[Congressional Record Volume 156, Number 122 (Monday, September 13, 2010)]
[Senate]
[Pages S7036-S7044]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SPECTER (for himself, Mrs. Boxer, and Mrs. Feinstein):
  S. 3766. A bill to amend the Public Health Service Act to provide for 
human stem cell research, including human embryonic stem cell research, 
and for other purposes, to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
the Stem Cell Research Advancement Act of 2010 on behalf of Senator 
Boxer, Senator Feinstein, and myself.
  Some 21 days ago, in the United States District Court for the 
District of Columbia, in an opinion by Chief Judge Lamberth, the 
expenditures made by the National Institutes of Health for embryonic 
stem cell research under an Executive order issued by President Obama 
on March 9, 2009, was overturned under a declaration that the Executive 
order violated the Dickey-Wicker amendment enacted by Congress.
  Even though on its face it is pretty clear-cut that the embryonic 
stem cell research was not precluded by that amendment, that has had 
the effect of tying up very important ongoing research. For example, 
some $546 million has already been spent on human embryonic stem cell 
research and some very noteworthy progress has been made. For example, 
the Food and Drug Administration has approved a clinical trial for 
patients with spinal cord injury, and human embryonic stem cell 
research has been successfully used to develop new therapeutic drugs 
for a number of diseases including amyotrophic lateral sclerosis and 
muscular dystrophy, and those are just a couple of the illustrations.
  The Court of Appeals for the District of Columbia has stayed the 
lower court's order until September 20, but there is very substantial 
doubt as what the future will be. Meanwhile, although the district 
court order has been stayed, there is great uncertainty in the research 
community as to what will happen. This research is vital for moving 
against the maladies of our society.
  The background on this issue is that in November of 1998, the 
disclosure was made about the potential for embryonic stem cell 
research. At the time I chaired the appropriations subcommittee which 
funded Health and Human Services. It seemed to me that was a tremendous 
opportunity and I scheduled a hearing within a few days, held on 
December 2 of 1998. Since that time, there have been some 20 hearings.
  As we all know, the funding for the National Institutes of Health has 
had a tremendous increase. When I joined the committee after my 
election in 1980, the funding was $3.6 billion. When I became chairman 
of the committee in the mid-1990s, the funding was $12 billion. With 
the concurrence of the then-ranking member, Senator Harkin, we took the 
lead in increasing funding from some $12 billion to $30 billion. 
Regrettably, with budget constraints, the funding did not keep pace, 
starting in the year 2003. But in the stimulus package there was an 
additional $10 billion added which has reawakened a whole generation of 
research scientists, with that $10 billion providing funding for some 
15,000 grants.
  The results for health have been really overwhelming. Here are a few 
illustrations. In the 1950s, cardiovascular disease caused half of the 
United States deaths. Today, the rate for coronary heart disease is 
more than 60 percent lower. Over the past 25 years, the 5-year survival 
rate for prostate cancer has increased from 69 percent to almost 99 
percent for diagnosed patients. For childhood cancers, the 5-year 
survival rate has improved markedly over the past 3 decades, from less 
than 50 percent before the 1970s to 80 percent today. Those are only 
illustrative statistics. The opportunities for embryonic stem cell 
research are overwhelming.
  The Specter-Harkin bill was passed by the Senate in 2006 by a vote of 
63 to 37, a very healthy margin for an issue which has raised some 
controversy. The House of Representatives passed the legislation but 
regrettably President Bush vetoed it in 2006, and the effort to 
override the veto in the House failed. There was a vote of 235 to 193, 
short of the two-thirds necessary to override the veto. But that shows 
enormous Congressional support.
  Then President Obama issued the Executive order that Federal funds 
could be used on embryonic stem cell research on lines where the embryo 
had been donated. This is in line with the policy adopted by President 
Bush in August of 2001, when he allowed the use of quite a number of 
stem cell lines where the embryos had been donated. Later it was found 
there were only 21 lines, and those were insufficient, which has led to 
the effort for legislation and then led to President Obama's Executive 
order. The fact is, there are some 400,000 of these embryos which are 
frozen and which will ultimately be discarded. So it is use them for 
medical research to save lives or throw them away. Some have contended 
that we are destroying lives but the reality is they will not be 
utilized.
  In response to the issue as to whether there might be adoption of 
these embryos, the subcommittee took the lead in appropriating 
substantial funds, which is more than $4 million a year, actually $4.2 
million, but relatively few people have come forward for its use on 
adopting the embryos to turn them into life. If these embryos could be 
turned into human life I would not under any circumstance advocate 
scientific research on these embryos--if they could produce life. But 
they cannot. The facts are plain. The adoption line has been in effect 
now since 2002. Only a few hundred have been adopted. President Bush 
invited the ``snowflake'' children to the White House during his 
tenure, about 150 of them.
  Now we have a situation where the court has intervened, even though 
more than a year and a half had elapsed since President Obama issued 
the Executive order, a clear indication of congressional intent not to 
deal with it or not to overturn it. I think it is a fair legal analysis 
that the order issued by the district court is not a sound order. Some 
indication of that is found in the fact that the circuit court stayed 
the order--not conclusive, but when they stay an order it looks as 
though they are not favorably inclined toward it. But who knows what 
the circuit court will do? Who knows what the Supreme Court of the 
United States, with their ideological bent, would do? This has become a 
theological issue in part, very emotional, with people arguing that it 
is akin to abortion. Of course it is nowhere near that kind.
  It seems to me Congress ought to act. That is why on the first order 
of business after we convened here this afternoon, our first day back 
and our first hour in the Senate session, I am introducing this 
legislation. I have discussed it with sponsors on the House side and I 
think we are in a position to move rapidly. Certainly the previous vote 
of 63 to 37 in 2006 shows substantial support in this body, and the 
235-to-193 vote to override President Bush's veto shows the same in the 
House of Representatives. I hope my colleagues will join me in this 
effort so this important scientific research may be continued.
  I ask unanimous consent that the full text of my printed statement be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 The Stem Cell Research Advancement Act

       Mr. SPECTER. Mr. President, I have sought recognition today 
     to introduce the

[[Page S7037]]

     ``Stem Cell Research Advancement Act'' to codify the 
     provisions set out in President Obama's executive order on 
     embryonic stem cell research.
       I believe medical research should be pursued with all 
     possible haste to cure the diseases and maladies affecting 
     Americans. As former Chairman and Ranking Member of the 
     Labor, Health and Human Services, and Education 
     Appropriations Subcommittee, I backed up this belief by 
     supporting increases in funding for the National Institutes 
     of Health. When I came to the Senate in 1981, NIH spending 
     totaled $3.6 billion. In fiscal year 2010, NIH will receive 
     approximately $31 billion to fund its pursuit of lifesaving 
     research. Regrettably, increases in Federal funding for NIH 
     have steadily declined since 2003. The $10 billion for the 
     National Institutes of Health that was included in the 
     stimulus package provided an immediate infusion of new 
     research dollars for medical research to make up for a 
     portion of what was lost since 2003 and has had tremendous 
     influence on the biomedical research community. The successes 
     realized by this investment in NIH have spawned revolutionary 
     advances in our knowledge and treatment for diseases such as 
     cancer, Alzheimer's disease, Parkinson's disease, mental 
     illnesses, diabetes, osteoporosis, heart disease, ALS, and 
     many others. For example, in the 1950's, cardiovascular 
     disease caused half of U.S. deaths. Today, the death rate for 
     coronary heart disease is more than 60 percent lower. Over 
     the past 25 years, the 5-year survival rate for prostate 
     cancer has increased from 69 percent to almost 99 percent for 
     diagnosed patients. For all childhood cancers combined, 5-
     year relative survival has improved markedly over the past 30 
     years, from less than 50 percent before the 1970s to 80 
     percent today. It is clear to me that Congress's commitment 
     to the NIH is paying off. This is the time to seize the 
     scientific opportunities that lie before us and to ensure 
     that all avenues of research toward cures--including stem 
     cell research--remain open for investigation.
       I first learned of the potential of human embryonic stem 
     cells in November of 1998 upon the announcement of the work 
     by Dr. Jamie Thomson at the University of Wisconsin and Dr. 
     John Gearhart at Johns Hopkins University. I took an 
     immediate interest and held the first congressional hearing 
     on the subject of stem cells less than one month later on 
     December 2, 1998. These cells are pluripotent, meaning they 
     have the ability to become any type of cell in the human 
     body. The consequences of this unique property of stem cells 
     are far reaching and are key to their potential use in 
     therapies. Scientists and doctors with whom I have spoken--
     and that have since testified before the Labor-HHS 
     Appropriations Subcommittee at 20 stem cell-related 
     hearings--were excited by this discovery. They believed that 
     these cells could be used to replace damaged or 
     malfunctioning cells in patients with a wide range of 
     diseases. This could lead to cures and treatments for 
     maladies such as juvenile diabetes, Parkinson's disease, 
     Alzheimer's disease, cardiovascular diseases, and spinal cord 
     injury.
       Embryonic stem cells are derived from embryos that would 
     otherwise have been discarded. During the course of in vitro 
     fertilization therapies, 4 to 16 embryos are created for a 
     couple having difficulty becoming pregnant. The embryos grow 
     for 5 to 7 days until they contain approximately 100 cells. 
     To maximize the chances of success, several embryos are 
     implanted into the woman. The remaining embryos are frozen 
     for future use. If the woman becomes pregnant after the first 
     implantation, and does not want to have more pregnancies, the 
     remaining frozen embryos are in excess of clinical need and 
     can be donated for research. Embryonic stem cells are derived 
     from these embryos. The stem cells form what are called 
     ``lines'' and continue to divide indefinitely in a laboratory 
     dish. The stem cells contained in these lines can then be 
     made into almost any type of cell in the body--with the 
     potential to replace cells damaged by disease or accident. At 
     no point in the derivation process are the embryos or the 
     derived cells implanted in a woman, which would be required 
     for them to develop further. The process of deriving stem 
     cell lines results in the disruption of the embryo and I know 
     that this raises some concerns.
       More than 400,000 embryos are stored in fertility clinics 
     around the country. If these frozen embryos were going to be 
     used for in vitro fertilization, I would be the first to 
     support it. In fact, I have included funding in the HHS 
     budget each year since 2002 to create and continue an embryo 
     adoption awareness campaign. For fiscal year 2010, this 
     campaign is funded at $4.2 million. But the truth is that 
     most of these embryos will be discarded, while they hold the 
     key to curing and treating diseases that cause suffering for 
     millions of people.
       President Bush opened the door to stem cell research on 
     August 9, 2001. His policy statement allowed limited Federal 
     funding of human embryonic stem cell research for the first 
     time. A key statement by the President related to the 
     existence of approximately 60 eligible stem cell lines--then 
     expanded to 78. In the intervening years, it became apparent 
     that many of the lines cited were not really viable, robust, 
     or available to federally funded researchers. During that 
     time, there were only 21 lines available for research.
       On July 18, 2006, the Senate passed H.R. 810, the Stem Cell 
     Research Enhancement Act by a vote of 63 to 37. This was the 
     House companion to S. 471, which I introduced, and would lift 
     the federal date restriction and allow federally-funded 
     scientists to research a greater number of stem cell lines 
     derived from human embryos that have been donated from in 
     vitro fertilization clinics. It also included stronger 
     ethical requirements on stem cell lines eligible for funding 
     including: donor consent, certification that embryos donated 
     are in excess of clinical need, and certification that the 
     embryos would be otherwise discarded. Unfortunately, on July 
     19, 2006, President Bush vetoed H.R. 810 and the House failed 
     to override the veto by a vote of 235-193, 48 votes short of 
     the two-thirds needed.
       On March 19, 2007, Dr. Elias Zerhouni, President Bush's 
     appointee to lead the National Institutes of Health, 
     testified before the Senate Labor, Health and Human Services 
     and Education Appropriations Subcommittee regarding the NIH 
     budget and stem cells. At that time he stated, ``It is clear 
     today that American science would be better served and the 
     nation would be better served if we let our scientists have 
     access to more cell lines. . .To sideline NIH in such an 
     issue of importance, in my view, is shortsighted. I think it 
     wouldn't serve the nation well in the long run.''
       On March 9, 2009, President Obama issued an executive order 
     removing restrictions on federal research on human embryonic 
     research. On July 7, 2009, NIH issued the National Institutes 
     of Health Guidelines for Research Using Human Stem Cells 
     specifying the requirements that must be met for an embryonic 
     stem cell line to be eligible for use in NIH-funded research. 
     Embryonic stem cell lines must be derived from donated human 
     embryos created using in vitro fertilization for reproductive 
     purposes, but no longer needed for that purpose, and donated 
     with voluntary informed consent. This action and research 
     advancement resulted in 75 stem cell lines available for NIH 
     research.
       Regrettably, on August 23, 2010, Chief Judge Lamberth of 
     the Federal District Court for the District of Columbia ruled 
     that such research violates the Dickey-Wicker amendment. 
     Since fiscal year 1996, the Dickey-Wicker amendment has been 
     added to each year's Labor, Health and Human Services and 
     Education appropriations legislation to prohibit the use of 
     federal funds for research that destroys human embryo. This 
     policy precludes the use of federal funding to derive stem 
     cells from embryos, which typically are produced via in vitro 
     fertilization. However, it has always been interpreted as 
     allowing federal funds for research that utilizes human 
     embryonic stem cells as long as no federal funds were used 
     for their derivation.
       According to a legal opinion issued by the HHS General 
     Council Harriet Rabb in 1999, federal funding for research 
     performed with embryonic stem cells themselves, which does 
     not itself involve embryos or the extraction of stem cells 
     from embryos, is not proscribed by the Dickey amendment. The 
     opinion states: ``Pluripotent stem cells are not organisms 
     and do not have the capacity to develop into an organism that 
     could perform all the life functions of a human being. They 
     are, rather, human cells that have the potential to evolve 
     into different types of cells such as blood cells or insulin 
     producing cells. Pluripotent stem cells do not have the 
     capacity to develop into a human being, even if transferred 
     to a uterus. Based on an analysis of the relevant law and 
     scientific facts, federally funded research that utilizes 
     human pluripotent stem cells would not be prohibited by the 
     HHS appropriations law prohibiting human embryo research, 
     because such stem cells are not human embryos.''
       In their memorandum in support of dismissing the case 
     before Judge Lamberth, the Department of Justice argued that 
     ``Congress has expressly interpreted Dickey-Wicker to permit 
     federal funding for stem cell research that is `dependent 
     upon' the destruction of human embryos.'' As part of this 
     argument, they cited a floor statement I gave in 1999, in 
     regard to the NIH's fiscal year 2000 budget. In that 
     statement, I explained that the budget for NIH maintained the 
     Dickey-Wicker amendment by permitting research to go forward 
     now with private funding extracting the stem cells from 
     embryos, and then the federal funding coming in on the stem 
     cells which have been extracted.
       Judge Lamberth's ruling has jeopardized NIH grants that are 
     in various stages of research. In response to this court 
     order, the NIH suspended funding new human embryonic stem 
     cell research and all experiments already underway will be 
     cut off when they come up for renewal. Even a temporary 
     suspension of funding will disrupt the work on these 
     important research projects in the areas of heart disease, 
     sickle cell anemia, liver failure, muscular dystrophy and 
     other maladies. According to the National Institutes of 
     Health, to date, $546 million has been spent on human 
     embryonic stem cell research and phenomenal progress has 
     already been made in realizing the possible benefits. For 
     example, the Food and Drug Administration has approved a 
     clinical trial for patients with spinal cord injury and human 
     embryonic stem cell research is successfully being used to 
     develop new therapeutic drugs for a number of diseases, 
     including amyotrophic lateral sclerosis and spinal muscular 
     atrophy. The research, some of which has been ongoing since 
     2002, could be gone forever or take years to recreate.
       Though the U.S. Court of Appeals for the D.C. Circuit has 
     granted a stay of Judge

[[Page S7038]]

     Lamberth's temporary injunction while the Obama 
     administration appeals the decision, the uncertainty created 
     by the ruling slows the progress of science. Young scientists 
     rightly void fields of science for which funding may come and 
     go due to political whim rather than scientific and medical 
     merit. A temporary end to the current restrictions is an 
     incomplete and ultimately self-defeating solution.
       The Stem Cell Research Advancement Act would codify federal 
     funding of embryonic stem cell research. The bill requires 
     the Secretary of HHS and Director of NIH to maintain 
     guidelines on human stem cell research as set out by 
     President Obama's Executive Order. The NIH must review the 
     guidelines at least every three years and shall update them 
     as scientifically warranted. The bill also establishes 
     eligibility criteria for federal funding of human stem cell 
     research:
       The stem cells were derived from human embryos donated from 
     in vitro fertilization clinics, were created for reproductive 
     purposes, and are in excess of clinical need.
       The embryos to be donated would never be implanted in a 
     woman and would otherwise be discarded.
       The individuals seeking reproductive treatment donated the 
     embryos with written informed consent and without any 
     financial or other inducements.
       Importantly, the bill does not allow Federal funds to be 
     used for the derivation of stem cell lines--the step in the 
     process where the embryo is destroyed.
       I strongly believe that the funding provided by Congress 
     should be invested in the best research to address diseases 
     based on medical need and scientific opportunity. Politics 
     has no place in the equation. I urge this body to support the 
     Stem Cell Research Advancement Act so that scientists can 
     continue important research without concerns that federal 
     policy on stem cells will change with each new 
     administration.

  The ACTING PRESIDENT pro tempore. The Senator from Illinois.
  Mr. DURBIN. Mr. President, first let me salute my colleague from the 
Commonwealth of Pennsylvania, Mr. Specter. He will be leaving the 
Senate at the end of this year. He has done many things throughout his 
senatorial career, but I am glad he brought the attention of the Senate 
this afternoon to his extraordinary effort when it comes to the field 
of medical research. When the record is written on his service to our 
country and to the Senate, I think the list will begin with his 
commitment to dramatic increases in medical research at the National 
Institutes of Health.
  Senator Specter is leaving the floor now, but I can tell you, during 
the course of his remarks I was reminded of how many times he came to 
the Appropriations Committee and challenged us to raise more money for 
medical research. His challenges were met with cooperation on a 
bipartisan basis in the Senate. I don't know that anyone can even 
measure how many lives have been saved by that extraordinary 
investment. But he made that commitment as a Senator and he continues 
to make it in the field of stem cell research.
  The point he makes is irrefutable. If these stem cells are not used 
for research to find cures for deadly, crippling diseases, they will be 
discarded--thrown away. It is not a question of whether they will be 
human lives at some point, human embryos. They are going to be thrown 
away, discarded because they were not used during the course of efforts 
of young couples to enlarge their families. I think it is only 
appropriate that we use these stem cells to save lives, to spare misery 
and spare suffering, and I certainly agree with Senator Specter's 
conclusion.
                                 ______
                                 
      By Mr. LEAHY (for himself, Ms. Klobuchar, and Mr. Franken):
  S. 3767. A bill to establish appropriate criminal penalties for 
certain knowing violations relating to food that is misbranded or 
adulterated; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today, I am pleased to introduce the Food 
Safety Accountability Act with Senators Klobuchar and Franken. This 
common sense bill will hold criminals who poison our food supply 
accountable for their crimes. It introduces a new criminal provision 
and increases the sentences that prosecutors can seek for people who 
knowingly violate our food safety laws. If it is passed, those who 
knowingly contaminate our food supply and endanger Americans could 
receive up to 10 years in jail.
  This summer, a salmonella outbreak causing hundreds of people to fall 
ill triggered a national egg recall. The cause of the outbreak is still 
under investigation, but salmonella poisoning is all too common and 
sometimes results from inexcusable knowing conduct. Just last year, a 
mother from Vermont, Gabrielle Meunier, testified before the Senate 
Agriculture Committee about her 7-year-old son, Christopher, who became 
severely ill and was hospitalized for 6 days after he developed 
salmonella poisoning from peanut crackers. Thankfully, Christopher 
recovered, and Mrs. Meunier was able to share her story, which 
highlighted for the Committee and for the Senate improvements that are 
needed in our food safety system. No parent should have to go through 
what Mrs. Meunier experienced. The American people should be confident 
that the food they buy for their families is safe.
  Current statutes do not provide sufficient criminal sanctions for 
those who knowingly violate our food safety laws. The fines and recalls 
that usually result from criminal violations under current law fall 
short in protecting the public from harmful products. Too often, those 
who are willing to endanger our children in pursuit of profits view 
such fines or recalls as merely the cost of doing business. Indeed, the 
company responsible for the eggs at the root of the current salmonella 
crisis has a long history of environmental, immigration, labor and food 
safety violations. It is clear that civil and criminal fines are not 
enough to protect the public and effectively deter this unacceptable 
conduct. We need to make sure that those who knowingly poison the food 
supply will go to jail. The bill I introduce today will add a new 
criminal provision and increase sentences for people who put profits 
above safety by knowingly contaminating the food supply.
  After hearing Mrs. Meunier's account, I called on the Department of 
Justice to conduct a criminal investigation into the outbreak of 
salmonella that made Christopher and many others so sick. The outbreak 
was traced to the Peanut Corporation of America. The president of that 
company, Stewart Parnell, came before Congress and invoked his right 
against self-incrimination, refusing to answer questions about his role 
in distributing contaminated peanut products. These products were 
linked to the deaths of nine people and have sickened more than 600 
others. It appears that Parnell knew that peanut products from his 
company had tested positive for deadly salmonella, but rather than 
immediately disposing of the products, he sought ways to sell them 
anyway. The evidence suggests that he knowingly put profit above the 
public's safety. Our laws must be strengthened to ensure this does not 
happen again. This bill significantly increases the chances that those 
who commit food safety crimes will face jail time, rather than a slap 
on the wrist, for their criminal conduct.
  I hope Senators of both parties will act quickly to pass this bill. 
On behalf of Mrs. Meunier and her son, Christopher, as well as the 
hundreds of individuals sickened by this summer's and last year's 
salmonella outbreaks, we must repair our broken food safety system. The 
Justice Department must be given the tools it needs to investigate, 
prosecute, and truly deter crime involving food safety. If Congress 
acts to pass it, this bill will be an important step toward making our 
food supply safer.
  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. 3767

       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 ``Food Safety Accountability 
     Act of 2010''.

     SEC. 2. CRIMINAL PENALTIES.

       (a) In General.--Chapter 47 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1041. Misbranded and adulterated food

       ``(a) In General.--It shall be unlawful for any person to 
     knowingly--
       ``(1) introduce or deliver for introduction into interstate 
     commerce any food that is adulterated or misbranded; or
       ``(2) adulterate or misbrand any food in interstate 
     commerce.
       ``(b) Penalty.--Any person who violates subsection (a) 
     shall be fined under this title, imprisoned for not more than 
     10 years, or both.''.
       (b) Technical and Conforming Amendment.--The table of 
     sections for chapter 47 of

[[Page S7039]]

     title 18, United States Code, is amended by adding at the end 
     the following:

``1041. Misbranded and adulterated food.''.
                                 ______
                                 
      By Mrs. HUTCHISON (for herself and Mr. Cornyn):
  S. 3768. A bill to eliminate certain provisions relating to Texas and 
the Education Jobs Fund; to the Committee on Health, Education, Labor, 
and Pensions.
  Mrs. HUTCHISON. Mr. President, I rise to talk about a bill I 
introduced today with Senator Cornyn as a cosponsor. It is S. 3768. 
When Congress passed and the President signed the education jobs fund 
bill in August, every State in America had the same requirements and 
every State in America was treated fairly--or equally, anyway--except 
for one and that State is Texas. That is why Senator Cornyn and I are 
introducing a bill that would only allow Texas to be equal with every 
other State in the Federal funding opportunity in this education bill.
  The House of Representatives--not the Senate but the House--put in an 
amendment that singled out Texas in two ways. It said that Texas, 
unlike every other State in the bill, would have to guarantee 3 years 
of a commitment for education funding to be level in order to get the 
funds for 1 year that were allocated in the bill. Every other State in 
America is required to make such a commitment for 1 year.
  Our constitution in Texas, similar to many State constitutions, does 
not allow one legislature to pass legislation that will require acts of 
another legislature, so appropriations cannot go over a 3-year period. 
Our legislature can only appropriate and spend Texas money for itself. 
It cannot obligate future legislatures. So the House provision would 
require Texas to violate its Constitution in order to receive the 
Federal money that every other State has as an allocation.
  The second thing that only Texas is required to do under this bill is 
to distribute the funds under the title I distribution formula. Every 
other State gives its Governor and its State Department of Education 
the discretion for the money to be used where it is most needed within 
its State. After all, education is generally a State and local issue. 
In this case, you do have Federal funding, and it is provided for every 
State by giving it to the Governor for the distribution within the 
State. Only in Texas, however, under the legislation that was passed, 
would the requirement be that title I provides the formula, not the 
State of Texas and its appropriations, Governor and Lieutenant 
Governor.
  It is puzzling, to say the least, that Texas was singled out in this 
way. But I am going to do everything I can to assure that does not 
continue. The Commissioner of Education asked for the Texas allocation 
of $830 million in the normal way, met all the Federal requirements and 
the time guidelines for submitting the grant request for an estimated 
$830 million. The request was turned down because, of course, the 
Governor could not certify 3 years of level spending because the 
legislature cannot obligate future legislatures in our Constitution. So 
Texas has just been turned down.
  If we can pass the legislation Senator Cornyn and I are introducing 
today or if we can amend the bill that is before us, which we are going 
to try to do--we perfected the process today by offering this as an 
amendment on the bill that is before this body, and I am going to try 
to get this as an amendment on every bill that is going through--that 
will just create a level playing field.
  We are certainly not asking for special favors, but again we are also 
asking that we not be penalized just because a House Member decided 
Texas should have a different standard.
  We all understand politics in the usual sense. But having an argument 
between a Member of the House and the Governor is not a reason to 
penalize every schoolchild in Texas, every school district in Texas, 
every teacher in Texas, every administrator in Texas. It is not right. 
I think any person who puts the politics aside would agree that 
reasonableness would dictate that every State should be treated the 
same. In the bill that was passed, we are spending Texas tax dollars 
just like we are spending the tax dollars of every taxpayer in America. 
Texas would be putting the dollars into the Federal coffers but being 
penalized from receiving its fair share, as we certainly described 
happens in the bill.
  The Hutchison-Cornyn bill is now going through the processes, and we 
are going to ask for support from all our colleagues to have that level 
playing field. Senator Cornyn and I have been working, along with 
Congressman Michael Burgess on the House side and the Texas delegation 
in the House. Many in the House delegation are certainly going to want 
to see this corrected, I hope. I do hope we can get prompt action. We 
need to do it before the end of this fiscal year in order to qualify in 
our rightful way.
  We are not asking for special favors, most certainly. We expect to 
meet all the tests any State would meet. We expect to have our grant 
application looked at and scrutinized and determined if it is eligible 
in every way. But we do not expect to have a different standard from 
every other State in America.
  Senator Cornyn and I are very hopeful we can get prompt action from 
the Senate to send this to the House. I hope the House will also see 
that was not meant to be--at least I am sure every Member voting on 
this bill did not know Texas was being treated differently. I do not 
think this is a time for any State to start a war with another State. 
That is not the way we ought to do business. I do not wish to be 
starting that kind of precedent even--I wouldn't do it to any other 
State, and I certainly do not expect it to be done to mine.
  Senator Cornyn and I have introduced the Hutchison-Cornyn 
legislation. We hope we can level the playing field. All we ask is that 
we be judged like every State, that we have the requirement of 1 year 
of level funding, just as every other State is required to do and which 
I know our Texas Education Agency will certainly agree to do; then, 
second, that we be able to distribute according to the State 
requirements and the State priorities rather than a Federal funding 
formula done when no one has come to Texas to look at our formula and 
our needs for this particular bill. If we can correct those two things 
and put Texas on a level playing field with any other State, then I 
think it will be the right thing to do.
  Sometimes we have little tiffs here, politically, but I don't think 
anyone can argue that a retribution against one person in Texas by one 
Member of Congress is a good reason to make a public policy decision 
that is disastrous for our State--that is hurting, just like every 
State, in not having enough dollars. We have a deficit right now of 
about $20 billion facing the next legislature in Texas.
  If we can have what has passed, what is going through this Congress 
and what has been signed by the President, it would help alleviate some 
of the concerns our educators and education leaders in Texas are now 
saddled with; that is, a lot more expenses than revenue coming in. I 
hope we can right this wrong.
  Mr. CORNYN. Mr. President, today my colleague Senator Hutchison and I 
have introduced legislation to repeal a House provision in the 
Education Jobs Bill that discriminates solely against the state of 
Texas. As a result of the House language, Texas will be denied over 
$800 million in federal funding.
  The Hutchison-Cornyn bill will strip the language requiring Texas to 
make a commitment for three years of funding in order to be eligible 
for any of the $10 billion in the Education Jobs Fund. To be in 
compliance with the provision, the state would have to violate its own 
constitution. The Texas Legislature has sole authority to determine 
state appropriations--they cannot be dictated by the federal 
government. Additionally, one legislature cannot bind a future 
legislature. Moreover, this provision singles out Texas because all 
other states must only commit to one year of funding in order to 
receive Education Jobs Program funding.
  The House language also stipulates that Texas must distribute funds 
through Title I funding formula, rather than allowing the governor to 
determine the funding distribution, as is the case in the other states 
and territories. In Texas this would preclude 31 districts from 
receiving any funds, and will result in less funding for 66 percent of 
the state's school districts.
  Unfortunately, on September 9, 2010 the U.S. Department of Education 
denied an application from Texas Education Commissioner Robert Scott 
for

[[Page S7040]]

$830 million from the Education Jobs Fund.
  The real impact of the House language, however, is felt in school 
districts across our state. Recently, for example, I received a letter 
from the Superintendent of the Hamlin Independent School District 
informing me that the West Texas school district was forced to cut more 
than $80,000 from the district's budget to cover rising salary costs. 
If Texas is prohibited from applying for the Education Jobs Fund, 
Hamlin ISD stands to lose over $90,000 in federal dollars, an amount 
that could compensate for the district's current budget cuts.
  Our bill would put a stop to Texas Democrats' efforts to play 
politics with much-needed funding for Texas schools and teachers. Texas 
taxpayer dollars belong in Texas schools--not in California or New 
York, as the Doggett Amendment would have it. I urge my colleagues to 
pass our bill so we can remove this partisan roadblock and move quickly 
to restore critical Federal funding to Texas schools.
                                 ______
                                 
      By Mr. REID (for himself, Mrs. Boxer, Ms. Cantwell, Mr. Dodd, 
        Mrs. Feinstein, Mrs. Gillibrand, Mr. Harkin, Ms. Klobuchar, Ms. 
        Landrieu, Mrs. McCaskill, Ms. Mikulski, Mrs. Murray, Mrs. 
        Shaheen, and Ms. Stabenow):
  S. 3772. A bill to amend the Fair Labor Standards Act of 1938 to 
provide more effective remedies to victims of discrimination in the 
payment of wages on the basis of sex, and for other purposes; read the 
first time.
  Mr. REID. 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. 3772

       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 ``Paycheck Fairness Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Women have entered the workforce in record numbers over 
     the past 50 years.
       (2) Despite the enactment of the Equal Pay Act of 1963, 
     many women continue to earn significantly lower pay than men 
     for equal work. These pay disparities exist in both the 
     private and governmental sectors. In many instances, the pay 
     disparities can only be due to continued intentional 
     discrimination or the lingering effects of past 
     discrimination.
       (3) The existence of such pay disparities--
       (A) depresses the wages of working families who rely on the 
     wages of all members of the family to make ends meet;
       (B) undermines women's retirement security, which is often 
     based on earnings while in the workforce;
       (C) prevents the optimum utilization of available labor 
     resources;
       (D) has been spread and perpetuated, through commerce and 
     the channels and instrumentalities of commerce, among the 
     workers of the several States;
       (E) burdens commerce and the free flow of goods in 
     commerce;
       (F) constitutes an unfair method of competition in 
     commerce;
       (G) leads to labor disputes burdening and obstructing 
     commerce and the free flow of goods in commerce;
       (H) interferes with the orderly and fair marketing of goods 
     in commerce; and
       (I) in many instances, may deprive workers of equal 
     protection on the basis of sex in violation of the 5th and 
     14th amendments.
       (4)(A) Artificial barriers to the elimination of 
     discrimination in the payment of wages on the basis of sex 
     continue to exist decades after the enactment of the Fair 
     Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) and the 
     Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.).
       (B) These barriers have resulted, in significant part, 
     because the Equal Pay Act of 1963 has not worked as Congress 
     originally intended. Improvements and modifications to the 
     provisions added by the Act are necessary to ensure that the 
     provisions provide effective protection to those subject to 
     pay discrimination on the basis of their sex.
       (C) Elimination of such barriers would have positive 
     effects, including--
       (i) providing a solution to problems in the economy created 
     by unfair pay disparities;
       (ii) substantially reducing the number of working women 
     earning unfairly low wages, thereby reducing the dependence 
     on public assistance;
       (iii) promoting stable families by enabling all family 
     members to earn a fair rate of pay;
       (iv) remedying the effects of past discrimination on the 
     basis of sex and ensuring that in the future workers are 
     afforded equal protection on the basis of sex; and
       (v) ensuring equal protection pursuant to Congress's power 
     to enforce the 5th and 14th amendments.
       (5) The Department of Labor and the Equal Employment 
     Opportunity Commission have important and unique 
     responsibilities to help ensure that women receive equal pay 
     for equal work.
       (6) The Department of Labor is responsible for--
       (A) collecting and making publicly available information 
     about women's pay;
       (B) ensuring that companies receiving Federal contracts 
     comply with anti-discrimination affirmative action 
     requirements of Executive Order 11246 (relating to equal 
     employment opportunity);
       (C) disseminating information about women's rights in the 
     workplace;
       (D) helping women who have been victims of pay 
     discrimination obtain a remedy; and
       (E) being proactive in investigating and prosecuting equal 
     pay violations, especially systemic violations, and in 
     enforcing all of its mandates.
       (7) The Equal Employment Opportunity Commission is the 
     primary enforcement agency for claims made under the 
     provisions added by the Equal Pay Act of 1963, and issues 
     regulations and guidance on appropriate interpretations of 
     the law.
       (8) With a stronger commitment by the Department of Labor 
     and the Equal Employment Opportunity Commission to their 
     responsibilities, increased information about the provisions 
     added by the Equal Pay Act of 1963, wage data, and more 
     effective remedies, women will be better able to recognize 
     and enforce their rights.
       (9) Certain employers have already made great strides in 
     eradicating unfair pay disparities in the workplace and their 
     achievements should be recognized.

     SEC. 3. ENHANCED ENFORCEMENT OF EQUAL PAY REQUIREMENTS.

       (a) Bona Fide Factor Defense and Modification of Same 
     Establishment Requirement.--Section 6(d)(1) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 206(d)(1)) is amended--
       (1) by striking ``No employer having'' and inserting ``(A) 
     No employer having'';
       (2) by striking ``any other factor other than sex'' and 
     inserting ``a bona fide factor other than sex, such as 
     education, training, or experience''; and
       (3) by inserting at the end the following:
       ``(B) The bona fide factor defense described in 
     subparagraph (A)(iv) shall apply only if the employer 
     demonstrates that such factor (i) is not based upon or 
     derived from a sex-based differential in compensation; (ii) 
     is job-related with respect to the position in question; and 
     (iii) is consistent with business necessity. Such defense 
     shall not apply where the employee demonstrates that an 
     alternative employment practice exists that would serve the 
     same business purpose without producing such differential and 
     that the employer has refused to adopt such alternative 
     practice.
       ``(C) For purposes of subparagraph (A), employees shall be 
     deemed to work in the same establishment if the employees 
     work for the same employer at workplaces located in the same 
     county or similar political subdivision of a State. The 
     preceding sentence shall not be construed as limiting broader 
     applications of the term `establishment' consistent with 
     rules prescribed or guidance issued by the Equal Opportunity 
     Employment Commission.''.
       (b) Nonretaliation Provision.--Section 15 of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 215) is amended--
       (1) in subsection (a)(3), by striking ``employee has 
     filed'' and all that follows through ``committee;'' and 
     inserting ``employee--
       ``(A) has made a charge or filed any complaint or 
     instituted or caused to be instituted any investigation, 
     proceeding, hearing, or action under or related to this Act, 
     including an investigation conducted by the employer, or has 
     testified or is planning to testify or has assisted or 
     participated in any manner in any such investigation, 
     proceeding, hearing, or action, or has served or is planning 
     to serve on an industry committee; or
       ``(B) has inquired about, discussed, or disclosed the wages 
     of the employee or another employee;''; and
       (2) by adding at the end the following:
       ``(c) Subsection (a)(3)(B) shall not apply to instances in 
     which an employee who has access to the wage information of 
     other employees as a part of such employee's essential job 
     functions discloses the wages of such other employees to an 
     individual who does not otherwise have access to such 
     information, unless such disclosure is in response to a 
     charge or complaint or in furtherance of an investigation, 
     proceeding, hearing, or action under section 6(d), including 
     an investigation conducted by the employer. Nothing in this 
     subsection shall be construed to limit the rights of an 
     employee provided under any other provision of law.''.
       (c) Enhanced Penalties.--Section 16(b) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 216(b)) is amended--
       (1) by inserting after the first sentence the following: 
     ``Any employer who violates section 6(d) shall additionally 
     be liable for such compensatory damages, or, where the 
     employee demonstrates that the employer acted with malice or 
     reckless indifference, punitive damages as may be 
     appropriate, except that the United States shall not be 
     liable for punitive damages.'';
       (2) in the sentence beginning ``An action to'', by striking 
     ``either of the preceding sentences'' and inserting ``any of 
     the preceding sentences of this subsection'';

[[Page S7041]]

       (3) in the sentence beginning ``No employees shall'', by 
     striking ``No employees'' and inserting ``Except with respect 
     to class actions brought to enforce section 6(d), no 
     employee'';
       (4) by inserting after the sentence referred to in 
     paragraph (3), the following: ``Notwithstanding any other 
     provision of Federal law, any action brought to enforce 
     section 6(d) may be maintained as a class action as provided 
     by the Federal Rules of Civil Procedure.''; and
       (5) in the sentence beginning ``The court in''--
       (A) by striking ``in such action'' and inserting ``in any 
     action brought to recover the liability prescribed in any of 
     the preceding sentences of this subsection''; and
       (B) by inserting before the period the following: ``, 
     including expert fees''.
       (d) Action by Secretary.--Section 16(c) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 216(c)) is amended--
       (1) in the first sentence--
       (A) by inserting ``or, in the case of a violation of 
     section 6(d), additional compensatory or punitive damages, as 
     described in subsection (b),'' before ``and the agreement''; 
     and
       (B) by inserting before the period the following: ``, or 
     such compensatory or punitive damages, as appropriate'';
       (2) in the second sentence, by inserting before the period 
     the following: ``and, in the case of a violation of section 
     6(d), additional compensatory or punitive damages, as 
     described in subsection (b)'';
       (3) in the third sentence, by striking ``the first 
     sentence'' and inserting ``the first or second sentence''; 
     and
       (4) in the last sentence--
       (A) by striking ``commenced in the case'' and inserting 
     ``commenced--
       ``(1) in the case'';
       (B) by striking the period and inserting ``; or''; and
       (C) by adding at the end the following:
       ``(2) in the case of a class action brought to enforce 
     section 6(d), on the date on which the individual becomes a 
     party plaintiff to the class action.''.

     SEC. 4. TRAINING.

       The Equal Employment Opportunity Commission and the Office 
     of Federal Contract Compliance Programs, subject to the 
     availability of funds appropriated under section 10, shall 
     provide training to Commission employees and affected 
     individuals and entities on matters involving discrimination 
     in the payment of wages.

     SEC. 5. NEGOTIATION SKILLS TRAINING FOR GIRLS AND WOMEN.

       (a) Program Authorized.--
       (1) In general.--The Secretary of Labor, after consultation 
     with the Secretary of Education, is authorized to establish 
     and carry out a grant program.
       (2) Grants.--In carrying out the program, the Secretary of 
     Labor may make grants on a competitive basis to eligible 
     entities, to carry out negotiation skills training programs 
     for girls and women.
       (3) Eligible entities.--To be eligible to receive a grant 
     under this subsection, an entity shall be a public agency, 
     such as a State, a local government in a metropolitan 
     statistical area (as defined by the Office of Management and 
     Budget), a State educational agency, or a local educational 
     agency, a private nonprofit organization, or a community-
     based organization.
       (4) Application.--To be eligible to receive a grant under 
     this subsection, an entity shall submit an application to the 
     Secretary of Labor at such time, in such manner, and 
     containing such information as the Secretary of Labor may 
     require.
       (5) Use of funds.--An entity that receives a grant under 
     this subsection shall use the funds made available through 
     the grant to carry out an effective negotiation skills 
     training program that empowers girls and women. The training 
     provided through the program shall help girls and women 
     strengthen their negotiation skills to allow the girls and 
     women to obtain higher salaries and rates of compensation 
     that are equal to those paid to similarly-situated male 
     employees.
       (b) Incorporating Training Into Existing Programs.--The 
     Secretary of Labor and the Secretary of Education shall issue 
     regulations or policy guidance that provides for integrating 
     the negotiation skills training, to the extent practicable, 
     into programs authorized under--
       (1) in the case of the Secretary of Education, the 
     Elementary and Secondary Education Act of 1965 (20 U.S.C. 
     6301 et seq.), the Carl D. Perkins Career and Technical 
     Education Act of 2006 (20 U.S.C. 2301 et seq.), the Higher 
     Education Act of 1965 (20 U.S.C. 1001 et seq.), and other 
     programs carried out by the Department of Education that the 
     Secretary of Education determines to be appropriate; and
       (2) in the case of the Secretary of Labor, the Workforce 
     Investment Act of 1998 (29 U.S.C. 2801 et seq.), and other 
     programs carried out by the Department of Labor that the 
     Secretary of Labor determines to be appropriate.
       (c) Report.--Not later than 1 year after the date of 
     enactment of this Act, and annually thereafter, the Secretary 
     of Labor and the Secretary of Education shall prepare and 
     submit to Congress a report describing the activities 
     conducted under this section and evaluating the effectiveness 
     of such activities in achieving the purposes of this Act.

     SEC. 6. RESEARCH, EDUCATION, AND OUTREACH.

       The Secretary of Labor shall conduct studies and provide 
     information to employers, labor organizations, and the 
     general public concerning the means available to eliminate 
     pay disparities between men and women, including--
       (1) conducting and promoting research to develop the means 
     to correct expeditiously the conditions leading to the pay 
     disparities;
       (2) publishing and otherwise making available to employers, 
     labor organizations, professional associations, educational 
     institutions, the media, and the general public the findings 
     resulting from studies and other materials, relating to 
     eliminating the pay disparities;
       (3) sponsoring and assisting State and community 
     informational and educational programs;
       (4) providing information to employers, labor 
     organizations, professional associations, and other 
     interested persons on the means of eliminating the pay 
     disparities;
       (5) recognizing and promoting the achievements of 
     employers, labor organizations, and professional associations 
     that have worked to eliminate the pay disparities; and
       (6) convening a national summit to discuss, and consider 
     approaches for rectifying, the pay disparities.

     SEC. 7. ESTABLISHMENT OF THE NATIONAL AWARD FOR PAY EQUITY IN 
                   THE WORKPLACE.

       (a) In General.--There is established the Secretary of 
     Labor's National Award for Pay Equity in the Workplace, which 
     shall be awarded, as appropriate, to encourage proactive 
     efforts to comply with section 6(d) of the Fair Labor 
     Standards Act of 1938 (29 U.S.C. 206(d)).
       (b) Criteria for Qualification.--The Secretary of Labor 
     shall set criteria for receipt of the award, including a 
     requirement that an employer has made substantial effort to 
     eliminate pay disparities between men and women, and deserves 
     special recognition as a consequence of such effort. The 
     Secretary shall establish procedures for the application for 
     and presentation of the award.
       (c) Employer.--In this section, the term ``employer'' 
     includes--
       (1)(A) a corporation, including a nonprofit corporation;
       (B) a partnership;
       (C) a professional association;
       (D) a labor organization; and
       (E) a business entity similar to an entity described in any 
     of subparagraphs (A) through (D);
       (2) an entity carrying out an education referral program, a 
     training program, such as an apprenticeship or management 
     training program, or a similar program; and
       (3) an entity carrying out a joint program, formed by a 
     combination of any entities described in paragraph (1) or 
     (2).

     SEC. 8. COLLECTION OF PAY INFORMATION BY THE EQUAL EMPLOYMENT 
                   OPPORTUNITY COMMISSION.

       Section 709 of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e-8) is amended by adding at the end the following:
       ``(f)(1) Not later than 18 months after the date of 
     enactment of this subsection, the Commission shall--
       ``(A) complete a survey of the data that is currently 
     available to the Federal Government relating to employee pay 
     information for use in the enforcement of Federal laws 
     prohibiting pay discrimination and, in consultation with 
     other relevant Federal agencies, identify additional data 
     collections that will enhance the enforcement of such laws; 
     and
       ``(B) based on the results of the survey and consultations 
     under subparagraph (A), issue regulations to provide for the 
     collection of pay information data from employers as 
     described by the sex, race, and national origin of employees.
       ``(2) In implementing paragraph (1), the Commission shall 
     have as its primary consideration the most effective and 
     efficient means for enhancing the enforcement of Federal laws 
     prohibiting pay discrimination. For this purpose, the 
     Commission shall consider factors including the imposition of 
     burdens on employers, the frequency of required data 
     collection reports (including which employers should be 
     required to prepare reports), appropriate protections for 
     maintaining data confidentiality, and the most effective 
     format for the data collection reports.''.

     SEC. 9. REINSTATEMENT OF PAY EQUITY PROGRAMS AND PAY EQUITY 
                   DATA COLLECTION.

       (a) Bureau of Labor Statistics Data Collection.--The 
     Commissioner of Labor Statistics shall continue to collect 
     data on women workers in the Current Employment Statistics 
     survey.
       (b) Office of Federal Contract Compliance Programs 
     Initiatives.--The Director of the Office of Federal Contract 
     Compliance Programs shall ensure that employees of the 
     Office--
       (1)(A) shall use the full range of investigatory tools at 
     the Office's disposal, including pay grade methodology;
       (B) in considering evidence of possible compensation 
     discrimination--
       (i) shall not limit its consideration to a small number of 
     types of evidence; and
       (ii) shall not limit its evaluation of the evidence to a 
     small number of methods of evaluating the evidence; and
       (C) shall not require a multiple regression analysis or 
     anecdotal evidence for a compensation discrimination case;
       (2) for purposes of its investigative, compliance, and 
     enforcement activities, shall define ``similarly situated 
     employees'' in a way

[[Page S7042]]

     that is consistent with and not more stringent than the 
     definition provided in item 1 of subsection A of section 10-
     III of the Equal Employment Opportunity Commission Compliance 
     Manual (2000), and shall consider only factors that the 
     Office's investigation reveals were used in making 
     compensation decisions; and
       (3) shall reinstate the Equal Opportunity Survey, as 
     required by section 60-2.18 of title 41, Code of Federal 
     Regulations (as in effect on September 7, 2006), designating 
     not less than half of all nonconstruction contractor 
     establishments each year to prepare and file such survey, and 
     shall review and utilize the responses to such survey to 
     identify contractor establishments for further evaluation and 
     for other enforcement purposes as appropriate.
       (c) Department of Labor Distribution of Wage Discrimination 
     Information.--The Secretary of Labor shall make readily 
     available (in print, on the Department of Labor website, and 
     through any other forum that the Department may use to 
     distribute compensation discrimination information), accurate 
     information on compensation discrimination, including 
     statistics, explanations of employee rights, historical 
     analyses of such discrimination, instructions for employers 
     on compliance, and any other information that will assist the 
     public in understanding and addressing such discrimination.

     SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

       (a) Authorization of Appropriations.--There is authorized 
     to be appropriated $15,000,000 to carry out this Act.
       (b) Prohibition on Earmarks.--None of the funds 
     appropriated pursuant to subsection (a) for purposes of the 
     grant program in section 5 of this Act may be used for a 
     congressional earmark as defined in clause 9(e) of rule XXI 
     of the Rules of the House of Representatives.

     SEC. 11. SMALL BUSINESS ASSISTANCE.

       (a) Effective Date.--This Act and the amendments made by 
     this Act shall take effect on the date that is 6 months after 
     the date of enactment of this Act.
       (b) Technical Assistance Materials.--The Secretary of Labor 
     and the Commissioner of the Equal Employment Opportunity 
     Commission shall jointly develop technical assistance 
     material to assist small businesses in complying with the 
     requirements of this Act and the amendments made by this Act.
       (c) Small Businesses.--A small business shall be exempt 
     from the provisions of this Act to the same extent that such 
     business is exempt from the requirements of the Fair Labor 
     Standards Act of 1938 pursuant to clauses (i) and (ii) of 
     section 3(s)(1)(A) of such Act (29 U.S.C. 203(s)(1)(A)).

     SEC. 12. RULE OF CONSTRUCTION.

       Nothing in this Act, or in any amendment made by this Act, 
     shall affect the obligation of employers and employees to 
     fully comply with all applicable immigration laws, including 
     any penalties, fines, or other sanctions.
                                 ______
                                 
      By Mr. McCONNELL (for himself, Mr. Grassley, Mr. Kyl, Mr. McCain, 
        Mr. Cochran, Mr. Graham, Mr. Roberts, Mr. Cornyn, Mr. Inhofe, 
        Mr. Ensign, Mr. Isakson, Mr. Brownback, Mr. Enzi, Mr. Crapo, 
        Mr. Burr, Mr. Vitter, Mr. Wicker, Mr. Chambliss, Mr. Bond, Mrs. 
        Hutchison, and Mr. Hatch):
  S. 3773. A bill to permanently extend the 2001 and 2003 tax relief 
provisions and to provide permanent AMT relief and estate tax relief, 
and for other purposes; read the first time.
  Mr. McCONNELL. 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. 3773

       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 ``Tax Hike Prevention Act of 
     2010''.

                     TITLE I--PERMANENT TAX RELIEF

     SEC. 101. 2001 TAX RELIEF MADE PERMANENT.

       Title IX of the Economic Growth and Tax Relief 
     Reconciliation Act of 2001 is repealed.

     SEC. 102. 2003 TAX RELIEF MADE PERMANENT.

       Section 303 of the Jobs and Growth Tax Relief 
     Reconciliation Act of 2003 is repealed.

     SEC. 103. TECHNICAL AND CONFORMING AMENDMENTS.

       The Secretary of the Treasury or the Secretary's delegate 
     shall not later than 90 days after the date of the enactment 
     of this Act, submit to the Committee on Ways and Means of the 
     House of Representatives and the Committee on Finance of the 
     Senate a draft of any technical and conforming changes in the 
     Internal Revenue Code of 1986 which are necessary to reflect 
     throughout such Code the purposes of the provisions of, and 
     amendments made by, this Act.

               TITLE II--PERMANENT INDIVIDUAL AMT RELIEF

     SEC. 201. PERMANENT INDIVIDUAL AMT RELIEF.

       (a) Modification of Alternative Minimum Tax Exemption 
     Amount.--
       (1) In general.--Paragraph (1) of section 55(d) of the 
     Internal Revenue Code of 1986 (relating to exemption amount) 
     is amended to read as follows:
       ``(1) Exemption amount for taxpayers other than 
     corporations.--In the case of a taxpayer other than a 
     corporation, the term `exemption amount' means--
       ``(A) the dollar amount for taxable years beginning in the 
     calendar year as specified in the table contained in 
     paragraph (4)(A) in the case of--
       ``(i) a joint return, or
       ``(ii) a surviving spouse,
       ``(B) the dollar amount for taxable years beginning in the 
     calendar year as specified in the table contained in 
     paragraph (4)(B) in the case of an individual who--
       ``(i) is not a married individual, and
       ``(ii) is not a surviving spouse,
       ``(C) 50 percent of the dollar amount applicable under 
     paragraph (1)(A) in the case of a married individual who 
     files a separate return, and
       ``(D) $22,500 in the case of an estate or trust.

     For purposes of this paragraph, the term `surviving spouse' 
     has the meaning given to such term by section 2(a), and 
     marital status shall be determined under section 7703.''.
       (2) Specified exemption amounts.--Section 55(d) of such 
     Code is amended by adding at the end the following new 
     paragraph:
       ``(4) Specified exemption amounts.--
       ``(A) Taxpayers described in paragraph (1)(A).--For 
     purposes of paragraph (1)(A)--


------------------------------------------------------------------------
                                                                 The
             ``For taxable years beginning in--               exemption
                                                              amount is:
------------------------------------------------------------------------
2010.......................................................      $72,450
2011.......................................................      $74,450
2012.......................................................      $78,250
2013.......................................................      $81,450
2014.......................................................      $85,050
2015.......................................................      $88,650
2016.......................................................      $92,650
2017.......................................................      $96,550
2018.......................................................     $100,950
2019.......................................................     $105,150
2020.......................................................    $109,950.
------------------------------------------------------------------------

       ``(B) Taxpayers described in paragraph (1)(B).--For 
     purposes of paragraph (1)(B)--


------------------------------------------------------------------------
                                                                 The
             ``For taxable years beginning in--               exemption
                                                              amount is:
------------------------------------------------------------------------
2010.......................................................      $47,450
2011.......................................................      $48,450
2012.......................................................      $50,350
2013.......................................................      $51,950
2014.......................................................      $53,750
2015.......................................................      $55,550
2016.......................................................      $57,550
2017.......................................................      $59,500
2018.......................................................      $61,700
2019.......................................................      $63,800
2020.......................................................  $66,200.''.
------------------------------------------------------------------------

       (b) Alternative Minimum Tax Relief for Nonrefundable 
     Credits.--
       (1) In general.--Subsection (a) of section 26 of the 
     Internal Revenue Code of 1986 is amended to read as follows:
       ``(a) Limitation Based on Amount of Tax.--The aggregate 
     amount of credits allowed by this subpart for the taxable 
     year shall not exceed the sum of--
       ``(1) the taxpayer's regular tax liability for the taxable 
     year reduced by the foreign tax credit allowable under 
     section 27(a), and
       ``(2) the tax imposed by section 55(a) for the taxable 
     year.''.
       (2) Conforming amendments.--
       (A) Adoption credit.--
       (i) Section 23(b) of such Code is amended by striking 
     paragraph (4).
       (ii) Section 23(c) of such Code is amended by striking 
     paragraphs (1) and (2) and inserting the following:
       ``(1) In general.--If the credit allowable under subsection 
     (a) for any taxable year exceeds the limitation imposed by 
     section 26(a) for such taxable year reduced by the sum of the 
     credits allowable under this subpart (other than this section 
     and sections 25D and 1400C), such excess shall be carried to 
     the succeeding taxable year and added to the credit allowable 
     under subsection (a) for such taxable year.''.
       (iii) Section 23(c) of such Code is amended by 
     redesignating paragraph (3) as paragraph (2).
       (B) Child tax credit.--
       (i) Section 24(b) of such Code is amended by striking 
     paragraph (3).
       (ii) Section 24(d)(1) of such Code is amended--

       (I) by striking ``section 26(a)(2) or subsection (b)(3), as 
     the case may be,'' each place it appears in subparagraphs (A) 
     and (B) and inserting ``section 26(a)'', and
       (II) by striking ``section 26(a)(2) or subsection (b)(3), 
     as the case may be'' in the second last sentence and 
     inserting ``section 26(a)''.

       (C) Credit for interest on certain home mortgages.--Section 
     25(e)(1)(C) of such Code is amended to read as follows:
       ``(C) Applicable tax limit.--For purposes of this 
     paragraph, the term `applicable tax

[[Page S7043]]

     limit' means the limitation imposed by section 26(a) for the 
     taxable year reduced by the sum of the credits allowable 
     under this subpart (other than this section and sections 23, 
     25D, and 1400C).''.
       (D) Savers' credit.--Section 25B of such Code is amended by 
     striking subsection (g).
       (E) Residential energy efficient property.--Section 25D(c) 
     of such Code is amended to read as follows:
       ``(c) Carryforward of Unused Credit.--If the credit 
     allowable under subsection (a) exceeds the limitation imposed 
     by section 26(a) for such taxable year reduced by the sum of 
     the credits allowable under this subpart (other than this 
     section), such excess shall be carried to the succeeding 
     taxable year and added to the credit allowable under 
     subsection (a) for such succeeding taxable year.''.
       (F) Certain plug-in electric vehicles.--Section 30(c)(2) of 
     such Code is amended to read as follows:
       ``(2) Personal credit.--For purposes of this title, the 
     credit allowed under subsection (a) for any taxable year 
     (determined after application of paragraph (1)) shall be 
     treated as a credit allowable under subpart A for such 
     taxable year.''.
       (G) Alternative motor vehicle credit.--Section 30B(g)(2) of 
     such Code is amended to read as follows:
       ``(2) Personal credit.--For purposes of this title, the 
     credit allowed under subsection (a) for any taxable year 
     (determined after application of paragraph (1)) shall be 
     treated as a credit allowable under subpart A for such 
     taxable year.''.
       (H) New qualified plug-in electric vehicle credit.--Section 
     30D(c)(2) of such Code is amended to read as follows:
       ``(2) Personal credit.--For purposes of this title, the 
     credit allowed under subsection (a) for any taxable year 
     (determined after application of paragraph (1)) shall be 
     treated as a credit allowable under subpart A for such 
     taxable year.''.
       (I) Cross references.--Section 55(c)(3) of such Code is 
     amended by striking ``26(a), 30C(d)(2),'' and inserting 
     ``30C(d)(2)''.
       (J) Foreign tax credit.--Section 904 of such Code is 
     amended by striking subsection (i) and by redesignating 
     subsections (j) , (k), and (l) as subsections (i), (j), and 
     (k), respectively.
       (K) First-time home buyer credit for the district of 
     columbia.--Section 1400C(d) of such Code is amended to read 
     as follows:
       ``(d) Carryforward of Unused Credit.--If the credit 
     allowable under subsection (a) exceeds the limitation imposed 
     by section 26(a) for such taxable year reduced by the sum of 
     the credits allowable under subpart A of part IV of 
     subchapter A (other than this section and section 25D), such 
     excess shall be carried to the succeeding taxable year and 
     added to the credit allowable under subsection (a) for such 
     taxable year.''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2009.

                 TITLE III--PERMANENT ESTATE TAX RELIEF

     SEC. 301. APPLICATION OF ESTATE, GENERATION-SKIPPING 
                   TRANSFER, AND GIFT TAXES AFTER 2009.

       (a) In General.--The following provisions of the Economic 
     Growth and Tax Relief Reconciliation Act of 2001, and the 
     amendments made by such provisions, are repealed on and after 
     January 1, 2010, with respect to decedents dying on and after 
     such date, and on and after January 1, 2011, with respect to 
     gifts made and generation-skipping transfers on and after 
     such date:
       (1) Subtitles A and E of title V.
       (2) Subsection (d), and so much of subsection (f)(3) as 
     relates to subsection (d), of section 511.
       (3) Paragraph (2) of subsection (b), and paragraph (2) of 
     subsection (e), of section 521.
     Except in the case of an election under section 404, the 
     Internal Revenue Code of 1986 shall be applied as if such 
     provisions and amendments had never been enacted.
       (b) Conforming Amendment.--Subsection (c) of section 2511 
     of the Internal Revenue Code of 1986 is repealed on and after 
     January 1, 2011, with respect to gifts made on and after such 
     date.

     SEC. 302. TREATMENT OF UNIFIED CREDIT AND MAXIMUM ESTATE TAX 
                   RATE AFTER 2009.

       (a) Restoration of Unified Credit Against Gift Tax.--
     Paragraph (1) of section 2505(a) of the Internal Revenue Code 
     of 1986 (relating to general rule for unified credit against 
     gift tax), after the application of section _01, is amended 
     by striking ``(determined as if the applicable exclusion 
     amount were $1,000,000)''.
       (b) Exclusion Equivalent of Unified Credit Equal to 
     $5,000,000.--Subsection (c) of section 2010 of the Internal 
     Revenue Code of 1986 (relating to unified credit against 
     estate tax) is amended to read as follows:
       ``(c) Applicable Credit Amount.--
       ``(1) In general.--For purposes of this section, the 
     applicable credit amount is the amount of the tentative tax 
     which would be determined under section 2001(c) if the amount 
     with respect to which such tentative tax is to be computed 
     were equal to the applicable exclusion amount.
       ``(2) Applicable exclusion amount.--
       ``(A) In general.--For purposes of this subsection, the 
     applicable exclusion amount is $5,000,000.
       ``(B) Inflation adjustment.--In the case of any decedent 
     dying in a calendar year after 2010, the dollar amount in 
     subparagraph (A) shall be increased by an amount equal to--
       ``(i) such dollar amount, multiplied by
       ``(ii) the cost-of-living adjustment determined under 
     section 1(f)(3) for such calendar year by substituting 
     `calendar year 2009' for `calendar year 1992' in subparagraph 
     (B) thereof.

     If any amount as adjusted under the preceding sentence is not 
     a multiple of $10,000, such amount shall be rounded to the 
     nearest multiple of $10,000.''.
       (c) Maximum Estate Tax Rate Equal to 35 Percent.--
       (1) In general.--Subsection (c) of section 2001 of the 
     Internal Revenue Code of 1986 (relating to imposition and 
     rate of tax) is amended--
       (A) by striking ``Over $500,000'' and all that follows in 
     the table contained in paragraph (1) and insert the 
     following:


``Over $500,000...........................  $79,300, plus 35 percent of
                                             the excess of such amount
                                             over $500,000.'',
 

       (B) by striking ``(1) In general.--'', and
       (C) by striking paragraph (2).
       (2) Conforming amendment.--Paragraphs (1) and (2) of 
     section 2102(b) of such Code are amended to read as follows:
       ``(1) In general.--A credit in an amount that would be 
     determined under section 2010 as the applicable credit amount 
     if the applicable exclusion amount were $60,000 shall be 
     allowed against the tax imposed by section 2101.
       ``(2) Residents of possessions of the united states.--In 
     the case of a decedent who is considered to be a `nonresident 
     not a citizen of the United States' under section 2209, the 
     credit allowed under this subsection shall not be less than 
     the proportion of the amount that would be determined under 
     section 2010 as the applicable credit amount if the 
     applicable exclusion amount were $175,000 which the value of 
     that part of the decedent's gross estate which at the time of 
     the decedent's death is situated in the United States bears 
     to the value of the decedent's entire gross estate, wherever 
     situated.''.
       (d) Modifications of Estate and Gift Taxes to Reflect 
     Differences in Unified Credit Resulting From Different Tax 
     Rates.--
       (1) Estate tax.--
       (A) In general.--Section 2001(b)(2) of the Internal Revenue 
     Code of 1986 (relating to computation of tax) is amended by 
     striking ``if the provisions of subsection (c) (as in effect 
     at the decedent's death)'' and inserting ``if the 
     modifications described in subsection (g)''.
       (B) Modifications.--Section 2001 of such Code is amended by 
     adding at the end the following new subsection:
       ``(g) Modifications to Gift Tax Payable to Reflect 
     Different Tax Rates.--For purposes of applying subsection 
     (b)(2) with respect to 1 or more gifts, the rates of tax 
     under subsection (c) in effect at the decedent's death shall, 
     in lieu of the rates of tax in effect at the time of such 
     gifts, be used both to compute--
       ``(1) the tax imposed by chapter 12 with respect to such 
     gifts, and
       ``(2) the credit allowed against such tax under section 
     2505, including in computing--
       ``(A) the applicable credit amount under section 
     2505(a)(1), and
       ``(B) the sum of the amounts allowed as a credit for all 
     preceding periods under section 2505(a)(2).

     For purposes of paragraph (2)(A), the applicable credit 
     amount for any calendar year before 1998 is the amount which 
     would be determined under section 2010(c) if the applicable 
     exclusion amount were the dollar amount under section 
     6018(a)(1) for such year.''.
       (2) Gift tax.--Section 2505(a) of such Code (relating to 
     unified credit against gift tax) is amended by adding at the 
     end the following new flush sentence:

     ``For purposes of applying paragraph (2) for any calendar 
     year, the rates of tax in effect under section 2502(a)(2) for 
     such calendar year shall, in lieu of the rates of tax in 
     effect for preceding calendar periods, be used in determining 
     the amounts allowable as a credit under this section for all 
     preceding calendar periods.''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to estates of decedents dying, generation-
     skipping transfers, and gifts made, after December 31, 2009.

     SEC. 303. UNIFIED CREDIT INCREASED BY UNUSED UNIFIED CREDIT 
                   OF DECEASED SPOUSE.

       (a) In General.--Section 2010(c) of the Internal Revenue 
     Code of 1986, as amended by section 302(b), is amended by 
     striking paragraph (2) and inserting the following new 
     paragraphs:
       ``(2) Applicable exclusion amount.--For purposes of this 
     subsection, the applicable exclusion amount is the sum of--
       ``(A) the basic exclusion amount, and
       ``(B) in the case of a surviving spouse, the aggregate 
     deceased spousal unused exclusion amount.
       ``(3) Basic exclusion amount.--
       ``(A) In general.--For purposes of this subsection, the 
     basic exclusion amount is $5,000,000.
       ``(B) Inflation adjustment.--In the case of any decedent 
     dying in a calendar year after 2010, the dollar amount in 
     subparagraph (A) shall be increased by an amount equal to--

[[Page S7044]]

       ``(i) such dollar amount, multiplied by
       ``(ii) the cost-of-living adjustment determined under 
     section 1(f)(3) for such calendar year by substituting 
     `calendar year 2009' for `calendar year 1992' in subparagraph 
     (B) thereof.

     If any amount as adjusted under the preceding sentence is not 
     a multiple of $10,000, such amount shall be rounded to the 
     nearest multiple of $10,000.
       ``(4) Aggregate deceased spousal unused exclusion amount.--
     For purposes of this subsection, the term `aggregate deceased 
     spousal unused exclusion amount' means the lesser of--
       ``(A) the basic exclusion amount, or
       ``(B) the sum of the deceased spousal unused exclusion 
     amounts computed with respect to each deceased spouse of the 
     surviving spouse.
       ``(5) Deceased spousal unused exclusion amount.--For 
     purposes of this subsection, the term `deceased spousal 
     unused exclusion amount' means, with respect to the surviving 
     spouse of any deceased spouse dying after December 31, 2009, 
     the excess (if any) of--
       ``(A) the basic exclusion amount of the deceased spouse, 
     over
       ``(B) the amount with respect to which the tentative tax is 
     determined under section 2001(b)(1) on the estate of such 
     deceased spouse.
       ``(6) Special rules.--
       ``(A) Election required.--A deceased spousal unused 
     exclusion amount may not be taken into account by a surviving 
     spouse under paragraph (5) unless the executor of the estate 
     of the deceased spouse files an estate tax return on which 
     such amount is computed and makes an election on such return 
     that such amount may be so taken into account. Such election, 
     once made, shall be irrevocable. No election may be made 
     under this subparagraph if such return is filed after the 
     time prescribed by law (including extensions) for filing such 
     return.
       ``(B) Examination of prior returns after expiration of 
     period of limitations with respect to deceased spousal unused 
     exclusion amount.--Notwithstanding any period of limitation 
     in section 6501, after the time has expired under section 
     6501 within which a tax may be assessed under chapter 11 or 
     12 with respect to a deceased spousal unused exclusion 
     amount, the Secretary may examine a return of the deceased 
     spouse to make determinations with respect to such amount for 
     purposes of carrying out this subsection.
       ``(7) Regulations.--The Secretary shall prescribe such 
     regulations as may be necessary or appropriate to carry out 
     this subsection.''.
       (b) Conforming Amendments.--
       (1) Paragraph (1) of section 2505(a) of the Internal 
     Revenue Code of 1986, as amended by section 302(a), is 
     amended to read as follows:
       ``(1) the applicable credit amount in effect under section 
     2010(c) which would apply if the donor died as of the end of 
     the calendar year, reduced by''.
       (2) Section 2631(c) of such Code is amended by striking 
     ``the applicable exclusion amount'' and inserting ``the basic 
     exclusion amount''.
       (3) Section 6018(a)(1) of such Code is amended by striking 
     ``applicable exclusion amount'' and inserting ``basic 
     exclusion amount''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to estates of decedents dying, generation-
     skipping transfers, and gifts made, after December 31, 2009.

     SEC. 304. SPECIAL ELECTION FOR DECEDENTS DYING IN 2010.

       In the case of any decedent dying in 2010, the executor of 
     the estate of such decedent may elect to apply the Internal 
     Revenue Code of 1986 without regard to the provisions of, and 
     the amendments made by, this title (other than this section). 
     Such election shall be made at such time and in such manner 
     as the Secretary of the Treasury shall provide.

                          ____________________