not have 
to go to the emergency room.
  What is the result of the emergency room visit when the child gets a 
great deal sicker? More often than not, the parents cannot afford to 
pay the bills. Or if the bills are there, they are out of sight. So the 
costs, in terms of the health care system, are dramatically enhanced 
when the children go to the emergency room. The costs, in terms of the 
parents' anxiety, are dramatically enhanced when the children have to 
go to the emergency room.
  Last night, there were millions of parents who were wondering, when 
they were listening to their child cry in the night, whether that child 
was $150 or $250 sick, because that is what the cost was going to be in 
an emergency room. Maybe I will wait it out. Maybe I am making the 
minimum wage. Can I afford to dig deeper and pay those $250? So I am 
going to let my child remain without being taken care of during the 
night, to see if that child gets better, rather than having the 
preventive care. It is a moral issue, a defining moral issue, a 
priority issue, a moral issue for this country.
  So that is the evaluation of the administration, the statement of the 
President. We can understand why the administration has come up with 
that kind of--those results, because of the extraordinary reduction in 
the uninsured rate for children.
  If you look, going back to 1997, almost 25 percent of all children 
had no coverage. Look at this red line going down over the years as the 
CHIP program is reaching out through the States. This was worked out in 
these careful negotiations, which Senator Hatch was also involved in, 
to make sure it was going to be a State program, State-run, State 
priorities, States establishing the deductibles, the copays, States 
making the judgments about those items, States setting up the whole 
program. It is going to be effectively a private insurance program. 
That is what confuses me about the administration talking about a 
Government-run program. This is effectively a State-run program built 
upon private insurance.
  The delivery system is very much like the administration favored with 
the prescription drug program. So we see this dramatic reduction in 
terms of children.
  Now, what has been the reaction? This, for example, is one of the 
blessings of this program. Not only are the

[[Page S12191]]

children healthier with the CHIP program--this is an evaluation of how 
the child does in class. Not only are we getting a healthier child. We 
are getting a more attentive child. We are all challenged here, and 
certainly we are in our education committee, as we are looking out 
across at the various education programs how we are going to try to 
deal with children improving in terms of their attention and also 
keeping up with the school activities.
  This last week, the Secretary of Education announced the improvement 
of children in what they call the NAPE test, children are improving. I 
am so proud of Massachusetts being the No. 1 State, in terms of the 
results. That is basically because the State got started on many of 
these reforms before the Congress did.
  But there is no question in my mind that a principal part of the 
improvement of children doing well academically is as a result of the 
CHIP program.
  This is the proof: paying attention in class, from 34 percent to 57 
percent; keeping up with school activities, from 36 to 61 percent. It 
is understandable. If children can't see the blackboard, if they can't 
hear the teacher, if they are sick, they are not going to learn. If 
they are healthy, they can learn. It is pretty fundamental, but 
evidently there are some who haven't learned the lesson.
  We are constantly challenged, if we are going to be one country with 
one history and one destiny, about moving along together, moving all 
the children--White, Black, Hispanic--together. Before CHIP, you had 
important unmet health care needs reflected in disparities between the 
different races. Once we had the CHIP program put in place for the 
children, we effectively saw an important improvement in the health of 
children, and all the children moved along together.
  This is for a typical disease. We chose asthma because it has been a 
disease which has been expanding over time, unquestionably, because of 
the relaxation of a variety of different environmental requirements and 
standards. In other illnesses and diseases, it is going down. The 
challenge with children with asthma is it has actually been going up. 
But even if the totality is going up, look what happens with these 
children with asthma as a result of the CHIP program. The number of 
children who are getting their health needs taken care of dramatically 
increased. Emergency visits were dramatically down, and 
hospitalizations were dramatically down. This reflects itself in not 
only healthier children but in savings.
  This is basically a matter of priorities. This is a sound program. It 
is an effective program. It is one the President endorsed a few years 
ago. It has been tested, tried. The evaluation of the program has been 
that it is a great success. Now we have the opportunity to express once 
again the issue of priorities here in the Senate. What are going to be 
the priorities for this body? What do they think is really important in 
this country at this time? The CHIP program reauthorization, $35 
billion? That isn't being paid by taxpayers or middle-income families 
or working families unless they smoke because this is going to be 
offset completely by those who are going to smoke. As we have pointed 
out earlier, that has a double positive value. We are not going to put 
an additional burden on ordinary taxpayers. But with the increased cost 
of cigarettes and tobacco, it is going to mean less use of tobacco by 
children and children are going to be healthier. So not only is the 
fundamental legislation a demonstration in improving health care, but 
the remedy and how we do that is also adding an additional dimension to 
the quality of health for children. More than 3,000 children start 
smoking every single day, and 1,200 of them become effectively addicted 
every single day. We can do something about this and, eventually, when 
we pass this legislation and we pass our other tobacco legislation that 
we have reported out of our committee, we will get a handle on 
protecting children from addiction to nicotine.
  This is over a 5-year period, $35 billion; 1 year in Iraq, $120 
billion--almost four times in 1 year what this is in 5 years. Don't we 
think we ought to be looking after the children in the United States? 
This is where it is, Mr. President. We have a choice to express 
ourselves. The President says: No, we are not going to have this for 
the children; yes, we are going to have this. Many of us believe that 
investing in the children in this country is where we ought to be 
invested and we ought to end the conflict and end this war.
  That chart could be expressed in another way of what we are spending 
as, again, a matter of priorities, what we are spending per day--$333 
million in Iraq versus $19 million nationwide on the children. So when 
the time comes, we have a very clear choice in terms of the Nation's 
priority.
  Finally, this is a statement by Dedra Lewis, mother of Alexsiana, a 
child covered by CHIP from my State:

       If I miss a single appointment, I know she could lose her 
     eyesight. If I can't buy her medication, I know she could 
     lose her eyesight. If I didn't have MassHealth, my daughter 
     would be blind.

  One parent, one child, one piece of legislation that can make all the 
difference in the world.
  When we have a chance to vote, we will be voting for this 
legislation, and we will be asking ourselves, why aren't we doing more 
to help the children?
  I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Utah is 
recognized.
  Mr. HATCH. Mr. President, as usual, I appreciate the comments of the 
distinguished Senator from Massachusetts, when we are on the same 
wavelength. On this one, we are. I have to say that the original CHIP 
bill that virtually everybody acclaims as an excellent piece of 
legislation that has helped millions of children from working poor 
families, the only children left out of the process, wouldn't have come 
to pass except for the support of the distinguished Senator from 
Massachusetts. We both took a lot of flak during those early months 
when we were trying to solve this problem of the working-poor children.
  I had two Provo, UT, families come in to see me. Both parents in each 
family worked. Each family had six children. Neither family, with both 
incomes, had more than $20,000 a year in total gross income. They 
clearly could not afford child health insurance. CHIP was the only 
answer to their plight. They were the only people left out of the 
process. They worked. They did the best they could.
  I remember when the distinguished Senator from Massachusetts and I 
sat down together. We are from two opposite poles in many respects, 
although he doesn't realize that he is a lot more conservative than he 
thinks. He thinks I may be a lot more liberal than I think. But when 
Kennedy and Hatch can get together, people around here say: Well, if 
they can get together, anybody can. People tend to get out of the way 
because they know it took a lot of effort for us to come together.
  But the original CHIP bill could not have occurred but for my 
distinguished friend from Massachusetts and the work he did. Even 
though that hasn't been broadcast very much in the current debate, it 
is true. In the current debate, we wouldn't be as far along if it had 
not been for the efforts of the distinguished Senator from 
Massachusetts.
  There are two sides to this. Yes, there is a legitimate side in 
opposition to having CHIP be $35 billion above the baseline of $25 
billion. That argument is that we are growing this program too fast and 
we are putting too many people in it who were not originally supposed 
to be in it. The fact is, when we wrote the original CHIP bill, we 
provided for a system of waivers because we were afraid we didn't cover 
some things that should be covered. What really bothers me is that the 
people complaining about CHIP costing so much today in this 
administration, my administration, are the ones who gave 14--well, the 
tail end of the Clinton administration but primarily this 
administration--waivers to allow this program to go to many more people 
than we had originally intended. In fact, two States have more adults 
on the program than they do children. That has caused a lot of angst. A 
several States are way over the 200 percent of poverty--one state even 
covers families with incomes up to 350% of poverty.

  Let's put it this way: The opponents seem to ignore the fact that 
this bill covers 92 percent of kids who are under 200 percent of 
poverty. Yes, there is 8 or 9 percent who may be above but the

[[Page S12192]]

vast majority of them have lived with this program. We found that even 
with the moneys that we had in the original CHIP bill, which happened 
to be $40 billion over the last 10 years--that it wasn't enough to put 
all of the kids who were eligible on the program.
  One of the higher costs we found has been documented by CBO. We rely 
on CBO around here. CBO said that the high costs come from trying to 
locate the kids to get them in the program so they have a shot at being 
healthy, so that they are not liabilities for society as a whole when 
they get older.
  This program is very important. We fought hard to keep the program 
within the $60 billion--$25 billion baseline and $35 billion above the 
baseline, for a total of $60 billion. At first, those in the House 
wanted $100 billion. Then they came down to $75 billion. Finally, to 
their credit, they acknowledged that we were not going to do any better 
than $35 billion over the baseline, and Senator Grassley and I had to 
stick with that, with the hope that the administration would recognize 
how hard we had worked, how important this program is, this program 
which they themselves would like to reauthorize, and how difficult it 
is to get the additional 6 million eligible kids on CHIP. To be honest 
with you, it proved to not be enough as far as federal funding was 
concerned. And, we lost out on a lot of kids who should have had 
coverage through this program.
  Through this bill, what we are trying to do is cover the kids who 
should be on the program. They are basically kids of the working poor. 
We did add pregnant women because we thought that since this involves 
children and it is so important to have good prenatal care and 
postnatal care for the health and well-being of those children, that is 
a logical thing to do.
  Really what bothers me about the arguments on the other side--there 
are legitimate arguments, there always are on both sides--is that we 
spend about $1.9 trillion on health care in our society today each 
year. About $1 trillion of it is in the private sector, and about $900 
billion is in the public sector. We are asking for $60 billion out of 
$1.9 trillion to help the kids who are left out of the program. The CBO 
says even at that, we will not put enough money into this program.
  Then we have the argument: This is leading to one-size-fits-all 
Government-mandated, socialized medicine health care. I think you could 
make that argument on anything we do in health care around here that 
involves Government. But on the other hand, I don't want to leave these 
kids high and dry, either. So it is very important that we get this 
straight and do what is right.
  I have appreciated the remarks of the distinguished Senator from 
Massachusetts. Many on his side don't care to ever ask where is the 
money going to come from to pay for these things. On the other hand, in 
a $1.9 trillion budget, it seems to me $60 billion is not too much, 
especially since we are covering kids who should be covered who weren't 
covered in a program that virtually everybody says is important, 
virtually everybody says we ought to have, just not as much. And even 
with the $60 billion, it is my understanding, according to CBO, we will 
not really cover all of the kids we should, but we will cover most, 
which is a big improvement over the current program.
  I join with the distinguished Senator from Massachusetts hoping that 
the administration will listen and maybe change its perception. There 
are good arguments on both sides. The better argument is to try to do 
what we can for these kids; that is, work on an overall comprehensive 
health care bill that will save money, have less Government intrusion, 
have more private sector development, give people more opportunities of 
choice, and give them the choice to bring costs down in the current 
system. People of good will on both sides could probably do that if we 
really set our minds, if we just don't make this one big political 
battle all the time. Unfortunately, it is a political battle over CHIP.
  According to some in the administration, I am on the wrong side. I 
don't think so. I am on the right side. I believe this has to be done. 
Does that mean that I am not willing to modify and work and do what we 
can to come up with a comprehensive health care approach that 
emphasizes competition and opportunity, that will cover everybody? Of 
course not! I would like to get there. This is a bill which does not 
necessarily take us away from getting there, but I think some of these 
arguments which have been offered have been not very good and not very 
accurate.

  Mr. KENNEDY. Mr. President, will the Senator let me proceed for 2 
minutes? I see the Senator from Georgia.
  Mr. HATCH. Of course, and then I think we ought to get in this debate 
on hate crimes. I would want to yield to Senator Isakson, and then I 
will have my remarks a little later.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I listened carefully to the Senator from 
Utah. I want to say that the 6 million children who today are covered 
in all parts of the country, including my State of Massachusetts, would 
not be if it was not for the Senator from Utah. There was a very 
important insistence that has been sort of lost in this whole 
discussion and debate.
  At the time we had talked about this program, I was very interested 
in expanding the Medicaid Program and moving that up. Medicaid deals 
with the very poor. The real question was the working poor for these 
programs. Senator Hatch insisted we should not expand the Government 
program, that we have to let the States participate and involve 
themselves in it. This was a very contentious discussion in the debate 
which, eventually, Senator Hatch was successful in winning. Then we 
would establish the criteria, at least, of the kinds of services that 
were going to be provided within that kind of a program. That was a 
very contentious debate, but again Senator Hatch insisted the States 
should make the judgments on this program. Then we had the issues about 
trying to make sure about the inclusion, having it be more sweeping, 
and Senator Hatch stuck by his guns to make sure the States were going 
to be the ones that were going to do the outreach and set up this 
program.
  So those issues--in terms of when we are talking about these cliches 
of socialized medicine or Cuban-type of medicine--for those who are 
really interested in the philosophical underpinnings of this program, 
of why it is different from other programs, if they go back and look 
and carefully read the bill, I must say Senator Hatch's position of 
insisting that the States be the full partner and be the ones that are 
going to have the prime responsibilities has been the fact.
  I think to the credit of the Senator from Utah is the fact that so 
many of the Governors are in such support of this legislation--not only 
Democratic Governors but Republican Governors--because they have seen, 
they have both the responsibility and the opportunity to make a 
difference for their constituents.
  So that is just a small ``factoid'' about the history of the 
development of this legislation but one that should not be lost when 
people are thinking about whether this is just another kind of a 
governmental program. The Senator insisted on principle on a number of 
these important philosophical issues, and the Senate, in a bipartisan 
way, came together to support the recommendations that eventually were 
worked out with members of the Finance Committee and Senator Baucus, 
Senator Rockefeller, Senator Chafee, and many other colleagues. But the 
underpinnings were from the Senator from Utah. I think history ought to 
reflect that. I thank the Senator.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Mr. President, I thank my colleague. He is accurate on 
everything except one thing; that is, the 6 million children whom we 
were supposed to cover, we did on an annualized basis, but really only 
about 4.5 million were covered fully. I wanted to add that little bit 
because it is apparent this program has worked. It is apparent it has 
worked well under this administration as well as under the Clinton 
administration. It is apparent it has helped millions of kids who 
otherwise would not have been helped. It is apparent it has helped the 
children of the working poor. But it has not helped all of those who 
deserve that help. And, over the long run, if we help them today, it 
will save us money and problems in the future.

[[Page S12193]]

  Frankly, this is an important debate. I acknowledge there are people 
who disagree. There were back then when we first created CHIP. But the 
fact is, this is a program which has worked. The administration has 
admitted it has worked. The Governors have admitted it has worked. 
Maybe it is mired in politics that I wish we were not mired in. My 
attitude is, let's think of the kids. If there is a way of improving 
it, I am certainly open to that, but we have come a long way, in a 
bipartisan way, to get where we are. That is not an easy accomplishment 
in a Congress that has been pretty partisan in many respects.
  I do not think some have really recognized how difficult it was to 
get to where we are and how many concessions both sides have made, in 
particular the House. So I think this has been an important part, 
maybe, of the debate this morning.
  But at this point, how much time would the distinguished Senator from 
Georgia want?
  Mr. ISAKSON. Mr. President, I thank the distinguished Senator from 
Utah and appreciate the time.
  Mr. HATCH. Mr. President, can I ask how much time the Senator would 
desire?
  Mr. ISAKSON. Mr. President, I would like to speak as in morning 
business for about 8 minutes.
  Mr. HATCH. No objection.
  Mr. KENNEDY. Mr. President, may I ask a question? I have no 
objection, but is this going to be within the time as expressed by the 
leader?
  The ACTING PRESIDENT pro tempore. It would be time yielded by the 
Senator from Utah.
  Mr. HATCH. Eight minutes, was it?
  Mr. ISAKSON. Eight minutes, yes.
  Mr. HATCH. Mr. President, I yield 8 minutes to the Senator from 
Georgia.
  The ACTING PRESIDENT pro tempore. The Senator from Georgia is 
recognized for 8 minutes.
  Mr. ISAKSON. Thank you very much, Mr. President.
  Mr. President, I rise today based on an occurrence that took place 
last evening that caused me to think a little bit about this body and 
our priorities right now at this time.
  Two gentlemen from my home community of Cobb County, GA, invited me 
to go to dinner with them and about 25 other members of the Cobb 
Chamber of Commerce--Mr. Don Beavers, a distinguished retired marine 
who now works at the Chamber; and the chairman-elect, Sam Kelly. The 
invitation was to talk about their issues. But they did an amazing 
thing last night: They called Walter Reed, they called the Army, and 
they said they would like to entertain a couple of our wounded warriors 
who are being treated as outpatients at Walter Reed hospital.

  So last night, I sat at a table at Old Ebbets Grill with citizens 
from my community and two distinguished wounded warriors from the 82nd 
Airborne Division of the U.S. Army. One had served in Iraq as a sniper 
and was injured when an IED exploded on his humvee as he was coming 
back from deployment near Baghdad. Since that hit, he has had 12 
surgeries, with substantial reconstruction on the entire left side of 
his body, from his head to his toe. The other, a special operations 
soldier of the 82nd Airborne Division, lost his leg. Both--some time 
now, a year after their initial treatment--still take pain killers, 
still are in therapy, and still show the scars from their tragic 
injuries suffered at the hands of an IED in the case of one, and in the 
case of the other, an RPG, a rocket-propelled grenade.
  As we sat at the table, I thanked them so much, as all of us do, for 
their service to our country and listened to their concerns and 
listened to their thoughts and listened to their prayers for the 
soldiers they left when they were injured in Iraq.
  It occurred to me as we were talking that we are now in the third 
week in the Senate--over the third week--of debating the 
reauthorization of the Defense bill. Think about that. You sit at 
dinner one night with two soldiers who sacrificed limbs and pain and 
suffering for you and for me, and we continue to dawdle and get off 
track on authorizing or reauthorizing probably the single most 
important thing we ought to be doing. I am concerned that the 
leadership has decided to take ancillary issues unrelated to defense, 
unrelated to our men in the field, unrelated to what is going on in the 
world today, and protracting the debate on what is absolutely essential 
and needed.
  As I sat there and listened to these two wounded warriors, both of 
whom suffered from explosive devices that hit their humvee or their 
armored personnel carrier, I realized we were still dawdling on the 
debate on the authorization of the MRAP; I realized we are dawdling on 
the debate in terms of the pay raise for our soldiers; I realized, as 
meritorious as some of the amendments we are discussing may well be, 
they all pale in comparison to the 170,000 men and women deployed right 
now in Iraq fighting on our behalf.
  Now, there are differences of opinion on the war in the Senate, and I 
respect that. This is the body and this is the place where those 
differences should be debated and be debated thoroughly. But I want to 
jog everybody's memory for a second. It was May when we did the 
emergency supplemental that we spent not 1 week but 2 weeks on, not 
debating the supplemental but debating whether we should withdraw or 
set dates certain or leave Iraq. We had numerous votes--none of them 
successful--on setting a date certain. Finally, as Memorial Day 
approached, we decided to pass on the money so needed to support our 
troops. Then, 60 days later, in the middle of July, pressing before the 
August break, another bill came up, and once again we redebated all the 
same issues with regard to dates certain, with regard to withdrawal, 
even one with regard to defunding the military operations in the war on 
terror and the battle in Iraq.
  Now here we are, 2 months later, in the third week of a Defense 
authorization bill, and we have already had these same debates once 
again, and the votes have not changed except they have lost by a little 
bit more than they lost in July. Yet, all over the country, and last 
night at Old Ebbets Grill, Americans are sitting down with their sons 
and daughters, who fought in harm's way and have come back, many of 
them wounded and harmed, and how do you explain to them it takes 3 
weeks to debate the reauthorization of their pay or 3 weeks to debate 
the reauthorization of MRAP that just might have prevented the very 
injuries those two soldiers I sat with last night incurred?
  So I think it is important that we set priorities. It is very 
important, I am sure, to the Senator from Massachusetts to discuss hate 
crimes legislation. I understand that. But in setting priorities, is it 
right to take something such as hate crimes--which already exists in 45 
States, already exists in the Federal law in terms of race and 
religion--and get all off track on MRAP and reauthorizing the pay of 
our troops and an increase? Is that right? Is that setting the right 
priority? Is it important for us to do that?
  Is it important for us to do some of the things that have happened 
over the last 3 weeks? In fact, to give a little report card, because I 
have been intimately involved in amendments on this bill, this Senate, 
in 3 weeks of debate, has passed en bloc 34 amendments to this bill--
all technical, none requiring debate, one of them mine. It would seem 
that instead of having all the debate about ancillary subjects or about 
recirculating amendments that twice before on the floor of the Senate, 
within 6 months, have failed, it is about time we got our priorities 
straight. It is about time we authorize the Department of Defense. It 
is about time we get to the pay raise for our soldiers. It is about 
time we get to the MRAP that Republicans and Democrats--the Senator 
from Delaware, Mr. Biden, and all of us--have worked so hard on.
  It is about time we set our priorities and get them straight. 
Whatever the merit of other issues may be, if they are unrelated to the 
Department of Defense reauthorization, they can wait until another day 
because every day our sons and our daughters are deployed for you and 
for me in harm's way. We can differ on the war, and I respect that, but 
there should not be a difference on the funding of our men and women 
deployed in the Middle East.
  I, for one, call on the leadership for us to get back to the business 
we are called on to do. Let's complete the DOD authorization without 
any other dilatory tactics or any other ancillary amendments, other 
than those that relate to the Department of Defense.

[[Page S12194]]

  Mr. President, I yield back the remainder of my time.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, how much time is remaining?
  The ACTING PRESIDENT pro tempore. Forty minutes on each side.
  Mr. KENNEDY. On each side. Good.
  Mr. President, I yield myself 8 minutes, and the Chair will notify me 
when that time has expired.
  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts is 
recognized.
  Mr. KENNEDY. Mr. President, as we mentioned at the opening this 
morning, there are going to be two major decisions by the Senate this 
morning: one on dealing with the children's health issue, which we have 
had a good discussion of here this morning, and the other issue on the 
hate crimes legislation, which we have been attempting to realize for a 
period of some 10 years.
  This is not a new issue to the Defense authorization legislation. We 
have passed it by more than 60 votes on the last occasion we had it. We 
passed it by a majority on other occasions. So for those who sort of 
suggest it is not appropriate that we deal with this, the majority--
Republicans and Democrats alike--have overwhelmingly supported the 
legislation. But it has been a strong minority that has resisted it and 
refused to let it move on into law. We finally are at a time and a 
place and a judgment where the House of Representatives now has moved 
in favor of the legislation. We have an opportunity today to do it. We 
haven't taken an unreasonable period of time.

  The application of this legislation and why it should be here is a 
very simple and basic and fundamental one; that is, what the Defense 
authorization bill is about--dealing with the challenges of terrorism 
overseas and the support that our men and women ought to get in dealing 
with terrorism overseas. This is about terrorism in our neighborhoods--
terrorism in our neighborhoods--and making sure we are going to fight 
it. We can talk about having the MRAP, which I support, in the Defense 
authorization bill. We are fighting overseas with all of our weapons. 
We want to fight terrorism at home with all of our weapons.
  We want to be able to have a value system that is worthy for our 
brave men and women to defend. They are fighting overseas for our 
values. One of the values is that you should not, in this country, in 
this democracy, permit the kind of hatred and bigotry that has stained 
the history of this Nation over a very considerable period of time. We 
should not tolerate it. We keep faith with those men and women who are 
serving overseas when we battle that hatred and bigotry and prejudice 
at home. So we are taking a few minutes in the morning to have this 
debate and discussion.
  I urge my colleagues to join me, Senate majority leader Harry Reid, 
Senator Smith, and 31 cosponsors of the Matthew Shepard Act by voting 
in favor of cloture and our underlying amendment today. Hate crimes are 
domestic terrorism. Like all terrorist acts, they seek to bring fear to 
whole communities through violence on a few. Just as we have committed 
ourselves to fighting terrorists who strike from abroad, we must make 
the same commitment to swift and strong justice against homegrown 
terrorists. We have worked hard to ensure that all of our citizens can 
live without fear of victimization because of their race, religion, and 
their national origin. We have made progress over the years, but we 
need stronger tools to ensure that all Americans--all Americans--are 
protected under the law.
  Hate crimes challenge us to recognize the dignity of each individual 
at the most basic level. When victims are selected for violence because 
of who they are--because of the color of their skin or sexual 
orientation--it is a crime that wounds all of us. Each person's life is 
valuable, and even one life lost is too many. No member of our 
society--no one--should be the victim of hate crimes. Today we can send 
a message that no one--no one--should be a victim of a hate crime 
because of their disability, their sexual orientation, their gender, or 
gender identity.
  Hate crimes are especially heinous because they deny the dignity, the 
humanity, and the worth of whole segments of our society. They inflict 
terror not only on the immediate victims but on all their families, 
their societies, and, in some cases, an entire Nation. A hate crime 
against one member of another group shouts to the other members: You 
are next. You better watch your step when you leave your home, when you 
go to work, when you travel. This is domestic terrorism, plain and 
simple, and it is unacceptable as an assault from our enemies abroad 
who hate us just as irrationally.
  At bottom, hate crimes strike out at our most fundamental, moral 
values. They deny the teaching that we are all--even those viewed as 
outcasts among us--members of the human family. They seek to divide 
that family by labeling some so unworthy that they should become 
objects of violence. They reject our great national motto, ``E pluribus 
unum''--out of many, one. Instead, hate crimes seek to divide us, to 
reject whole communities by terrorizing their members.
  Centuries ago, Blackstone wrote:

       It is but reasonable that among crimes of different 
     natures, those should be most severely punished which are the 
     most destructive of the public safety and happiness.

  Hate-motivated crimes are the most destructive of the public safety 
and happiness and should be punished more severely than other crimes. 
That is why over 1,400--1,400--clergy from across the spectrum of 
religious traditions have come together to support the Matthew Shepherd 
Act. They write:

       Although we come from diverse faith backgrounds, our 
     traditions and our sacred texts are united in condemning hate 
     and violence. As religious leaders, we are on the front lines 
     dealing with the devastating effects of hate-motivated 
     violence. Our faith traditions teach us to love our neighbor, 
     and while we cannot legislate love, it is our moral duty to 
     protect one another from hatred and violence.

  These leaders of America's religious communities have called on 
Congress to stand united against the oppression imposed by violence 
based on personal characteristics and to work together to create a 
society in which diverse people are safe as well as free.
  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. KENNEDY. Mr. President, I yield myself 3 more minutes.
  The ACTING PRESIDENT pro tempore. The Senator is recognized.
  Mr. KENNEDY. Mr. President, The Interfaith Alliance, a nonpartisan 
advocacy organization representing 75 different religions, said hate 
crimes are an assault upon ``the belief that lies at the core of our 
diverse faith traditions--that every human being is endowed with 
dignity and worth.''
  This is what The Interfaith Alliance said:

       Hate crimes are an assault upon the belief that lies at the 
     core of our diverse faith traditions--that every human being 
     is endowed with dignity and worth.

  Dignity and worth.
  The simple fact is, hate crimes are different and more destructive 
than other crimes. As my friend, Senator Hatch, stated during our 
debate in 2000:

       Crimes of animus are more likely to provoke retaliatory 
     crimes; they inflict deep, lasting and distinct injuries--
     some of which never heal--on victims and their family 
     members; they incite community unrest and, ultimately, they 
     are downright un-American.

  The Federal Government has a responsibility to send a clear and 
unambiguous message that hate-motivated violence in any form, from any 
source, will not be tolerated. Hate crime perpetrators use violence to 
dehumanize and diminish their victims. This legislation fights back by 
reinforcing this country's founding ideals of liberty and justice 
for all.

  In Iraq and Afghanistan, our soldiers are fighting for freedom and 
liberty. They are on the front lines fighting against hate. We are 
united in our effort to root out the cells of hatred around the world. 
We should not turn a blind eye to acts of hatred and terrorism at home. 
We owe it to our troops to uphold those same principles at home. We 
should not shrink now from our role as a beacon of liberty to the rest 
of the world. When the Senate approves this amendment, we will send a 
message about freedom and equality that will resonate around the world.
  If America is to live up to its founding ideals of liberty and 
justice for all, combating hate crimes must be a national priority. Now 
is the time for

[[Page S12195]]

Congress to speak with one voice, insisting that all Americans will be 
guaranteed the equal protection of the laws. We must pay more than 
lipservice to this core principle of our democracy, and we must give 
those words practical meaning in our modern society. No American should 
feel they are second-class citizens because Congress refuses to protect 
them against hate crimes.
  Far too many times, hate crimes have shocked the conscience of the 
country. Tolerance in America still faces a serious challenge, and we 
must have the courage to act. As the Reverend Sockman said:

       The test of courage comes when we are in the minority. The 
     test of tolerance comes when we are in the majority.

  Most of us in this Chamber have lived our lives in the majority, and 
it is time for us to recognize the courage of those who have lived 
their lives in the minority and stand up for tolerance. When bigotry 
exists in America, each of us is diminished. Injustice inflicted on any 
among us is injustice against us all.
  As Leviticus commands us:

       You may not stand idly by when your neighbor's blood is 
     being shed.

  For too long, the Federal Government has been forced to fight this 
injustice with one hand tied behind its back. We know some crimes are 
motivated by a desire to harm whole communities. It is time those 
crimes were punished in a manner that is equal to their 
destructiveness.
  The President has threatened to veto this legislation if it comes to 
his desk, but I urge my fellow Senators to display the same kind of 
courage that came from David Ritcheson, the victim of a brutal hate 
crime that scarred him both physically and mentally. Rather than living 
in fear, David bravely came before the House Judiciary Committee and 
courageously--courageously--described the horrific attack against him 
the year before.
  We should fight to protect the rights of our fellow citizens such as 
David and not let a veto threat stop us from doing the right thing. 
With both the Senate and the House moving forward on this legislation, 
I hope the President will hear our call and that he, too, will support 
this much-needed measure.
  Nobel Prize laureate Elie Wiesel said:

       Indifference is always the friend of the enemy--
     Indifference is always the friend of the enemy--for it 
     benefits the aggressor, never the victim, whose pain is 
     magnified when he or she is forgotten.

  Today, we can take a strong stand against indifference and 
intolerance.
  Dr. King reminded us all that ``our lives begin to end the day we 
become silent against the things that matter.'' Today, this body has a 
chance to break the silence. It has the chance to speak with one voice 
in support of the value of every individual in our society. Join me and 
my colleagues in breaking the silence. Make the fight to end violence 
driven by bigotry the high national priority that it should be. Now is 
the time because, as Reverend Martin Luther King reminded us:

       The time is always right to do what is right.

  Now is the time for Congress to speak with one voice and insist that 
all Americans will be guaranteed the equal protections of the law. I 
urge all my colleagues to support this amendment.
  Mr. HATCH. Mr. President, how much time does each side have?
  The ACTING PRESIDENT pro tempore. There is 40 minutes the Senator 
from Utah controls and about 25\1/2\ minutes for the Senator from 
Massachusetts.
  Mr. HATCH. I thank the Chair. Mr. President, I yield 15 minutes to 
the distinguished Senator from Texas.
  Mr. CORNYN. Mr. President, I know the great passion and sincerity 
with which our colleague from Massachusetts brings to this subject, but 
there is a time and a place for everything, and this is not the time--
16 days into the Defense authorization bill which should have been 
finished a long time ago--to inject extraneous matters and matters 
which, as I will explain, have been poorly thought out and not 
completely aired by the Members of Congress.
  A few blocks from here is the United States Supreme Court building, 
and above the entry to that building reads the motto ``Equal Justice 
Under The Law.'' Equal justice under the law. Too many people have 
sacrificed too much for too long to make sure that guarantee of equal 
justice under the law is a reality for Congress to continue down the 
path to treat some crimes unequal from others.
  Every civilized Nation recognizes that all people deserve equal 
protection from criminal attacks. Unfortunately, there are some who 
reject that notion. But they are brought before the bar of justice, 
tried, many convicted, and many punished according to the laws we have 
on our books at the State level and, yes, even at the Federal level. I 
fear by trying to inject this extraneous matter on to a Defense 
authorization bill without adequate time for deliberation and 
discussion and inquiry, that Congress and the Senate in particular are 
being asked to pass on legislation without full knowledge of the 
consequences of the legislation.
  For example, under current Federal law, an individual who violates 
current Federal hate crimes law can be given the death penalty by a 
jury in appropriate circumstances. Under this legislation the Senate is 
being asked to vote on today, the death penalty is not available for 
violating this particular amendment or this particular legislative 
language.
  Thus, James Byrd's killers were convicted under State law, and 
according to a jury verdict, after exhausting all appellate remedies, 
were ultimately executed. If the same individuals committing those 
heinous acts back then were charged by a Federal prosecutor under this 
bill, they could not be given the death penalty by the jury. That is 
only one example of how this particular provision has not been 
thoroughly thought out or the consequences thoroughly vetted.
  I will be very clear. I don't support this legislation on the merits 
because I do believe in equal justice under the law. I believe 
individuals ought to be treated as individuals and not as members of 
groups, and that all human beings are entitled to the dignity God gave 
them by creating them, and they all ought to come equally before the 
bar of justice when they are accused of crimes and be given equal 
justice under the law. It is a mistake, in my judgment, to begin to 
treat people unequally based on the same conduct because of notions 
that some crimes are simply more despicable than others based upon the 
individual against whom they are perpetrated.
  All crimes of violence are crimes of hate. All ought to be judged 
according to the same criteria. All ought to be subject to the same 
range of punishments given to juries able to convict people based on 
evidence in court, not based on a politically correct notion that some 
crimes are more heinous than others. All crimes of violence are heinous 
and all ought to be punished equally under the law.
  The distinguished Senator from Massachusetts has alluded to the 
threat of a Presidential veto of this legislation if this amendment is 
passed, thus, making one of my points, that by introducing this 
amendment on the Defense authorization bill, the sponsors of this 
amendment are jeopardizing our ability to pass a Defense authorization 
bill.
  It is worth recounting what it is the Defense authorization bill 
provides and what they are putting in jeopardy by insisting on this 
extraneous amendment at this time: a pay raise of 3 percent; the 
authority to pay bonuses as special pay for enlistment and 
reenlistment; flight pay; various medical and dental benefits; nuclear 
incentive pay; an authorization for an additional 13,000 active-duty 
soldiers and 9,000 active-duty marines.
  In the Boston Globe of September 27, 2007, the Army's top officer, 
General Casey, said what we all know, which is that the military has 
been stretched too thin. We know, based on the amendment offered by the 
distinguished Senator from Virginia, Senator Webb, these are concerns 
we all share about the lengthy deployments of our troops because we 
don't have enough men and women in uniform, particularly in the Marines 
and members of the U.S. Army; and this bill, which this amendment puts 
in jeopardy, expands the end strength of the Army to reduce that stress 
and strain on our volunteer military and their families. We should not 
put it in jeopardy.
  This bill also authorizes an additional $4 billion for the MRAPs. To 
recall, the MRAPs are the mine resistant ambush protected vehicles that 
are specially constructed vehicles devised

[[Page S12196]]

to defeat IEDs and save the lives and limbs of U.S. soldiers. Why in 
the world, in order to add extraneous legislation that has nothing to 
do with national security, would the advocates of this amendment 
jeopardize the ability to pass this Defense authorization bill, which 
is so important to our men and women in uniform? It is one thing to 
claim we support our military members; it is another thing to act on 
that stated conviction.
  Have no doubt about it, this amendment has nothing to do with our 
military. There are remedies in place under the Uniform Code of 
Military Justice if, in fact, there is an attempt to link this to the 
military somehow. I think that is a spurious claim. There are a myriad 
of laws, since 1968 under the Federal United States Code itself, 
dealing with hate crimes. As I mentioned, this bill, because it has 
been brought in haste on this legislation without an opportunity for 
calm deliberation and investigation and understanding by Members, 
actually dilutes some of the penalties currently available under 
Federal law if, in fact, the same conduct were indicted or charged 
under this amendment if it were to become law. Why in the world would 
the advocates of this legislation want to dilute the punishment that is 
potentially available to the jury in admittedly heinous crimes?
  It would be a mistake, and a mistake made out of haste. We should not 
indulge the desire to pass this legislation, no matter how sincere it 
is, in haste and without the kind of calm deliberation that will allow 
the Members of the Senate to understand what they are voting on and 
what we are doing. We should not jeopardize passing the Defense 
authorization bill, which contains the essential protections and 
benefits for our military members by loading it down with this 
extraneous amendment; or as the Senator from Illinois said, he wants to 
add an amendment relating to immigration. We know that will only spawn 
other amendments and burden this bill down so it will never pass. That 
would be a travesty.

  Instead of engaging in these ill-considered attempts to burden this 
important legislation with extraneous amendments, we ought to be doing 
the rest of our work. Why are we going to have to pass a continuing 
resolution to keep the Federal Government open before we leave this 
week? It is because none of the appropriation bills that are to pay for 
the Federal Government to keep the Federal Government open have cleared 
the Congress and gone to the President to be signed. We are simply not 
taking care of the people's business when we engage in rabbit trails 
such as this amendment calls for.
  I don't doubt the sincerity of the sponsors of this amendment. I 
disagree with them on adding this amendment to this important 
legislation for the reasons I have stated. I even disagree with them 
that some crimes ought to be treated or punished unequally than others 
based upon a membership in a particular group that can be identified, 
as I have described. So I don't doubt their sincerity; I just disagree 
with them. But we ought to have this debate at a time when we can focus 
our efforts, after a hearing and due deliberation, and after adequate 
consideration about the merits of the particular proposal, as we 
ordinarily do--not add it on 16 days after we have started the Defense 
authorization bill that has taken too long, jeopardizing our ability to 
add to the end strength and relieve the stress of our men and women in 
uniform and their families, and make sure they get the dignified 
treatment of the Wounded Warriors Act, which is part of this underlying 
Defense authorization bill, so we can deal with the concerns expressed 
again in the GAO report, which said the reforms we all want to come 
quickly are coming far too slowly when it comes to cutting the redtape 
and making sure our wounded warriors not only get the medical care they 
deserve, but get to move through the Department of Defense health care 
system and Veterans Affairs system in a way that lightens their load 
and not burdens them further.
  I think it is a mistake to consider this amendment at this time and 
in this way--a way that jeopardizes this important legislation. It has 
nothing--zero--to do with the Defense authorization bill.
  Whatever the merits of the amendment may be, I encourage the majority 
leader to give the proponents of this amendment an opportunity to 
present it at another time when we don't place in jeopardy these 
important benefits and relief designed to help our men and women in 
uniform during a time of war. We are at war. Why in the world would we 
be engaged in these rabbit trails on extraneous topics when we ought to 
be providing our men and women in uniform the relief they deserve and 
so urgently need.
  I hope my colleagues will vote against cloture on this amendment, no 
matter how good the intentions may be. I disagree that it belongs on 
this bill. I disagree that we should jeopardize this important 
legislation with extraneous matters such as immigration amendments, or 
hate crimes amendments, or anything else that doesn't have to do with 
helping our men and women in uniform during a time of war.
  I yield the floor.
  Mr. KENNEDY. Mr. President, I listened carefully to my friend from 
Texas. We have spent more time in quorum calls around here over these 
last few days. We spent a good deal of time on a poster--expressing the 
will of the Senate on various posters. We spent hours on those issues. 
Talk about delaying paying for the troops. I didn't hear those 
arguments when we were trying to uparmor HMMWVs last year. So I have 
difficulty in giving a lot of focus and attention to it.
  Quite frankly, I imagine the Senator is talking about the DREAM Act, 
which will permit children who have been in this country for 5 years--
brought in by their parents through no fault of their own--that we 
either permit them to go through an education or join the military--
join the military. That has something to do with the Defense 
authorization bill--when we find out that many units are not being kept 
up to speed. So we will move ahead.
  How much time do I have, Mr. President?
  The PRESIDING OFFICER (Mr. Menendez). The Senator has 24 minutes.
  Mr. KENNEDY. Mr. President, I yield 10 minutes to the Senator from 
Oregon.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. SMITH. Mr. President, like Senator Kennedy, I feel it appropriate 
to respond very respectfully to a dear friend of mine from Texas. I 
have great affection for him. I have only been in this body for 11 
years. For 11 years, I have been working on this piece of legislation. 
For 11 years, it has often been put on the Defense authorization bill--
passed several times by the Senate. You might wonder why is it 
appropriate to put on the Defense authorization bill. Let me put a 
human face on it. This photo depicts a Navy seaman who was a gay man 
serving lawfully under ``don't ask, don't tell.'' Somehow it was 
discovered that he was a gay man. He was beaten to death so brutally 
that his mother was only able to recognize his body because of a tattoo 
that she was able to recognize.
  The U.S. military is not immune from hate crimes. It is utterly and 
entirely appropriate that this be on the Defense authorization bill--if 
not for this man's reason, for the fact that we are engaged in a war on 
terrorism, utilizing our U.S. military. They are fighting terrorism 
abroad. Surely we have the stuff in the Senate to fight terrorism at 
home and within the military. If you need a human face for why this is 
entirely appropriate, look at Allen Schindler, whose mother was only 
able to identify him because of a tattoo she knew he had.

  In terms of doing this in haste, I am not on the Judiciary Committee, 
but I know there have been many hearings in Congress after Congress and 
debates in the past 11 years in which I have participated. This is not 
done in haste. This is done thoughtfully and deliberately in Senate 
fashion. I don't think that charge sticks, and I think it is high time 
we pass this legislation and that we fight terrorism at home and abroad 
and even within the military.
  I have made it a practice, since becoming aware that the Federal 
Government did not have a backstop law to State law, of a need to have 
the Federal Government to have authority to show up to work, to be able 
to be a backstop to State and local law--not preempt them but to help 
them and to let Americans know that at every level

[[Page S12197]]

of their Government, we care about public safety, we care about 
fighting terrorism.
  Some will say this law is symbolism, it will not do anything. Ever 
since the Ten Commandments came down off Mount Sinai, the law has also 
been a teacher. We all fall short of the law. But the truth of the 
matter is, it does set a societal standard. I believe the Federal 
Government should join the States in setting this standard so this law 
can go from symbol to substance because it can, over time, change 
hearts and minds.
  When one does what I have done, and that is enter into the 
Congressional Record a hate crime committed in the United States almost 
every day I have served in the Senate, I think it is apparent we have a 
problem, and I think it is apparent the Federal Government ought to 
have a role.
  This law, symbolic as it is, can change hearts and minds and can be 
real substance. We are neglecting our role in this fight against hatred 
at home in living up to our national motto: ``E Pluribus Unum''; out of 
many one.
  So irrespective of one's race, religion, sexual orientation, gender, 
we get equal protection under the law, and this is a glaring omission 
in the standard of equal protection, as I see it.
  When I went to law school, I learned that to establish a crime, one 
of the first elements you have to determine is motive and intent. Some 
have said this is thought speech. The truth is, no thoughts are 
punished here. There is nothing in this amendment that prevents one 
from saying and thinking anything. The first amendment is unaffected by 
this legislation. But what this says is, if you think it, you speak it, 
and you act on it, you come under the jurisdiction of local, State, and 
I hope Federal hate crimes laws.
  It is an element in a crime. Some argue it is unconstitutional. This 
very issue, as it related to sexual orientation in a Wisconsin case, 
was tried all the way to the U.S. Supreme Court. A unanimous decision 
was written affirming the inclusion of sexual orientation and the 
constitutionality of the Wisconsin State law. I have it in my hand. It 
is called Wisconsin v. Mitchell. It was written by William Rehnquist, 
not exactly a liberal, who made it very clear that hate crimes laws are 
constitutional because it goes to action, criminal behavior, and the 
speech, the thought, all of those are mere elements in proving a crime.
  Many of my brothers and sisters in the religious community are now 
saying on national television even that this will limit the free 
exercise of religion, it will limit their ability to preach and 
interpret the Bible any way they want. If it did that, I would not be 
here. But if it did that, they would already be in jail because most 
States in the United States already have these laws. They are 
constitutional. They go to the elements of establishing the commission 
of a crime.
  It is high time we passed this legislation. We have passed it as a 
Senate many times. We now have an opportunity to get it to the next 
step. I hope and pray the President does not veto it. We are not doing 
this in haste. We are not doing this because it is inappropriate on the 
Defense authorization bill. We are doing it because it is high time the 
Federal Government be able to show up to work in rural places such as 
Laramie, WY, where this young man was brutally beaten to death. This is 
Matthew Shepard. Matthew's mother Judy is a friend of mine. The sheriff 
in Laramie, WY, is one of the individuals who persuaded me they needed 
the help of the Federal Government. They were overwhelmed with what 
happened in the case of this young man, a 21-year-old college student 
whose life was taken on this lonely fence.
  His life was taken not because they wanted his money or they wanted 
something else from him. They knew he was gay, and they beat him and 
left him to die on this fence in Wyoming.
  With Matthew's mother's permission, Senator Kennedy and I have named 
this amendment the Matthew Shepard Act. What happened to Matthew should 
happen to no one, no matter their religion, no matter their race, no 
matter their ethnicity, no matter their sexual orientation, because in 
the public square, we are all imperfect people. In the public square, 
we have a duty to provide public safety for all Americans, no matter 
their transgressions or whatever we think of their lifestyles.
  This is a glaring omission in Federal law. I hope we are about to 
right it, and I hope as we do, we will remember the sacrifice and the 
commitment and the advocacy of Judy Shepard on behalf of her son and 
his memory. Let us enshrine this act in his name in our law because it 
is the right thing to do, and it is about time we do it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Casey). Who yields time?
  The Senator from Utah.
  Mr. HATCH. Mr. President, I will take a few seconds, and then I will 
yield to the distinguished Senator from South Carolina.
  To be honest with you, I don't think anybody differs with about 90 
percent of what the distinguished Senator from Massachusetts or the 
distinguished Senator from Oregon have said, but it needs to be pointed 
out that in every case they have cited, State law took care of it and 
took care of it stronger than this bill will take care of it.
  Frankly, whether it is Matthew Shepard or whether it is Byrd or 
whether it is the other case the distinguished Senator from Oregon 
mentioned, there is no need to federalize these crimes because they are 
being taken care of.
  I yield 5 minutes to the distinguished Senator from South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, before my colleague from Oregon leaves, I 
don't think there is anybody in this body who is more respected than 
Senator Gordon Smith. He is a very sincere, thoughtful guy who tries to 
personalize issues that affect people throughout this country. I know 
he is motivated by all the right reasons, but somebody needs to talk 
about the politics.
  This legislation has been placed on the Defense authorization bill in 
the past. It never made it out of conference because we knew, with the 
makeup of the conference, the amendment would fall. Given the makeup of 
this conference, the amendment will be part of the bill and it is going 
to be vetoed. That is the politics. Whether one agrees with President 
Bush, he said he is going to veto this bill, and if I were him, I would 
as Commander in Chief. I would not buy into this way of legislating.
  Another reason for this amendment, if you think there is a gap in 
military law that without this kind of amendment the military is not 
going to prosecute people who act on their prejudices, you are wrong. 
If someone in uniform commits a crime against a civilian or another 
person in uniform, I don't care why they did it; if they beat somebody 
up, hurt somebody, they are going to get prosecuted. That is the way 
the military law works.
  We are not doing the military a favor by passing this legislation 
because there is no problem in the military in terms of how justice is 
administered. Whatever motivates you to hurt someone or to take the law 
in your own hands or act on your prejudices, you are going to be dealt 
with because we cannot have good order and discipline in the military 
when people can hurt someone based on their individual prejudice 
because the whole unit falls apart. This is nothing the military needs. 
They are going to take care of violence in the ranks based on the law 
they already have.
  I can assure my colleagues that no one in the military gets a pass 
because of the status of their victim. If you engage in violent 
conduct, inappropriate behavior, illegal behavior, the law is going to 
come down on your head because we need good order and discipline.
  The politics of this amendment is that this bill will get vetoed. The 
President is not going to agree to this social legislation on the 
Defense authorization bill, and we have to take responsibility for that 
action. Whether one agrees with him or not, we are going to put in 
jeopardy items the military does need. They don't need a hate crimes 
bill to make it an effective fighting force. We already have 
disciplinary tools to discipline people. They need pay raises and MRAP 
protection, and this bill provides those items.
  Members of this body have different views about hate crimes 
legislation. We can argue those differences any time, anywhere, on any 
other piece of

[[Page S12198]]

legislation. It can be brought up as a freestanding bill. But to put it 
on this bill is going to put in jeopardy items our men and women who 
are in combat and being shot at need. When I go to Iraq, I don't have a 
lot of people coming up to me saying we need to pass a hate crimes 
bill. They do need better body armor. They do need pay raises. They do 
need better MRAPs.
  I think this is a very poor use of the legislative process knowing 
the end game. The end game is, we are going to hijack the Defense 
authorization bill by legislation not needed in the military, that is 
contentious, and that has an opportunity to be debated somewhere else. 
I hope reason prevails eventually.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The Senator from Massachusetts controls 14 
minutes, and the Senator from Utah controls 22 minutes.
  Mr. LEAHY. Mr. President, I yield myself up to 5 minutes from the 
time of the Senator from Massachusetts.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, today the Senate is considering an 
amendment to the Department of Defense bill to address crimes that 
terrorize entire communities. Violent crimes motivated by prejudice and 
hate are tragedies that haunt American history. From the lynchings that 
plagued race relations for more than a century to the well-publicized 
slayings of Matthew Shepard and James Byrd, Jr., in the 1990s, this is 
a story we have heard too often in this country. Unfortunately, in my 
home state of Vermont, there have been two recent attacks that appear 
to have been motivated by the victims' religion or sexual orientation. 
A well-respected State representative in the Vermont Legislature has 
not been immune to threats of violence based solely on his sexual 
orientation.
  I am proud to once again be a cosponsor of this legislation. I would 
like to express my appreciation to the Senator from Massachusetts and 
the Senator from Oregon for their work on this. I hope that this time 
Congress will have the courage to pass it. Six years ago, I made this 
bill one of the first major bills to move through the Judiciary 
Committee after I became chairman. It passed the Senate in the 106th 
Congress and again in the 108th Congress, but Republicans in the House 
blocked this important bill each time. In the Democratically led House 
of Representatives, the companion bill this year passed by a wide 
bipartisan margin. So I am hopeful that this time, Democrats and 
Republicans in the Senate will join together finally to enact this 
civil rights measure into law.
  This hate crimes legislation improves current law by making it easier 
for Federal authorities to investigate and prosecute crimes based on 
race, color, religion, and national origin. Victims will no longer have 
to be engaged in a narrow range of activities, such as serving as a 
juror, to be protected under Federal law. This bill also focuses the 
attention and resources of the Federal Government on the problem of 
hate crimes committed against people because of their sexual 
orientation, gender, or disability, which is an important and long 
overdue expansion of protection. Finally, this bill provides assistance 
and resources to State, local, and tribal law enforcement to address 
hate crimes.
  The crimes targeted in this bill are particularly pernicious crimes 
that affect more than just their victims and their victims' families--
they inspire fear in those who have no connection to the victim other 
than a shared characteristic such as race or sexual orientation. When 
James Byrd, Jr., was dragged behind a pickup truck and killed by bigots 
in Texas in 1998 for no reason other than his race, many African 
Americans throughout our Nation surely felt diminished as citizens. 
When Matthew Shepard was brutally murdered in Wyoming the same year 
because of his sexual orientation, many in the gay and lesbian 
community felt less safe on our streets and in their homes. These 
crimes promote fear and insecurity that are distinct from the reactions 
to other crimes, and we need to take action to enhance their 
prosecution.
  All Americans have the right to live, travel and gather where they 
choose. In the past, we have responded as a Nation to deter and to 
punish violent denials of civil rights. We have enacted Federal laws to 
protect the civil rights of all of our citizens for nearly 150 years. 
The Local Law Enforcement Hate Crimes Prevention Act continues that 
great and honorable tradition.
  This bill will strengthen Federal jurisdiction over hate crimes as a 
backup, but not a substitute, for State and local law enforcement. 
States will still bear primary responsibility for prosecuting most hate 
crimes, which is important to me as a former State prosecutor. In a 
sign that this legislation respects the proper balance between Federal 
and local authority, it has received strong bipartisan support from 
State and local law enforcement organizations across the country.
  Moreover, this bill accomplishes a critically important goal--
protecting all of our citizens--without compromising our constitutional 
responsibilities. It is a tool for combating acts and threats of 
violence motivated by hatred and bigotry. But it does not target pure 
speech, however offensive or disagreeable. The Constitution does not 
permit us in Congress to prohibit the expression of an idea simply 
because we disagree with it. As Justice Holmes wrote, the Constitution 
protects not just freedom for the thought and expression we agree with, 
but freedom for the thought that we hate. I am devoted to that 
principle, and I am confident that this bill does not contradict it.
  We have been trying for years to pass the Local Law Enforcement Hate 
Crimes Prevention Act. It is appropriate to attach this important 
legislation to the pending Department of Defense authorization bill, as 
we have done twice in recent memory, because this is a pressing issue. 
I hope that we will not see another Republican-led filibuster on what 
should be a bipartisan measure.
  Adoption of this amendment will show once again that America values 
tolerance and protects all of its people. I urge the opponents of this 
measure to consider the message it sends when year after year, we are 
prevented from enacting this broadly supported bill. The victims of 
hate deserve better. Let us join together and adopt these provisions 
without further obstruction and delay.


                  Children's Health Insurance Program

  Mr. President, I wish to express again my strong support for the 
reauthorization of the Children's Health Insurance Program. When we 
talk about the work of this Congress, I believe the extension of CHIP 
will stand out as one of the great accomplishments of this body. The 
bill is a clear statement of the priority of the majority in the 
Congress.
  In passing this legislation, we state clearly that the health of our 
Nation's children is an issue too important to be dealt with in a 
``business as usual'' fashion. This is a program that represents the 
best of what can happen when Members of both sides of the aisle come 
together to forge a consensus, with Democrats and Republicans working 
together for that consensus.
  The outcome is a solid compromise on a vital issue: more health 
insurance coverage for millions of children. The choice is clear. 
Either you support children's health care or you do not. Either it 
deserves to be a high priority on our agenda or it does not. Frankly, 
as a parent, as a grandparent, I don't see this as a choice at all. It 
is a matter of priority. Few issues are as important as caring for our 
children.
  Instead of helping more families who are struggling to afford basic 
health care for their children, the President would cut thousands in 
Vermont who have coverage right now. He is failing to lead, so Congress 
again is stepping in to realign our priorities.
  If we can find the money to fund the war in Iraq for 41 days, the 
same amount that would pay for 10 million children to have health 
insurance for a whole year, then we can pay for this bill. I have heard 
some argue the bill should be opposed because it raises taxes on 
tobacco--just tobacco. Anyone who opposes this bill on these grounds is 
choosing big tobacco over children's health.
  I support this bill because I believe it is a travesty that in the 
richest, most

[[Page S12199]]

powerful country in the world, there are more than 47 million people 
without health insurance. It is an absolutely shocking number. It 
represents roughly one in six people who are going without regular 
trips to the doctor and foregoing needed medications and who are forced 
to use the emergency room for care because they have nowhere else to 
turn. These are our friends, our neighbors, and millions of our 
children.
  My wife, during the years when she worked as a registered nurse, saw 
these people and realized what happened to them.
  The legislation before us will extend and renew health care coverage 
for 10 million children. My own State of Vermont has been a national 
leader in children's health care. Even before the creation of CHIP, we 
knew this was the right thing to do. Because of our early action, 
Vermont has the lowest rates for uninsured children in the country, 
making our State a leader and an example for the rest of the Nation. 
This bill will bring us still closer to the goal of covering all 
children in our State but also to thousands elsewhere.
  We are faced with many choices in the Senate. For me, the choice in 
this bill is clear. It is a must-pass bill. It is worthy of our 
support. I urge all my colleagues to stand for the children of this 
country and support this bill, and I urge the President to abandon his 
ill-advised threats and to sign it into law. If we can afford the war 
in Iraq, we can afford to insure our children.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield 4 minutes to the distinguished 
Senator from Alabama.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I just want to share a few thoughts with 
my colleagues on the pending amendment. This hate crimes legislation is 
constitutionally dubious and very unusual legislation in the history of 
how we do law enforcement in America.
  What I want to say to my colleague is that a murder in Utah, a murder 
in Massachusetts, a murder in Alabama is not a Federal crime unless 
certain other events occur, unless it is related to some other event. A 
robbery in any State is not a Federal crime per se. It has to be 
robbery of a Federal bank. It has to be robbery of an interstate 
shipment or something of that nature. But simple assaults, simple 
murders, no matter how grievous, are not Federal crimes. So the Supreme 
Court has been cautious about that and has raised questions about it.
  Now, with regard to our history of legislating in this area, we have 
made Federal civil rights laws applicable to assaults and murders of 
people in America on account of their race, and the Supreme Court has 
upheld that. One of the fundamental reasons for that is that in many 
areas of the country, for many years--truly not so today, I believe, 
but in the past, areas such as my area of the country, have not 
prosecuted those cases, and there was a historical record of a failure 
to effectively prosecute in racial assaults that affected people's 
fundamental civil liberties. So that has been upheld. But the 
legislation we are talking about today is about picking an area that 
people care about and are concerned about and feel deeply about, which 
is that people should not be assaulted or abused as a result of their 
sexual orientation, and now we want to create a Federal crime wherever 
in America such an assault or an illegal activity or murder against 
that person occurs. We want to make that a Federal crime.
  One of my colleagues said it is a backstop for the Federal 
Government. It is not a backstop. I was a Federal prosecutor. Federal 
law has priority. So this is a move in that direction.
  So the question is, what about the elderly? What about those who are 
sick and infirm? What about police officers, if they are murdered? Do 
we need the Federal Government to make that a crime also and be able to 
prosecute all of those murders throughout the country when we have 
never done that historically? It is a big deal from that perspective, 
and that is why it is constitutionally suspect.
  A State can pass such a law, I will admit. The Federal Government can 
pass such a law on Federal property, military bases, and the District 
of Columbia. But when the Federal Government reaches into a State that 
has no interstate nexus and creates a crime of this kind, I think it 
is, first, constitutionally questionable; secondly, not necessarily 
good policy because what other kinds of crimes motivated by what other 
kinds of malintent are we going to now make a Federal crime?
  So Senator Hatch has explicitly and openly and directly delineated 
the very aggressive prosecutions we are seeing in States for hate-type 
crimes against homosexuals, and he has shown how a number of them have 
gotten a death penalty, which this act does not provide for, but State 
laws do. We have no record to indicate there is a shortage or a lack of 
willingness to prosecute these cases, so I think, under those 
circumstances, we ought not to do it.
  I also would note it would be a tragic thing indeed if this Defense 
bill would be vetoed as a result of this extraneous piece of 
controversial legislation.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, this has been an interesting exercise, as 
far as I am concerned, but I rise to oppose this hate crimes 
legislation. This is wrong--hate crimes legislation. Instead, we have 
the opportunity to support the prosecution of hate crimes in a 
meaningful and a legitimate way that is different from this.
  I have said for years in this Chamber that violence motivated by bias 
against a particular group is abhorrent. Everybody in this body 
believes that. There is no issue here. We believe that. I believe such 
conduct must and should be made a crime and punished differently from 
other crimes. I know all of my colleagues share my conviction about 
hate crimes. But where should that conviction lead us? The conviction 
that hate crimes are abhorrent leads me to ask what Congress may 
properly do about it. That conviction cannot, however, justify 
supporting the wrong legislation.
  The Senate has before it today two amendments which represent two 
different approaches to the problem of hate crimes. I believe the 
amendment offered by my good friend from Massachusetts, Senator 
Kennedy, is unwise, unnecessary, and unconstitutional. Some would argue 
the ends justify the means. They say, if you believe hate crimes are 
abhorrent, then you must vote for the Kennedy amendment. That certainly 
is not true, and I urge my colleagues to resist that sort of misguided 
pressure.
  Our obligation is not only to pursue the right goals but to do it in 
the right way. The Kennedy amendment would federalize the prosecution 
of hate crimes. It would create a new Federal felony, punishable by up 
to 10 years in prison, for causing bodily injury to another because of 
that person's actual or perceived religion, national origin, gender, 
sexual orientation--gender identity?--or disability.
  This amendment is unwise because of how it is drafted and how its 
supporters are trying to get it passed. The Senator from Massachusetts 
introduced S. 622 in the 106th Congress. He introduced S. 966 in the 
108th Congress. He introduced S. 1105 in April. It would prohibit 
violence motivated by an additional new category of bias. The amendment 
before us today would do the same. That process of adding categories 
constituency by constituency and extending the reach of the Federal 
hate crimes law could continue indefinitely.
  When my colleagues consider whether to support the current Kennedy 
amendment, even if they have supported previous versions, they should 
know that this amendment before us today is broader than any version of 
this legislation ever considered by this body. In its latest iteration, 
the Kennedy amendment would prohibit violence motivated by gender, 
sexual orientation, and gender identity. Now, there has been no public 
discussion about what these terms mean, how they may differ, and 
whether they can be applied in anything approaching a consistent and 
reasonable way.
  But let me address another problem with including the latest new 
category--what the Kennedy amendment calls perceived gender identity. 
The term ``perceived'' applies to gender identity as it applies to the 
other categories, and it refers to the perpetrator's perception. In 
other words, the amendment prohibits violence based on

[[Page S12200]]

what the perpetrator perceives to be the victim's gender identity. But 
the term ``gender identity'' refers to the victim's perception. Get 
that? The term ``gender identity'' refers to the victim's perception.
  The online resource Wikipedia defines gender identity as:

       Whether one perceives oneself to be a man, a woman, or 
     describes oneself in some less conventional way.

  Now, the contradiction is obvious. The Kennedy amendment would 
criminalize violence based on the perpetrator's perception of the 
victim's self-perception. Whether or not this is good sociology--and I 
don't believe it is--it is bad legislation.

  The Kennedy amendment is also unwise in the way its supporters are 
trying to get it passed. Even though my good friend from Massachusetts 
introduced it as a separate bill, we are here today considering it as 
an amendment to the Defense authorization bill. Some justify that by 
saying it would also protect members of the military. This measure 
would protect those serving in the military as well as everyone it 
attempts to cover whether it is attached to this bill or any other bill 
on any other subject at any other time. So that is not a good argument.
  Its proponents wanted to attach the Kennedy amendment to this 
legislative vehicle not because it is relevant to the Defense 
authorization bill but because we consider the Defense authorization 
bill around here to be what we call a must-pass bill. If the Kennedy 
amendment prohibited violence against individuals because of their 
status as members of the military, I suppose it might be more relevant 
to the Defense bill. But I note that the Kennedy amendment does no such 
thing.
  The Kennedy amendment does not belong on the Defense authorization 
bill, especially when the President has already threatened to veto the 
amendment and may have to veto this bill because of this amendment, a 
bill that is absolutely necessary for the benefit of our soldiers.
  Now, in addition to being unwise, the Kennedy amendment is 
unnecessary. State laws already provide for prosecuting the underlying 
violence prohibited by the Kennedy amendment. Laws against murder, 
rape, assault, and the like are State laws, and they should remain that 
way. Forty-six States also have hate crimes legislation on the books 
that either criminalize substantive offenses or enhance criminal 
penalties for existing offenses because of their motive or bias.
  By the way, the murderers of James Byrd in Texas and Matthew Shepard 
in Wyoming, after whom this bill is named, were either sentenced to 
death or are in prison for the rest of their lives under State law, 
more than this bill would do. My point is, State laws have been taking 
care of these matters, and there is absolutely no evidence that the 
proponents of this bill have been able to show that States are not 
doing their job under their laws, which are better than this law.
  While these are the most widely cited examples, the Byrd and Shepard 
cases, and the other case cited by my friend from Oregon to demonstrate 
the need for the Kennedy amendment, it would treat both of these hate 
crime murders more leniently than current State law does.
  There is no evidence that State and local governments are incapable 
of prosecuting these crimes, or that they are failing to do so.
  Fewer than 17 percent of all law enforcement agencies reported even a 
single hate crime in 2005.
  Hate crimes account for less than one-tenth of 1 percent of crimes in 
America.
  The majority of hate crimes involve such things as vandalism or 
verbal intimidation.
  By requiring actual or threatened bodily injury, the Kennedy 
amendment focuses on an even smaller portion of hate crimes.
  This means that States would be more, not less, able to address the 
hate crime problem themselves.
  The States are, in fact, already doing so.
  In addition to being unwise and unnecessary, the Kennedy amendment is 
unconstitutional.
  Yesterday in this Chamber, my good friend from Massachusetts 
strenuously emphasized, clearly and unambiguously, that his amendment 
is not limited by existing Federal jurisdiction.
  In fact, he deliberately wants to break this new Federal hate crime 
felony free from any such limitation.
  In his words, the limitation of requiring Federal jurisdiction for 
such a Federal crime would be ``outdated, unwise, and unnecessary.''
  He said the same thing in April when he introduced this measure as a 
separate bill.
  But the requirement that Congress have authority to legislate on such 
an issue derives from the very Constitution that each of us has sworn 
to support and defend.
  We must have affirmative authority, derived from the Constitution, to 
legislate.
  By giving us only delegated powers, America's founders rejected the 
idea that the desirable ends justify the political means.
  Federalizing crime is legitimate only when it is connected to a power 
properly exercised by the Federal Government.
  Rejecting the requirement of Federal jurisdiction in the legislation 
before us is rejecting the limitations imposed upon us by the 
Constitution.
  With all due respect to my good friend from Massachusetts, I do not 
believe the Constitution is outdated, unwise, or unnecessary.
  In its findings, the Kennedy amendment cites the 13th amendment to 
the Constitution, which banned slavery and involuntary servitude, as a 
constitutional basis for this legislation.
  Modern forms of slavery do exist, and I urge my colleagues to support 
efforts by the Departments of Justice, Labor, and State to uncover and 
eliminate such heinous practices as human trafficking and forced 
prostitution.
  But that is not what the Kennedy amendment, or existing hate crimes 
laws for that matter, are about and they cannot hook their train to the 
13th amendment engine.
  Connecting 19th century slavery with 21st century perceived gender 
identity at least requires a long series of rhetorical dots, but it 
should require more than a storytelling imagination to produce sound 
legislation.
  The Kennedy amendment's growing list of prohibited bias categories 
extends far beyond anything the Supreme Court has ever recognized as 
relating to the badges and incidence of slavery.
  We do not have to speculate about other constitutional defects in the 
Kennedy amendment.
  As I said yesterday in this chamber, the Supreme Court struck down a 
portion of the Violence Against Women Act--I was a prime sponsor with 
Senator Biden of that bill--because Congress's authority to regulate 
interstate commerce did not extend to turning State crimes into Federal 
lawsuits.
  The Court emphasized the distinction between the truly national and 
truly local and concluded that Federal legislation must be directed at 
such things as the actual instrumentalities, channels, or goods 
involved in interstate commerce.
  The Kennedy amendment tries to avoid the same fate by appearing to 
require an interstate commerce nexus for some of the hate crimes it 
would cover.
  If its backers are serious about this requirement, as the Supreme 
Court surely is, this would further reduce the hate crimes the Kennedy 
amendment would actually reach.
  Their rhetoric and the ever-expanding list of prohibited bias 
categories in successive versions of this legislation, however, make me 
wonder whether they genuinely want the Kennedy amendment to be so 
narrowly applied.
  As I said in this chamber yesterday, my good friend from 
Massachusetts, in the straightforward and direct way we have all come 
to appreciate and respect, has said unequivocally that all hate crimes 
will face Federal prosecution.
  This will lead to a massive federalization of hate crimes that 
traditionally have been, and that constitutionally should remain, left 
to the authority of the States.
  There is no need to burden prosecutors and courts and do such damage 
to our constitutional framework of government.
  Our conviction about hate crimes cannot, it must not, blind our 
conviction about the need for wise legislation and respecting the 
fundamental limits of our constitutional authority.
  While the Kennedy amendment is unwise, unnecessary, and 
unconstitutional, the good news is that we can do

[[Page S12201]]

something legitimate and meaningful about hate crimes without back-
handing the Constitution.
  The amendment I have offered would strengthen enforcement of hate 
crimes laws right where that enforcement may legitimately and most 
effectively occur, at the State and local level.
  My amendment would charge the Comptroller General, in consultation 
with the National Governors Association and State and local law 
enforcement, with studying whether State and local governments are 
properly and effectively addressing hate crimes.
  This would give us a more objective understanding of the nature and 
scope of the hate crimes problem so that we can better determine 
whether there is any basis for a greater Federal role before we go off 
on this massive sweeping legislation the distinguished senator from 
Massachusetts is urging. My legislation would help identify whether any 
gaps exist in the ability and determination of States to prosecute hate 
crimes and provide Federal resources to help them do so.
  The authority to prosecute hate crimes rests with the States, and if 
we truly want both to address hate crimes and stay within our proper 
constitutional role, we can help the States effectively carry out their 
responsibility.
  I said it before, and I will say it again.
  Crimes of violence, no matter their motivation, are abhorrent.
  I recognize that some crimes of violence are directed not only 
against individual victims, but against the groups or communities with 
which those victims identify.
  Concern about hate crimes, however, is only the beginning of the 
discussion and the political ends do not justify the legislative means.
  I know that my good friend from Massachusetts is genuinely passionate 
about what he sees as an injustice.
  His amendment, however, is the wrong way to address the problem.
  The Kennedy amendment is unwise, unnecessary, and unconstitutional.
  It is unwise in its drafting and in the way its supporters are trying 
to get it passed.
  It is unnecessary because States have their own hate crimes laws and 
are demonstrably able to address the problem.
  It is unconstitutional because Congress lacks authority to create 
such a freestanding criminal felony unrestricted by Federal 
jurisdiction.
  I urge my colleagues, instead, to do the right thing and to do it the 
right way by supporting the amendment I have brought to the floor.
  I find no fault with people who are sincere in trying to do things 
that sincerely are well motivated. But we should live within the 
confines of the Constitution. There is no nexus that would justify this 
type of overwhelming legislation, imposed upon everybody in this 
country, when the States are already doing the job.
  We have two hate crimes amendments before us today. One is extremely 
broad, probably unconstitutional, and likely unnecessary. The President 
has threatened to veto it. The amendment would torpedo the Defense 
authorization bill. The other is a more modest approach. My amendment 
would assist State and local law enforcement as they do the hard work 
of providing equal justice for all their citizens. The Kennedy 
amendment is sweeping, but it cannot realistically get done on this 
bill. Mine is a modest, and I believe adequate, approach to this 
problem, and it would become law. To quote an unappreciated political 
philosopher:

       You can't always get what you want. But if you try, 
     sometimes, you'll find you get what you need.

  I urge my colleagues to vote against cloture on the Kennedy amendment 
and for cloture on my amendment and I think we will make better headway 
than we would if we agree to the Kennedy amendment.
  I reserve the remainder of my time.
  Mr. LEVIN. Mr. President, I support the passage of the Matthew 
Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007. We 
have all heard the story of Matthew Shepard: the 21-year-old student at 
the University of Wyoming who was brutally beaten--his skull smashed--
and tied to a fence with a rope and left to die--because he was 
homosexual. No one should be targeted because of the color of their 
skin, their religion, their gender or their sexual orientation.
  In April of this year, I joined Senators Kennedy, Smith, and others 
in introducing hate crimes legislation. This amendment, which is 
identical to that legislation, for the first time will expand the 
definition of a hate crime to include gender, gender identity, 
disability, and sexual orientation. It gives the Justice Department 
jurisdiction over crimes of violence committed because of a person's 
actual or perceived race, color, religion, national origin, gender, 
sexual orientation, or disability. Existing law only covers race, 
color, religion, or national origin-based hate crimes, where the victim 
was engaging in one of six `specified activities.' It will also 
strengthen the ability of the Federal, State, and local governments to 
investigate and prosecute hate crimes based on race, ethnic background, 
religion, gender, sexual orientation, and disability.
  Some have said that this bill will take away first amendment rights. 
That is just not true. This law would punish violent acts, not beliefs. 
This legislation only applies to violent, bias-motivated crimes and 
does not infringe on any conduct protected by the first amendment. The 
first amendment right to organize against, preach against and speak is 
not impinged.
  America's diversity is one of our greatest strengths. Our tolerance 
for each other's differences is part of the lamp that can help bring 
light to a world which is enveloped in bigotry and intolerance.
  America has taken many steps throughout our history on a long road to 
become a more inclusive Nation.
  We are hopefully about to take another one if we adopt the Matthew 
Shepard Hate Crimes Prevention Act of 2007.
  Ms. FEINSTEIN. I rise today in support of the Kennedy-Smith amendment 
No. 3035, the Matthew Shepard Local Law Enforcement Hate Crimes 
Prevention Act of 2007.
  This legislation is a crucial step toward prosecuting crimes directed 
at thousands of individuals who are the targets of brutal and senseless 
violence.
  The current Federal hate crimes law simply does not go far enough. It 
covers only crimes motivated by bias on the basis of race, color, 
religion, or national origin.
  This amendment improves the current Federal hate crime law by 
including crimes motivated by gender, gender identity, sexual 
orientation, and disability.
  Congress must expand the ability of the Federal Government to 
investigate and prosecute anyone who would target victims because of 
hate. In those States with State hate crimes laws, the Federal 
Government must provide the resources to ensure that those crimes do 
not go unpunished. We can and must do more.
  In my own State of California, horrific instances of violence signify 
the critical need for legislation today.
  I would like to share just a few examples:
  In Santa Ana, retired Federal agent Narciso Leggs, Jr., was found 
strangled and tortured on June 29 in his southern California apartment. 
The killer placed a smiling ceramic angel on the victim's shoulder 
blade and wrote antigay slurs on his flesh with a black marker.
  Another instance, in Los Angeles, CA, this past Spring: James 
McKinney, a mentally disabled man, was beaten to death by an 
unidentified man wielding an aluminum baseball bat as he was walking to 
the store from his home, a mental health care facility. The attack was 
caught on surveillance camera on Tuesday May 29, but his attacker 
remains at large.
  In San Diego, attackers wielding baseball bats and shouting antigay 
slurs beat two men and stabbed a third in the back. The attack was the 
first in more than a decade at San Diego's annual gay pride festival.
  Lastly, one of the most well-known cases in California happened in 
West Hollywood to actor Trev Broudy in 2002.
  The night of his attack, Trev Broudy was hugging a man on a street. 
Three men with a baseball bat savagely attacked the actor, leaving him 
in a coma for approximately 10 weeks. As a result of the attack, Trev 
suffered brain damage, lost half of his vision, and has experienced 
trouble hearing.

[[Page S12202]]

  The crimes are brutal. The attackers targeted their victims because 
of who they are. Yet none of these crimes can be prosecuted as a 
Federal hate crime.
  These are not isolated instances. These crimes occur all over the 
country. According to FBI statistics, 27,432 people were victims of 
hate-motivated violence over the last 3 years. That is an average of 
over 9,100 people per year, with nearly 25 people being victimized 
every day of the year, based on their race, religion, sexual 
orientation, ethnic background, or disability.
  Even more disturbing is the fact that these FBI statistics show only 
a fraction of the problem because so many hate crimes are unreported.
  The Southern Poverty Law Center estimates that the actual number of 
hate crimes committed in the United States each year is closer to 
50,000, and survey data from the biannual National Crime Victimization 
Survey suggests that an average of 191,000 hate crime victimizations 
take place per year.
  Race-related hate crimes are the most common, but crimes based on 
religion, ethnic background or sexual orientation are also significant. 
In fact, a close analysis of hate crimes rates demonstrates that groups 
that are now covered by current laws--such as African Americans, 
Muslims, and Jews--report similar rates of hate crimes victimizations 
as gays and lesbians--who are not currently protected.
  On average, 8 in 100,000 African Americans report being the victim of 
hate crime; 12 in 100,000 Muslims report being the victim of hate 
crime; 15 in 100,000 Jews report being the victim of hate crime; and 13 
in 100,000 gay men, lesbians, and bisexuals report being the victim of 
hate crime.
  Every individual's life is valuable. Congress must act to protect 
every person who is targeted simply because of who they are.
  Specifically, the Matthew Shepard Local Law Enforcement Hate Crimes 
Prevention Act of 2007 expands on the 1968 definition of a hate crime.
  Under current Federal law, hate crimes only cover attacks based on 
race, color, religion, and national origin. Under this amendment, hate 
crimes will include gender, gender identity, sexual orientation, and 
disability.
  The bill enables States, local jurisdictions, and Indian tribes to 
apply for Federal grants in order to solve hate crimes and provides 
Federal agents with broader authority to aid State and local police.
  Additionally, the bill amends the Hate Crime Statistics Act by 
inserting ``gender'' and ``gender identity,'' allowing law enforcement 
agencies to gather data on the newly protected groups.
  This is not a new bill. It was first introduced in 1998. It has 
passed the Senate three times: in 2000, and in 2002 and 2004 as an 
amendment to the Department of Defense authorization bill.
  It passed the House this year as a stand-alone bill and last year as 
an amendment to the Adam Walsh Act.
  It is bipartisan. It has 44 cosponsors in the Senate and 171 
cosponsors in the House. It is endorsed by over 210 law enforcement, 
civic, and religious organizations and has the support of 73 percent of 
the American population.
  There is no excuse for not passing this bill out of the Senate today. 
This bill is not about free speech. It is about crimes of violence--
often brutal, savage acts of violence. These crimes target a person 
solely because of that person's race, sexual orientation, religion, 
gender, national origin, or disability. By terrorizing one member of a 
group, they terrorize entire communities of people. These crimes damage 
our social fabric. We must be clear that we cannot tolerate this kind 
of intimidation.
  Today, I ask all of my colleagues to rally against hate by working to 
ensure that this legislation is not simply supported but actually 
passed and signed into law.
  Until it is enacted, many hate crime victims and their families will 
not receive the justice they deserve.
  Let us send a message to all Americans that we will no longer turn a 
blind eye to hate crimes in this country.
  Mr. KERRY. Mr. President, I still remember standing on the steps of 
the Capitol on October 14, 1998--thousands gathered on a cool autumn 
evening--to remember Matthew Shepard 2 days after he had been killed in 
Laramie, WY.
  That night I said:

       Matthew Shepard is not the exception to the rule--his 
     tragic death is the extreme example of what happens on a 
     daily basis in our schools, on our streets, and in our 
     communities. And that's why we have an obligation to pass 
     laws that make clear our determination to root out this 
     hatred. We hear a lot from Congress today about how we are a 
     country of laws, not men. Let them make good on those words, 
     and pass hate crimes legislation.

  Almost 10 years have passed since that candlelight vigil--10 years 
too long for Washington to do what was so obviously needed. Violent 
hate crimes are on the rise--almost 10,000 violent acts of hate against 
individuals based on their sexual orientation have been reported to the 
authorities since Matthew Shepard's murder. What a tragic reminder of 
the urgency of providing local law enforcement with the added resources 
and support needed to get tough on hate crimes. What a horrific wake-up 
call to a sleepy Washington about the need to ensure a Federal backstop 
to assist local law enforcement in those cases in which they request 
assistance or fail to adequately investigate or prosecute these serious 
crimes.
  The good news is that today with this Senate vote we will move one 
step closer than ever to legislating a Federal hate crimes law that 
includes sexual orientation and gender identity--the Matthew Shepard 
Act.
  This is the least we can do, as we committed to do that night in 
1998, to insure that ``the lesson of Matthew Shepard is not 
forgotten.'' It is the least we can do to right a wrong in an America 
where every morning, someone takes the long way to class, an America 
where every day someone looks over his shoulder on the street, and 
still today in America innocent people fear for their safety--all 
because some people hate them for being who they were born to be--gay, 
lesbian, bisexual, or transgender.
  This fight is not over, but this vote is an important milestone in 
the fight--a day when I hope we will begin at last to turn the tide, 
and reaffirm our faith that the strength of human justice can overcome 
the hatred in our society by confronting it.
  I want to thank my friend and colleague, Senator Kennedy, for his 
hard work to address hate crimes and ensure that this vital legislation 
is enacted.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I have listened with great interest to my 
friend from Utah describe this legislation. He has followed one of the 
great traditions of the Senate. That is, he has misrepresented and 
misstated my position and then he has differed with it. I know that 
technique because I have used it a few times myself.
  I hope, for those of our colleagues who have been following this 
debate, to keep in mind very briefly--I outlined earlier the principal 
reasons for this--but with regard to what is happening in the local 
communities, and in the States, the fact is the National District 
Attorneys Association is supporting this legislation. Do you believe if 
we were doing all the things the Senator said, if we were violating 
everything local and State, the National District Attorneys Association 
would be supporting this? The National Sheriffs' Association is 
supporting it, as is the States Attorneys General of the United States. 
The principal law enforcement agencies in the States are supporting it. 
Do you think they would be supporting this if it was unconstitutional? 
You don't think they would have the opportunity to know what is 
constitutional or not constitutional? And you don't think they 
understand what is necessary to protect their citizens from the 
viciousness of hate crimes?
  There it is. I ask unanimous consent the entire list be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
       Letters From Organizations That Support the Local Law 
     Enforcement Hate Crimes Prevention Act of 2007
       1. American-Arab Anti-Discrimination Committee
       2. American Association of University Women
       3. American Civil Liberties Union
       4. American Jewish Committee
       5. American Psychological Association
       6. Anti-Defamation League
       7. Asian American Justice Center
       8. Center For the Study of Hate and Extremism
       9. Hadassah
       10. Human Rights Campaign

[[Page S12203]]

       11. Interfaith Alliance
       12. International Association of Chiefs of Police
       13. Jewish Council for Public Affairs
       14. Leadership Conference on Civil Rights
       15. Major Cities Chiefs Association
       16. Matthew Shepard Foundation
       17. NA'AMAT USA
       18. National Association of Lesbian, Gay, Bisexual & 
     Transgender Community Centers
       19. National Association for the Advancement of Colored 
     People
       20. National Center for Transgender Equality
       21. National Council of Jewish Women
       22. National District Attorneys Association
       23. National Organization for Women
       24. National Sheriffs' Association
       25. Organization of Chinese Americans, Inc.
       26. People for the American Way
       27. PFLAG
       28. Religious Action Center of Reform Judaism
       29. SALDEF (Sikh American Legal Defense and Education Fund)
       30. States Attorneys General
       31. Unitarian Universalist Association
       32. The United States Conference of Mayors
       33. United States Student Association
       34. Group Letter: Religious Organizations: African American 
     Ministers in Action, American Jewish Committee, Anti-
     defamation League, Buddhist Peace Fellowship, Catholics for a 
     Free Choice, Church Women United, The Episcopal Church, 
     Hadassah, Hindu American Foundation, The Interfaith Alliance, 
     Jewish Council for Public Affairs, Jewish Women 
     International, Muslim Public Affairs Council, NA'AMAT USA, 
     National Council of Churches of Christ, National Council of 
     Jewish Women, North American Federation of Temple Youth, 
     Presbyterian Church USA, Sikh Council on Religion and 
     Education, United Church of Christ Justice and Witness 
     Ministries, Union for Reform Judaism, United Methodist Church 
     General Board of Church and Society, Unitarian Universalist 
     Association of Congregations, United Synagogues of 
     Conservative Judaism and Women of Reform Judaism.
       35. Group Letter: Consortium for Citizens with 
     Disabilities: Alexander Graham Bell Association for the Deaf 
     and Hard of Hearing, American Association on Health and 
     Disability, American Association on Intellectual and 
     Developmental Disabilities, American Association on Mental 
     Retardation, American Association of People with 
     Disabilities, American Council of the Blind, American 
     Counseling Association, American Dance Therapy Association, 
     American Medical Rehabilitation Providers Association, 
     American Music Therapy Association, American Network of 
     Community Options and Resources, American Occupational 
     Therapy Association, American Psychological Association, 
     American Therapeutic Recreation Association, American 
     Rehabilitation Association, Association of Tech Act Projects, 
     Association of University Centers of Disabilities, Autism 
     Society of America, Bazelon Center for Mental Health Law, 
     Council for Learning Disabilities, Council of State 
     Administrators of Vocational Rehabilitation, Easter Seals, 
     Epilepsy Foundation, Helen Keller National Center, Learning 
     Disabilities Association of America, National Alliance on 
     Mental Illness, National Association of Councils on 
     Developmental Disabilities, National Coalition on Deaf-
     Blindness, National Disability Rights Network, National Down 
     Syndrome Society, National Fragile X Foundation, National 
     Rehabilitation Association, National Respite Coalition, 
     National Structured Settlement Trade Association, NISH, 
     Paralyzed Veterans of America, Research Institute for 
     Independent Living, School Social Work Association of 
     America, Spina Bifida Association, The Arc of the United 
     States, United Cerebral Palsy, United Spinal Association, 
     World Institute on Disability.
       36. Group Letter: National Partnership for Women and 
     Families: 9 to 5 Bay Area, 9 to 5 Colorado, 9 to 5 Poverty 
     Network Initiative (Wisconsin), 9 to 5 National Association 
     of Working Women, AFL-CIO Department of Civil, Human and 
     Women's Rights, American Association of University Women, 
     Atlanta 9 to 5, Break the Cycle, Coalition of Labor Union 
     Women, Colorado Coalition Against Sexual Assault (CCASA), 
     Communications Workers of America AFL-CIO, 
     Democrats.com, Equal Rights Advocates, Feminist Majority, 
     Gender Public Advocacy Coalition, Gender Watchers, Hadassah 
     the Women's Zionist Organization of America, Legal Momentum, 
     Lost Angeles 9 to 5, NA'AMAT USA, National Abortion 
     Federation, National Asian Pacific American Women's Forum, 
     National Association of Social Workers, National Center for 
     Lesbian Rights, National Congress of Black Women, National 
     Council of Jewish Women, National Council of Women's 
     Organizations, National Organization for Women, National 
     Partnership for Women and Families, National Women's 
     Conference, National Women's Committee, National Women's Law 
     Center, Northwest Women's Law Center, Sargent Shriver 
     National Center on Poverty Law, The Women's Institute for 
     Freedom of the Press, Washington Teachers Union, Women 
     Employed, Women's Law Center of Maryland, Women's Research 
     and Education Institute, YWCA USA.

  Mr. KENNEDY. I will mention a few. They include the Anti-Defamation 
League, Human Rights Campaign, Leadership Conference on Civil Rights, 
National Association for the Advancement of Colored People. Why? 
Because, as we know, hate crimes are increasing. They are not 
diminishing in the United States of America. They are increasing. All 
the statistics demonstrate it.
  What is also demonstrable is what local law officials point out by 
their support. They do not have the tools or the will to deal with the 
most vicious types of attacks that take place upon individuals because 
of who they are. That is why they support this rather measured proposal 
that we have, that will give help and assistance in attacking the 
problems of hatred at home like we are attacking the problems of hatred 
abroad.
  This is not such a strange issue.
  Will the Chair let me know when I have a minute left, please.
  My friend, Senator Hatch, pointed out during our debate in 2000:

       Crimes of animus are more likely to promote retaliatory 
     crimes; they inflict deep, lasting and distinct injuries--
     some of which never heal--on victims and their family 
     members; they incite community unrest and, ultimately, they 
     are downright un-American.

  No one could say it better. He understands that is what we are 
talking about and whether we are going to battle that with both hands, 
not with one hand tied behind our back as exists at the present time. 
It is the local law officials who are stating that. Even the Justice 
Department said the same a few years ago.
  Finally, on why this is such an extraordinary situation--this is what 
the Justice Department says.

       Local authorities may not have the tools or the will to 
     prosecute a particular bias-motivated crime fully.

  We put this aside. This, basically, is a moral issue. It is a moral 
issue because of the viciousness and the motivational aspects of hatred 
and bigotry. Our Founding Fathers, as brilliant as they were, wrote 
prejudice in the Constitution of the United States. They wrote slavery 
in the Constitution of the United States. This Nation has been battling 
for 230 years to free ourselves from the stains of discrimination, and 
we are not there yet. We suffered the brutalities of the Civil War. We 
went through the period of Reconstruction. We have faced those issues 
on the floor of the Senate: In 1964, the Civil Rights Act; the 1965 
Civil Rights Act; the 1968 Civil Rights Act. We went on to knock down 
the walls of discrimination.
  When we knocked down the walls of discrimination on the basis of 
race, we also, history will show--we knocked them down with regard to 
gender, we knocked them down with regard to ethnicity, we knocked down 
a lot of them in terms of disability. We have not with regard to sexual 
orientation. But we have made remarkable progress. No nation in the 
world has made that progress--no nation.
  That is one of the reasons I am as proud of this Nation as I am. But 
it is a continuing process. If we do not understand that out there, as 
the various statistics of the Justice Department and the Southern 
Poverty Law Center say, there are these centers of hatred and bigotry 
that exist out there, that are hating and demonstrating and killing our 
citizens on the basis of those definitions.
  That is continuing, and the question is whether we are going to do 
something about it. We are not going to solve all of the problems with 
legislation, but if we do not solve this one, we miss a golden 
opportunity.
  I finally say, to those who have talked about, we are adding this on 
the Defense authorization bill, we have had more time in quorum calls 
around here. We have not taken a great deal of time. We are taking 2 
hours this morning on SCHIP and hate crimes. We have not taken up a 
great deal of time.
  The majority of the Members have supported this. On three other 
occasions, a majority of Republicans and Democrats have supported this 
concept--on three other occasions. Let's get the job done. We have that 
opportunity this morning.
  Finally, this is about the morality of our country, the values of our 
country. That is directly tied into what our men and women are doing 
overseas in resisting terrorism and fighting for the values here at 
home. One of the values that is here at home is the value of honoring 
the dignity of the human being and the individual. That is why

[[Page S12204]]

all of those in the great religious faiths, the Interfaith Alliance, 75 
different religions--the belief that lies at the core of our diverse 
faith traditions is that every human being is endowed with dignity and 
worth. That is why 1,400 members of the clergy have pointed out: Our 
faith traditions teach us to love our neighbor. While we cannot 
legislate love, it is our moral duty to protect one another from hatred 
and violence.
  The PRESIDING OFFICER. The Senator has 1 minute remaining.
  Mr. KENNEDY. This is from the religious community.
  So we have on that standard above the Presiding Officer ``E pluribus 
unum''--``out of many, one.'' We have a responsibility, to the extent 
we can, to eliminate division, to eliminate the hatred, to eliminate 
the bigotry, and to become one Nation with one history and one destiny. 
This amendment moves us on that road to the kind of country this Nation 
deserves to be. I hope our colleagues will support this amendment.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, do I have any time remaining?
  The PRESIDING OFFICER. The Senator has 54 seconds remaining.
  Mr. HATCH. Mr. President, I agree with 80 percent of what the 
distinguished Senator has said during this debate. The fact is, the 
very name of this bill makes the very point I am making. It is the 
``Matthew Shepard Act,'' a heinous crime committed against him where 
both people were prosecuted and sentenced to life; in the Byrd case, 
sentenced to death. We are taking care of these problems. There has 
been no showing by the other side that the State prosecutors are 
incapable of doing so. The fact is, we do not need a massive Federal 
piece of legislation that would require the Federal Government to get 
into areas that clearly are not in interstate commerce but are subject 
to State laws that are being enforced. That is a very important point. 
We should be very loath to go beyond that point.
  I thank my very loquacious colleague who feels very deeply, but I 
feel deeply, too, about the issue, about these people, about what is 
happening, and what I am saying constitutionally.
  The PRESIDING OFFICER. The Senator's time has expired.
  The majority leader is recognized.
  Mr. REID. Mr. President, I would refer my colleagues to my statement 
in yesterday's Record on the hate crime legislation.


                                  CHIP

  Mr. President, just like any job in America, Senators have good days 
and bad days. We all know what it is like to leave work frustrated that 
we did not make the right decision, that the progress we have made was 
not what we had hoped, that we did not express our views in quite the 
right way or we just did not have enough time to get everything done. 
But we also know, here in the Senate, how the opposite feels: days when 
we put our political differences aside, rise above partisanship, and do 
something lasting and meaningful for our country.
  Earlier this year, when the Senate passed its version of the 
Children's Health Insurance Program, it was a day just like that. It 
was a day of happiness. And today can be another day just like that. As 
a result of the hard work of Chairman Baucus, Senators Rockefeller, 
Grassley, and Hatch, we have before us legislation that I am confident 
will enjoy overwhelming bipartisan support, which we will vote on 
shortly.
  Hopefully, the strong bipartisanship message this body sends today 
will be loud enough and strong enough that the President will 
reconsider his stubborn opposition to this legislation. Senators 
Grassley and Hatch are very supportive of the President. No one needs 
to lecture anyone on that. But they have said the President's stand on 
children's health is wrong and that he should join with us. And they 
are right. For all the talk we hear about what Government does wrong, 
the Children's Health Insurance Program is a shining example of what 
Government does right.
  Before children's health became law 10 years ago, millions of 
children were totally uninsured. These children were part of a coverage 
gap. Their parents' incomes were not high enough to afford private 
insurance, nor low enough to qualify for Medicaid. Now, a decade later, 
this program has reduced the number of uninsured children in working 
families by 35 percent. Today, 6.6 million children have insurance 
thanks to this exemplary program. Many of these children are now 
getting regular checkups. They are benefiting from preventative 
medicine. They are saving money for society, and their primary care 
comes from a doctor, a family doctor, not from an expensive, 
inefficient emergency room. Examples of this success can be found in 
every single State, in urban areas, rural areas, east coast, west 
coast, south, north, everywhere in between.

  When we voted on this bill originally, I gave an example. I told the 
story of a Reno woman named Terry Rasner. Since 1998, Terry has helped 
children in Nevada enroll in Nevada Check Up, which is Nevada's 
children's health insurance program. Her work has never been more 
important. The latest numbers just released show that 430,000 Nevadans 
have no insurance; they are uninsured. Nevada is a sparsely populated 
State, but these numbers are overwhelming--430,000 people have no 
health insurance. And 115,000 of the uninsured are kids, children.
  Terry explained to me, in an e-mail she sent me, how the program is 
operating in Nevada. She wrote:

       There are many stories of children as old as 11 and 12 who 
     were finally able to visit a dentist for the first time in 
     their lives.
       Stories of families who finally felt whole because they 
     could access affordable medical and dental care for their 
     children.
       School nurses who were acutely involved in supporting and 
     promoting this program from the outset because they were on 
     the front lines of failed programs, or no programs at all, to 
     address the medical and dental needs of children of low-
     income working families.
       One child in particular was so bad off he was unable to eat 
     or chew food due to the dramatic decay in his mouth. Imagine, 
     children for the first time in their lives actually getting 
     to see a doctor or dentist that their parents were able to 
     afford.

  Stories like this, examples of the children's health program saving 
lives--these same stories are being told all across America, and 
statistics bear this out.
  This program is even better than ever because we have extended dental 
care for these children. Study after study shows that our youth 
enrolled in the Children's Health Insurance Program are much more 
likely to have regular doctor and dental care. They report lower rates 
by far of unmet needs for care. The quality of care they receive is far 
better than it was before. That is an understatement. School 
performance improves. The plan is helping to close the disparity in 
care for minority children. And the Children's Health Insurance Program 
has become a major source of care for rural children. So there is no 
doubt, no question at all that the Children's Health Insurance Program 
is good for kids, little people who cannot help themselves, it is good 
for families, also, and it is good for America for sure.
  Today, we have the opportunity to take the next step toward making 
the great American success story even more of a success. The bill 
before us maintains coverage for the 6.6 million children currently 
enrolled and adds an additional 4 million low-income, uninsured 
children. It also improves the program by curbing coverage of adults in 
the program and targeting the lowest income eligible families as new 
enrollees. It does all of this in a fiscally responsible manner.
  This legislation is fully paid for. It does not add one penny to our 
Nation's debt or add to the deficit.
  It is not surprising that this bill was supported by 45 Republicans 
in the House and virtually every Democrat in the House. Chairman 
Grassley, Senator Hatch, and more than a dozen other Republican 
Senators voted for this bill the first time around, and every single 
Democrat in the Senate.
  I might just add, as an aside, Senator Hatch has never been known as 
a big spender, and he supported this bill overwhelmingly. We could not 
be where we are but for him and Senator Grassley.
  But not only do a significant number of Republican Senators support 
this legislation, but Governors support it, our health care providers 
support it, children's advocates and the vast majority of Americans are 
cheerleaders for this worthy legislation. The Senate

[[Page S12205]]

will shortly do its part and pass this children's health insurance 
legislation.
  But despite all of this, all of the bipartisan support, all of the 
goodwill this bill enjoys, surprisingly, stunningly, President Bush 
continues to insist he will stop this bill from becoming law. This is 
the same President Bush who, during the 2004 campaign, touted his plan 
to expand the SCHIP program.
  Quoting from the President, in a release he made:

       The President will launch an aggressive, billion-dollar 
     effort to enroll children who are eligible but not signed up 
     for the government's health insurance program. The goal will 
     be to cover millions more SCHIP and Medicaid-eligible 
     children within the next 2 years.

  That is what he said in 2004. Now President Bush offers us a list of 
reasons for opposing legislation that would do what he said he strongly 
supports.
  One of the reasons he gives us is we cannot afford it. Let me repeat 
what I said before: This bill is paid for and will not increase the 
deficit a single cent.
  Second, let's look at the things the President thinks we can afford. 
In about a month in Iraq, the President will spend $12 billion. This 
would far exceed what we would spend on these children. But, remember, 
we are spending for what is fully paid for. It comes from a tobacco 
tax.
  So clearly it is not about having money; it is not about any of the 
reasons he has given. Despite his list of unknown reasons, it has 
become clear in recent days that there is only one reason I can come up 
with for his reversal, his flip-flop on the Children's Health Insurance 
Program: I guess it is because he wants to do something with health 
care that he has not yet told us.
  He has in the past calculated that holding this bill hostage is the 
only way to raise from the dead his partisan, unpopular, and 
ineffective health agenda. We realize this. Republicans realize this. 
In fact, the ranking member of the Finance Committee realizes this, and 
he has spoken so on the floor, Senator Grassley.
  President Bush, on this issue, stands alone. Can one imagine our 
President, President Bush, going to one of these children and saying: 
You cannot have health care. You have to stop seeing your doctor. If 
you get sick, your parents or a brother or sister will have to take you 
to the emergency room. Get a brother or sister, get a neighbor to do 
that, but we are not going to let you go see a doctor.
  So despite his promises, I hope he will come to his good side and put 
the well-being of millions of poor children ahead of his own flawed 
political agenda that we are seeing on this issue today. I hope he 
realizes this program is government at its best--lending a helping 
hand, providing a safety net to children who need our help to reach 
their full potential.
  If we pass today the Children's Health Insurance Program with a good 
bipartisan vote, this can be one of our good days, our legislative good 
days, when we do something lasting and meaningful for the American 
people who sent us here to help fulfill their dreams and their hopes.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, I wish to proceed for a few moments 
with my leader time and say to my good friend the majority leader, I 
know it is customary for him to speak last, but I was unavoidably 
detained from getting to the floor and wanted to make a couple of 
observations about the Kennedy amendment on my leader time.
  A vote for Senator Kennedy's hate crime amendment regretfully puts 
this whole bill in jeopardy. The only way to ensure we have a Defense 
authorization bill this year is to vote against the Kennedy amendment. 
There are too many important Defense provisions in the bill that are at 
risk because of a controversial, nongermane amendment dealing with 
social policy.
  Among the items at risk, the Wounded Warriors provision, the pay 
raise, acquisition reform, and many other important Defense provisions, 
all are put at risk by the adoption of the Kennedy amendment.
  We have now gone through a long exercise debating Iraq amendments and 
nongermane amendments related to the social agenda of the other side. 
But what are we trying to accomplish here? Do we want to protect the 
defense policy matters in this bill that actually matter to our forces 
in the field, or do we want to debate political and social issues on 
this measure? The Senate has been on record all year that we will not 
cut off funding for our troops in the field and that we need to do more 
to help our wounded warriors returning from the war. Let us not 
sacrifice the bipartisan work of the committee for an amendment that is 
not relevant to the underlying bill.
  I hope the Kennedy amendment will be defeated.
  The PRESIDING OFFICER. All time has expired.


                             Cloture Motion

  Under the previous order, pursuant to rule XXII, the clerk will 
report the motion to invoke cloture.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on amendment No. 3035 
     regarding hate crimes.
         Gordon H. Smith, Chuck Schumer, Bernard Sanders, Robert 
           Menendez, Sheldon Whitehouse, Frank R. Lautenberg, 
           Hillary Rodham Clinton, Chris Dodd, John F. Kerry, 
           Patty Murray, Barack Obama, Jeff Bingaman, Ben Cardin, 
           Evan Bayh, Tom Harkin, Ted Kennedy, Dianne Feinstein.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on 
amendment No. 3035 offered by the Senator from Massachusetts, Mr. 
Kennedy, to H.R. 1585, the National Defense Authorization Act for 
Fiscal Year 2008, shall be brought to a close.
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. LOTT. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 60, nays 39, as follows:

                      [Rollcall Vote No. 350 Leg.]

                                YEAS--60

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Coleman
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gregg
     Harkin
     Inouye
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Smith
     Snowe
     Specter
     Stabenow
     Tester
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--39

     Alexander
     Allard
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Graham
     Grassley
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Martinez
     McConnell
     Murkowski
     Roberts
     Sessions
     Shelby
     Stevens
     Sununu
     Thune
     Vitter

                             NOT VOTING--1

       
     McCain
       

  The PRESIDING OFFICER. On this vote, the yeas are 60, the nays are 
39. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  Mr. KENNEDY. I move to reconsider the vote.
  Mr. MENENDEZ. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Under the previous order--the Senator from 
Massachusetts.
  Mr. KENNEDY. Mr. President, if I could have the attention of the 
leadership, we would be glad to have a voice vote, if that is 
acceptable, satisfactory. We would vitiate the need for the yeas and 
nays and move to a voice vote, if that is satisfactory.
  Mr. McCONNELL. Mr. President, I was distracted.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. McCONNELL. Was the Senator from Massachusetts trying to get my 
attention?

[[Page S12206]]

  Mr. KENNEDY. As a result of this vote, we would be glad to vitiate 
the need for the yeas and nays on this amendment and have a voice vote, 
if that is acceptable.
  Mr. McCONNELL. As far as I know, a voice vote is acceptable. We will 
vote on the Hatch alternative.
  Mr. KENNEDY. Then, Mr. President, if I could just have everyone's 
attention for a minute, we are prepared to accept the Hatch amendment, 
if that is satisfactory.
  Mr. McCONNELL. We will need a rollcall vote on the Hatch amendment.
  Mr. KENNEDY. Then, Mr. President, I would like to see if we could 
have a voice vote now on the underlying amendment.
  The PRESIDING OFFICER. The question is on agreeing to the Kennedy 
amendment.
  The majority leader is recognized.
  Mr. REID. Mr. President, it would seem to me what we should do is 
have a vote on the underlying Hatch amendment. I do not think we need 
to vote on cloture. So I ask unanimous consent that we have a voice 
vote on the amendment that is now before the body, we vitiate the 
cloture motion on the Hatch amendment, and have a rollcall vote on his 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to the Kennedy amendment.
  The amendment (No. 3035) was agreed to.
  Mr. KENNEDY. I move to reconsider the vote.
  Mr. MENENDEZ. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3047

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided on the Hatch amendment prior to a 
vote on the amendment.
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, we are willing to accept the Hatch 
amendment. It requires a study and requires some authorization for 
helping local communities. I would hope the amendment would be 
unanimously accepted. I intend to vote for it, and I would hope all the 
Members would vote for it. I understand we are going to order the yeas 
and nays now. I hope we will vote in favor of the Hatch amendment.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, with that fine concession, I yield back the 
remainder of my time.
  Mr. KENNEDY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to amendment No. 3047.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. LOTT. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 96, nays 3, as follows:

                      [Rollcall Vote No. 351 Leg.]

                                YEAS--96

     Akaka
     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCaskill
     McConnell
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Thune
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--3

     Coburn
     Graham
     Vitter

                             NOT VOTING--1

       
     McCain
       
  The amendment (No. 3047) was agreed to.

                          ____________________