[Congressional Record Volume 156, Number 117 (Wednesday, August 4, 2010)]
[Senate]
[Pages S6722-S6724]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



               Coordination of Wind and Flood Perils Act

  Mr. WICKER. Mr. President, during this brief pause in the debate on 
the Supreme Court nominee, I rise to call to the attention of Senate 
Members my introduction of S. 3672, the Coordination of Wind and Flood 
Perils Act of 2010.
  This month is, of course, the fifth anniversary of Hurricane Katrina. 
We are still rebuilding on the coast, and we are still rebuilding in 
many areas of the gulf, in the South, as depicted on this map.
  Two weeks ago, I attended the opening of a municipal complex and 
library in the historic town of Pass Christian. The fact that we are 
just getting the money and just getting this library and city all 
rebuilt after 5 years is testimony to the extent of the destruction and 
the difficulty of funding projects like that. This is true in the 
public sector, and it is also true in the private sector.
  But one of the greatest impediments to rebuilding, and one of the 
main reasons Katrina is still not over for the people of Mississippi 
and other areas of the gulf is the lack of affordable insurance. This 
is true in Mississippi, and it is also true from Texas all the way 
through the gulf, south, down to the tip of Florida, and on up through 
the New England coastal States. Anywhere there is coastal exposure 
there is a problem with affordability and availability of insurance.
  I have had quite a number of visits to the coast in recent weeks, 
particularly in the last 100 days because of the oilspill. The recovery 
there is going to be a challenge.
  There will be speeches later on this month commemorating the 
anniversary and discussing the heroism and the resilience and the 
determination of the people of the coast. All of this will be 
appreciated and necessary, but the truth is one of the best things that 
could be done for the gulf coast area--not just my State of Mississippi 
but in the entire area--is to resolve the issue of wind insurance 
versus flood insurance, and that is what S. 3672 is all about: 
coordinating the coverage between wind and flood perils coverage.
  Of course, for people in this area, for people in my State of 
Mississippi, you need hazard insurance, you need fire insurance, as 
does everyone, you need wind insurance, and you need flood insurance. 
Back in 1968, that was the year of Hurricane Camille. It also was the 
year it became apparent to this Congress that something needed to be 
done at the Federal level to cover water damage. Hence, the National 
Flood Insurance Program was established in 1968. Since that time, 
Americans have been able to get flood insurance through the NFIP. 
Actually, in 1973, this Congress in its wisdom made such coverage 
mandatory for people mortgaging property in flood zones.
  Let's fast forward to 2005, the year of Hurricane Katrina. Many 
victims who needed it didn't have flood insurance. One of the reasons 
they didn't have flood insurance is that the flood zone maps were 
wrong. I hope to a large extent this has been corrected. It is supposed 
to have been corrected now, and people in flood zones who have 
mortgages are required to have it. Oftentimes they cancel those 
policies, and that is something we need to attend to also, but that 
insurance is available.
  The problem is wind insurance. The private insurance coverage for 
wind damage has pretty much left the coastal areas of many of our 
States in the eastern part of the United States. So we have this 
situation now where a homeowner needs flood insurance through the 
National Flood Insurance Program. They need their own hazard insurance 
that they get through their local broker. Then, they probably have to 
resort to the State wind pool, a State program, because private wind 
insurance is not available to them.
  Another problem we had in 2005 after Katrina is that many homeowners 
found themselves caught in the middle between the issue of whether it 
was water damage in connection with the hurricane that caused their 
property loss or whether it was flood damage in connection with the 
hurricane that caused the loss. After hurricanes such as Katrina, if a 
homeowner has wind and flood insurance, the homeowner often has to 
prove in court whether it was wind or water that caused the damage. 
This is unacceptable. Let me emphasize this: Individuals who had all 
the appropriate insurance--wind and water--were, in many instances, 
caught in the middle and forced to go to court to watch the insurance 
carriers fight among themselves. My legislation would remove the burden 
of determining flood or wind loss allocation from the property owner 
and put it where it belongs--a decision to be made between the 
insurers.
  If my bill becomes law, insurance companies, including State-run wind 
pools and the National Flood Insurance Program, would have to pay a 
claim as soon as possible after the hurricane. If there is a dispute, 
each would pay 50 percent. The homeowner would be paid for the loss 
while the parties responsible for paying the claim would work out the 
details.
  My legislation--and again, it is S. 3672, the Coordination of Wind 
and Flood Perils Act of 2010--would prevent homeowners from having to 
go to court to determine what portion of the damages were caused by 
wind and what portion by water. This should not be part of the duties 
of the homeowner. Under my legislation, if there is a dispute between 
the parties responsible for paying the claim, the insured would be 
compensated immediately and the dispute between the insurers would be 
resolved by arbitration.
  This is only a small step. It doesn't answer the whole problem. I 
still support the concept of putting wind coverage under the National 
Flood Insurance Program on a voluntary basis, as

[[Page S6723]]

my amendment would have done in 2008. It is an amendment that has 
passed the House of Representatives and it is known as the multi-peril 
concept. That did not get majority support in the Senate and is, 
frankly, unlikely to get that support in short order. They are having 
trouble with that concept in the House of Representatives, but I wish 
to emphasize that I still support the multi-peril concept. This is a 
step. It puts us on the right track and it removes the wind and water 
debate.
  I would suggest that my friends in the Senate look at this bill. I 
invite them to become cosponsors, and I hope we will be able to add 
this simple amendment to the law in short order.
  I thank the Presiding Officer and I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I have been in the Senate a long time. 
This is my 25th year of service. This is one of the most exciting 
moments I have seen here. Today we have an opportunity to fulfill a 
great responsibility and an honor, to be able to stand in this Chamber 
to declare our support for the President's selection of an outstanding 
nominee: Solicitor General Elena Kagan to be a Justice of the Supreme 
Court of the United States.
  Everyone is aware that she brings an intellect, experience, and 
knowledge of the law that places her among the few in this country so 
perfectly qualified to serve on this most important body of 
jurisprudence in the entire world.
  Upon the entrance to the Federal courthouse in Newark, NJ, there is 
an inscription that reads: ``The true measure of a democracy is its 
dispensation of justice.'' I was the author of that statement and I 
labored over it, short as it is, to reflect my view that reflects a 
fundamental principle of our democracy and the values on which the U.S. 
Constitution was founded. These values pervade throughout our 
government and legal system, and especially in the decisions of our 
Nation's highest Court.
  I met with Solicitor General Kagan to hear her views and her personal 
history, and I watched the testimony before the Senate Judiciary 
Committee. I have no doubt that, if approved, Solicitor General Kagan 
will be an outstanding defender of our Constitution in the dispensation 
of justice entrusted to a Supreme Court member. That is why I hope that 
with this historic opportunity, the Senate will stand up for what is 
right, to confirm Ms. Kagan's appointment to become a member of the 
highest Court in our country because of her outstanding qualifications.
  When I met with her, I told her the people of New Jersey were excited 
about her nomination not only because of her outstanding educational 
achievements--by the way, graduating from Princeton, NJ, summa cum 
laude, and contributing so much in her life through her commitment to 
public service. The excitement is generated because Ms. Kagan is a 
trailblazer who has paved the way to the top of the legal profession 
that has helped open doors to women as well as men. She was the first 
woman chosen to be dean of Harvard Law School. She is the first woman 
ever to have served as Solicitor General of the United States, a post 
many call the ``tenth Justice'' of the Supreme Court. We must remember 
what that job is, what that task is, and that is to appear on behalf of 
the United States as an advocate, having tested abilities to bring the 
case to the Court, defending our country, and experience second to none 
in that courtroom.
  Let us not forget that in the last year she has amassed an impressive 
record as Solicitor General. She has filed more than 3,500 pages of 
merit briefs before the Court, and she has argued cases on a broad 
range of issues from protecting children from pedophiles to protecting 
Americans from terrorists. If she is confirmed, of nine members of the 
Court, the proportion of women will be at its highest level in history, 
with women holding three seats.
  She is the granddaughter of immigrants, and that experience shaped 
the world in which she grew up. Similarly, I came from parents brought 
to America by my grandparents, who had the common experience of so many 
of the struggle to learn a new language, adopt new skills to get by, 
mustering the determination to help their children rise above their 
circumstances in this new world. Though my parents worked very hard, 
they were never able to accumulate valuables. Instead, the heritage 
they left my sister and me was a set of values and a love for America 
with its freedom and opportunities and appreciation for what this 
country gives us all. They often reminded us that there were those far 
worse off than we and we had an obligation to contribute if we could to 
give something back to our community.
  These same values are inherent in Ms. Kagan's views as she expressed 
them to me. Her father was a housing lawyer. Her mother was a public 
schoolteacher for 20 years, and she carries the heritage of their 
public service dedication. Solicitor General Kagan's career has 
confirmed her own commitment to public service, protecting rights and 
individual freedoms.
  She served as a clerk to Justice Thurgood Marshall whom she, as many 
other Americans, greatly admired. Frankly, it is sad to see that some 
on this floor during her confirmation hearings attempted to discredit 
Solicitor General Kagan's reputation because of her association with 
Justice Thurgood Marshall. Justice Marshall was an icon who expanded 
respect and tolerance in America as few others have in our history. He 
argued Brown v. The Board of Education. He was the first African 
American to serve as Solicitor General of the United States, at which 
he excelled, amassing a remarkable record of Court victories. He was 
the first African-American Supreme Court Justice and distinguished 
himself as one of America's greatest jurists.
  Some on the other side, in order to keep this appointment from being 
confirmed, have gone so far in their desperation to denigrate Ms. Kagan 
that they have labeled Justice Marshall as some radical on the bench 
and attempted to tear apart the years of brilliant contributions of 
this great man.
  I want to be clear. The fight to end racial discrimination may have 
been radical to some, but it was the right fight and the right cause, 
and there will never be anything shameful about a person whose great 
mind and ferocious eloquence made him a giant in the civil rights 
movement. Shame on those who would denigrate those achievements.
  Ms. Kagan's lifelong dedication has been to break down barriers and 
work for what is right, not simply popular. At Harvard Law School, one 
of her accomplishments as dean was to welcome different views among 
faculty members. She believed--and exercised that belief--that her 
students would not get the legal education they deserved if it was 
limited by one ideological perspective. She made it a point to add 
faculty members who came from different points along the political 
spectrum. No wonder Solicitor General Kagan's nomination has not only 
been endorsed by liberals but also by conservatives, including Ken 
Starr, Ted Olson, and Miguel Estrada.
  Considering a Supreme Court nominee is one of the most important 
responsibilities we have. The Supreme Court makes decisions that 
determine the very underpinnings of our country's character. It has a 
direct say on the rights--or lack thereof--our children and 
grandchildren will have. The Court can decide whether big corporations 
and the rich and famous should have a stronger claim to justice than 
the average person. The Court sets the table for government power--
whether it goes unchecked or is responsible to the people. The rulings 
of the Court affect everyday New Jerseyans and everyday Americans. 
There is no doubt in my mind that Ms. Kagan understands that.
  After careful consideration, I am going to proudly vote yes to 
confirm a person who I believe will be one of the great Justices of the 
Supreme Court of the United States of America.
  Mr. President, I hope there isn't this continuing attempt and process 
we have seen here where it is the objective of individuals in this 
room--typically on the other side of the aisle--to stop things from 
happening, to be obstructionists. There is no point in exercising that 
kind of foolishness. This is a time to step up and say we want the best 
we can get for our Supreme Court. President Obama has chosen carefully 
and wisely, and we want to see Ms. Kagan seated on the Supreme Court. I 
hope my colleagues will vote affirmatively to make sure that happens.

[[Page S6724]]

  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. LANDRIEU. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.