[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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