[Congressional Record Volume 156, Number 24 (Wednesday, February 24, 2010)]
[Senate]
[Pages S744-S751]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. KERRY (for himself and Ms. Snowe):
  S. 3028. A bill to amend title XVIII of the Social Security Act to 
eliminate the 190-day lifetime limit on inpatient psychiatric hospital 
services under the Medicare program; to the Committee on Finance.
  Mr. KERRY. Mr. President, our country has recently taken great steps 
forward to support the principles of mental health parity. In 2008, 
Congress has enacted two important pieces of legislation to end 
discrimination against people suffering from mental illnesses.
  Congress passed the Paul Wellstone and Pete Domenici Mental Health 
Parity and Addiction Equity Act of 2008, MHPAEA, to prohibit the 
establishment of discriminatory benefit caps or cost-sharing 
requirements for mental health and substance use disorders. That same 
year Congress also passed the Medicare Improvements for Patients and 
Protections Act, MIPPA, which included legislation introduced by 
Senator Snowe, and myself, the Medicare Mental Health Copayment Equity 
Act. This legislation prevented Medicare beneficiaries from being 
charged higher copayments for outpatient mental health services than 
for all other outpatient physician services.
  Unfortunately, even with the passage of MIPPA, a serious mental 
health inequity remains in Medicare. Medicare beneficiaries are 
currently limited to only 190-days of inpatient psychiatric hospital 
care in their lifetime. This lifetime limit directly impacts Medicare 
beneficiaries' access to psychiatric hospitals, although it does not 
apply to psychiatric units in general hospitals. This arbitrary cap on 
benefits is discriminatory to the mentally ill as there is no such 
lifetime limit for any other Medicare specialty inpatient hospital 
service. The 190-day lifetime limit is problematic for patients being 
treated in psychiatric hospitals as they may easily exceed the 190-days 
if they have a chronic mental illness.
  That is why Senator Snowe and I are working together once again to 
address the last remaining mental health parity issue in Medicare. 
Today, we are introducing the Medicare Mental Health Inpatient Equity 
Act. Our legislation would eliminate the Medicare 190-day lifetime 
limit for inpatient psychiatric hospital care. It would equalize 
Medicare mental health coverage with private health insurance coverage, 
expand beneficiary choice of inpatient psychiatric care providers, 
increase access for the seriously ill, and improve continuity of care.
  This legislation is supported by 46 national organizations that 
represent hospital associations, seniors' organizations and the mental 
health community. I would like to thank a number of organizations who 
have been integral to the development of the Medicare Mental Health 
Inpatient Equity Act and who have endorsed our legislation today, 
including the AARP, the American Hospital Association, the National 
Association of Psychiatric Health Systems, and the American 
Psychological Association.
  Congress has now acted to address mental health parity issues for 
group health plans and for outpatient Medicare services. It is time to 
end this outmoded law and ensure that beneficiaries with mental 
illnesses have access to a range of appropriate settings for their 
care. I look forward to working with my colleagues in the Senate to 
achieve mental health parity in Medicare.
                                 ______
                                 
      By Mr. LEAHY (for himself and Mr. Grassley):
  S. 3031. A bill to authorize Drug Free Communities enhancement grants 
to address major emerging drug issues or local drug crises; to the 
Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today, I am pleased to join with Senator 
Grassley to introduce the Drug Free Communities Enhancement Act of 
2010, a bill to authorize additional Drug Free Communities grants to 
help address major emerging drug issues and local drug crises. It is 
crucial that communities around the country have the leadership and 
resources needed to respond to serious drug problems in a comprehensive 
and coordinated manner. Drug Free Community, DFC, coalitions have been 
proven to significantly lower substance abuse rates in our communities 
nationwide.
  This legislation will allow current and former DFCs to apply for 
grants of up to $75,000 per year to implement comprehensive, community-
wide strategies to address emerging local drug issues or drug crises. 
The funds may also be used for DFC members to obtain specialized 
training and technical assistance to improve the operation of their 
coalitions. These grants, which must be matched dollar for dollar, 
would be available to DFCs for up to 4 years.
  The DFC program encourages local citizens to become directly involved 
in solving their community's drug issues through grassroots community 
organizing and data-driven planning and implementation. Research shows 
that effective prevention hinges on the extent to which the entire 
community works comprehensively and collaboratively to implement 
education, prevention, enforcement, treatment, and recovery 
initiatives. The DFC program strategically invests Federal anti-drug 
resources at the community level with those who have the most power to 
reduce the demand for drugs--namely parents, teachers, business 
leaders, the media, religious leaders, law enforcement officials, 
youth, and others. Drug Free Communities grantees execute collaborative 
strategies to address their communities' unique substance use and abuse 
issues. This is the optimal way to ensure that the entire community 
benefits from prevention.
  In Vermont, we have felt the presence of drug abuse and drug-related 
crime in our communities. The myth persists that drug abuse and drug-
related crime are only big-city problems, but rural America is also 
coping with these issues. I have twice brought the Judiciary Committee 
to Vermont to examine these problems and gain perspectives to help 
shape solutions, and I hope to hold another field hearing in Vermont 
soon. I know well that law enforcement alone is not the solution for 
our communities. I have long advocated an approach with equal attention 
to law enforcement, prevention and education, and treatment.
  Perhaps the most important component in dealing with this crucial 
problem is collaboration. Community anti-drug coalitions have a unique 
ability to build on pre-existing relationships among parents, teachers, 
students, and law enforcement, which make them a critical component in 
reducing drug use. I have consistently supported funding for these 
coalitions and was pleased that last year 14 Vermont coalitions were 
awarded Drug Free Community grants totaling $1.2 million.
  Last week, I spoke with a number of Vermonters representing these 
community partnerships and heard about the innovative frameworks they 
have implemented to combat drug abuse in their communities, thanks in 
large part to DFC grants. This bill will enable many of them to secure 
supplemental funding to continue the important work they do every day. 
Indeed, communities nationwide who are facing serious drug issues will 
benefit from these enhancement grants.
  The community coalition model has proven extremely effective, and has 
achieved impressive outcomes. We see significant results when we have 
people working together at the local, state, and Federal levels, and in 
the law enforcement, prevention, and treatment fields. We have seen 
that success in Vermont and throughout the country, but there is more 
work to be done. Drug abuse and drug-related crime is a persistent 
problem in America, in major metropolitan areas and rural communities 
alike. I hope all Senators will support this bipartisan bill so that 
communities nationwide can sustain effective community coalitions to 
reduce youth drug use.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3031

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Drug Free Communities 
     Enhancement Act of 2010''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) The epidemiology of drug use indicates that emerging 
     drug trends increase over a

[[Page S745]]

     short period of time and tend to cluster in discrete 
     geographic areas. Historical evidence shows that emerging 
     local drug issues and crises can be stopped or mitigated 
     before they spread to other areas, if they are identified 
     quickly and addressed in a comprehensive multi-sector manner.
       (2) Federal investments in drug prevention should not be 
     solely based on national data and trends, but must be 
     flexible enough to address emerging local problems and local 
     drug crises before they become national trends.
       (3) Successful drug prevention must be based on local data 
     and involve multiple community sectors in planning and 
     implementing specifically targeted strategies that respond to 
     the unique drug problems of the community.
       (4) Data and outcomes show that effective community 
     coalitions can markedly reduce local drug use rates for drugs 
     such as marijuana and inhalants among school-aged youth.
       (5) Community coalitions are singularly situated to deal 
     with emerging drug issues and local drug crises, such as 
     methamphetamine, cheese (a mixture of black tar heroin and 
     Tylenol PM), and prescription and non-prescription drug abuse 
     because the community coalitions are organized, data driven, 
     and take a comprehensive, multi-sector approach to solving 
     and addressing locally identified drug problems.
       (6) Providing enhancement grants to coalitions to address 
     emerging local drug issues or local drug crises is a cost 
     effective way to deal with these drug issues. This approach 
     builds on existing infrastructures with proven results that 
     include all of the relevant community sectors needed to 
     comprehensively address specific emerging drug issues and 
     crises, and guards against using Federal funding to create 
     duplicative community based infrastructures for substance 
     abuse prevention.

     SEC. 3. COMMUNITY-BASED COALITION ENHANCEMENT GRANTS TO 
                   ADDRESS EMERGING DRUG ISSUES OR LOCAL DRUG 
                   CRISES.

       (a) Definitions.--In this section--
       (1) the term ``Director'' means the Director of the Office 
     of National Drug Control Policy;
       (2) the term ``drug'' means--
       (A) a substance listed on schedule I, II, III, IV, or V of 
     section 202 of the Controlled Substances Act (21 U.S.C. 
     812(c));
       (B) inhalants;
       (C) if used in a manner that is illegal, a prescription or 
     over the counter drug or medicine; and
       (D) another mind altering substance with the potential for 
     abuse, as determined by the Director, not listed on a 
     schedule of section 202(c) of the Controlled Substance Act 
     (21 U.S.C. 812(c));
       (3) the term ``emerging local drug issue'' means, with 
     respect to the area served by an eligible entity, a sudden 
     increase in the use or abuse of a particular drug in the 
     community, as documented by local data;
       (4) the term ``local drug crisis'' means, with respect to 
     the area served by an eligible entity, the use of a specific 
     drug in the area at levels that are significantly higher than 
     the national average, over a sustained period of time, as 
     documented by local data;
       (5) the term ``eligible entity'' means an organization 
     that--
       (A) is receiving or has received a grant under chapter 2 of 
     title I of the National Narcotics Leadership Act of 1988 (21 
     U.S.C. 1521 et seq.) (commonly known as the Drug-Free 
     Communities Act of 1997); and
       (B) has documented, using local data--
       (i) for an emerging local drug issue--

       (I) rates of drug use and abuse above the national average, 
     as determined by the Director (including appropriate 
     consideration of the Monitoring of the Future Survey 
     published by the Department of Health and Human Services), 
     for comparable time periods; or
       (II) if national data is not available, at the discretion 
     of the Director, high rates of drug use or abuse based solely 
     on valid local data; or

       (ii) for a local drug crisis--

       (I) rates of use and abuse for a specific drug at levels 
     that are significantly higher than the national average, as 
     determined by the Director (including appropriate 
     consideration of the Monitoring of the Future Survey 
     published by the Department of Health and Human Services and 
     the National Survey on Drug Use and Health by the Substance 
     Abuse and Mental Health Service Administration); and
       (II) rates of use and abuse for a specific drug that 
     continue over a sustained period of time, as determined by 
     the Director.

       (b) Authorization of Program.--The Director may make 
     enhancement grants to eligible entities to implement 
     comprehensive community-wide strategies that address emerging 
     local drug issues or local drug crises within the area served 
     by the eligible entity.
       (c) Application.--
       (1) In general.--An eligible entity desiring an enhancement 
     grant under this section shall submit an application to the 
     Director at such time, in such manner, and accompanied by 
     such information as the Director may require.
       (2) Criteria.--As part of an application for a grant under 
     this section, the Director shall require an eligible entity 
     to submit a detailed, comprehensive, multi-sector plan for 
     addressing the emerging local drug issue or local drug crises 
     within the area served by the eligible entity.
       (d) Uses of Funds.--A grant under this section shall be 
     used to--
       (1) implement comprehensive, community-wide prevention 
     strategies to address an emerging local drug issue or drug 
     crises in the area served by an eligible entity, in 
     accordance with the plan submitted under subsection (c)(2); 
     and
       (2) obtain specialized training and technical assistance 
     from the entity receiving a grant under section 4 of Public 
     Law 107-82 (21 U.S.C. 1521 note).
       (e) Grant Amounts.--
       (1) In general.--The total amount of grant funds awarded to 
     an eligible entity for a fiscal year may not exceed the 
     amount of non-Federal funds raised by the eligible entity, 
     including in-kind contributions, for that fiscal year.
       (2) Grant awards.--A grant under this section shall--
       (A) be made for a period of not more than 4 years; and
       (B) be for not more than $75,000 per year.
       (f) Supplement Not Supplant.--Grant funds provided under 
     this section shall be used to supplement, not supplant, 
     Federal and non-Federal funds available for carrying out the 
     activities described in this section.
       (g) Evaluation.--A grant under this section shall be 
     subject to the same evaluation requirements and procedures as 
     the evaluation requirements and procedures imposed on the 
     recipient of a grant under chapter 2 of title I of the 
     National Narcotics Leadership Act of 1988 (21 U.S.C. 1521 et 
     seq.) (commonly known as the Drug-Free Communities Act of 
     1997).
       (h) Administrative Expenses.--Not more than 5 percent of 
     the amount appropriated to carry out this section for any 
     fiscal year may be used by the Director for administrative 
     expenses.
       (i) Authorization of Appropriations.--There are authorized 
     to be appropriated $5,000,000 for each of fiscal years 2011 
     through 2015 to carry out this section.

  Mr. GRASSLEY. Mr. President, in 1997 then-Senator Biden and I 
sponsored legislation to create the Drug Free Communities, DFC, grant 
program. At the time, I believed, as I still do today, that one of the 
most effective ways the Federal Government can prevent drug abuse from 
flourishing is by supporting local community efforts to identify, 
prevent and eradicate the sources of abuse. Since the passage of the 
Drug Free Communities Act, hundreds of community anti-drug coalitions 
have received Federal grants to further their efforts to halt the 
spread of drug abuse in their communities.
  Despite the successes of the DFC program, drug abuse continues to 
challenge our communities. More often than not, a community can rise up 
to meet this challenge head on and confront the abuse before it 
spreads. However, drug abuse is one challenge that can emerge in rapid 
fashion. In difficult economic times when States and communities 
struggle to stay within their budgets without eliminating vital 
services, it is important that community anti-drug coalitions do not 
suffer from a lack of resources. This is why I am pleased to join my 
colleague, Senator Leahy, in introducing the Drug Free Communities 
Enhancement Act, DFCEA, of 2010.
  This legislation builds off the successful DFC grant program by 
allowing community coalitions to form a strategy that best fits their 
community to confront a sudden or emerging drug threat without Federal 
interference. The DFCEA authorizes $5 million to the Office of National 
Drug Control Policy to award supplemental grants of up to $75,000 to 
current and past DFC grantees to address an emerging drug issue or 
crisis. The grantee would be eligible to receive these supplemental 
grants for up to a 4 year period if they document, using local data, 
rates of drug abuse higher than the national average.
  In my home State of Iowa, communities face unique challenges in 
confronting drug abuse. In Polk County, the home of the State capitol 
of Des Moines, 37 percent of 11th graders admitted to using marijuana 
in the 2008 Iowa Youth Survey. This is significantly higher than the 
statewide average of 27 percent from the same survey. This number is 
also 4 percent higher than the national average according to the 2009 
Monitoring the Future survey of 12th graders. In Black Hawk County, the 
home of Waterloo and Cedar Falls, 8 percent of 11th graders admitted to 
using over-the-counter cold medicines to get high according to the Iowa 
Youth Survey. This is higher than the 6 percent of the Nation's 12th 
graders who admitted to cold medicine abuse in the Monitoring the 
Future survey. Communities like these would benefit under the DFCEA, 
because they would

[[Page S746]]

be able to apply for a supplemental grant to put a strategy into action 
to reduce these use rates.
  Community coalitions represent the front lines in the fight against 
drug abuse. The DFCEA will help to ensure that community coalitions 
will remain strong and vibrant no matter the economic or drug trend 
situation in the community. Drug abuse flourishes when the problem is 
ignored. If we are to overcome the challenges of drug abuse we must 
stand untied in the effort. I urge my colleagues to join us as we 
continue this fight to keep our communities drug free.
                                 ______
                                 
      By Mr. DURBIN (for himself, Mr. Brown of Ohio, Mr. Harkin, and 
        Mr. Franken):
  S. 3033. A bill to amend title 11, United States Code, to improve 
protections for employees and retirees in business bankruptcies; to the 
Committee on the Judiciary.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3033

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Protecting 
     Employees and Retirees in Business Bankruptcies Act of 
     2010''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.

        TITLE I--IMPROVING RECOVERIES FOR EMPLOYEES AND RETIREES

Sec. 101. Increased wage priority.
Sec. 102. Claim for stock value losses in defined contribution plans.
Sec. 103. Priority for severance pay.
Sec. 104. Financial returns for employees and retirees.
Sec. 105. Priority for WARN Act damages.

           TITLE II--REDUCING EMPLOYEES' AND RETIREES' LOSSES

Sec. 201. Rejection of collective bargaining agreements.
Sec. 202. Payment of insurance benefits to retired employees.
Sec. 203. Protection of employee benefits in a sale of assets.
Sec. 204. Claim for pension losses.
Sec. 205. Payments by secured lender.
Sec. 206. Preservation of jobs and benefits.
Sec. 207. Termination of exclusivity.

         TITLE III--RESTRICTING EXECUTIVE COMPENSATION PROGRAMS

Sec. 301. Executive compensation upon exit from bankruptcy.
Sec. 302. Limitations on executive compensation enhancements.
Sec. 303. Assumption of executive benefit plans.
Sec. 304. Recovery of executive compensation.
Sec. 305. Preferential compensation transfer.

                       TITLE IV--OTHER PROVISIONS

Sec. 401. Union proof of claim.
Sec. 402. Exception from automatic stay.

     SEC. 2. FINDINGS.

       The Congress finds the following:
       (1) Business bankruptcies have increased sharply over the 
     past year and remain at high levels. These bankruptcies 
     include several of the largest business bankruptcy filings in 
     history. As the use of bankruptcy has expanded, job 
     preservation and retirement security are placed at greater 
     risk.
       (2) Laws enacted to improve recoveries for employees and 
     retirees and limit their losses in bankruptcy cases have not 
     kept pace with the increasing and broader use of bankruptcy 
     by businesses in all sectors of the economy. However, while 
     protections for employees and retirees in bankruptcy cases 
     have eroded, management compensation plans devised for those 
     in charge of troubled businesses have become more prevalent 
     and are escaping adequate scrutiny.
       (3) Changes in the law regarding these matters are urgently 
     needed as bankruptcy is used to address increasingly more 
     complex and diverse conditions affecting troubled businesses 
     and industries.

        TITLE I--IMPROVING RECOVERIES FOR EMPLOYEES AND RETIREES

     SEC. 101. INCREASED WAGE PRIORITY.

       Section 507(a) of title 11, United States Code, is 
     amended--
       (1) in paragraph (4)--
       (A) by striking ``$10,000'' and inserting ``$20,000'';
       (B) by striking ``within 180 days''; and
       (C) by striking ``or the date of the cessation of the 
     debtor's business, whichever occurs first,'';
       (2) in paragraph (5)(A), by striking--
       (A) ``within 180 days''; and
       (B) ``or the date of the cessation of the debtor's 
     business, whichever occurs first''; and
       (3) in paragraph (5), by striking subparagraph (B) and 
     inserting the following:
       ``(B) for each such plan, to the extent of the number of 
     employees covered by each such plan, multiplied by 
     $20,000.''.

     SEC. 102. CLAIM FOR STOCK VALUE LOSSES IN DEFINED 
                   CONTRIBUTION PLANS.

       Section 101(5) of title 11, United States Code, is 
     amended--
       (1) in subparagraph (A), by striking ``or'' at the end;
       (2) in subparagraph (B), by inserting ``or'' after the 
     semicolon; and
       (3) by adding at the end the following:
       ``(C) right or interest in equity securities of the debtor, 
     or an affiliate of the debtor, held in a defined contribution 
     plan (within the meaning of section 3(34) of the Employee 
     Retirement Income Security Act of 1974 (29 U.S.C. 1002(34))) 
     for the benefit of an individual who is not an insider, a 
     senior executive officer, or any of the 20 next most highly 
     compensated employees of the debtor (if 1 or more are not 
     insiders), if such securities were attributable to either 
     employer contributions by the debtor or an affiliate of the 
     debtor, or elective deferrals (within the meaning of section 
     402(g) of the Internal Revenue Code of 1986), and any 
     earnings thereon, if an employer or plan sponsor who has 
     commenced a case under this title has committed fraud with 
     respect to such plan or has otherwise breached a duty to the 
     participant that has proximately caused the loss of value.''.

     SEC. 103. PRIORITY FOR SEVERANCE PAY.

       Section 503(b) of title 11, United States Code, is 
     amended--
       (1) in paragraph (8), by striking ``and'' at the end;
       (2) in paragraph (9), by striking the period and inserting 
     ``; and''; and
       (3) by adding at the end the following:
       ``(10) severance pay owed to employees of the debtor (other 
     than to an insider, other senior management, or a consultant 
     retained to provide services to the debtor), under a plan, 
     program, or policy generally applicable to employees of the 
     debtor (but not under an individual contract of employment), 
     or owed pursuant to a collective bargaining agreement, for 
     layoff or termination on or after the date of the filing of 
     the petition, which pay shall be deemed earned in full upon 
     such layoff or termination of employment.''.

     SEC. 104. FINANCIAL RETURNS FOR EMPLOYEES AND RETIREES.

       Section 1129(a) of title 11, United States Code is 
     amended--
       (1) by adding at the end the following:
       ``(17) The plan provides for recovery of damages payable 
     for the rejection of a collective bargaining agreement, or 
     for other financial returns as negotiated by the debtor and 
     the authorized representative under section 1113 (to the 
     extent that such returns are paid under, rather than outside 
     of, a plan).''; and
       (2) by striking paragraph (13) and inserting the following:
       ``(13) With respect to retiree benefits, as that term is 
     defined in section 1114(a), the plan--
       ``(A) provides for the continuation after its effective 
     date of payment of all retiree benefits at the level 
     established pursuant to subsection (e)(1)(B) or (g) of 
     section 1114 at any time before the date of confirmation of 
     the plan, for the duration of the period for which the debtor 
     has obligated itself to provide such benefits, or if no 
     modifications are made before confirmation of the plan, the 
     continuation of all such retiree benefits maintained or 
     established in whole or in part by the debtor before the date 
     of the filing of the petition; and
       ``(B) provides for recovery of claims arising from the 
     modification of retiree benefits or for other financial 
     returns, as negotiated by the debtor and the authorized 
     representative (to the extent that such returns are paid 
     under, rather than outside of, a plan).''.

     SEC. 105. PRIORITY FOR WARN ACT DAMAGES.

       Section 503(b)(1)(A)(ii) of title 11, United States Code is 
     amended to read as follows:
       ``(ii) wages and benefits awarded pursuant to a judicial 
     proceeding or a proceeding of the National Labor Relations 
     Board as back pay or damages attributable to any period of 
     time occurring after the date of commencement of the case 
     under this title, as a result of a violation of Federal or 
     State law by the debtor, without regard to the time of the 
     occurrence of unlawful conduct on which the award is based or 
     to whether any services were rendered on or after the 
     commencement of the case, including an award by a court under 
     section 2901 of title 29, United States Code, of up to 60 
     days' pay and benefits following a layoff that occurred or 
     commenced at a time when such award period includes a period 
     on or after the commencement of the case, if the court 
     determines that payment of wages and benefits by reason of 
     the operation of this clause will not substantially increase 
     the probability of layoff or termination of current employees 
     or of nonpayment of domestic support obligations during the 
     case under this title.''.

           TITLE II--REDUCING EMPLOYEES' AND RETIREES' LOSSES

     SEC. 201. REJECTION OF COLLECTIVE BARGAINING AGREEMENTS.

       Section 1113 of title 11, United States Code, is amended by 
     striking subsections (a) through (f) and inserting the 
     following:
       ``(a) The debtor in possession, or the trustee if one has 
     been appointed under this chapter, other than a trustee in a 
     case covered by subchapter IV of this chapter and by title I 
     of the Railway Labor Act, may reject a collective bargaining 
     agreement only in accordance with this section. Hereinafter 
     in this section, a reference to the trustee includes a 
     reference to the debtor in possession.

[[Page S747]]

       ``(b) No provision of this title shall be construed to 
     permit the trustee to unilaterally terminate or alter any 
     provision of a collective bargaining agreement before 
     complying with this section. The trustee shall timely pay all 
     monetary obligations arising under the terms of the 
     collective bargaining agreement. Any such payment required to 
     be made before a plan confirmed under section 1129 is 
     effective has the status of an allowed administrative expense 
     under section 503.
       ``(c)(1) If the trustee seeks modification of a collective 
     bargaining agreement, then the trustee shall provide notice 
     to the labor organization representing the employees covered 
     by the agreement that modifications are being proposed under 
     this section, and shall promptly provide an initial proposal 
     for modifications to the agreement. Thereafter, the trustee 
     shall confer in good faith with the labor organization, at 
     reasonable times and for a reasonable period in light of the 
     complexity of the case, in attempting to reach mutually 
     acceptable modifications of such agreement.
       ``(2) The initial proposal and subsequent proposals by the 
     trustee for modification of a collective bargaining agreement 
     shall be based upon a business plan for the reorganization of 
     the debtor, and shall reflect the most complete and reliable 
     information available. The trustee shall provide to the labor 
     organization all information that is relevant for 
     negotiations. The court may enter a protective order to 
     prevent the disclosure of information if disclosure could 
     compromise the debtor's position with respect to its 
     competitors in the industry, subject to the needs of the 
     labor organization to evaluate the trustee's proposals and 
     any application for rejection of the agreement or for interim 
     relief pursuant to this section.
       ``(3) In consideration of Federal policy encouraging the 
     practice and process of collective bargaining and in 
     recognition of the bargained-for expectations of the 
     employees covered by the agreement, modifications proposed by 
     the trustee--
       ``(A) shall be proposed only as part of a program of 
     workforce and nonworkforce cost savings devised for the 
     reorganization of the debtor, including savings in management 
     personnel costs;
       ``(B) shall be limited to modifications designed to achieve 
     a specified aggregate financial contribution for the 
     employees covered by the agreement (taking into consideration 
     any labor cost savings negotiated within the 12-month period 
     before the filing of the petition), and shall be not more 
     than the minimum savings essential to permit the debtor to 
     exit bankruptcy, such that confirmation of a plan of 
     reorganization is not likely to be followed by the 
     liquidation, or the need for further financial 
     reorganization, of the debtor (or any successor to the 
     debtor) in the short term; and
       ``(C) shall not be disproportionate or overly burden the 
     employees covered by the agreement, either in the amount of 
     the cost savings sought from such employees or the nature of 
     the modifications.
       ``(d)(1) If, after a period of negotiations, the trustee 
     and the labor organization have not reached an agreement over 
     mutually satisfactory modifications, and further negotiations 
     are not likely to produce mutually satisfactory 
     modifications, the trustee may file a motion seeking 
     rejection of the collective bargaining agreement after notice 
     and a hearing. Absent agreement of the parties, no such 
     hearing shall be held before the expiration of the 21-day 
     period beginning on the date on which notice of the hearing 
     is provided to the labor organization representing the 
     employees covered by the agreement. Only the debtor and the 
     labor organization may appear and be heard at such hearing. 
     An application for rejection shall seek rejection effective 
     upon the entry of an order granting the relief.
       ``(2) In consideration of Federal policy encouraging the 
     practice and process of collective bargaining and in 
     recognition of the bargained-for expectations of the 
     employees covered by the agreement, the court may grant a 
     motion seeking rejection of a collective bargaining agreement 
     only if, based on clear and convincing evidence --
       ``(A) the court finds that the trustee has complied with 
     the requirements of subsection (c);
       ``(B) the court has considered alternative proposals by the 
     labor organization and has concluded that such proposals do 
     not meet the requirements of paragraph (3)(B) of subsection 
     (c);
       ``(C) the court finds that further negotiations regarding 
     the trustee's proposal or an alternative proposal by the 
     labor organization are not likely to produce an agreement;
       ``(D) the court finds that implementation of the trustee's 
     proposal shall not--
       ``(i) cause a material diminution in the purchasing power 
     of the employees covered by the agreement;
       ``(ii) adversely affect the ability of the debtor to retain 
     an experienced and qualified workforce; or
       ``(iii) impair the debtor's labor relations such that the 
     ability to achieve a feasible reorganization would be 
     compromised; and
       ``(E) the court concludes that rejection of the agreement 
     and immediate implementation of the trustee's proposal is 
     essential to permit the debtor to exit bankruptcy, such that 
     confirmation of a plan of reorganization is not likely to be 
     followed by liquidation, or the need for further financial 
     reorganization, of the debtor (or any successor to the 
     debtor) in the short term.
       ``(3) If the trustee has implemented a program of incentive 
     pay, bonuses, or other financial returns for insiders, senior 
     executive officers, or the 20 next most highly compensated 
     employees or consultants providing services to the debtor 
     during the bankruptcy, or such a program was implemented 
     within 180 days before the date of the filing of the 
     petition, the court shall presume that the trustee has failed 
     to satisfy the requirements of subsection (c)(3)(C).
       ``(4) In no case shall the court enter an order rejecting a 
     collective bargaining agreement that would result in 
     modifications to a level lower than the level proposed by the 
     trustee in the proposal found by the court to have complied 
     with the requirements of this section.
       ``(5) At any time after the date on which an order 
     rejecting a collective bargaining agreement is entered, or in 
     the case of an agreement entered into between the trustee and 
     the labor organization providing mutually satisfactory 
     modifications, at any time after such agreement has been 
     entered into, the labor organization may apply to the court 
     for an order seeking an increase in the level of wages or 
     benefits, or relief from working conditions, based upon 
     changed circumstances. The court shall grant the request only 
     if the increase or other relief is not inconsistent with the 
     standard set forth in paragraph (2)(E).
       ``(e) During a period in which a collective bargaining 
     agreement at issue under this section continues in effect, 
     and if essential to the continuation of the debtor's business 
     or in order to avoid irreparable damage to the estate, the 
     court, after notice and a hearing, may authorize the trustee 
     to implement interim changes in the terms, conditions, wages, 
     benefits, or work rules provided by the collective bargaining 
     agreement. Any hearing under this subsection shall be 
     scheduled in accordance with the needs of the trustee. The 
     implementation of such interim changes shall not render the 
     application for rejection moot.
       ``(f) Rejection of a collective bargaining agreement 
     constitutes a breach of the agreement, and shall be effective 
     no earlier than the entry of an order granting such relief. 
     Notwithstanding the foregoing, solely for purposes of 
     determining and allowing a claim arising from the rejection 
     of a collective bargaining agreement, rejection shall be 
     treated as rejection of an executory contract under section 
     365(g) and shall be allowed or disallowed in accordance with 
     section 502(g)(1). No claim for rejection damages shall be 
     limited by section 502(b)(7). Economic self-help by a labor 
     organization shall be permitted upon a court order granting a 
     motion to reject a collective bargaining agreement under 
     subsection (d) or pursuant to subsection (e), and no 
     provision of this title or of any other provision of Federal 
     or State law may be construed to the contrary.
       ``(g) The trustee shall provide for the reasonable fees and 
     costs incurred by a labor organization under this section, 
     upon request and after notice and a hearing.
       ``(h) A collective bargaining agreement that is assumed 
     shall be assumed in accordance with section 365.''.

     SEC. 202. PAYMENT OF INSURANCE BENEFITS TO RETIRED EMPLOYEES.

       Section 1114 of title 11, United States Code, is amended--
       (1) in subsection (a), by inserting ``, whether or not the 
     debtor asserts a right to unilaterally modify such payments 
     under such plan, fund, or program'' before the period at the 
     end;
       (2) in subsection (b)(2), by inserting after ``section'' 
     the following: ``, and a labor organization serving as the 
     authorized representative under subsection (c)(1),'';
       (3) in subsection (f), by striking ``(f)'' and all that 
     follows through paragraph (2) and inserting the following:
       ``(f)(1) If a trustee seeks modification of retiree 
     benefits, then the trustee shall provide a notice to the 
     authorized representative that modifications are being 
     proposed pursuant to this section, and shall promptly provide 
     an initial proposal. Thereafter, the trustee shall confer in 
     good faith with the authorized representative at reasonable 
     times and for a reasonable period in light of the complexity 
     of the case in attempting to reach mutually satisfactory 
     modifications.
       ``(2) The initial proposal and subsequent proposals by the 
     trustee shall be based upon a business plan for the 
     reorganization of the debtor and shall reflect the most 
     complete and reliable information available. The trustee 
     shall provide to the authorized representative all 
     information that is relevant for the negotiations. The court 
     may enter a protective order to prevent the disclosure of 
     information if disclosure could compromise the debtor's 
     position with respect to its competitors in the industry, 
     subject to the needs of the authorized representative to 
     evaluate the trustee's proposals and an application pursuant 
     to subsection (g) or (h).
       ``(3) Modifications proposed by the trustee--
       ``(A) shall be proposed only as part of a program of 
     workforce and nonworkforce cost savings devised for the 
     reorganization of the debtor, including savings in management 
     personnel costs;
       ``(B) shall be limited to modifications that are designed 
     to achieve a specified aggregate financial contribution for 
     the retiree group represented by the authorized 
     representative (taking into consideration any cost savings 
     implemented within the 12-month period before the date of 
     filing of the petition with respect to the retiree group), 
     and shall be no more than the minimum savings essential to

[[Page S748]]

     permit the debtor to exit bankruptcy, such that confirmation 
     of a plan of reorganization is not likely to be followed by 
     the liquidation, or the need for further financial 
     reorganization, of the debtor (or any successor to the 
     debtor) in the short term; and
       ``(C) shall not be disproportionate or overly burden the 
     retiree group, either in the amount of the cost savings 
     sought from such group or the nature of the modifications.'';
       (4) in subsection (g)--
       (A) by striking ``(g)'' and all that follows through the 
     semicolon at the end of paragraph (3) and inserting the 
     following:
       ``(g)(1) If, after a period of negotiations, the trustee 
     and the authorized representative have not reached agreement 
     over mutually satisfactory modifications and further 
     negotiations are not likely to produce mutually satisfactory 
     modifications, then the trustee may file a motion seeking 
     modifications in the payment of retiree benefits after notice 
     and a hearing. Absent agreement of the parties, no such 
     hearing shall be held before the expiration of the 21-day 
     period beginning on the date on which notice of the hearing 
     is provided to the authorized representative. Only the debtor 
     and the authorized representative may appear and be heard at 
     such hearing.
       ``(2) The court may grant a motion to modify the payment of 
     retiree benefits only if, based on clear and convincing 
     evidence--
       ``(A) the court finds that the trustee has complied with 
     the requirements of subsection (f);
       ``(B) the court has considered alternative proposals by the 
     authorized representative and has determined that such 
     proposals do not meet the requirements of subsection 
     (f)(3)(B);
       ``(C) the court finds that further negotiations regarding 
     the trustee's proposal or an alternative proposal by the 
     authorized representative are not likely to produce a 
     mutually satisfactory agreement;
       ``(D) the court finds that implementation of the proposal 
     shall not cause irreparable harm to the affected retirees; 
     and
       ``(E) the court concludes that an order granting the motion 
     and immediate implementation of the trustee's proposal is 
     essential to permit the debtor to exit bankruptcy, such that 
     confirmation of a plan of reorganization is not likely to be 
     followed by liquidation, or the need for further financial 
     reorganization, of the debtor (or a successor to the debtor) 
     in the short term.
       ``(3) If a trustee has implemented a program of incentive 
     pay, bonuses, or other financial returns for insiders, senior 
     executive officers, or the 20 next most highly-compensated 
     employees or consultants providing services to the debtor 
     during the bankruptcy, or such a program was implemented 
     within 180 days before the date of the filing of the 
     petition, the court shall presume that the trustee has failed 
     to satisfy the requirements of subparagraph (f)(3)(C).''; and
       (B) by striking ``except that in no case'' and inserting 
     the following:
       ``(4) In no case''; and
       (5) by striking subsection (k) and redesignating 
     subsections (l) and (m) as subsections (k) and (l), 
     respectively.

     SEC. 203. PROTECTION OF EMPLOYEE BENEFITS IN A SALE OF 
                   ASSETS.

       Section 363(b) of title 11, United States Code, is amended 
     by adding at the end the following:
       ``(3) In approving a sale under this subsection, the court 
     shall consider the extent to which a bidder has offered to 
     maintain existing jobs, preserve terms and conditions of 
     employment, and assume or match pension and retiree health 
     benefit obligations in determining whether an offer 
     constitutes the highest or best offer for such property.''.

     SEC. 204. CLAIM FOR PENSION LOSSES.

       Section 502 of title 11, United States Code, is amended by 
     adding at the end the following:
       ``(l) The court shall allow a claim asserted by an active 
     or retired participant, or by a labor organization 
     representing such participants, in a defined benefit plan 
     terminated under section 4041 or 4042 of the Employee 
     Retirement Income Security Act of 1974, for any shortfall in 
     pension benefits accrued as of the effective date of the 
     termination of such pension plan as a result of the 
     termination of the plan and limitations upon the payment of 
     benefits imposed pursuant to section 4022 of such Act, 
     notwithstanding any claim asserted and collected by the 
     Pension Benefit Guaranty Corporation with respect to such 
     termination.
       ``(m) The court shall allow a claim of a kind described in 
     section 101(5)(C) by an active or retired participant in a 
     defined contribution plan (within the meaning of section 
     3(34) of the Employee Retirement Income Security Act of 1974 
     (29 U.S.C. 1002(34)), or by a labor organization representing 
     such participants. The amount of such claim shall be measured 
     by the market value of the stock at the time of contribution 
     to, or purchase by, the plan and the value as of the 
     commencement of the case.''.

     SEC. 205. PAYMENTS BY SECURED LENDER.

       Section 506(c) of title 11, United States Code, is amended 
     by adding at the end the following: ``If employees have not 
     received wages, accrued vacation, severance, or other 
     benefits owed under the policies and practices of the debtor, 
     or pursuant to the terms of a collective bargaining 
     agreement, for services rendered on and after the date of the 
     commencement of the case, then such unpaid obligations shall 
     be deemed necessary costs and expenses of preserving, or 
     disposing of, property securing an allowed secured claim and 
     shall be recovered even if the trustee has otherwise waived 
     the provisions of this subsection under an agreement with the 
     holder of the allowed secured claim or a successor or 
     predecessor in interest.''.

     SEC. 206. PRESERVATION OF JOBS AND BENEFITS.

       Title 11, United States Code, is amended--
       (1) by inserting before section 1101 the following:

     ``SEC. 1100. STATEMENT OF PURPOSE.

       ``A debtor commencing a case under this chapter shall have 
     as its principal purpose the reorganization of its business 
     to preserve going concern value to the maximum extent 
     possible through the productive use of its assets and the 
     preservation of jobs that will sustain productive economic 
     activity.'';
       (2) in section 1129(a), as amended by section 104, by 
     adding at the end the following:
       ``(18) The debtor has demonstrated that the reorganization 
     preserves going concern value to the maximum extent possible 
     through the productive use of the debtor's assets and 
     preserves jobs that sustain productive economic activity.'';
       (3) in section 1129(c), by striking the last sentence and 
     inserting the following: ``If the requirements of subsections 
     (a) and (b) are met with respect to more than 1 plan, the 
     court shall, in determining which plan to confirm--
       ``(1) consider the extent to which each plan would preserve 
     going concern value through the productive use of the 
     debtor's assets and the preservation of jobs that sustain 
     productive economic activity; and
       ``(2) confirm the plan that better serves such interests.

     A plan that incorporates the terms of a settlement with a 
     labor organization representing employees of the debtor shall 
     presumptively constitute the plan that satisfies this 
     subsection.''; and
       (4) in the table of sections for chapter 11, by inserting 
     the following before the item relating to section 1101:

``1100. Statement of purpose.''.

     SEC. 207. TERMINATION OF EXCLUSIVITY.

       Section 1121(d) of title 11, United States Code, is amended 
     by adding at the end the following:
       ``(3) For purposes of this subsection, cause for reducing 
     the 120-day period or the 180-day period includes the 
     following:
       ``(A) The filing of a motion pursuant to section 1113 
     seeking rejection of a collective bargaining agreement if a 
     plan based upon an alternative proposal by the labor 
     organization is reasonably likely to be confirmed within a 
     reasonable time.
       ``(B) The proposed filing of a plan by a proponent other 
     than the debtor, which incorporates the terms of a settlement 
     with a labor organization if such plan is reasonably likely 
     to be confirmed within a reasonable time.''.

         TITLE III--RESTRICTING EXECUTIVE COMPENSATION PROGRAMS

     SEC. 301. EXECUTIVE COMPENSATION UPON EXIT FROM BANKRUPTCY.

       Section 1129(a) of title 11, United States Code, is 
     amended--
       (1) in paragraph (4), by adding at the end the following: 
     ``Except for compensation subject to review under paragraph 
     (5), payments or other distributions under the plan to or for 
     the benefit of insiders, senior executive officers, and any 
     of the 20 next most highly compensated employees or 
     consultants providing services to the debtor, shall not be 
     approved except as part of a program of payments or 
     distributions generally applicable to employees of the 
     debtor, and only to the extent that the court determines that 
     such payments are not excessive or disproportionate compared 
     to distributions to the debtor's nonmanagement workforce.''; 
     and
       (2) in paragraph (5)--
       (A) in subparagraph (A)(ii), by striking ``and'' at the 
     end; and
       (B) in subparagraph (B), by striking the period at the end 
     and inserting the following: ``; and
       ``(C) the compensation disclosed pursuant to subparagraph 
     (B) has been approved by, or is subject to the approval of, 
     the court as reasonable when compared to individuals holding 
     comparable positions at comparable companies in the same 
     industry and not disproportionate in light of economic 
     concessions by the debtor's nonmanagement workforce during 
     the case.''.

     SEC. 302. LIMITATIONS ON EXECUTIVE COMPENSATION ENHANCEMENTS.

       Section 503(c) of title 11, United States Code, is 
     amended--
       (1) in paragraph (1)--
       (A) by inserting ``, a senior executive officer, or any of 
     the 20 next most highly compensated employees or 
     consultants'' after ``an insider'';
       (B) by inserting ``or for the payment of performance or 
     incentive compensation, or a bonus of any kind, or other 
     financial returns designed to replace or enhance incentive, 
     stock, or other compensation in effect before the date of the 
     commencement of the case,'' after ``remain with the debtor's 
     business,''; and
       (C) by inserting ``clear and convincing'' before ``evidence 
     in the record''; and
       (2) by amending paragraph (3) to read as follows:
       ``(3) other transfers or obligations, to or for the benefit 
     of insiders, senior executive officers, managers, or 
     consultants providing services to the debtor, in the absence 
     of a finding by the court, based upon clear and convincing 
     evidence, and without deference to the debtor's request for 
     such payments,

[[Page S749]]

     that such transfers or obligations are essential to the 
     survival of the debtor's business or (in the case of a 
     liquidation of some or all of the debtor's assets) essential 
     to the orderly liquidation and maximization of value of the 
     assets of the debtor, in either case, because of the 
     essential nature of the services provided, and then only to 
     the extent that the court finds such transfers or obligations 
     are reasonable compared to individuals holding comparable 
     positions at comparable companies in the same industry and 
     not disproportionate in light of economic concessions by the 
     debtor's nonmanagement workforce during the case.''.

     SEC. 303. ASSUMPTION OF EXECUTIVE BENEFIT PLANS.

       Section 365 of title 11, United States Code, is amended--
       (1) in subsection (a), by striking ``and (d)'' and 
     inserting ``(d), (q), and (r)''; and
       (2) by adding at the end the following:
       ``(q) No deferred compensation arrangement for the benefit 
     of insiders, senior executive officers, or any of the 20 next 
     most highly compensated employees of the debtor shall be 
     assumed if a defined benefit plan for employees of the debtor 
     has been terminated pursuant to section 4041 or 4042 of the 
     Employee Retirement Income Security Act of 1974, on or after 
     the date of the commencement of the case or within 180 days 
     before the date of the commencement of the case.
       ``(r) No plan, fund, program, or contract to provide 
     retiree benefits for insiders, senior executive officers, or 
     any of the 20 next most highly compensated employees of the 
     debtor shall be assumed if the debtor has obtained relief 
     under subsection (g) or (h) of section 1114 to impose 
     reductions in retiree benefits or under subsection (d) or (e) 
     of section 1113 to impose reductions in the health benefits 
     of active employees of the debtor, or reduced or eliminated 
     health benefits for active or retired employees within 180 
     days before the date of the commencement of the case.''.

     SEC. 304. RECOVERY OF EXECUTIVE COMPENSATION.

       Title 11, United States Code, is amended by inserting after 
     section 562 the following:

     ``SEC. 563. RECOVERY OF EXECUTIVE COMPENSATION.

       ``(a) If a debtor has obtained relief under subsection (d) 
     of section 1113, or subsection (g) of section 1114, by which 
     the debtor reduces the cost of its obligations under a 
     collective bargaining agreement or a plan, fund, or program 
     for retiree benefits as defined in section 1114(a), the 
     court, in granting relief, shall determine the percentage 
     diminution in the value of the obligations when compared to 
     the debtor's obligations under the collective bargaining 
     agreement, or with respect to retiree benefits, as of the 
     date of the commencement of the case under this title before 
     granting such relief. In making its determination, the court 
     shall include reductions in benefits, if any, as a result of 
     the termination pursuant to section 4041 or 4042 of the 
     Employee Retirement Income Security Act of 1974, of a defined 
     benefit plan administered by the debtor, or for which the 
     debtor is a contributing employer, effective at any time on 
     or after 180 days before the date of the commencement of a 
     case under this title. The court shall not take into account 
     pension benefits paid or payable under of such Act as a 
     result of any such termination.
       ``(b) If a defined benefit pension plan administered by the 
     debtor, or for which the debtor is a contributing employer, 
     has been terminated pursuant to section 4041 or 4042 of the 
     Employee Retirement Income Security Act of 1974, effective at 
     any time on or after 180 days before the date of the 
     commencement of a case under this title, but a debtor has not 
     obtained relief under subsection (d) of section 1113, or 
     subsection (g) of section 1114, then the court, upon motion 
     of a party in interest, shall determine the percentage 
     diminution in the value of benefit obligations when compared 
     to the total benefit liabilities before such termination. The 
     court shall not take into account pension benefits paid or 
     payable under title IV of the Employee Retirement Income 
     Security Act of 1974 as a result of any such termination.
       ``(c) Upon the determination of the percentage diminution 
     in value under subsection (a) or (b), the estate shall have a 
     claim for the return of the same percentage of the 
     compensation paid, directly or indirectly (including any 
     transfer to a self-settled trust or similar device, or to a 
     nonqualified deferred compensation plan under section 
     409A(d)(1) of the Internal Revenue Code of 1986) to any 
     officer of the debtor serving as member of the board of 
     directors of the debtor within the year before the date of 
     the commencement of the case, and any individual serving as 
     chairman or lead director of the board of directors at the 
     time of the granting of relief under section 1113 or 1114 or, 
     if no such relief has been granted, the termination of the 
     defined benefit plan.
       ``(d) The trustee or a committee appointed pursuant to 
     section 1102 may commence an action to recover such claims, 
     except that if neither the trustee nor such committee 
     commences an action to recover such claim by the first date 
     set for the hearing on the confirmation of plan under section 
     1129, any party in interest may apply to the court for 
     authority to recover such claim for the benefit of the 
     estate. The costs of recovery shall be borne by the estate.
       ``(e) The court shall not award postpetition compensation 
     under section 503(c) or otherwise to any person subject to 
     subsection (c) if there is a reasonable likelihood that such 
     compensation is intended to reimburse or replace compensation 
     recovered by the estate under this section.''.

     SEC. 305. PREFERENTIAL COMPENSATION TRANSFER.

       Section 547 of title 11, United States Code, is amended by 
     adding at the end the following:
       ``(j) The trustee may avoid a transfer to or for the 
     benefit of an insider (including an obligation incurred for 
     the benefit of an insider under an employment contract) made 
     in anticipation of bankruptcy, or a transfer made in 
     anticipation of bankruptcy to a consultant who is formerly an 
     insider and who is retained to provide services to an entity 
     that becomes a debtor (including an obligation under a 
     contract to provide services to such entity or to a debtor) 
     made or incurred on or within 1 year before the filing of the 
     petition. No provision of subsection (c) shall constitute a 
     defense against the recovery of such transfer. The trustee or 
     a committee appointed pursuant to section 1102 may commence 
     an action to recover such transfer, except that, if neither 
     the trustee nor such committee commences an action to recover 
     such transfer by the time of the commencement of a hearing on 
     the confirmation of a plan under section 1129, any party in 
     interest may apply to the court for authority to recover the 
     claims for the benefit of the estate. The costs of recovery 
     shall be borne by the estate.''.

                       TITLE IV--OTHER PROVISIONS

     SEC. 401. UNION PROOF OF CLAIM.

       Section 501(a) of title 11, United States Code, is amended 
     by inserting ``, including a labor organization,'' after ``A 
     creditor''.

     SEC. 402. EXCEPTION FROM AUTOMATIC STAY.

       Section 362(b) of title 11, United States Code, is 
     amended--
       (1) in paragraph (27), by striking ``and'' at the end;
       (2) in paragraph (28), by striking the period at the end 
     and inserting ``; and''; and
       (3) by adding at the end the following:
       ``(29) of the commencement or continuation of a grievance, 
     arbitration, or similar dispute resolution proceeding 
     established by a collective bargaining agreement that was or 
     could have been commenced against the debtor before the 
     filing of a case under this title, or the payment or 
     enforcement of an award or settlement under such 
     proceeding.''.
                                 ______
                                 
      By Mr. DODD (for himself and Mr. Udall, of New Mexico):
  S.J. Res. 28. A joint resolution proposing an amendment to the 
Constitution of the United States relating to contributions and 
expenditures intended to affect elections; to the Committee on the 
Judiciary.
  Mr. DODD. Mr. President, I rise to discuss a constitutional amendment 
I am introducing today, along with my colleague Senator Tom Udall, in 
the wake of the U.S. Supreme Court's recent Citizens United v. Federal 
Election Commission decision. This proposed amendment would simply 
authorize Congress to regulate the raising and spending of money for 
Federal political campaigns--including independent expenditures--and 
allow States to regulate such spending at their level. It would also 
provide for implementation and enforcement of the amendment through 
appropriate legislation. I invite my colleagues on both sides of the 
aisle to join us by cosponsoring the amendment.
  Let me begin by noting that I am a firm believer in the sanctity of 
the First Amendment. I believe we must continue to do all we can to 
protect the free speech rights of all Americans. I do not suggest 
changing the language of the First Amendment, which I revere. But I do 
not believe that money is speech, nor do I believe that corporations 
should be treated exactly the same as individual Americans when it 
comes to protected, fundamental speech rights. That is what the Supreme 
Court has effectively now held.
  I recognize that amending the Constitution is a long-term 
undertaking, and that this effort will not likely bear fruit during my 
remaining time in this body. Reinhold Niebuhr said that nothing worth 
doing is completed in our lifetime; I would add much less during a 
Senate term.' I hope that in the wake of this court decision we can 
begin that comprehensive reform effort; I know that it would be worth 
doing. The Constitution itself establishes a long and complex process 
for its own amendment, including approval by Congress and the States, 
and I am proposing to use that process to save our democratic system of 
government, and ultimately our republic, from the continued corrosion 
of special interest influence.
  I am introducing the amendment because I believe that constitutional

[[Page S750]]

questions deserve constitutional answers. While I intend to support 
interim legislative steps to address urgently those issues that can be 
addressed in the wake of this decision, including increased disclosure 
requirements, further limitations to prevent foreign corporations' 
influence on our elections, and other measures, I think the scope of 
such efforts is limited by the court's sweeping, even radical 
conclusions in this case.
  Make no mistake, as much of the commentary surrounding it suggests, 
the Citizens United case is one of the most radical decisions in the 
court's long history of campaign finance reform jurisprudence. It 
overturns 100 years of precedents to come to the unjustified conclusion 
that corporations deserve the same free speech protections as 
individual Americans. It opens the door to corporations spending vast 
amounts of money directly from their treasuries to influence Federal 
elections, and thereby influence Federal officeholders and policy 
decisions, in ways much more direct and concentrated than is the case 
now through corporate and union political action committees. If you are 
concerned now about the undue special interest influence of big banks, 
energy companies, health insurance firms, pharmaceutical firms and 
other special interests on our political process, just wait until these 
entities can spend millions of dollars directly to elect or defeat 
officeholders. If you are concerned about the special interest-
generated paralysis of our legislative process, wait until you see the 
results of this decision. As one distinguished Republican election 
lawyer who opposes the decision recently said, it will be the ``wild, 
wild west.''
  Perhaps most radical is the court's conclusion that corporations are 
legal ``persons'' seemingly deserving of the exact same free speech 
protections as all Americans. This decision notwithstanding, 
corporations are not people. A first-year law student will note that 
corporations are basically a legal fiction, entities created with 
certain limited legal rights designed to enable them to operate in the 
business world: to enter into and enforce contracts, to conduct 
transactions, and the like. They can't vote or think or speak or run 
for office. They only make political and policy decisions through their 
officers and shareholders, informed by their lobbyists and others. They 
should not enjoy the same fundamental free speech protections that 
individual Americans enjoy in our political discourse, or the ability 
to spend unlimited funds directly from large corporate treasuries for 
that purpose. As others have observed, the framers could not have 
imagined, and would not have wanted, a system in which corporations 
could pour literally billions of dollars into elections and thereby 
exercise grossly outsized influence over the fate of our elected 
representatives. Such a system does not promote free speech; it mocks 
it.
  I have worked for decades to reform our campaign finance laws, with 
colleagues and former colleagues like Senators Boren, Mitchell, Byrd, 
Daschle, Feingold, Kerry, McCain, Dole, Cochran, and others. Time and 
again we have developed comprehensive bipartisan efforts, only to have 
them frustrated by a small minority of Senators, or in one case by a 
veto exercised by the first President Bush. I have served my party as 
head of the Democratic National Committee, and so I have seen the 
problems of our current campaign finance system from a variety of 
perspectives.
  In previous debates I have rehearsed the problems with our current 
system. They include the exponentially increasing costs of campaigns. 
The endless time we must spend to travel and make calls to raise money, 
which is then spent mostly on expensive and increasingly negative TV 
ads in our states. The ways in which special interests buy access and 
influence, and how such influence erodes the trust and confidence of 
Americans in our democracy. These problems are systemic, pervasive and 
fundamental. They require comprehensive, fundamental reforms. A 
constitutional amendment would create the conditions for the 
possibility of real statutory reform that could then be adjusted as we 
go along, to address new abuses and problems as they arise.
  I attended the Supreme Court's oral arguments in this case, and I 
heard in the pointed questions of the Justices who composed this 5-4 
majority the portents of this radical decision. But even then I did not 
anticipate fully how breathtakingly far the court would reach.
  That extended reach was not only unwise and unjustified, it was also 
unnecessary. This court majority, whose members have so forcefully 
decried judicial activism, might have taken a less radical approach, 
and resolved the legal issue before them without drawing such sweeping 
conclusions. Instead, they chose to ride roughshod over decades of the 
court's own legal precedents and the principle of stare decisis. That 
is why I believe it is fair to say, as Justice Stevens did in his 
stinging dissent in this case, that this case was brought by the 
Justices themselves. I urge my colleagues to read Justice Stevens' 
detailed, powerful and carefully reasoned dissent. In it, among other 
things, he observes that the only thing that has really changed since 
the Supreme Court made its rulings in the Austin, 1990, and McConnell, 
2003, decisions, upholding the corporate campaign spending ban, is the 
composition of the Supreme Court. Instead of deciding the case based on 
the narrow issues before them, in a raw display of activist judicial 
power the majority in this sharply divided court took the rare step of 
asking for the case to be broadened and re-argued, and then issued this 
sweeping decision.
  With this decision, I believe the court has seriously jeopardized its 
own integrity, already damaged by its hugely controversial decision in 
Bush v. Gore, and done enormous harm to our democracy--harm which will 
only become clearer to Americans in the next few years as close 
Congressional and state races are decided by the spending of corporate 
interests.
  The public reaction to this court decision has been swift and strong, 
I think because Americans intuitively recognize that it represents an 
enormous transfer of power away from citizens to wealthy corporations. 
I saw a poll recently which showed broad opposition to the decision 
among all Americans--Democrats, Republicans and Independents alike. The 
poll showed that it was opposed by 66 percent of Democrats, 63 percent 
of Republicans, and 72 percent of Independents. Americans intuitively 
recognize the dangers of a decision to allow corporations to spend 
unlimited funds against candidates. They see this decision's potential 
to worsen the problem of special interest influence, and to further 
erode trust and confidence in that process. Though this hasn't been 
commented on too broadly in the media reports following this decision, 
I also believe Americans recognize that the next logical step the 
Supreme Court could take in the wake of this decision is to go beyond 
this decision which overturns the ban on corporate independent 
expenditures in campaigns to allow direct corporate contributions to 
candidates.
  This constitutional amendment is a version of one passionately 
championed for years by Senator Hollings, and updated by Senator 
Schumer in the last Congress. I have decided to reintroduce it at this 
point in our debate to emphasize that even though I support efforts to 
do what we can in the interim to reform our campaign finance laws, 
ultimately we must cut through the underbrush and go directly to the 
heart of the problem: the Supreme Court's decision in Buckley vs. Valeo 
and other subsequent decisions which conflate money with speech, and 
this most recent decision in Citizens United which lifts the long-time 
ban on direct corporate spending in campaigns.
  In these decisions, the Supreme Court has basically made it 
impossible for Americans to have what they have repeatedly said they 
want: reasonable regulations of campaign contributions and expenditures 
which do not either directly or indirectly limit the ideas that may be 
expressed in the public realm. I submit that such regulations would 
actually broaden the public debate on a number of issues by freeing it 
from the narrow confines dictated by special interest money. With its 
decisions, the Supreme Court has effectively neutered comprehensive 
efforts to control the ever-spiraling money chase, and has forced 
legislation intended to control the cancerous effects of money in 
politics to be more complicated and convoluted than necessary. The 
complications we are

[[Page S751]]

forced to resort to, in turn, create new opportunities for abuse.
  Even without a constitutional amendment, we can try to make some 
progress. For example, I think we made some decent progress on the 
McCain-Feingold legislation, even despite the Court's decisions since 
2002 narrowing the reach of that law. But we cannot enact truly 
comprehensive legislation that will get to the heart of the problem 
under current court rulings. I wish we could. I have long supported a 
clean elections system of public financing for Congressional campaigns 
which would integrate spending limits, citizen financing, and other 
basic reforms. That is the way I think we should go. There are other 
approaches. But the fact is--and I am sorry for this--that unless the 
Supreme Court again reverses itself, we cannot get the comprehensive 
legislation we really need unless we first adopt an amendment to the 
Constitution.
  This amendment is neutral on what kind of regulation of campaigns 
would be allowed. It simply authorizes such regulation, and leaves it 
to Congress and state legislatures to determine what might be 
appropriate. That is where such decisions should be made on these 
issues: by the people's representatives in Congress and in state 
legislatures. That is why I think amending the Constitution and 
enabling Congress to make those decisions is the first step if we are 
to make real progress on this front.
  Others will argue for a narrower constitutional amendment to focus 
primarily on the issue of corporate expenditures. That is another way 
to address the issue, though I believe it would still leave many 
unanswered questions about Congress' ability to regulate broadly in 
this area. We should have a full and robust debate about all of the 
options.
  Someday we may adopt this idea, if the situation continues to run out 
of hand. And we may look back to this court decision in 2010 and mark 
it as an historic watershed, a catalyst for major change. I sincerely 
hope that will be true, for the sake of this institution and our 
democratic process, and for the sake of our country. I commend the 
amendment to my colleagues' attention, and urge them to consider 
cosponsoring it.
  Mr. President, I ask unanimous consent that the text of the joint 
resolution be printed in the Record.
  There being no objection, the text of the joint resolution was 
ordered to be printed in the Record, as follows:

                              S.J. Res. 28

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled (two-thirds of 
     each House concurring therein), That the following article is 
     proposed as an amendment to the Constitution of the United 
     States, which shall be valid to all intents and purposes as 
     part of the Constitution when ratified by the legislatures of 
     three-fourths of the several States within seven years after 
     the date of its submission by the Congress:

                              ``Article--

       ``Section 1. Congress shall have power to regulate the 
     raising and spending of money with respect to Federal 
     elections, including through setting limits on--
       ``(1) the amount of contributions to candidates for 
     nomination for election to, or for election to, Federal 
     office; and
       ``(2) the amount of expenditures that may be made by, in 
     support of, or in opposition to such candidates.
       ``Section 2. A State shall have power to regulate the 
     raising and spending of money with respect to State 
     elections, including through setting limits on--
       ``(1) the amount of contributions to candidates for 
     nomination for election to, or for election to, State office; 
     and
       ``(2) the amount of expenditures that may be made by, in 
     support of, or in opposition to such candidates.
       ``Section 3. Congress shall have power to implement and 
     enforce this article by appropriate legislation.''.

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