[Congressional Record (Bound Edition), Volume 149 (2003), Part 21]
[Issue]
[Pages 28533-29010]
[From the U.S. Government Publishing Office, www.gpo.gov]



[[Page 28533]]

                           VOLUME 149--PART 21


         HOUSE OF REPRESENTATIVES--Wednesday, November 12, 2003

  The House met at 2 p.m.
  The Most Reverend Anthony Sablan Apuron, Archbishop of Agana, Guam, 
offered the following prayer:
  Almighty God, whose goodness fills our hearts with joy. You are 
blessed for bringing us together to work in harmony, in peace, and in 
justice. Send Your blessings upon our United States House of 
Representatives, who generously devote themselves to the work of our 
Nation and Territories in the laws they pass and the resolutions they 
create.
  In times of difficulty and need, grant them the strength to transcend 
personal interests and seek after the common good for all. Strengthen 
them with Your grace and wisdom so that everything that they begin with 
Your inspiration, continue with Your guidance and by You be happily 
ended. Grace us with Your saving presence and aid us with Your constant 
blessing.
  All glory and praise be to You, our ever-living God, forever and 
ever. Amen.

                          ____________________




                              THE JOURNAL

  The SPEAKER. The Chair has examined the Journal of the last day's 
proceedings and announces to the House his approval thereof.
  Pursuant to clause 1, rule I, the Journal stands approved.

                          ____________________




                          PLEDGE OF ALLEGIANCE

  The SPEAKER. Will the gentleman from Alabama (Mr. Aderholt) come 
forward and lead the House in the Pledge of Allegiance.
  Mr. ADERHOLT led the Pledge of Allegiance as follows:

       I pledge allegiance to the Flag of the United States of 
     America, and to the Republic for which it stands, one nation 
     under God, indivisible, with liberty and justice for all.

                          ____________________




                        MESSAGE FROM THE SENATE

   A message from the Senate by Mr. Monahan, one of its clerks, 
announced that the Senate has passed without amendment a bill of the 
House of the following title:

       H.R. 3054. An act to amend the Policemen and Firemen's 
     Retirement and Disability Act to permit military service 
     previously performed by members and former members of the 
     Metropolitan Police Department of the District of Columbia, 
     the Fire Department of the District of Columbia, the United 
     States Park Police, and the United States Secret Service to 
     count as creditable service for purposes of calculating 
     retirement annuities payable to such members upon payment of 
     a contribution by such members, and for other purposes.

  The message also announced that the Senate has passed with amendments 
in which the concurrence of the House is requested, a bill of the House 
of the following title:

       H.R. 1828. An act to halt Syrian support for terrorism, end 
     its occupation of Lebanon, and stop its development of 
     weapons of mass destruction, and by so doing hold Syria 
     accountable for the serious international security problems 
     it has caused in the Middle East, and for other purposes.

  The message also announced that the Senate has passed with an 
amendment in which the concurrence of the House is requested, a bill of 
the House of the following title:

       H.R. 2673. An act making appropriations for Agriculture, 
     Rural Development, Food and Drug Administration, and Related 
     Agencies for the fiscal year ending September 30, 2004, and 
     for other purposes.

  The message also announced that the Senate insist upon its amendment 
to the bill (H.R. 2673) ``An Act making appropriations for Agriculture, 
Rural Development, Food and Drug Administration, and Related Agencies 
for the fiscal year ending September 30, 2004, and for other purposes, 
requests a conference with the House on the disagreeing votes of the 
two Houses thereon, and appoints Mr. Bennett, Mr. Cochran, Mr. Specter, 
Mr. Bond, Mr. McConnell, Mr. Burns, Mr. Craig, Mr. Brownback, Mr. 
Stevens, Mr. Kohl, Mr. Harkin, Mr. Dorgan, Mrs. Feinstein, Mr. Durbin, 
Mr. Johnson, Ms. Landrieu, and Mr. Byrd, be the conferees on the part 
of the Senate.
  The message also announced that the Senate has passed bills of the 
following titles in which the concurrence of the House is requested:

       S. 286. An act to revise and extend the Birth Defects 
     Prevention Act of 1998.
       S. 1657. An act to amend section 44921 of title 49, United 
     States Code, to provide for the arming of cargo pilots 
     against terrorism.

                          ____________________




                ADJOURNMENT TO FRIDAY, NOVEMBER 14, 2003

  Mr. ADERHOLT. Mr. Speaker, I ask unanimous consent that when the 
House adjourns today, it adjourn to meet at 2 p.m. on Friday, November 
14, 2003.
  The SPEAKER. Is there objection to the request of the gentleman from 
Alabama?
  There was no objection.

                          ____________________




  ADJOURNMENT FROM FRIDAY, NOVEMBER 14, 2003, TO MONDAY, NOVEMBER 17, 
                                  2003

  Mr. ADERHOLT. Mr. Speaker, I ask unanimous consent that when the 
House adjourns on Friday, November 14, 2003, it adjourn to meet at 
12:30 p.m. on Monday, November 17, 2003, for morning hour debates.
  The SPEAKER. Is there objection to the request of the gentleman from 
Alabama?
  There was no objection.

                          ____________________




DISPENSING WITH CALENDAR WEDNESDAY BUSINESS ON WEDNESDAY, NOVEMBER 19, 
                                  2003

  Mr. ADERHOLT. Mr. Speaker, I ask unanimous consent that the business 
in order under the Calendar Wednesday rule be dispensed with on 
Wednesday, November 19, 2003.
  The SPEAKER. Is there objection to the request of the gentleman from 
Alabama?
  There was no objection.

                          ____________________




               COMMUNICATION FROM THE CLERK OF THE HOUSE

  The SPEAKER laid before the House the following communication from 
the Clerk of the House of Representatives:


[[Page 28534]]


                                              Office of the Clerk,


                                     House of Representatives,

                                Washington, DC, November 12, 2003.
     Hon. J. Dennis Hastert,
     Speaker, House of Representatives,
     Washington, DC.
       Dear Mr. Speaker: Pursuant to the permission granted in 
     clause 2(h) of rule II of the Rules of the U.S. House of 
     Representatives, I have the honor to transmit a sealed 
     envelope received from the White House on November 12, 2003 
     at 12:10 p.m. and said to contain a message from the 
     President whereby he submits a copy of a notice continuing 
     the national emergency with regard to Iran.
       With best wishes, I am
           Sincerely,
                                                    Jeff Trandahl,
     Clerk of the House.

                          ____________________




  CONTINUING NATIONAL EMERGENCY WITH REGARD TO IRAN--MESSAGE FROM THE 
          PRESIDENT OF THE UNITED STATES (H. DOC. NO. 108-141)

  The SPEAKER laid before the House the following message from the 
President of the United States; which was read and, together with the 
accompanying papers, referred to the Committee on International 
Relations and ordered to be printed:

To the Congress of the United States:
  Section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)) 
provides for the automatic termination of a national emergency unless, 
prior to the anniversary date of its declaration, the President 
publishes in the Federal Register and transmits to the Congress a 
notice stating that the emergency is to continue in effect beyond the 
anniversary date. Consistent with this provision, I have sent the 
enclosed notice, stating that the Iran emergency declared by Executive 
Order 12170 on November 14, 1979, is to continue in effect beyond 
November 14, 2003, to the Federal Register for publication. The most 
recent notice continuing this emergency was published in the Federal 
Register on November 13, 2002 (67 Fed. Reg. 68929).
  Our relations with Iran have not yet returned to normal, and the 
process of implementing the January 19, 1981, agreements with Iran is 
still underway. For these reasons, I have determined that it is 
necessary to continue the national emergency declared on November 14, 
1979, with respect to Iran, beyond November 14, 2003.
                                                      George W. Bush.  
The White House, November 12, 2003.

                          ____________________




                          SENATE BILL REFERRED

  A bill of the Senate of the following title was taken from the 
Speaker's table and, under the rule, referred as follows:

       S. 1657. An act to amend section 44921 of title 49, United 
     States Code, to provide for the arming of cargo pilots 
     against terrorism; to the Committee on Transportation and 
     Infrastructure.

                          ____________________




                      SENATE ENROLLED BILLS SIGNED

  The SPEAKER announced his signature to enrolled bills of the Senate 
of the following titles:

       S. 677. An act to revise the boundary of the Black Canyon 
     of the Gunnison National Park and Gunnison Gorge National 
     Conservation Area in the State of Colorado, and for other 
     purposes.
       S. 924. An act to authorize the exchange of lands between 
     an Alaska Native Village Corporation and the Department of 
     the Interior, and for other purposes.

                          ____________________




                    BILLS PRESENTED TO THE PRESIDENT

  Jeff Trandahl, Clerk of the House, reports that on November 7, 2003 
he presented to the President of the United States, for his approval, 
the following bills.

       H.J. Res. 76. Making further continuing appropriations for 
     the fiscal year 2004, and for other purposes.
       H.R. 1442. To authorize the design and construction of a 
     visitor center for the Vietnam Veterans Memorial.
       H.R. 3365. An act to amend title 10, United States Code, 
     and the Internal Revenue Code of 1986 to increase the death 
     gratuity payable with respect to deceased members of the 
     Armed Forces and to exclude such gratuity from gross income, 
     to provide additional tax relief for members of the Armed 
     Forces and their families, and for other purposes.

                          ____________________




                              ADJOURNMENT

  Mr. ADERHOLT. Mr. Speaker, I move that the House do now adjourn.
  The motion was agreed to; accordingly (at 2 o'clock and 6 minutes 
p.m.), under its previous order, the House adjourned until Friday, 
November 14, 2003, at 2 p.m.

                          ____________________




         REPORTS OF COMMITTEES ON PUBLIC BILLS AND RESOLUTIONS

  Under clause 2 of rule XIII, reports of committees were delivered to 
the Clerk for printing and reference to the proper calendar, as 
follows:

       Mr. COX: Select Committee on Homeland Security. H.R. 2886. 
     A bill to amend title 31, United States Code, to improve the 
     financial accountability requirements applicable to the 
     Department of Homeland Security, and for other purpose; with 
     an amendment (Rept. 108-358 Pt. 1). Ordered to be printed.

                          ____________________




                      PUBLIC BILLS AND RESOLUTIONS

  Under clause 2 of rule XII, public bills and resolutions were 
introduced and severally referred, as follows:

           By Mr. RAMSTAD (for himself and Mr. Cardin):
       H.R. 3485. A bill to amend the Internal Revenue Code of 
     1986 to provide an incentive to preserve affordable housing 
     in multifamily housing units which are sold or exchanged; to 
     the Committee on Ways and Means.
           By Mr. THOMAS (for himself, Mr. Nunes, Mr. Dooley of 
             California, Mr. Radanovich, Mr. Cardoza, Mr. Matsui, 
             Mr. Doolittle, Mr. Ose, and Mr. Herger):
       H.R. 3486. A bill to create 4 new permanent judgeships for 
     the eastern district of California; to the Committee on the 
     Judiciary.
           By Mr. RAMSTAD (for himself and Ms. Eshoo):
       H. Con. Res. 324. Concurrent resolution urging Japan to 
     honor its commitments under the 1986 Market-Oriented Sector-
     Selective (MOSS) Agreement on Medical Equipment and 
     Pharmaceuticals, and for other purposes; to the Committee on 
     Ways and Means.

                          ____________________




                          ADDITIONAL SPONSORS

  Under clause 7 of rule XII, sponsors were added to public bills and 
resolutions as follows:

       H.R. 300: Mr. Gingrey.
       H.R. 476: Mrs. Capps and Mr. Goode.
       H.R. 489: Mr. Jones of North Carolina.
       H.R. 852: Mr. Olver, Mr. Bishop of Georgia, Mr. Langevin, 
     Mr. McDermott, Mr. McNulty, Mr. Stark, and Mr. Doyle.
       H.R. 1548: Mr. Bartlett of Maryland.
       H.R. 1699: Mr. Bartlett of Maryland.
       H.R. 1910: Mr. Bradley of New Hampshire.
       H.R. 2102: Mr. Beauprez.
       H.R. 2173: Mr. Rush, Ms. McCollum, Mr. Emanuel, Mr. 
     Peterson of Minnesota, Mr. Cooper, Mr. Kildee, Mr. Ballance, 
     Mr. Matsui, and Mr. Ross.
       H.R. 2354: Mr. Farr.
       H.R. 2683: Mr. Kucinich.
       H.R. 2823: Mr. Costello.
       H.R. 2945: Mr. Miller of North Carolina.
       H.R. 2967: Mr. Hoeffel and Mr. Platts.
       H.R. 3125: Mrs. Musgrave.
       H.R. 3240: Mr. Stenholm, Mr. Carter, Mr. Paul, Mr. Bonilla, 
     Mr. Smith of Texas, Mr. Brady of Texas, Mr. Culberson, Mr. 
     Barton of Texas, Mr. Sessions, Mr. Hensarling, Mr. 
     Thornberry, and Mr. Burgess.
       H. Con. Res. 30: Ms. Lofgren, Mr. Ackerman, Ms. Solis, Ms. 
     Woolsey, Mr. Clyburn, Mr. Ryan of Ohio, Mrs. Lowey, Mr. 
     Allen, Mr. Schiff, Mr. Ross, Mr. Lucas of Kentucky, Ms. 
     Kaptur, Ms. Berkley, Mr. Meeks of New York, Mr. Brown of 
     Ohio, Mr. Honda, Ms. Kilpatrick, Mr. Lewis of Georgia, Mr. 
     Jefferson, Ms. Majette, Mr. Bell, Mr. Davis of Tennessee, Mr. 
     Watt, Mr. Ford, Mr. Weldon of Pennsylvania, Mr. Israel, Mrs. 
     McCarthy of New York, Mr. Bishop of New York, Ms. McCollum, 
     Mr. Ortiz, Mrs. Jones of Ohio, Mr. Davis of Alabama, Mr. 
     Scott of Virginia, Mr. Langevin, Mr. Weiner, Mr. Larsen of 
     Washington, and Mr. DeLauro.
       H. Con. Res. 311: Mr. Souder.
       H. Res. 103: Mrs. Kelly, Mr. Jenkins, Mr. Schrock, and Mr. 
     Scott of Virginia.
       H. Res. 371: Mr. Kirk, Mr. Dingell, Mr. Shays, and Mr. 
     Smith of Michigan.
     
     
     


[[Page 28535]]

                  SENATE--Wednesday, November 12, 2003

  The Senate met at 9:30 a.m. and was called to order by the President 
pro tempore [Mr. Stevens].
                                 ______
                                 

                                 prayer

  The Chaplain, Dr. Barry Black, offered the following prayer:
  Let us pray.
  O God our rock, great is Your glory, and worthy is Your name. We lean 
upon Your great strength, for You are our anchor on life's raging seas. 
As we prepare for the long day ahead, give Your servants in this place, 
the chosen of the people, the discipline to embrace Your wisdom. Remind 
them that true wisdom is pure, peaceful, gentle, impartial, sincere, 
merciful, and productive. May they remember that You expect from us 
faithful stewardship of our time. Give them the grace to use words 
responsibly, for the power of life and death is in the tongue. Place 
within their hearts a desire to be instruments for Your glory. Deliver 
them from discouragement and today let them mend the defective, 
bringing order where there is chaos and choosing the road that leads to 
life. We pray this in the name of Our Creator. Amen.

                          ____________________




                          PLEDGE OF ALLEGIANCE

  The PRESIDENT pro tempore led the Pledge of Allegiance, as follows:

       I pledge allegiance to the Flag of the United States of 
     America, and to the Republic for which it stands, one nation 
     under God, indivisible, with liberty and justice for all.

                          ____________________




               RECOGNITION OF THE ACTING MAJORITY LEADER

  The PRESIDENT pro tempore. The acting majority leader is recognized.

                          ____________________




                                SCHEDULE

  Mr. McCONNELL. Mr. President, this morning, the Senate will begin 
consideration of the VA-HUD appropriations bill. We expect to have 
amendments offered and debated before the noon hour. Therefore, 
rollcall votes are anticipated. This is the final individual 
appropriations bill that will be considered on the floor, and it is my 
hope that we can finish the VA-HUD bill during today's session.
  As previously announced, the Senate will recess from 12:30 p.m. to 
2:15 p.m. for the Democratic Party luncheon. Following that recess, 
there will be 20 minutes remaining for debate before the vote on the 
adoption of the Department of Defense authorization conference report. 
Immediately following that vote, the Senate will vote on the adoption 
of the military construction appropriations conference report.
  As the majority leader stated previously, tonight we will begin an 
extended debate on judicial nominations. All Senators are encouraged to 
participate in this very important process.
  Mr. President, I yield the floor.

                          ____________________




                       RESERVATION OF LEADER TIME

  The PRESIDENT pro tempore. Under the previous order, the leadership 
time is reserved.

                          ____________________




 DEPARTMENTS OF VETERANS AFFAIRS AND HOUSING AND URBAN DEVELOPMENT AND 
             INDEPENDENT AGENCIES APPROPRIATIONS ACT, 2004

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
resume consideration of H.R. 2861, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 2861) making appropriations for the 
     Departments of Veterans Affairs and Housing and Urban 
     Development and for sundry independent agencies, boards, 
     commissions, corporations, and offices for the fiscal year 
     ending September 30, 2004, and for other purposes.

  Mr. BOND. Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. REID. Mr. President, I know the distinguished Senator from 
Missouri is going to make an opening statement. Senator Mikulski, in an 
effort to move this bill forward, even though she had a longstanding 
commitment in Maryland this morning, asked that I represent her this 
morning, which I am happy to do.
  However, her statement will be made at a later time at her 
convenience. She should be here in a relatively short period of time. 
As I indicated, she would not want to hold the bill up in any way. 
There is a lot of business going on today, as everyone knows, not the 
least of which Senator Bond and I are the chairman and ranking member 
of the Transportation Subcommittee of the Environment and Public Works 
Committee, and we are trying to move that bill along, too. That meeting 
started 5 minutes ago. I appreciate everyone's understanding, and I 
look forward to working as quickly and expeditiously as we can on this 
legislation.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Missouri.
  Mr. BOND. Madam President, I thank the minority whip. I look forward 
to working with him on many issues, but the highway bill, which comes 
up once every 6 years, is being marked up in our subcommittee and full 
committee today. This is the perfect storm for me.
  I understand Senator Mikulski's commitments today. I intend to make 
an opening statement, and then I have an amendment to lay down. I am 
going to have to turn over the floor to the Presiding Officer.
  As always, VA-HUD is a challenging measure to produce, but this time 
it is particularly difficult because of the constraints in the budget. 
We have had to make some very hard decisions on how to fund almost 
every program in the bill. No one will be completely happy with this 
bill, but ultimately the decisions the distinguished ranking member, 
Senator Mikulski, and I have made with our committee have been the 
right ones, and the American taxpayers should be happy since our job is 
not only to fund programs, but to do so wisely, and that is what we 
have tried to do.
  Ultimately, this is a good bill. It balances the needs and priorities 
of Members with requirements of the budget request of the 
administration. The bill also meets our discretionary budget allocation 
of $91.334 billion, and we are under our outlay allocation as well.
  My compliments, once again, to my colleague and ranking member, 
Senator Mikulski, on her hard work, cooperation, and commitment to 
making this bill a balanced and good piece of legislation. I know that 
Senator Mikulski has a number of concerns about certain aspects of the 
bill, mostly regarding the funding level of certain programs. I share 
her concerns. But I believe we both understand we are drafting a bill 
with significant funding constraints. She and I worked hard to ensure 
the funding is targeted to key programs and priorities that we both 
strongly support, and we think most Members support as well.
  To be clear, our most pressing and important priority in the VA-HUD 
2004 appropriations bill is funding for our Nation's veterans and, most 
importantly, funding to provide quality and accessible medical care 
services from the Department of Veterans Affairs. I am proud to say our 
bill meets our commitments to our Nation's veterans and ensures the VA 
medical care system has adequate resources to meet its

[[Page 28536]]

current and ongoing needs, especially for VA's core constituents, such 
as those with service-connected disabilities, low incomes, or needs for 
specialized services.
  It is critical that we ensure VA can provide a safety net for our 
veterans, especially during a time when our Armed Forces are mobilized 
across the globe maintaining the peace and fighting the war against 
terrorism.
  While we expect the brave men and women serving in Iraq, Afghanistan, 
the Philippines, Bosnia, and other places to face dangers on a daily 
basis, they should not expect to face the danger of inadequate medical 
services when they return from duty. This bill ensures that they have 
peace of mind, meaning the Government will be there for them when they 
return.
  Further, our bill meets the funding agreement for the VA under the 
fiscal year 2004 budget resolution by providing $30.6 billion in 
discretionary spending, an increase of $2.9 billion over the fiscal 
year 2003-enacted level.
  Consistent with the budget resolution, nearly all of the 
discretionary spending increase is for medical care. Further, the bill 
does not include the administration's request to impose new enrollment 
and higher prescription drug fees on certain veterans. We have not 
included the administration's proposal because I believe it is unfair 
to ask our Nation's veterans to bear too heavy a burden for the cost of 
the medical care they rightly deserve. The proposal has proposed a new 
$250 enrollment fee and an increase in prescription copays from $7 a 
month to $15 a month.
  The administration also requested funds to implement its 
controversial outsourcing program. According to VA, if these were not 
enacted, it would need $1.3 billion to meet its projected medical care 
needs in fiscal year 2004. Therefore, we have rejected these new fees 
and have included an additional $1.3 billion to make up for the lost 
revenues from those fees.
  Let's be clear. Without these funds, the VA would be forced to deny 
care to about 585,000 veterans. During a time when our troops are 
deployed, fighting in Iraq, Afghanistan, and other places, it is not 
just necessary to include the additional funds; it is our moral duty to 
include those funds.
  For medical care, the VA/HUD bill before us provides $26.8 billion in 
funds without collections, representing a $1.57 billion increase over 
the request. With third party insurance collections, the medical care 
account will have over $28.3 billion in funds. That is about $3.1 
billion over fiscal year 2003's enacted level and represents a 12.3 
percent increase over fiscal year 2003, the largest increase in VA 
medical care history.
  Let me illustrate the urgent and pressing needs. Several of us went 
to the VA hospital in Washington yesterday to thank the veterans and 
wish them happy Veterans Day. But on our visits around the system, we 
found that there are tremendous needs.
  According to a recent VA analysis, 15,000--almost 16,000 service 
members who served in Operation Iraqi Freedom have separated from 
military duty, and among these service members almost 2,000 had sought 
VA health care during 2003. I point out, these numbers do not include 
those military men and women who are returning from Afghanistan and 
other parts of the world, fighting the war on terrorism.
  Every day in the news we hear the unfortunate, sad news of American 
soldiers killed in Iraq. However, as illustrated by the VA analysis and 
scores of news reports, we have found that our new medical care in the 
field has enabled us to save many service members who might not have 
survived. They come back with very serious wounds and perhaps 
disabilities.
  USA Today, on October 1, said at least seven times as many men and 
women have been wounded in battle as those killed in battle. The good 
news is we have kept these people alive. But as these wounded service 
members are discharged, they confront new and challenging hardships in 
piecing together their lives. Most of them will be depending on the VA 
to meet their needs. Further, we know the demand for VA medical care is 
not going to lessen. We have already seen the VA medical care system 
overwhelmed by the staggering increase in demand for medical services.
  Since 1996, the VA has seen a 54 percent growth, 2 million patients, 
in total users for the system. Further, the VA projects its enrollments 
will grow by another 2 million patients from the current level of 7 
million to 9 million in 2009.
  The other major highlight of VA funding is construction funding for 
VA's medical care infrastructure. The bill provides almost $525 million 
for minor and major construction projects. A significant portion of 
that is dedicated to the Department's Capital Asset Realignment for 
Enhanced Services, or CARES, initiative.
  I want everybody to remember this because this CARES initiative is 
important. To jump-start the program, the bill includes authority for 
the Secretary to transfer up to $400 million from medical care to the 
CARES program. This transfer authority is provided because buildings 
that are no longer suitable for the delivery of modern health care cost 
the VA money out of medical care. Instead of spending these important 
resources on obsolete facilities, these funds could be used to provide 
quality care to more veterans closer to where they live. The GAO has 
concluded that the VA wastes $1 million a day on sustaining the 
obsolete and out-of-date, unused facilities. The CARES program is 
designed to move VA health care into the 21st century. It depends on a 
modernized infrastructure system located in areas where most of our 
veteran population lives.
  Many veterans today have to travel hundreds of miles to receive care. 
I visited the VA hospitals in my home State of Missouri and found they 
all have great need for infrastructure improvements, such as modernized 
surgical suites, intensive care units, and research space. Most of the 
VA system was created right after World War II. It is outdated and 
located in areas that are not always easily accessible to veterans. 
That is why I strongly support the CARES initiative and believe 
Secretary Principi is on the right track in realigning the health care 
system.
  As for HUD, we provide adequate funding for all programs either at 
last year's level or the budget request, and usually the higher of the 
two. However, there are several points to be made about funding for two 
programs: Section 8, and HOPE 6.
  The administration proposed funding section 8 vouchers through a new 
account, Housing Assistance for Needy Families, which would have 
allocated section 8 certificates through a State block grant program. 
Under the budget request, section 8 project-based housing assistance 
would have continued to be funded through HUD. This program has been 
uniformly criticized and could have placed a number of families at risk 
of losing their housing over the next few years.
  Instead, we funded the section 8 certificate fund at $18.4 billion, 
consistent with the budget request, without the new program structure. 
Many groups say this appropriation is inadequate and could result in 
the loss of housing. I share these concerns with several 
qualifications.
  First, in previous bills we restructured the account to provide 
funding to PHAs only for the families actually using vouchers and then 
with the central reserve at HUD, to ensure additional funds would be 
available to fund vouchers for additional families up to the PHA--that 
is, public housing authority--authorized contract level.
  This is new. The data is incomplete. There is a risk that there are 
not enough funds in the appropriation to meet all the needs of all 
families. But we do not know what that number will be.
  In past years, HUD has found additional excess section 8 funding to 
meet all section 8 needs, and no doubt will next year and the year 
after until this new funding system is in place and data is reliable.
  Nevertheless, we made it clear in the report that we expect the 
administration to alert us to any shortfalls and that we expect any 
shortfalls to be funded fully in a supplemental appropriations request.

[[Page 28537]]

  Second, the administration eliminated the HOPE VI Program, which was 
funded last year at $570 million. This program has been a tremendous 
boost to the quality of housing for many low-income families. It has 
allowed PHAs to take down obsolete public housing, where we essentially 
warehouse the poor, and replace that housing with mixed income and 
public housing that has anchored new investments in distressed 
communities.
  I have a personal interest in this program because we started this 
change. We made this change initially in St. Louis, MO, with one 
project which was totally uninhabitable, unsafe, and unfit to raise a 
family. It has been replaced with new, modern, mixed-income family 
housing. This program is working. This is one of the best things that 
has happened in public housing.
  Does there need to be a change? Certainly we can look at it, but we 
need a discussion, a debate, and a decision before we try to shut down 
HOPE VI. We have not been able to fund this program fully, but we have 
provided $195 million for HOPE VI in fiscal year 2004 and provide 
limited authority to recapture funds from old projects unable to use 
their HOPE VI funding.
  For the Corporation for National and Community Service, the bill 
provides $484 million for fiscal year 2004, about $100 million above 
the fiscal year 2003-enacted level and $113.6 million below the 
request. The dollar increase is the largest increase in the 
corporation's history, and the total amount provides the highest level 
of funding for the corporation. While our funding level does not meet 
the President's request, along with additional flexibilities we 
provided in the bill, it will support the President's goal of enrolling 
up to 75,000 new AmeriCorps members.
  We have provided a robust appropriation for the corporation. I 
strongly believe the bill contains the necessary controls to ensure 
that the corporation does not continue to repeat the highly publicized 
mismanagement problems of the past. The bill ensures accountability, 
addresses the AmeriCorps enrollment problems, without penalizing the 
thousands of volunteers who want to serve and serve well.
  Further, with the current chief financial officer in place, and 
Chairman Steve Goldsmith at the helm of the corporation's board of 
directors, I am very confident the corporation can correct its 
longstanding management problems.
  I am a believer in tough love, and I can say with confidence this 
bill represents that philosophy. The promise of the corporation is too 
great to allow it to be derailed by inappropriate, inadequate 
mismanagement and the inability to count, which has perplexed the 
corporation in previous years.
  For the Environmental Protection Agency, the bill provides $8.2 
billion, some $552 million more than the budget request. The funding 
represents a number of tough decisions balancing Member priorities with 
the budget request. In particular, we were able to fund fully the clean 
water State revolving fund at the fiscal year 2003 level, which is $500 
million more than the budget request. We also fully funded the drinking 
water State revolving fund at $850 million, which is equal to the 
budget request in the fiscal year 2003 level.
  I know there will be some concerns about Superfund, which is funded 
at $1.265 billion, the same as fiscal year 2003, and $125 million less 
than the budget request. This is one of the tough choices, but this 
funding level reflects a level of funding consistent with the last few 
years.
  We have included requirements to help push EPA toward more Superfund 
closeouts. There is a contentious issue in the count. Language has been 
included to clarify an existing exemption in the Clean Air Act that 
engines that are used in farming and construction and are smaller than 
175 horsepower are exempt from State regulation for emissions but 
remain subject to EPA regulations.
  The problem we face today is that California is on the verge of 
issuing new regulations that would drastically change the emission 
requirements for small engines, whether they are used for lawn and 
garden or farm and construction. This California Air Resources Board 
threatens 17,000 jobs in other States and 5,000 jobs in Missouri.
  Before the board acted, I specifically requested them to find a 
resolution to the issue which would not force U.S. manufacturers to 
move their plants offshore because I think Government-required export 
of jobs is unacceptable. The California Air Resources Board had an 
opportunity to adopt a rule supported by the entire industry to provide 
the environmental gains needed and protect the public from the risk of 
burn and explosion from catalytic converters on small engines, but they 
chose not to go this route. Unfortunately, the proposed regulations 
raise great threats to safety of lives and the health of consumers.
  I will be addressing that in an amendment I will be offering which 
will clarify the purpose of these provisions and also respond to 
concerns raised by a number of Senators. I hope we can support this 
measure to assure that we can clean up our environment, and we do so in 
a way that does not bring additional risk of explosion and fire. We 
have seen what tragedies fires caused in California. We do not want to 
see fires caused by small engines, and we do not want to see 22,000 
manufacturing jobs exported directly as a result of a regulation.
  The underlying bill itself also includes $5.586 billion for the 
National Science Foundation, an increase of $276 million over the 
current funding level. It is an increase of only 5.2 percent, which is 
far short of the funding path, which I think an overwhelming majority 
of this Senate supports, to put NSF on a path to double in 5 years. To 
keep us from losing jobs to overseas, we have to have the high 
technology science that the NSF can provide.
  In addition, people working in the National Institutes of Health tell 
us that continued gains in NIH, which we have so generously doubled, is 
being held back by the failure of the hard sciences in NSF, which are 
necessary to support the medical advances. I am pleased we are funding 
the priorities of nanotechnology, plant genome, and EPSCoR above the 
requested levels and continue to support research at all levels, from 
elementary school to post-docs and beyond.
  Finally, we continue our support of minority-serving institutions, 
including such programs as historically Black-serving institutions and 
the Louis Stokes Alliance for Minority Participation, with $22 million 
in additional funds over the President's request.
  NASA is funded at $15.3 billion, consistent with the 2003 level. We 
have funded the space shuttle program at the President's requested 
level of $3.97 billion. The Columbia Investigation Accident Board 
recently issued a final report, and the response of NASA has developed 
an implementation plan as a foundation for return to flight.
  Nevertheless, NASA is facing a crossroads in its human space program 
and we need to understand the extent of the administration's commitment 
to the shuttle, the International Space Station, and human space 
flight.
  The need to define this commitment has become even more important in 
recent weeks with the successful launch of a Chinese taikonaut and 
after the disturbing news that Russia will be unable to fund the next 
scheduled launch of a Progress to the ISS, meaning the current crew on 
the ISS will not return to Earth until next year.
  The bill does have to necessarily reduce the budget for the 
International Space Station by $200 million, reflecting the current 
state of the ISS, with its reduced crew and the inability of NASA and 
international partners to continue its construction of the ISS, as well 
as the obvious risks of relying on Russia and Russian vehicles to 
supply the ISS for an indeterminate amount of time.
  There are many constraints within this bill. We must consider all the 
current uses for funds versus a program that in some respects is on 
hold. We will gladly reconsider this action as NASA and the 
administration present a plan that will restart the construction of the 
ISS to reach core complete.
  The bill also provides for some minor programmatic changes within the

[[Page 28538]]

science aeronautics and exploration account. We do provide for an 
additional $50 million beyond the President's request in the area of 
aeronautics.
  Europe has made it clear they intend to dominate the commercial 
aviation market, and we intend not to let that happen.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. I thank the Chair.
  Madam President, I thank Senator Bond and the distinguished Senator 
from California for her graciousness as we proceed on both the bill and 
an amendment of Senator Bond and her advocacy in behalf of the State of 
California. Her advocacy on the issue is well known, but I know she 
also has pragmatic solutions. I also appreciate that she did not object 
to bringing this bill forward. We thank her very much.
  The veterans need this bill. We need it to protect America's 
environment. We need it to empower communities, and we need to invest 
in science and technology that helps us come up with new ideas for the 
new products that are going to lead to new jobs right here in the 
United States of America.
  The Presiding Officer knows about the loss of jobs in our country and 
the way we are going to not only have the jobs today, but also the jobs 
of tomorrow, is by coming up with these new products. We know we win 
the Nobel Prizes, but now we have to start winning the markets.
  I am so pleased to bring the VA-HUD bill to the Senate floor with my 
dear colleague, Senator Bond. This is truly a bipartisan bill. I thank 
Senator Bond for his cooperation and collegiality in developing the 
framework for this legislation, as well as Senator Stevens and Senator 
Byrd who worked with us as we tried to deal with a very spartan and 
frugal allocation in these tough economic times. We really appreciate 
Senator Stevens trying to problem-solve with us on how we can meet the 
compelling needs that are in this legislation.
  One of the most compelling needs is VA. During the August recess, I 
traveled to VA clinics all over Maryland, from the rural parts of my 
State all the way up to metropolitan areas, meeting with doctors and 
nurses, but also with veterans. What did I see? Outpatient clinics at 
capacity, waits to see specialists, and, at times, driving long 
distances to travel in rural areas. Everywhere I went, they all said 
they were being swamped by new veterans seeking care.
  They are anticipating the return of the Iraqi war veterans, not only 
Jessica Lynch, but others who come back bearing the permanent wounds of 
war knowing that they are going to need the permanent help of the VA. 
We want to be on their side to stand up for that help.
  We also saw that many people who had health care but lost their jobs 
or were forced into early retirement turning to the VA. When we took a 
look at the VA budget, we found that the President's request was about 
$1.5 billion under what we needed to deal with the waiting lines, the 
new Iraqi vets coming back, and also the fact that we need to take care 
of those category 7 veterans, those World War II veterans. So we need 
more money in VA. We tried to take care of this on the Iraqi 
supplemental, but that was not the time nor the place, and we count on 
working with the leadership, under Senator Stevens, to solve this 
problem. We have come a long way in this VA-HUD budget in dealing with 
this issue.
  While we stand up for our veterans, we also want to stand up for our 
communities. This is why the HUD budget offers promise to the area of 
housing and community development. We continue our commitment to core 
housing programs. We particularly are enthusiastic about the Community 
Development Block Grant Program because it goes to local communities; 
it is flexible funding where the local community decides where the 
public investment needs to go to leverage jobs or to rebuild 
communities. This is why we like CDBG, whether it goes to North 
Carolina, to those small rural communities in Alaska, or to a big city 
such as Baltimore. Because of what we have done, we have helped retain 
over 100,000 jobs nationwide.
  It is also the same for a program called HOME, which has created in 
the past 10 years over 700,000 affordable housing units. We are going 
to continue in this bill the longstanding commitment to renew all 
section 8 vouchers and also to keep the HOPE VI program going. So we 
are looking out for building housing, building hope, and providing 
access to the American dream.
  We are also in this bill fighting to protect our environment. We are 
helping EPA by providing the right funds to clean up brownfields, 
improve air quality, and fix water and sewer systems. I am particularly 
proud of the way we have continued on a bipartisan basis to fully fund 
the Chesapeake Bay Program.
  Where we would like to do more is in the water and sewer program. 
Every Senator has come to us, along with every Governor, to say: 
Increase water and sewer money. The communities need it to protect 
public health and the environment, but we also need it, say the 
Governors and the local officials, because this will also create jobs. 
We are under so many EPA-unfunded mandates that essentially this will 
push problems onto the local ratepayer.
  We have funded water and sewer projects, but I am going to be 
offering an amendment to increase it even by $3 billion more.
  We also have to have very strong enforcement of environmental laws. 
So we must not skimp on enforcement, and I will be supporting an 
amendment by Senator Lautenberg on this issue.
  Then we go to national service. This bill also empowers communities 
through national service. Working with Senator Bond, we cleaned up a 
terrible accounting mess. The President has responded and given us new 
leadership, but right now we are working to increase the volunteer 
program. We continue to need additional funds and better management.
  At the same time, we are working on NASA to return our space program 
to flight, but we want to ensure, as always, the safety of our 
astronauts, and we are absolutely committed to implementing the Gay-Min 
commission report so that when we go back to space, our astronauts will 
be safe.
  Space science: This is where we look at big breakthroughs, whether it 
is Earth science, work at NASA Goddard, or the Hubbard telescope, but 
also Senator Bond and I worked to increase funding of aeronautics by 
$50 million.
  In 1980, the U.S. had 90 percent of the commercial aviation market. 
Now we are down to 50 percent. This is unacceptable. We have to make 
sure we make airplanes in this country, and we come up with the best 
ideas and the breakthrough technology, not only for smart weapons of 
war, but where this is translated into the commercial airline business 
where we can fly and ensure that passengers are safe, but also maintain 
this manufacturing base. So Senator Bond and I put in $50 million for 
increased aeronautical research.
  At the same time, we have put money into the National Science 
Foundation to make sure we have that farm team of the next generation 
of scientists and engineers, but also in breakthrough technologies, 
investment in biotech, infotech, and a marvelous new field called 
nanotech that could create thousands of new jobs.
  Imagine that wonderful wedding ring the Chair has on, that our former 
colleague Senator Dole gave. As she looks at that ring, just know that 
that is the size of a supercomputer when we move our nanotechnology 
further ahead, that the entire Library of Congress will be in something 
less than the size of my earring. Is this not phenomenal?
  There will come a day when someone will be able to take one little 
pill-like item a day, or even a month, and that nanotechnology will be 
an ongoing monitor for the diabetic, for the high blood pressure 
person, for the stroke-prone person and be able to send alerts to a 
doctor's office. This is what lies ahead.
  We will not only be saving lives or collecting information, but what 
we will be doing is winning the Nobel Prizes and winning the markets 
and these products will be manufactured in

[[Page 28539]]

this country and will revolutionize the world.
  This is what VA-HUD is all about, standing up for our veterans, 
rebuilding communities, protecting the environment, answering a call to 
national service, making public investments in science and technology. 
So I am pleased to support this bill, along with my colleague, the 
chairman of the subcommittee, Senator Bond. This is a bipartisan bill. 
This is not a Democratic bill or a Republican bill. This is a red, 
white, and blue bill. We hope it moves expeditiously through the Senate 
with a few of the amendments we are proposing.
  I yield the floor.


                           Amendment No. 2150

  Mr. BOND. I call up an amendment at the desk and ask for its 
immediate consideration.
  The PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for himself and Ms. 
     Mikulski, proposes an amendment numbered 2150.

  Mr. BOND. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. BOND. Mr. President, this amendment before us is the one I 
described in my opening statement which will save 22,000 manufacturing 
jobs in 23 States. Let me repeat so that all will know what we are 
debating today, and that is whether we will decide to kill 22,000 
manufacturing jobs in 23 States across America.
  With this amendment, we will decide whether to close at least three 
American manufacturing plants. We will decide today whether we will 
send thousands of jobs to China. We will decide today whether we will 
kill thousands of jobs of manufacturing parts suppliers. We will decide 
today whether we will kill thousands of jobs of those dependent on a 
manufacturing paycheck. We will decide all of this with this very 
important amendment. Our answers must be a resounding no to killing 
22,000 manufacturing jobs. Our answer must be a resounding no to 
sending more jobs to China by a State regulation. Our answers must be a 
resounding no to closing manufacturing plants. A ``no'' vote on this 
proposal and the underlying proposal is a vote to send thousands of 
jobs abroad.
  Why are these jobs at risk? Quite simply a single agency in a single 
State has its own ideas of how to solve problems in the environment. 
The problem is they do so without a care in the world as to the 
consequences of their actions--the loss of jobs and the danger that it 
entails.
  At issue is the desire of the California Air Resources Board to 
impose new air pollution reductions by imposing a massive redesign on 
small engines used in lawnmowers, generators, blowers, chain saws, and 
marine vessels. The California redesign would be so massive that it 
will force the use of expensive and dangerous technologies like super 
hot catalytic converters on hand-held equipment.
  The California market and those States that may follow suit will be 
forced to do so because major chains that sell these small engines will 
not be able to make one kind of engine for a California market and 
another kind of engine for other markets. Instead of manufacturers 
rebuilding plants in the United States, they will rebuild them in China 
where it is cheaper and fill them with cheap labor. These workers will 
not be subject to U.S. wage, work, or environmental regulations.
  This is not a question of what the company does in terms of its 
profit and loss statement. They can maintain the same profits by 
probably raising prices and sending their manufacturing to China. This 
is a question of U.S. jobs of the men and women who work in those 
plants.
  I visited workers at a Poplar Bluffs, MO, plant which makes small 
engines. They are good people, hard-working people. They are supporting 
their families and their communities. They cannot understand why we 
would let a regulation of one State send their jobs to China. But they 
are not alone. Closure of these plants will have a ripple effect across 
the country.
  When you include the direct loss from parts suppliers and payroll 
dependents, 22,000 jobs in 23 States from Minnesota to Florida, from 
Massachusetts to Texas and Arizona will be lost.
  This map shows where those losses occur. They are significant 
losses--not only in my State but in Wisconsin, in Georgia, in Illinois, 
in Alabama, and in Texas. These are the States that will bear the 
burden.
  I ask my colleagues: Can we afford to lose more than 22,000 
manufacturing jobs? I think the answer is no.
  The need to save these 22,000 jobs is so important that I have made 
changes in my small engines provision to address concerns of 
stakeholders and members. I believe and trust that these changes are 
appropriate and will assure that we have targeted our amendment to meet 
the real dangers.
  First, the requirement that EPA establish new small engine standards 
to achieve additional pollution reduction for small engines.
  Let me make it clear: EPA, under the Clean Air Act, already regulates 
small engines and has done at least two rounds of small engine air 
pollution reductions.
  In this amendment, we direct them to within a year do another round 
of new standards so that the entire Nation benefits from cleaner small 
engines. In other words, we are going to get the cleanup that 
California wants in California, and which other States in the Nation 
need in their States. My own State of Missouri needs pollution 
reductions in Kansas City and St. Louis. In Missouri, we can't issue 
those regulations. I say to the occupant of the Chair, North Carolina 
can't issue those regulations on its own. But by directing EPA to 
enforce those standards nationally, we will get the cleanup that we 
need in every single one of our States. All 50 States will benefit from 
nationwide air pollution reductions.
  While we are concerned about the loss of 22,000 jobs, changes in the 
amendment will also address vital safety concerns with the California 
rule. Safety professionals and the organizations they serve fear that 
the California rule will force unsafe changes to small engines that 
will increase the risk of fire, burn, and even explosion. This 
California regulation contains the requirement that would force small 
engine makers to install superheated catalytic converters.
  Anybody who has been around them should know that catalytic 
converters reach extremely high temperatures when chemically breaking 
down air pollution. In fact, catalytic converters meeting California's 
standard can reach temperatures of 1,100 degrees Fahrenheit or more. 
Dry grass burns at just over 500 degrees Fahrenheit, and certainly 
human skin burns at much lower temperatures.
  Keep in mind that were this California regulation to go into effect, 
you would be required to hold an 1,100-degree Fahrenheit catalytic 
converter attached to your weed whacker, chain saw, or lawnmower only 
inches from your hands and legs.
  Keep in mind the California regulation would require you to wave 
around a 1,100-degree catalytic converter in the dry grass you are 
mowing or the dry brush you are cutting or in the dry leaves you are 
blowing. This is a safety hazard. There are basic safety warnings--
avoiding the use of hot mufflers or use of equipment in dry grass or 
brush conditions must be avoided. The California rule ignores them. Not 
only did they not address these concerns, but in one example they 
provided misleading information to their own California Fire Chiefs 
Association. Initially, the California Fire Chiefs believed that the 
California combination of leaking fuel from overly pressurized tanks 
and excessive temperatures from a hot catalyst is a disaster waiting to 
happen. The fire chiefs thought the rule poses an unacceptable risk to 
the people of their State.
  After promises from the Air Regulation Board were made to the fire 
chiefs that they change their regulations, the fire chiefs dropped 
their concerns. Unfortunately, they were misled, according to the fire 
chiefs.

[[Page 28540]]

  This is an enlarged copy of the letter that was sent by the 
California Fire Chiefs Association. It documents how the operation of 
this new regulation would be a great danger.
  I ask unanimous consent a copy of the letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   California Fire


                                           Chiefs Association,

                                  Rio Linda, CA, November 6, 2003.
     Hon. Christopher Bond,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Bond: The California Fire Chiefs Association 
     represents fire chiefs from over 1,100 fire departments 
     operating in the state of California. Member organizations 
     consist of municipal fire service agencies, fire districts, 
     state and federal government agencies, and corporate fire 
     brigades.
       Earlier this year in oral and written communications to the 
     California Air Resources Board (CARB), our association 
     expressed serious concerns about the CARB's plans to require 
     catalytic converters on lawnmowers and other lawn and garden 
     power equipment. Firefighters have far too much experience 
     suppressing fires caused by catalytic converters on 
     automobiles carelessly parked on combustible grass and 
     leaves.
       After this past month of fighting wildland fires, we are 
     almost too tired to think about catalytic converters on 
     lawnmowers which, after all, are intended for use on grass. 
     California does not need yet another way of igniting fires.
       Several weeks ago, the CARB's staff informed our 
     representative, Assistant Chief Jim Medich of the West 
     Sacramento Fire Department, that the catalytic converter 
     requirement had been removed and the outdoor power equipment 
     industry was now in support of the measure. Believing that 
     statement to be true, we had no further objection to the CARB 
     rule and have since been quoted in support of the regulation.
       Unfortunately, we were misled. The catalytic converter 
     provision was not dropped, and we cannot find any evidence of 
     industry support. As such, we wish to go on record that we 
     categorically do not support the proposed regulation, because 
     we believe it will lead to a substantial increase in 
     residential and wildland fires.
       These are complex issues that are not simply solved by 
     manufacturers according to an arbitrary regulatory schedule. 
     Similar challenges exist with catalytic converters on board 
     boats, and it may be years before they are resolved.
       We are saddened an agency that exists only to protect the 
     health and safety of Californians would choose to ignore fire 
     safety and misrepresent the facts. Our hope is that, as this 
     matter proceeds to the federal government, it will be managed 
     with more integrity. As always, we stand ready to work with 
     our many friends in the environmental protection community 
     who so well understand that effective fire prevention saves 
     lives and protects the environment.
           Sincerely,
                                        Chief William J. McCammon,
                                                        President.

  Mr. BOND. Madam President, the California Fire Chiefs Association say 
they categorically do not support the proposed regulation because it 
will lead to a substantial increase in residential and wildland fires.
  They state:

       We are saddened an agency that exists only to protect the 
     health and safety of Californians would choose to ignore fire 
     safety and misrepresent the facts.

  Not surprisingly, other agencies are very much concerned.
  The National Association of State Fire Marshals remains very 
concerned that the California rule cannot be safely met.
  The United States Consumer Products Safety Commission has concerns 
over the potential for burn fire material hazards that remain 
unaddressed.
  The Missouri State Fire Marshal remains concerned that the California 
rules create a significant threat to the safety of people, property, 
and the environment.
  The National Marine Manufacturing Association is concerned that 
California's activities create marine safety issues that must be 
evaluated further before they are imposed on industry. That is right. 
This rule can even make boats unsafe. Generators and engines kept in 
boats in enclosed spaces with poor ventilation requiring these 
superheated catalytic converters is a boating disaster waiting to 
happen.
  I ask unanimous consent that copies of these letters be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         National Association of State Fire Marshals, Executive 
           Committee,
                                  Washington, DC, October 7, 2003.
     Re California's new emission regulations for lawn and garden 
         equipment and request for a safety study.

     Mr. Jeffrey R. Holmstead,
     U.S. Environmental Protection Agency, Pennsylvania Avenue, 
         NW., Washington, DC.
       Dear Mr. Holmstead: The National Association of State Fire 
     Marshals (NASFM) represents the most senior fire safety 
     officials in the 50 states and the District of Columbia. Our 
     mission is to protect life, property and the environment from 
     fire and other hazards. We receive virtually all of our 
     resources from federal and state government agencies.
       NASFM became aware of the proposed emission regulation 
     being proposed by the California Air Resources Board (CARB) 
     for lawn and garden equipment earlier this summer. Out of 
     concern that the very hot catalytic converters and 
     pressurized fuel tanks required by this rule would pose a 
     risk for additional garage fires, wildland fires and operator 
     burns, NASFM submitted the enclosed July 29, 2003, and 
     September 12, 2003, correspondence to CARB. In this 
     correspondence, NASFM urged the CARB Board ``not to proceed 
     with [its proposed emission] regulation at this time, given 
     the high probability that lives and property will be at risk 
     if catalytic converters and pressurized fuel tanks are 
     required before all critical safety parameters have been 
     identified and before the industry can implement the proper 
     safety measures.''
       NASFM urged CARB to participate in a safety test program to 
     evaluate and respond to the unresolved safety concerns with 
     CARB's proposal to apply extremely hot catalysts and 
     pressurized fuel systems to lawn and garden equipment. We are 
     aware that a similar safety study is being undertaken with 
     U.S. EPA, the U.S. Coast Guard and industry to research the 
     effects of applying catalytic converters to marine engines. 
     However, by moving forward with the adoption of regulations 
     at its Board hearing on September 25, the CARB Board has 
     effectively rejected the proposed safety study, thus denying 
     NASFM (and other safety organizations) the needed time and 
     therefore the ability to participate as a stakeholder in the 
     CARB regulatory development process. Additionally, CARB has 
     failed to identify and objectively explain to the public the 
     risks and substantially unresolved safety issues associated 
     with its regulatory program. For example, CARB's August 8 
     Staff Report failed to mention--or even cite to--the 
     correspondence submitted to CARB by the California Fire 
     Chiefs Association on July 18, comments of NASFM submitted on 
     July 29, or the correspondence from the U.S. Consumer Product 
     Safety Commission, all of which raised valid safety concerns 
     with CARB's proposal.
       CARB has indicated that manufacturers will simply respond 
     to the increased heat from catalysts by adding more heat 
     shielding and insulation--despite documentation by 
     manufacturers that the installation of additional heat 
     shielding and insulation to protect the operator from burns 
     will inherently result in much longer cool-down periods, 
     increasing the risk of fires during refueling and fires from 
     retained grass clippings after the equipment is parked in the 
     garage.
       NASFM remains very concerned that the requirements adopted 
     by the CARB Board at its September 25 Hearing cannot safely 
     be met, particularly by the relatively small, unsophisticated 
     equipment manufacturers that dominate the lawn and garden 
     industry. Consequently, NASFM's suggested safety study is 
     needed more than ever to accurately determine how much heat 
     catalysts will generate; whether the added heat from a 
     catalyst exhaust system can safely be mitigated through heat 
     shielding; and how much pressurization a fuel tank can safely 
     withstand.
       NASFM also is concerned that other states are likely to 
     ``opt into'' the California program if they are authorized by 
     U.S. Environmental Protection Agency (U.S. EPA) under Section 
     209(e) of the Clean Air Act. Because of fundamental 
     unresolved safety issues, the U.S. EPA must ensure that 
     consumers across the country are adequately protected as 
     required by the Clean Air Act. We urge U.S. EPA to evaluate, 
     accurately identify for the public, and address the 
     substantial unresolved safety issues presented by the CARB 
     regulation. If EPA authorizes the CARB regulation without 
     conducting a thorough and meaningful safety evaluation, then 
     NASFM and its members will request substantial additional 
     federal funding to respond to a dramatic expected increase in 
     fires in and around people's homes, as well as an increase in 
     operator burn injuries. We believe the additional costs in 
     fire suppression--and the potential loss of life and 
     property, as well as damage to the environment--that will 
     result from CARB's regulations as currently written would 
     dwarf the relatively small costs of conducting a meaningful 
     safety study prior to the EPA decision on whether to 
     authorize the regulations.
       NASFM has established relationships with the EPA as well as 
     with environmental nongovernmental organizations, other fire 
     service organizations and the Building and Fire Research Lab 
     at the National Institute of

[[Page 28541]]

     Standards and Technology. We stand ready to participate in a 
     safety study on this issue if authorized by EPA.
       Thank you for your consideration.
           Sincerely,
                                                  Donald P. Bliss,
     President.
                                  ____

                                             U.S. Consumer Product


                                            Safety Commission,

                                   Washington, DC, August 4, 2003.
     Alan C. Lloyd, Ph.D.,
     Chairman, Air Resources Board, California Environmental 
         Protection Agency, Telstar Avenue, El Monte, CA.
       Dear Dr. Lloyd: A staff representative of the U.S. Consumer 
     Product Safety Commission (CPSC) attended the Small Off-Road 
     Engine Workshop held by the California Air Resources Board 
     (CARB) in Sacramento on July 2, 2003. Part of that workshop 
     included the discussion of potential safety issues associated 
     with proposed air quality requirements in California. We 
     understand that these proposed air quality requirements might 
     require additional emissions control equipment on outdoor 
     power equipment such as lawn mowers. The CPSC staff has 
     conducted an initial review of potential safety issues that 
     may arise as a result of the promulgation of these 
     requirements and believes that these issues merit further 
     consideration and discussion in the regulatory process 
     conducted by CARB. Specifically, the CPSC staff recognizes 
     the potential for burn, fire, or materials hazards that 
     additional emissions control equipment could present.
       The CPSC engineering staff requests an opportunity to 
     discuss proposed emissions control requirements for outdoor 
     power equipment with the appropriate CARB staff to learn more 
     about the proposed requirements and their implications on 
     consumer product safety. Hugh McLaurin, the Director for 
     Engineering Sciences at the CPSC, will contact the 
     appropriate authority at CARB to arrange further discussions.
           Sincerely,
                                                 Jacqueline Elder,
     Assistant Executive Director.
                                  ____

                                                   National Marine


                                    Manufacturers Association,

                                                   Washington, DC.
     Hon. Kay Bailey Hutchison,
     U.S. Senate, Russell Building,
     Washington, DC.
       Dear Senator Hutchison: The National Marine Manufacturers 
     Association (NMMA) is the nation's largest recreational 
     marine trade association representing manufacturers of 
     recreational boats, marine engines and marine accessories. 
     NMMA has over 1500 members, many which are either located or 
     conduct business in the state of Texas.
       NMMA would like to inform you of recent actions by the 
     California Air Resources Board that raises marine safety 
     issues for recreational vessels equipped with generator sets. 
     The recent rules for spark-ignited small off-road engines 
     adopted by the California Air Resources Board would impose 
     both new exhaust and evaporative controls on vessels equipped 
     with these devices. This action was taken without 
     consultation with NMMA, its members or the U.S. Coast Guard.
       NMMA, the California Air Resources Board and the U.S. Coast 
     Guard have a test program underway at Southwest Research in 
     San Antonio to test catalysts on sterndrive/inboard engines. 
     The purpose of this test program is to assure the 
     performance, durability and safety of catalysts in this 
     application. Nevertheless, California adopted regulations 
     that would require catalysts on marine generators before 
     completion of this study. The California rules would also 
     require changes to the fuel systems on any vessel equipped 
     with a marine generator. NMMA, our fuel tank and boat builder 
     members and the U.S. Coast Guard have been actively engaged 
     with the U.S. Environmental Protection Agency for several 
     years in the development of regulations to control 
     evaporative emissions from recreational vessels. It is our 
     understanding that the requirements included in California's 
     rules are similar to those which have raised safety issues in 
     the EPA rulemaking. Like the exhaust rules, these 
     requirements were adopted without consultation with the U.S. 
     Coast Guard, and the boat building industry.
       NMMA is concerned that California's activities create 
     marine safety issues that must be evaluated further before 
     they are imposed on this industry. For this reason, NMMA 
     urges you to support Sen. Bond's provision included in the 
     VA-HUD FY 2004 Appropriations bill which would limit 
     California's ability to impose requirements on these devices 
     and marine vessels.
           Sincerely yours,
                                               Thomas J. Dammrich,
     President.
                                  ____

                                      Department of Public Safety,


                                      Division of Fire Safety,

                             Jefferson City, MO, October 24, 2003.
     Senator Christopher S. Bond,
     U.S. Senate,
     Washington, DC.
       Dear Senator Bond: I write both as Missouri State Fire 
     Marshal and as a director of the National Association of 
     State Fire Marshals (NASFM). NASFM represents the most senior 
     fire safety official in each of the 50 states and District of 
     Columbia. NASFM's mission is to protect life, property and 
     the environment from fire and other hazards. We receive 
     virtually all of our resources from state and federal 
     government sources, although we pride ourselves on the many 
     productive relationships with industries that share our 
     commitment to public safety.
       First, I wish to thank you for giving serious consideration 
     to serving as a sponsor of the American Home Fire Safety Act. 
     This legislation has the potential to save two lives a day 
     from the leading causes of fire in the home. As you know, I 
     have lost family members in a fire involving the products 
     contained in this bill. It would mean a lot to the Missouri 
     fire service if you would help in this worthy effort.
       But just as we seem to conquer one fire safety challenge, 
     others take their place. We are especially concerned that a 
     proposed California environmental regulation might move 
     forward nationally and create a significant threat to the 
     safety of people, property and the environment.
       The issue is whether we have a sufficient understanding of 
     how air emissions requirements for the small engines used 
     with lawn-mowers, snow-blowers and other small-engine outdoor 
     power equipment might affect the number and severity of fires 
     in residential garages and in rural communities most affected 
     by wildland fires. We do not regard these potential fire 
     hazards to be more important than air quality, but they 
     certainly are no less important.
       We stand ready to work with you, the environmental 
     protection authorities and the manufacturers of these 
     products to determine a common-sense approach to a complex 
     series of questions about how best to have outdoor power 
     equipment that is safe and clean. This is an attainable goal 
     if we work together.
       Most recently, the California Air Resources Board (CARB) 
     has proposed air emission rules for these purposes. In 
     cooperation with the California Fire Chiefs Association, and 
     after consultation with the outdoor power equipment 
     manufacturers and others with knowledge of these issues, 
     NASFM urged CARB to give greater consideration to fire 
     safety. While CARB acknowledged the concerns, the proposed 
     rule does not.
       The scenario is not hard to imagine--especially given the 
     many garage and wildland fires that take lives, destroy 
     property and spoil the environment every year. The CARB has 
     not adequately examined the probability of increased gasoline 
     leakage of the pressurized fuel tanks its rule will require. 
     Nor has CARB considered the very high temperatures emitted by 
     catalytic converters its rule will mandate.
       Regulators have lost so much credibility over the years by 
     forcing people to do illogical things. The combination of 
     leaking fuel tanks and high temperatures is not something we 
     wish to introduce into a residential garage with a gas water 
     heater, discarded newspapers and rags, and combustible paints 
     and solvents. Nor do we wish to see such power equipment left 
     idle for even a minute on top of combustible vegetation. The 
     forest fires that consume hundreds of thousands of acres and 
     scores of homes can be ignited by a single, discarded 
     cigarette. This could be far worse, and for that reason we 
     have alerted the United States Department of the Interior to 
     look into this matter.
       As we understand the process, the CARB may proceed if it 
     receives a federal waiver from the United States 
     Environmental Protection Agency (US EPA), and that such 
     waivers may be granted with little oversight. Once a waiver 
     is granted, other states are likely to follow the CARB's 
     lead. Even with the federal government's help, we cannot 
     purchase enough fire apparatus and equipment or train enough 
     firefighters to protect the public from the fires we now 
     have. Prevention is the only answer. Creating new hazards--
     through regulation, no less--is unacceptable.
       We will appeal directly to US EPA to give this matter very 
     serious attention, but we would encourage you to use your 
     good offices to encourage the US EPA to use this opportunity 
     to protect the environment and human life from residential 
     and wildland fires in the future. NASFM is not against 
     states' acting to protect the environment from harmful 
     emissions.
       However, these fire safety issues will be a factor no 
     matter where such measures are considered, and they are best 
     dealt with on a national level for the benefit of all.
           Best personal regards,
     William Farr,  
       Missouri State Fire Marshal, and
     Board of Directors,
       National Association of State Fire Marshals.

  Mr. BOND. Madam President, in the face of all of these concerned 
safety groups, I asked California to provide any kind of evidence or 
any kind of testing or any kind of analysis that these safety concerns 
were not true. They could not.
  CARB failed to provide safety data or testing results using test 
procedures approved or witnessed by safety efforts.

[[Page 28542]]

  CARB failed to provide any data testing or analysis of the danger of 
liquid or vapor fuel released from a pressurized tank used to comply 
with the rule lighting on fire after coming in contact with superheated 
catalytic converters used to comply with the rule.
  CARB admitted that grass clippings can ignite if they come into 
contact with surfaces above 518 degrees Fahrenheit. CARB failed to 
provide any data showing that the shields were capable of protecting 
against temperatures of 1,026 degrees Fahrenheit. They admitted they 
failed to conduct standard testing applied to all internal combustion 
engines. This is a problem requiring us to act to solve it.
  We are being asked to do something to protect 22,000 jobs, 3 
manufacturing plants being moved to China. My provision would enable 
those jobs to stay in the United States. We are asking to prevent the 
risk of burn, fire, and explosion to millions of consumers, fires in 
our homes and in our wildlands. The provision to have EPA do a national 
rule instead of California will ensure that national environmental 
issues are met and that it will take into concern issues such as the 
safety in achieving the pollution reductions we need.
  I made several changes in my amendment to address Member concerns. We 
made it clear that this would not have prevented their States from 
regulating existing or end-use engines. We made it clear this provision 
only applies to new engines. Some Members thought the initial language 
would prevent States from regulating diesel engines. We have specified 
these are limited to spark-only engines. They do not cover diesel 
engines because the State of California could continue to regulate 
them, and we have also seen that the EPA has issued regulations with 
respect to diesel engines.
  Some Members were concerned that the original language would prevent 
their State from regulating mid- and large-sized engines such as 
airport tugs, forklifts, and cranes. We have no intention of limiting 
those. The amendment specifically applies only to small engines under 
50 horsepower.
  These are numerous changes that are well worth saving 22 
manufacturing jobs. We will protect the environment. We are providing 
the air quality improvements to all 50 States. We are protecting public 
safety by assuring that the concerns of all of the safety interested 
groups I have indicated are taken into account by EPA in issuing their 
regulations. I don't want to be the one to go home and tell our workers 
we are sending their jobs to China. I don't want to tell our families 
they cannot have a breadwinner earning a good living in those 
factories. We want to tell communities that we will not cripple their 
tax base, their school systems, and cripple their services. We will 
protect the environment. We will protect public safety and the jobs.
  I urge my colleagues to support this amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. DORGAN. Madam President, as a member of the Appropriations 
Committee, let me compliment my colleague from Missouri and my 
colleague from Maryland, the chair and ranking member of this 
subcommittee. They have offered the Senate a good piece of legislation. 
While there may be some areas for discussion where we might have some 
disagreements about one level or another that has been proposed, by and 
large, Senator Bond and Senator Mikulski have done an excellent job 
bringing this appropriations subcommittee bill to the Senate. I 
appreciate their work.
  The amendment just offered will spark some significant debate this 
morning. I believe my colleague from Idaho is also preparing to offer 
an amendment, and my hope is to be involved in that discussion when my 
colleague from Idaho offers his amendment this morning.
  I would like to make a comment about another appropriations bill we 
will be dealing with this afternoon. I don't want to be in violation of 
the rule.
  The PRESIDING OFFICER. Without objection, it is so ordered.


           Transportation/Treasury Appropriations Conference

  Mr. DORGAN. Madam President, this afternoon at 5 o'clock, the 
Transportation, Treasury, and General Government appropriations 
conference will meet. I am one of the conferees on that conference. We 
meet at 5 o'clock this afternoon.
  In the appropriations bill that comes from both the House and the 
Senate to that conference at 5 o'clock this afternoon, there are 
provisions that deal with travel to Cuba. I mention that because 
something important will happen today. We have identical amendments in 
the House and the Senate bills that prohibit the enforcement of the 
provision that prohibits travel to Cuba by the American citizens. No 
money in the bill shall be used to enforce that travel ban.
  I am particularly interested in this because, for example, the 
Treasury Department earlier this year denied a license to the Farm 
Bureau and other farm organizations to help organize a trade show in 
Cuba to promote the sale of U.S. agricultural products.
  I find that unfathomable. Why would we want to prohibit the promotion 
of the sale of U.S. agricultural products to Cuba? Cuba must pay cash 
for those products they have been purchasing from our country because 
of an amendment I was involved in getting passed that allows U.S. 
companies to sell agricultural products to Cuba. There was a 40-year 
embargo, but we are now able to sell in Cuba. But inexplicably, the 
farm organizations, including the Farm Bureau, were denied a license to 
go to Cuba to promote the agricultural sales. That makes no sense to 
me. I hope we will have people who think more clearly about that.
  What prompted me to talk about it this morning is a visit I had 
yesterday from a young woman who came to talk to me about a problem she 
has. I am going to show a picture of the young woman. Her name is Joni 
Scott. She went to Cuba 4 years ago. She is from Indiana. She went to 
Cuba 4 years ago, and she distributed free Bibles in Cuba. She and a 
group of folks from her church traveled to Cuba to distribute free 
Bibles. Last month, 4 years later, she received from the U.S. 
Government a fine of $10,000 for having traveled to Cuba to distribute 
free Bibles.
  Yes, that is right, the Office of Foreign Assets Control at the 
Department of the Treasury tracked her down. It took them 4 years. I 
don't know why it took 4 years. They tracked her down and said: For the 
act that you have committed, traveling to Cuba to distribute free 
Bibles, we will fine you $10,000.
  I have written to the Department of Treasury saying this does not 
make any sense. Is there no reservoir of common sense there, or at 
least some level below which they will not sink? Fining somebody 
$10,000 for distributing free Bibles in Cuba, what on Earth are we 
thinking about? This woman went with a church group to distribute 
Bibles free of charge to the Cuban people. Now she is being tracked 
down by our Government and levied a $10,000 fine. It makes no sense.
  I also was contacted recently by another organization, the Disarm 
Education Fund. They donate medicine and medical supplies to Cuban 
health clinics. But more importantly, they send United States doctors 
to Cuba to teach advanced medical techniques to Cuban doctors. One of 
their projects involves a procedure called something called mandibular 
distraction, building new jaws for kids born without jaws. This is 
highly technical surgery. They have been not only doing this for 
children but teaching Cuban doctors the techniques of this intricate 
surgery.
  This year, Disarm had to discontinue its programs because OFAC at the 
Treasury Department would not renew the license they had held since 
1994. This went on for 6 months and they could not go to Cuba to help 
these children by distributing medicine and by performing intricate 
surgery and teach and train Cuban doctors.
  On October 17, less than a month ago, after 6 months of 
consideration, OFAC issued a new license that allows the Disarm 
Education Fund to resume some of its programs in Cuba. However, the new 
license specifically prohibits this organization's doctors from 
training Cuban doctors. Do you know why?

[[Page 28543]]

Because OFAC says training of Cuban doctors in this very intricate 
surgery constitutes an export of service to Cuba.
  So they can now go down and perform this surgery on Cuban children. 
It is very intricate surgery. They can perform the surgery, but they 
cannot have a Cuban doctor around to be trained because OFAC recently 
decided that educating Cuban doctors is illegal. What in the world is 
this Administration thinking?
  Mr. CRAIG. Will the Senator yield?
  Mr. DORGAN. I will be happy to yield.
  Mr. CRAIG. On the legislation that became law a couple years ago, 
with your backing and my backing, that is that agricultural goods and 
medical supplies could be traded and sold to Cuba without United States 
taxpayer credit, maybe we need to add the words and ``related medical 
services.''
  That is really picking the flyspecks out of the pepper here down at 
the Department of the Treasury. Shame on them for standing in the way 
of a humanitarian effort to make kids healthier.
  But behind you is the picture of Miss Scott. She also visited my 
office yesterday. I must say to this administration: Do not fight us on 
this issue. We are giving you the right way out. The House and the 
Senate, in a strong bipartisan voice--the loudest and the strongest 
vote we have ever had here on the floor of the Senate--said: Let's 
begin to back away from this travel embargo with Cuba. It does not work 
any longer. It is a 40-year-old failed policy. Now you are being 
arbitrary. Now you are being selective. We ought to get away from that.
  So I hope this afternoon in conference the House and the Senate's 
bipartisan voice is heard. Frankly, the administration ought to view it 
as a gift. We are not abolishing the law that puts in that embargo. We 
are simply disallowing the expenditure of levying a $10,000 fine 
against a woman passing out Bibles because she trafficked through 
Canada and did not fill out the right form. That is what we are doing.
  Let OFAC track down drug traffickers and terrorists and leave Ms. 
Scott alone. That is what we ought to be about. Somehow this has gotten 
very confused and very skewed.
  I thank the Senator for bringing up this point. Please prevail in 
conference this afternoon.
  Mr. DORGAN. Mr. President, the Senator from Idaho was part of a 
group, a bipartisan group, in the Senate. Then-Senator John Ashcroft, 
for example, was also a key part of that group. We changed the law with 
respect to trade with Cuba so that we could sell agricultural products 
into the Cuban marketplace. We did not open it very wide, but we opened 
it.
  Last year, for the first time in 42 years, 22 train carloads of dried 
peas left North Dakota to go to the Cuban people. Cuba paid cash for 
it. Our farmers were able to sell into the Cuban marketplace. Good for 
them.
  But this issue of travel and denying farm organizations, including 
the Farm Bureau, the right to go to Cuba to promote food sales is just 
unbelievable.
  There are times, not very often, but there are times when I am 
profoundly embarrassed by the actions of this Government. Yesterday was 
one of them, when this young lady came to see me to say: I am really 
concerned and upset about this because I went to Cuba to distribute 
free Bibles, and now my Government is slapping me with a $10,000 fine.
  That is an unforgivable policy, in my judgment. But it is not just 
her. It is not just this young lady who thought she was doing the world 
some good, and clearly she was. She was pursuing her faith and her 
interest in distributing Bibles to the Cuban people.
  There is so much more than just her. I mentioned the doctors who have 
been denied the opportunity to travel to Cuba to do this intricate 
facial surgery on Cuban children and to train Cuban doctors to do the 
same surgery. Now, after 6 months, they are able to go do the surgery, 
but they are not able to train the Cuban doctors because that is the 
prohibited export of a service to Cuba. Again, that is an embarrassing 
decision on the part of this Government.
  But let me just describe a couple more, if I might.
  This young lady is named Joni Scott. She traveled to Cuba, as I said, 
4 years ago. It took them 4 years to track her down.
  Cevin Allen, from the State of Washington, wanted to bury the ashes 
of his father, who was a Pentecostal minister in prerevolutionary Cuba. 
He died, and his last wish was that his ashes would be buried on the 
church grounds where he served in Cuba. Well, his son, true to the 
faith in his father, took his ashes to Cuba to bury them, and what 
happened to him was he received a notice from the Federal Government. 
They were fining him $20,000 for taking the ashes of his dead father to 
be buried on the church grounds where he served as a minister in 
prerevolutionary Cuba.
  Marilyn Meister was a 72-year-old Wisconsin schoolteacher. She 
bicycled in Cuba. She received a $7,500 fine.
  I have shown the picture previously of Joan Slote, whom I also know. 
She is a Senior Olympian. She bicycles all around the world. She is in 
her midseventies. She went with a Canadian bicycle group to take a 
bicycle trip to Cuba. She was fined $7,630. I said to OFAC: You ought 
to be embarrassed about that. OFAC then reduced her fine to $1,900, and 
she paid it. I don't think she should have, but she paid it. Then she 
got a note from the Department of the Treasury, after she paid it, that 
they were going to garnish her Social Security, and they sent a 
collection agency after her because, they said: Well, we never received 
it. She had the canceled check.
  It is one thing for an agency to be incompetent; it is another thing 
for it to make fundamentally bad judgments about what it is going to do 
with its time. OFAC's should be chasing terrorists, not visitors to 
Cuba.
  This is not a Republican or a Democrat issue; this went on under 
Democratic administrations as well, although I must say it has been 
ratcheted up--over double the effort--under this administration. And 
the President just announced, a month ago, on October 10: I have 
instructed the Department of Homeland Security to increase inspections 
of travelers and shipments to and from Cuba. He said: We will also 
target those who travel to Cuba illegally through third countries. He 
talks about using the investigative capability of the Department of 
Homeland Security to track down American travelers so we can levy fines 
against them.
  My colleague from Idaho is right. It is ludicrous for OFAC to be 
tracking down some young woman who has distributed free Bibles in Cuba, 
so we can levy a fine. This is not, in my judgment, injuring Fidel 
Castro. This policy is attempting to take a slap at Fidel Castro, and 
it injures Americans and their right to travel freely.
  I hope this afternoon, at 5 o'clock, when we go to this conference, 
with the identical provisions coming from the House and the Senate, 
that my colleagues, Republicans and Democrats, will support this policy 
of allowing travel to Cuba.
  We long ago concluded with China, a Communist country, and Vietnam, a 
Communist country, that trade and travel and engagement is a 
constructive way to move forward. I believe that. I believe that is 
true with Cuba. The only voice Cubans hear is Fidel Castro's voice. I 
would much prefer they hear the voice of this young lady who travels to 
Cuba to talk to them about her faith and to talk to them about the 
Bible. I would much prefer they hear the voice of thousands and 
thousands of tourists who tell the Cubans what is happening in the rest 
of the world. The Cuban people deserve that. That is the quickest and 
the most effective way, I believe, to effect a change in the Government 
in Cuba.
  So at 5 o'clock this afternoon, in the conference of Transportation-
Treasury Appropriations bill, we will be making a very important 
decision, and because there are identical provisions in both the House 
and the Senate bills which will prohibit the enforcement of this travel 
ban in the future, I hope the conference will keep those provisions.
  But the White House, as they have done in other areas, threatens a 
veto. I

[[Page 28544]]

do not think they would veto this appropriations bill over this issue. 
But let them threaten. I believe very strongly, as my colleague from 
Idaho just suggested, that we ought to hold tight on this provision in 
conference this afternoon.
  My intention of bringing this up now, and describing this young lady 
and her experience, is to ask my colleagues again: Let's do the right 
thing. Let's not be embarrassed by actions of the Government that fine 
the American people for traveling someplace to distribute free Bibles. 
That is outrageous, and it has to stop.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I rise to respond to the comments 
made by the Senator from Missouri, the chairman of the committee, in 
placing legislation, a rider, if you will, into the appropriations 
bill.
  If ever there was a special interest provision in an appropriations 
bill, this is the mother and father of such a rider. I rise in 
opposition to what is called the small engine provision in the 2004 VA-
HUD appropriations bill. I note that the Senator from Missouri did not 
send to the desk an amendment he plans to introduce to change the 
underlying amendment that was introduced in the Appropriations 
Committee markup. So I am going to try to address both pieces of 
legislation and indicate my opposition to both. Although the amendment 
that he says he is going to introduce is better than the language in 
the underlying bill, it is still unacceptable because it would 
effectively block any State regulation of small road engines anywhere 
in America. This provision was inserted into the chairman's mark at the 
request of a single engine manufacturing company, Briggs & Stratton 
from Missouri.
  As originally written, the underlying bill would effectively preempt 
any State regulation of pollution from off-road engines smaller than 
175 horsepower. I understand the Senator from Missouri now wants to 
narrow his provision to block any regulation of spark engines under 50 
horsepower and not include diesel engines. This new provision is better 
but, as I said, still unacceptable.
  Since the beginning, section 209 of the Clean Air Act has recognized 
that States, with extraordinary or extreme pollution, need flexibility 
to reduce pollution and protect public health. A California law 
actually served as the model for the original Clean Air Act. I think 
that is interesting. As a result, the Clean Air Act has always allowed 
California to set its own standards for some sources of pollution. 
Later changes in the law allowed other States to adopt the California 
standards, if they so chose.
  The 1990 Clean Air Act amendments gave California the right to 
regulate emissions from off-road engines smaller than 175 horsepower, 
except for agricultural and construction equipment. So other States are 
currently free to adopt the California standards or not. The right of 
States to regulate small engines would quickly be taken away if the 
Bond provision is allowed to remain in this bill. Mr. President, 
individual States should have the right to regulate these small engines 
as they choose.
  That is what States rights is all about. Many States have benefitted 
from the process established in section 209, and California's 
regulations often serve as models for the rest of the Nation. The small 
engine provision would amend section 209 and remove important rights 
from States. I oppose using the appropriations process to take away 
States rights under the Clean Air Act. This kind of change to a major 
law like the Clean Air Act deserves a full debate, hearing, and review 
in the Environment and Public Works Committee. It has had none of the 
above.
  It is important for all of my colleagues to understand that one 
company is behind this so-called small engine provision. We are having 
this debate simply because Briggs & Stratton disagrees with a recently 
adopted California regulation which, incidentally, does not go into 
effect for another 5 years. I will explain why that becomes relevant 
later.
  On September 25 of this year, California adopted a regulation 
reducing emissions from off-road engines smaller than 25 horsepower, 
mainly lawn and garden equipment. This is the interesting thing: This 
regulation is the equivalent of removing 1.8 million automobiles from 
California's roads by 2020. That is how big an item this is in my 
State. Once again, let me make it clear that we are talking about the 
equivalent of 1.8 million automobiles.
  But the issue here is not whether we should support any particular 
regulation from the California Air Resources Board. The issue is 
whether we should permanently take away States rights to regulate these 
engines, period. Briggs & Stratton is using opposition to a single 
California regulation to block every State's efforts to regulate these 
engines anywhere in the future. I do not believe we should take such 
important changes to the Clean Air Act lightly, especially when such 
changes have been included in an appropriations bill without having 
adequately looked at the crucial stakes involved.
  Briggs & Stratton has made a series of arguments in opposition to the 
California regulation. We heard the Senator from Missouri say the 
regulation would force the company to close plants, threaten thousands 
of American jobs, and for jobs to be moved to China. I don't know how 
the Senator from Missouri knows that they would move jobs to China 
unless Briggs & Stratton have told him that is what they plan to do.
  At the very same time that Briggs & Stratton is lobbying this Senate 
to preempt California regulations, the company was telling the 
Securities and Exchange Commission an entirely different thing. On 
September 11 of this year, while lobbying the Senate in support of the 
small engine provision, Briggs & Stratton filed their annual 10-K 
report with the Securities and Exchange Commission. Here is what they 
say in their report:

       While Briggs & Stratton believes the cost of the proposed 
     regulation on a per engine basis is significant, Briggs & 
     Stratton does not believe that the [California Air Resources 
     Board] staff proposal will have a material effect on its 
     financial condition or results of operations, given that 
     California represents a relatively small percentage of Briggs 
     & Stratton's engine sales and that increased costs will be 
     passed on to California consumers.

  So point 1, California is just a small part of the Briggs & Stratton 
market. Point 2, it will not affect the financial viability of that 
market. And point 3, they would only pass on the costs of retrofitting 
these engines to whomever would buy it, something that is fairly 
typical. Now why all this talk about moving 22,000 jobs to China if, in 
fact, what they said on their SEC statement is correct? The SEC 
statement is the be-all-and-end-all for a company's integrity and 
credibility.
  If you lie on your SEC statement, you get into a lot of trouble with 
the Securities and Exchange Commission.
  Section 209 of the Clean Air Act gives California the right to 
regulate these engines. The company is free to pass along these costs 
to Californians. My State will accept those costs because we need 
cleaner air. As far as I am concerned, this is the way regulations 
should work.
  Since we brought the annual report to the attention of the public, 
Briggs & Stratton has argued that the annual report was simply 
discussing the company's bottom line and that sending jobs overseas 
would not affect the bottom line. But that is not what the company's 
annual report says. The report says, again, California is but a small 
share of the Briggs & Stratton market. Increased costs will simply be 
passed along to California consumers. It does not say that any 
increased costs will force jobs overseas.
  So Briggs & Stratton is telling the Securities and Exchange 
Commission that everything is fine and at the same time telling the 
media, the public, and this body that the sky is falling.
  Senator Boxer and I have asked the Securities and Exchange Commission 
to investigate whether Briggs & Stratton has broken any securities laws 
by telling such drastically different stories. We are still waiting for 
a response.

[[Page 28545]]

  In terms of jobs, my colleagues should also know that Briggs & 
Stratton's SEC report is referring to the original regulation proposed 
by the Air Resources Board. Since the SEC report was filed, the 
California Air Resources Board has continued to work with the industry 
to modify the regulation to correct fire safety concerns and to reduce 
costs, and I believe they will get there. They have 5 years to do so.
  Madam President, what I am going to be doing in this portion of my 
remarks is essentially showing that Briggs & Stratton really is an 
isolated company asking for this. By so asking for it, they are going 
to cause additional costs to other industries. So I hope to make that 
argument now.
  Last month, the Outdoor Power Equipment Institute, the small engine 
industry's leading trade group of which Briggs & Stratton is a member 
issued a press release which said that the industry's input into the 
adopted regulation made the regulation acceptable. This press release 
details the concessions made by the State and said that the Air 
Resources Board largely adopted the industry's counterproposal. In 
other words, the industry trade council, of which Briggs & Stratton is 
a member, had their counterproposal adopted by the State Air Resources 
Board and yet Briggs & Stratton is still opposing the action.
  I quote the release:

       For the past 2 years, the Outdoor Power Equipment Institute 
     has been working proactively with the staff of the California 
     Air Resources Board to improve proposed catalyst base exhaust 
     standards for real problems.

  The press release goes on to say:

       In direct response to the Outdoor Power Equipment 
     Institute's advocacy, the California Air Resources Board 
     unanimously adopted on September 25 a modified framework 
     which, one, relaxes the stringency of the California Air 
     Resources Board's staff's proposed tier 3 exhaust standards 
     and, secondly, substantially improves the overall general 
     framework for the still-to-be-defined evaporative 
     regulations.

  I ask unanimous consent that the text of the Outdoor Power Equipment 
Institute's press release be printed in the Record at the conclusion of 
my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mrs. FEINSTEIN. Additionally, I have a September 26, 2003, letter 
from Alan Lloyd, the chairman of the California Air Resources Board, to 
the Senator from Missouri, detailing revisions that were made to the 
regulation. Referring to the modified regulation, Mr. Lloyd states as 
follows:

       I believe the action taken by the Air Resources Board is a 
     win/win situation. We achieved our emission reduction goal. 
     The adopted regulation, based on an industry proposal, will 
     reduce costs, simplify compliance and avoid job losses.

  So the Air Resources Board took the industry's proposal, the industry 
association of which Briggs & Stratton is a member. That is why this 
thing is so unfair.
  I ask unanimous consent that the text of this letter from Mr. Lloyd 
to the Senator from Missouri be printed in the Record following my 
statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mrs. FEINSTEIN. Briggs & Stratton also raised concerns about fire 
safety. The Senator from Missouri has placed a November 6 letter from 
the California Association of Fire Chiefs in the Record. That letter 
expressed concerns about the proposed California regulation. I take 
these concerns very seriously. The last thing I want to do is increase 
the risk of fire. So we need to make sure these engines are safe, and 
the regulation has 5 years to make adjustments before it goes into 
effect, ample time to make such changes as replacing heat shields and 
doing whatever else is necessary to ensure these engines are fire safe.
  There is apparently some miscommunication between the fire chiefs and 
the Air Resources Board. I have just received a letter dated November 
11. I want to read from this letter:

       The fire safety issues we raised [and that would be the 
     November 6 letter that Senator Bond printed in the Record] 
     need more attention and require independent assessment before 
     engineering and production decisions are made [which they 
     have not been up to this time]. In our most recent 
     discussions with [the Air Resources Board], they support the 
     idea of an independent study, and have proposed moving 
     forward with a study, much the same as what is now underway 
     with catalytic converters being used in marine applications. 
     We enthusiastically support this idea, and will be working 
     closely with [the California Air Resources Board], the State 
     Fire Marshal, and the U.S. Environmental Protection Agency to 
     ensure that all fire safety concerns are addressed. We wish 
     to make clear that we regard fire safety and environmental 
     quality as being equally important, and wish to make it clear 
     that we support without reservation the air quality goals of 
     the proposed requirements. We support the regulation moving 
     forward as we have received assurances from CARB [the 
     California Air Resources Board] that our safety concerns will 
     be addressed through this independent study.

  So I think the concerns of the Senator from Missouri are a bit 
overstated in view of the fact that the fire chiefs, the fire marshal, 
and anyone else will work closely with CARB in the ensuing 5 years to 
correct any safety problems that might exist. The letter goes on, and 
this is important:

       Finally, we understand that, as a separate matter, the 
     Senate is debating the question of whether States are free to 
     develop safety and environmental standards. We were never 
     asked to comment on this matter but, for the record, we do 
     not support legislation that would interfere with a State's 
     ability to protect its own citizens. To the contrary, we have 
     had to count on the State of California to develop fire 
     safety standards for upholstered furniture, mattresses and 
     bedding, because the Federal Government has failed to do so. 
     The issues of air quality, as they relate to outdoor power 
     equipment, can be addressed, and I believe that working 
     closely with the Air Resources Board, we will find a solution 
     that will provide a high degree of fire safety while 
     maintaining the Board's goals for air quality.

  I would like to work with the Senator from Missouri, the Air 
Resources Board, fire safety officials, and the small engine industry 
to make sure the California regulation is fire safe. We have 5 years do 
so. It is possible to do so. But what we cannot do is take away the 
State's rights to be concerned about its citizens, and that is exactly 
what Senator Bond is trying to do.
  He gives jurisdiction, for the regulation of small engines, to the 
EPA. What the fire chiefs have just said is the EPA has refused to move 
on areas such as bedding and other areas which cause fires, so the 
State has had to do it for themselves.
  States rights are a major part of this issue and I thought these 
rights were part of everything we believed in--letting a State, where 
it can, regulate for itself. Again, I think it is unfortunate that 
Briggs and Stratton is using safety concerns about a single regulation 
to block all future efforts to reduce pollution from these engines in 
any State.
  Let me tell you why this is so big for California. We have the worst 
air quality in the Nation. We have seven ozone nonattainment areas. 
That is more than any other State. Los Angeles is the Nation's only 
extreme ozone nonattainment area. The San Joaquin Valley is not far 
behind. This year has been the worst year for smog in southern 
California since 1997, and the San Joaquin Valley is in a similar 
situation.
  This pollution has severe consequences for public health and for our 
economy in California. Let me tell you what the Air Resources Board 
says will be the result of the efforts of the Senator from Missouri. 
They say Senator Bond's provision could lead to 340 premature deaths 
per year in California due to deteriorating air quality.
  I believe States with serious pollution problems need to be able to 
reduce emissions wherever possible. This small engine provision would 
place a very important source of pollution off limits to State 
regulation.
  I understand a modifying amendment is going to be introduced on 
behalf of Senator Bond that will change the current bill language, 
which currently blocks the regulation of off-road engines smaller than 
175 horsepower. All told, these engines alone emit as much pollution as 
18 million automobiles. Can you believe that? Small off-road engines 
are emit as much pollution as

[[Page 28546]]

18 million automobiles. That is a big number for California and any 
reduction in this pollution would benefit California greatly.
  The narrower version of this provision, which has yet to be 
introduced but I trust will be, would still block State regulation of 
spark engines smaller than 50 horsepower, which represents the majority 
of small engines that exist and operate in my home State. According to 
the California Air Resources Board, engines under 50 horsepower emit as 
much pollution as 4 million cars, just in California. This is more than 
100 tons of smog-forming pollutants per day in my State alone.
  The modifying amendment that we understand will be sent to the desk 
will essentially mandate 1,500 more tons of smog-producing pollutants a 
day in California--all to benefit one company that is not telling the 
truth on its SEC statement. These off-road engines are also among the 
least regulated and dirtiest engines around.
  According to the California Air Resources Board again, operating the 
average gas-powered lawnmower for just 1 hour produces as much 
pollution as driving a car for 13 hours. I would hazard a guess that no 
one in this Senate knew that operating a lawnmower for 1 hour produces 
as much smog as operating a car for 13 hours. Keep in mind that the 
lawnmower is only about 5 horsepower and the car engine is far larger.
  Even running a small string trimmer for an hour produces as much 
pollution as driving a car for 8 hours. Again, I hazard a guess that no 
one in this Senate knows that operating a small string trimmer for an 
hour produces as much pollution as 8 hours of driving a car. The bottom 
line: These are very dirty engines.
  California is already struggling to comply with national air quality 
standards. We need every industry to do their fair share. According to 
the Air Resources Board, the State has to reduce emissions from these 
engines in order to achieve compliance with national air quality 
standards. In other words, if California is not allowed to proceed with 
the regulations they put forward on September 25, we will be violating 
clean air standards. What happens if we do it? What happens is that 
California loses $2.4 billion in highway transportation moneys. That is 
how important this issue is for the State of California and that is how 
dastardly this amendment--an authorization on an appropriations bill--
really is.
  California cannot afford to remain out of compliance with national 
standards. We also can't afford to take tools away from States that are 
in this situation. If we can't reduce emissions from off-road engines, 
then we will have to cut pollution from other sources. What does that 
mean? Other sources are already facing heavier regulation, so cutting 
their pollution will be more expensive and place more burden on other 
industries.
  On this point I would like to quote a September 25 letter from the 
Environmental Council of the States. That is an organization that 
represents environmental agencies in all 50 States. Let me read what 
they say:

       Removal of this ability to regulate a substantial part of a 
     State's inventory, means that States will have to obtain 
     reductions from the stationary source area [key, from the 
     stationary source area], an area that is already heavily 
     regulated at substantially higher cost. Businesses facing 
     global competition will opt to either shift work to off-shore 
     facilities or to simply close, with concomitant negative 
     consequences on the local and national economy.

  It is critical that this language be eliminated from the HUD-VA 
appropriations bill.
  This is the environmental council to which every State belongs.
  What does this mean? This means that every oil refinery will have to 
have tough requirements and that every utility will have to have tough 
requirements. The cost of gas will rise, and the cost of energy will 
rise. Every stationary source, if we can't tackle this area because it 
is so big, will have to have their standards tightened.
  This is all for one company. Every other company that makes small 
engines has said they can comply, except one company in Missouri that 
says in their SEC report, no problem, and comes here and says, we are 
going to move our jobs to China. A whole series of companies will be 
disadvantaged, but one Missouri company will suffer no financial 
consequences.
  I ask unanimous consent that the full text of this September 25 
letter from the Environmental Council of States be printed in the 
Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 3.)
  Mrs. FEINSTEIN. Mr. President, the debate over the small engine 
provisions is focused on California for this point. But it is also 
clear that the effects go far beyond California.
  Remember that under the Clean Air Act, once California passes the 
regulation, other States can then replicate that to any degree they so 
choose. This is where it begins to affect a number of other States. The 
small engine provision in the VA/HUD appropriations bill is a problem 
for every State and for every Senator who believes individual States 
should be able to adopt their own rules and regulations on issues such 
as these. States with serious pollution problems include Texas, 
Tennessee, Pennsylvania, Illinois, North Carolina, New York, New 
Jersey, Maryland, and many others know they need to be able to reduce 
pollution from every possible source. Some States have already moved 
forward with regulations affecting off-road engines.
  This legislation--the underlying bill, as well as the amendment that 
we understand will be sent to the desk shortly--will cut this off, 
remove the right from a State and give it to the EPA that historically 
has been a slow mover in this area.
  According to the associations representing State and local pollution 
control officials, the original version of the small engine provision 
would have blocked the current program in seven States--Alaska, 
Connecticut, Massachusetts, Nevada, Texas, and Wisconsin.
  The 175-horsepower engine would also block programs in at least eight 
States that are considering future regulations: Alabama, Illinois, 
Nebraska, New Jersey, Pennsylvania, South Carolina, Tennessee, and 
Virginia, in addition to the District of Columbia.
  The States recognize this threat to their rights. I have already 
quoted a letter from Environmental Council of the States. We have also 
received letters in opposition to the Bond provision from the National 
Conference of State Legislatures, the Southeastern State Air Resources 
Managers representing State air pollution control agencies in Alabama, 
Florida, Georgia, Kentucky, Mississippi, North Carolina, South 
Carolina, and Tennessee, and the associations representing State and 
local air pollution control officials from all 50 States.
  I ask unanimous consent that the letters from these organizations be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Southeastern States Air


                                      Resource Managers, Inc.,

                               Forest Park, GA, November 20, 2003.
     Re Bond Provision of S. 1584--Fiscal Year 2004 VA, HUD and 
         Independent Agencies Appropriations Bill.

     Hon. Zell Miller,
     Dirksen Senate Office Building,
     Washington, DC.
       Dear Senator Miller: Southeastern States Air Resource 
     Mangers, Inc. (SESARM), representing the directors of the 
     southeastern state air pollution control agencies in Alabama, 
     Florida, Georgia, Kentucky, Mississippi, North Carolina, 
     South Carolina, and Tennessee, is writing this letter to 
     encourage your support of the removal of a provision 
     introduced by Senator Bond in S. 1584, the Fiscal Year 2004 
     VA, HUD and Independent Agencies Appropriations Bill. The 
     provision would amend Section 209(e)(1)(A) of the Clean Air 
     Act to curtail state's authority to reduce emissions from 
     diesel and gasoline off-road equipment and engines.
       While Senator Bond's proposed provision regarding the off-
     road engines apparently was intended to address rules adopted 
     only in California, it will limit the ability of all states 
     to solve serious public health-related air quality problems. 
     Senator Bond's proposal revises a very important provision of 
     the Clean Air Act which allows states to

[[Page 28547]]

     adopt engine emission standards more stringent than the 
     federal standards as long as appropriate federal review 
     processes are followed. Congress wisely put this provision 
     into the Act to give states the ability to deal with serious 
     air quality problems across the country. SESARM opposes the 
     impact of the Bond proposal on this important provision.
       Please note that other compromise amendments which fall 
     short of fully restoring Section 209(e)(1)(A) are, in our 
     opinion, unacceptable and will constrain states as discussed 
     above. SESARM and your state air pollution control agency 
     would appreciate your support of removal of the Bond 
     Amendment from S. 1584.
           Sincerely,
                                                 Hon. E. Hornback,
     Executive Director.
                                  ____

                                            National Conference of


                                           State Legislatures,

                                 Washington, DC, October 29, 2003.
     Re S. 1584, FY2004 VA, HUD and Independent Agencies 
         Appropriations Clean Air Act Amendment.

       Dear Senator: On behalf of the National Conference of State 
     Legislatures, I write to urge your support for amendments 
     that would strike a provision of S. 1584 that amends Section 
     209(e)(1)(A) of the Clean Air Act and curtails state 
     authority to regulate diesel and gasoline off-road equipment 
     and engines. Emissions from off-road sources contribute to 
     ozone and fine particulate matter pollution. They pose a 
     threat to public health and to state achievement and 
     maintenance of national ambient air quality standards for 
     ozone and particulate matter.
       NCSL strongly believes that federal environmental policy 
     should be addressed in substantive committee deliberations 
     and not made through riders to appropriations bills. The 
     amendatory language in S. 1584 would strip states of long-
     standing authority to exceed federal standards. It 
     compromises state and local government capacity to determine 
     the most effective means to address specific air pollution 
     problems. It also has implications for agriculture and 
     natural resource management none of which are addressed 
     through the use of an appropriations rider.
       The Clear Air Act appropriately recognizes that states are 
     best suited to determine which sources, including off-road 
     equipment and engines, contribute most significantly to air 
     pollution and which strategies are most effective in 
     addressing pollution-related problems. I again urge your 
     support of amendments that strike the aforementioned off-road 
     provision from S. 1584. Thank you for your consideration of 
     NCSL's concerns.
           Sincerely,
                                                    William Pound,
                                               Executive Director.

  Mrs. FEINSTEIN. Mr. President, the States also propose compromise 
language that would still place some of these engines off limits. To 
quote the letter from the Southeastern States Air Managers:

       Please note that other compromise amendments which fall 
     short of fully restoring section 209(e)(1)(a) are, in our 
     opinion, unacceptable and will constrain States as discussed 
     above. This association and your State air pollution control 
     agencies would appreciate your support of removal of the Bond 
     amendment from S. 1584, the HUD VA appropriations bill.

  Many other States are just beginning to realize the importance of 
this small engine provision. As we move forward with more protective 
air quality standards, more and more States will need to reduce 
emissions to comply with national standards. Those States will also 
need to reduce pollution from these very engines because there are so 
many of them and they are so very dirty. I strongly believe we should 
protect a State's right to do so.
  We should not use this appropriations bill to take rights away from 
the States without knowing what we are doing, without a hearing, and 
without review by the authorizing committee.
  As I said, this rider is the mother and father of all riders because 
it authorizes a major reduction in States rights with no hearings 
whatsoever, no ability to question Briggs & Stratton, and no ability to 
ask them why they said on their SEC report that this would cause no 
financial disadvantage to the company, that California is such a small 
portion of their market, and they would just pass on any additional 
costs to the consumer.
  Why would they tell the Senate or the Senator from Missouri they 
would move jobs to China if this passed? The statements of Briggs & 
Stratton make me very suspicious.
  The Clean Air Act has long recognized that States with serious air 
pollution problems need to be able to set strong standards to protect 
public health. The hard-fought 1990 Clean Air Act amendments give the 
States the ability to regulate these off-road engines.
  With respect to the California regulation, I will work with fire 
officials, air resources boards, the industry, and the Senator from 
Missouri to ensure that the final regulation is safe. But I believe it 
is clear that this should not be a debate about a specific State 
regulation. That is our problem. We will handle it. California is 
entirely able and capable of handling this problem. We don't need 
someone else to tell us what to do.
  This is a debate about making sure the States have the flexibility 
necessary to protect the public health.
  It is hard for me to understand why anyone would do this on an 
appropriations bill when the consequences are so dire, with over 300 
premature deaths likely to be caused by worsening air pollution, or if 
the State moves to further tighten stationary sources and really send a 
whole magnitude of companies offshore.
  I don't think in an appropriations bill we should take well-earned 
States rights away from every State in this Union to benefit one 
company. Remember, every other manufacturer of small engines is going 
along with what California is doing. They have all said they could do 
it. They have all said they could adapt these standards into their 
manufacturing. They have all said they could change. They have all said 
they can add adequate heat shields.
  Furthermore, the pollution from these engines under 175 horsepower 
accounts for 17 percent of California's mobile smog emissions. This is 
not minor. We are talking about 17 percent of a State that has seven 
nonattainment areas in it, 17 percent of their pollution, and an Air 
Resources Board that has accepted the industry's proposal, an industry 
trade council, to which Briggs & Stratton belongs, submitted a proposal 
they could live with to the Air Resources Board. The Air Resources 
Board accepted it. And now Briggs & Stratton is coming back and saying: 
We do not agree; we will get our Senator to put a rider in a bill--with 
no hearing, without understanding the consequences that this provision 
will move the right for every single State to protect its citizens.
  That is truly wrong. This morning, I ask my colleagues to stand up 
for their states rights. I ask them to stand up and protect public 
health. I ask them to oppose this special provision on this 
appropriations bill put there to benefit one company when every other 
company says they can comply.

                               Exhibit 1

              [From the Outdoor Power Equipment Institute]

OPEI Succeeds in Dramatically Improving California Emission Regulations

       For the last two years, OPEI has been working proactively 
     with the staff of the California Air Resources Board (CARB) 
     to improve proposed catalyst-based Tier III exhaust standards 
     for wheeled products, as well as new evaporative emission 
     regulations, based on the use of carbon canisters and/or 
     sealed fuel tanks, as well as less-permeable fuel tank 
     materials and fuel lines. On August 8, 2003, CARB staff 
     issued a proposed regulation that would have required wheeled 
     products to install high-efficiency/high-heat generating 
     catalysts in order to meet exhaust standards that were 50% 
     more stringent than the current Tier II standards. CARB's 
     August 8th proposal would also have required all lawn and 
     garden equipment to be subject to shed-based performance 
     testing to demonstrate that the entire piece of equipment 
     complied with an overall evaporative/diurnal emission 
     standard. CARB's August 8th proposal evaporative compliance 
     program and exhaust stand would have: (1) imposed enormous 
     compliance and product integration problems for both engine 
     companies and OEMs; and (2) resulted in significant safety 
     concerns as well, principally because of the substantial heat 
     generated from the high-efficiency catalysts. Through written 
     correspondence, the U.S. Congressional House Committee on 
     Government Reform, the California Fire Chiefs Associations 
     (CFCA), the National Association of State Fire Marshals 
     (NASFM), and the U.S. Consumer and Product Safety Commission 
     (CPSC) have gone on record as strongly opposing CARB's August 
     8th proposal because of the unresolved safety issues with 
     high-efficiency/high-heat generating catalysts and 
     pressurized fuel systems.
       In direct response to OPEI advocacy, the California Air 
     Resources Board (CARB) unanimously adopted on September 25th 
     a modified alternative framework which: (1) relaxes the 
     stringency of CARB Staff's proposed Tier III exhaust 
     standards; and (2) substantially improves the overall general

[[Page 28548]]

     framework for the still-to-be-defined evaporative emission 
     regulations. The CARB Board has adopted industry's proposed 
     exhaust standards which are roughly 25% less stringent for 
     Class I engines (less than 225 cc displacement) and 33% less 
     stringent for Class II engines (greater than 225 cc 
     displacement). Based on an economic study prepared for OPEI, 
     the compliance costs of the industry counterproposal should 
     be roughly one-third less than the costs associated with the 
     August 8th CARB proposal. CARB's August 8th exhaust and 
     evaporative proposed standards would have increased the 
     average compliance cost for lawn mowers by $106 and the 
     average compliance cost for riding mowers by $321. CARB's 
     adopted less stringent exhaust and more flexible evaporative 
     program are expected to result in an average total compliance 
     cost increase of $73 for walk-behind-mowers and $189 for 
     riding mowers.
       The provisions in OPEI/EMA's counterproposal (as generally 
     adopted by the CARB Board) also establish a much more 
     straightforward and less burdensome, design-based (rather 
     than shed-testing) program (for all products others than 
     walk-behind-mowers) to demonstrate compliance with the 
     evaporative requirements. OPEI has also persuaded CARB to 
     allow the use of smaller and less-expensive carbon canisters. 
     The provisions in OPEI's/EMA's counterproposal (as generally 
     adopted by the CARB Board) provide industry with much longer 
     lead-time compared to the August 8th CARB proposal. 
     Specifically, industry has more than five years of additional 
     lead time to achieve the ultimate evaporative emission 
     requirements. This additional lead time should allow 
     manufacturers with adequate time to develop and use new low-
     permeation barriers (such as co-extruded materials) in 
     constructing their fuel tanks.
       The Outdoor Power Equipment Institute (OPEI) is the major 
     international trade association representing the 
     manufacturers and their suppliers of consumer and commercial 
     outdoor power equipment such as lawnmowers, garden tractors, 
     utility vehicles, trimmers, edgers, chain saws, snow 
     throwers, tillers, leaf blowers and other related products. 
     Founded in 1952, the Institute is dedicated to promoting the 
     outdoor power equipment industry by undertaking activities 
     that can be pursued more effectively by an association than 
     by individual companies.
                                  ____


                               Exhibit 2


                                          Air Resources Board,

                               Sacramento, CA, September 26, 2003.
     Hon. Christopher S. Bond,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Bond: Thank you for your September 24, 2003, 
     letter commenting on the proposed regulation to reduce 
     pollution from small engines below 25 horsepower. Your letter 
     was received prior to the California Air Resources Board 
     (ARB) public hearing on this regulation, and read by each of 
     my fellow Board members.
       Your letter urged the Board to reach ``a comprehensive 
     agreement with the entire small engine industry that saves 
     jobs while also protecting the environment and public 
     safety.'' I'm pleased to report that on September 25, 2003, 
     the Air Resources Board unanimously adopted a revised 
     regulation that I am confident addresses all the issues 
     raised in your letter on behalf of the small engine industry. 
     In particular, the regulation we adopted:
       1. Removes any question regarding safety;
       2. Results in the use of commonly available technologies 
     which will not require engine redesign;
       3. Prevents the possible loss of jobs referred to in your 
     letter; and
       4. Achieves nearly the same emission reductions.
       The revised regulation is based on proposals we had 
     requested and received in the past two weeks from members of 
     the small engine industry. ARB staff used these proposals to 
     design and include in the regulation two alternative methods 
     of compliance. One of the alternatives closely reflects the 
     proposal of the Engine Manufacturers, Outdoor Power Equipment 
     Institute, and Briggs and Stratton.
       The most important feature of the regulatory alternatives 
     we adopted is a less stringent exhaust emission standard 
     (offset by better evaporative emission controls). The new 
     standard will reduce the heat generated by the engine's 
     exhaust. Honda testified that with the revised exhaust 
     emission standards, safety is no longer a concern. A 
     representative of the California Fire Chiefs Association 
     testified the revised regulation appeared to address their 
     concerns. Similarly, a representative of the California Fire 
     Marshall's office told our staff he believes ARB adequately 
     handled the safety issues with the revised regulation. I am 
     confident that the testimony of these experts assures us 
     there will be no new safety issues resulting from 
     implementing this regulation.
       No testimony was presented to the Board regarding job 
     losses and plant closures. However, I am aware that Briggs 
     and Stratton has said the company will have to shut down some 
     or all of its plants because major engine redesign would be 
     required to meet California's proposal to reduce small engine 
     emissions. I believe that statement referred to the original 
     proposed regulation and no longer applies. Testimony at our 
     hearing yesterday confirmed that relatively simple changes to 
     engine components would allow these small engines to meet the 
     revised emission standards we adopted. Better hoses and fuel 
     tanks would prevent fuel vapors from leaking into the 
     atmosphere where they form smog. A simple catalyst, similar 
     to the ones used on over 15 million small motorcycles and 
     mopeds worldwide, would reduce exhaust emissions without 
     creating a heat hazard to the user. The testimony was clear 
     that these simple changes were effective and no engine 
     redesign that might cause job losses would be needed. Honda 
     testified on the record that the regulations would not reduce 
     its employment or production.
       I believe the action taken by the ARB is a win-win 
     situation. We achieved our emission reduction goal. The 
     adopted regulation, based on an industry proposal, will 
     reduce costs, simplify compliance and avoid job losses. Fire 
     experts stated there is no safety problem.
       As you stated in your letter to me, addressing these issues 
     should obviate the need for Congressional action. We have 
     successfully addressed all the issues you raised. 
     Accordingly, I now request that you remove the expansive 
     state preemption language from the HUD/VA budget bill, so in 
     cooperation with small engine manufacturers, we can get on 
     with the job of protecting the health of 35 million 
     Californians.
           Sincerely,
                                              Alan C. Lloyd, Ph.D,
     Chairman.
                                  ____


                               Exhibit 3

         Environmental Council of the States, State and 
           Territorial Air Pollution Program Administrators, 
           Association of Local Air Pollution Control Officials,
                                                 October 24, 2003.
       Dear Senator: We write to you today on behalf of the 
     Environmental Council of the States (ECOS), the State and 
     Territorial Air Pollution Program Administrators (STAPPA) and 
     the Association of Local Air Pollution Control Officials 
     (ALAPCO) to urge your support for amendments to strike a 
     provision of the VA, HUD, and Independent Agencies FY 2004 
     appropriations bill that would amend Section 209(e)(1)(A) of 
     the Clean Air Act to curtail states' authority to clean up 
     diesel and gasoline off-road equipment and engines.
       Emissions from off-road engines contribute significantly 
     and increasingly to ozone and fine particulate matter 
     (PM2.5) pollution and are responsible for a 
     variety of serious public health impacts. As state and local 
     environmental agencies work to develop strategies for 
     attaining and maintaining health-based National Ambient Air 
     Quality Standards for ozone and PM2.5, they will 
     look to the regulation of off-road engines as a means for 
     achieving their clean air goals.
       The provision in the VA-HUD appropriations bill to amend 
     Section 209 would have broad adverse consequences with 
     respect to the ability of states to seek emission reductions 
     from off-road engines. First, the provision would prevent not 
     only California, but all other states as well, from setting 
     new emission standards or enforcing existing standards for 
     all off-road engines under 175 horsepower (hp), including, 
     among others, those used in lawn and garden equipment, 
     generators, forklifts, airport ground support equipment and 
     mining equipment. Second, the provision would also preclude 
     states from regulating off-road engines above 175 hp if the 
     engines are certified in the same engine ``family'' as 
     certain off-road engines under 175 hp. Third, the provision 
     would prevent states from pursuing ``retrofit'' programs to 
     clean up older, dirtier engines. In short, if this provision 
     to amend Section 209 of the Act is retained in the VA-HUD 
     appropriations bill, states' clean air efforts will be 
     thwarted and they will be forced to seek further, likely less 
     cost effective, reductions in emissions from other sources 
     that are already well controlled, including small businesses.
       As the Clean Air Act appropriately recognizes, states are 
     best suited to determine which sources contribute most 
     significantly to air pollution in their respective 
     jurisdictions and which programs will be most effective in 
     addressing their specific problems. ECOS, STAPPA and ALAPCO 
     urge that you support amendments to strike this off-road 
     provision from the VA-HUD appropriations bill and preserve 
     states' rights to pursue healthier air for our nation.
           Sincerely,
     R. Steven Brown,
       Executive Director, ECOS.
     S. William Becker,
       Executive Director, STAPPA and ALAPCO.

  Mrs. FEINSTEIN. Madam President, I thank the Senator from Maryland 
for her comments. She is a superior ranking member. When she is 
chairman of

[[Page 28549]]

the subcommittee, she is a superior chairman of the subcommittee. I do 
not know any Senator who loves her assignment more than the Senator 
from Maryland. If we hear one thing from her, it is about her VA-HUD 
bill. She does a super job. I am just so grateful for her service to 
our country, to our veterans, and to housing. It has just been 
exemplary.
  I yield the floor.
  The PRESIDING OFFICER. Senator Craig.


                Amendment No. 2156 To Amendment No. 2150

  Mr. CRAIG. On behalf of Senator Bond and Senators McConnell, Talent, 
Chambliss, Miller, and Craig, I send the Bond amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Idaho, [Mr. Craig], for Mr. Bond, Mr. 
     McConnell, Mr. Talent, Mr. Chambliss, Mr. Miller, and Mr. 
     Craig, proposes amendment numbered 2156 to amendment No. 
     2150.

  The amendment reads as follows:

(Purpose: Clarify the current exemption for certain nonroad agriculture 
     and construction engines or vehicles that are smaller than 50 
 horsepower from air emission regulation by California and require EPA 
                    to develop a national standard)

       Page 106, strike lines 16 to 20 and insert in lieu thereof 
     the following:
       ``Section 209(e)(1) of the Clean Air Act (42 U.S.C. 
     7543(e)(1)) is amended by--
       (a) striking the words ``either of''; and
       (b) in paragraph (A), adding before the period at the end 
     the following: ``, and any new spark-ignition engines smaller 
     than 50 horsepower''.
       Not later than December 1, 2004, the Administrator of the 
     Environmental Protection Agency shall propose regulations 
     containing new standards applicable to emissions from new 
     nonroad spark-ignition engines smaller than 50 horsepower.''.

  Mr. CRAIG. I will speak only briefly. I didn't think I had a dog in 
this fight, only a lawnmower and a weed eater.
  Most of what the Senator from California said I agree with. But I 
also know when you have a large manufacturer that builds literally tens 
of thousands of engines a year spread out across the country and are 
allied to a variety of tools that are built by other companies, there 
does need to be uniformity in law.
  The amendment requires EPA to establish that kind of uniformity for 
50 horse and under. Of course, I can appreciate that. I have dealt with 
situations before, including when we had the lawsuit over Yellowstone 
Park. It said that snowmobiles in Yellowstone Park had to meet a 
certain standard. We said, wait a minute, let's build a standard so all 
snowmobiles meet, nationwide, both the issue of sound and air 
pollution.
  That is exactly what is happening now. Most industries, when you can 
build a nationwide uniformity of standard, work obviously to meet it or 
they go out.
  Briggs & Stratton is the last remaining large manufacturer of small 
engines in the country. I understand that California has made some 
exceptions, carving out for Honda and others to meet certain compliance 
issues.
  I hope in this amendment we do recognize when you have a producer of 
this magnitude that sells worldwide and nationwide that we build or 
work to build uniformity across those standards. I believe that is the 
intent of the amendment.
  The Senator is right, it has been reduced to 50 horsepower and does 
address EPA, requiring them to address this problem.
  Mrs. FEINSTEIN. Will the Senator yield?
  Mr. CRAIG. I am happy to yield.
  Mrs. FEINSTEIN. Or we can go back and forth through the Chair if the 
Senator is in agreement. The problem is that because of the severe 
conditions in the State, 7 nonattainment zones, this is 17 percent of 
mobile sources. If we do not deal with it, we cannot meet the clean air 
standards and we jeopardize our highway funds.
  There is the rub, so to speak. States do not have to follow. Clearly, 
States have followed, a large number of them. I don't know what else to 
do. Every State's air, as we have discussed with forests, Senator, is 
different. Pollution comes from different kinds of sources in every 
State. That is why this ability of a State, particularly one as large 
as California, fifth largest economic engine on Earth, should have the 
right to protect its people.
  The concern is that EPA, (a) won't move fast enough; (b) will not do 
enough to severely reduce the pollution to enable California to come 
within its containment standards.
  Mr. CRAIG. Regaining my time in trying to respond to that because I 
am not the expert in this area and I have not dealt with this issue per 
se, obviously, I recognize the need of California. Other States have 
that need. What this amendment does is it addresses EPA to move rapidly 
into that area to build a uniform national standard that meets those 
needs. Of course, EPA does have a broader test when it develops 
regulation. It does have an economic factor test involved in looking at 
regulations that some States are not required or simply do not have 
because they set their own standards.
  It is a fine line between allowing States to move forward and 
developing uniform national standards. There have been exceptions. The 
Senator has spoken to those exceptions.
  When a market has a magnitude of sales large enough, sometimes those 
exceptions are effectively made and economically companies can survive. 
In this instance, what we have seen in this particular market, because 
of costs of retooling, retrofitting, and bringing assembly lines 
online, oftentimes it is easier to move offshore--not that you will 
change the requirement--but you can, therefore, build the new plant for 
less cost, you drive down your costs because of labor, and that is what 
the Senator from Missouri is concerned about.
  He is also concerned about pollution. That is why the amendment 
addresses EPA and says get at the business of dealing with this 50 
horsepower and up issue. That is a major problem.
  Mrs. FEINSTEIN. Will the Senator yield?
  Mr. CRAIG. I am more than happy to yield.
  Mrs. FEINSTEIN. The bulk of our problem, I am told by the Air 
Resources Board, otherwise I would not know, is under 50 horsepower. So 
it takes that right away.
  Additionally, Senator, I guess what got my dander up, was the SEC 
filing of a company when they say this is not a financial problem. 
Actually, the finances drive everything in the country. We know that 
very well. This is not a financial problem. They will pass on added 
cost. California is a small part of the market. If the company is 
saying that is a 10(k) I would tend to believe the 10(k). Wouldn't you?
  Mr. CRAIG. Mr. President, regaining my time, I obviously cannot 
address that issue. I am here for the purpose of introducing the 
amendment on behalf of Senator Bond. Senator Bond is in markup on 
surface transportation and will be back to the floor in a while to 
engage the Senator in these questions, I am sure, and he knows a great 
deal more about this issue than I.
  What I would like to do at this moment, if the Senator from 
California would accept it, is to lay the amendment aside temporarily 
for the purpose of the introduction of another amendment, and when 
Senator Bond gets back to the floor he can bring this amendment back 
for the purposes of addressing it with the Senator. Would the Senator 
object to that?
  Mrs. FEINSTEIN. Not at all.
  Mr. CRAIG. I thank the Senator from California.
  I ask unanimous consent that the Bond amendment be set aside.
  The PRESIDING OFFICER (Mr. Graham). Without objection, it is so 
ordered.


                Amendment No. 2158 To Amendment No. 2150

  Mr. CRAIG. With that, I send to the desk an amendment for the 
Senate's consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:
  The Senator from Idaho, [Mr. Craig], for himself, Mr. Harkin, Mr. 
Cochran, Mr. Conrad, Mr. Chambliss, Mr. Coleman, Mr. Crapo, Mr. Lugar, 
Mr. Breaux, Mr. Roberts, and Mr. Fitzgerald, proposes an amendment 
numbered 2158 to amendment No. 2150.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')

[[Page 28550]]


  Mr. CRAIG. Mr. President, I have brought an amendment to the floor 
today that has been worked on for a long period of time in a bipartisan 
way, Democrats and Republicans, VA-HUD subcommittee, Senate Agriculture 
Committee, and others, to deal with pesticide registration and the fees 
of that registration.
  For the last several years, the VA-HUD appropriations bill has, on an 
analyzed basis, advanced these fees automatically. We have done it 
through the appropriating process.
  The administration basically said let's resolve this issue. A broad 
coalition of environmental organizations and chemical companies 
basically came together in the past several months to reach consensus 
on a permanent pesticide fees package. Through several long hours, an 
agreement was reached late this summer through a truly bipartisan 
effort that produced identical legislation in both the Senate amendment 
I have just sent forward with the 20-plus cosponsors and House H.R. 
3188. So the House and Senate are now working in tandem on this issue.
  The package includes a unique cross section of support from industry, 
labor, farmers, and the environmental community. Such groups as the 
Natural Resource Defense Council, the American Farm Bureau, the Sierra 
Club, the CropLife America group, and the Northwest Coalition for 
Alternatives to Pesticides now fully endorse this bill.
  Cumulatively, there are over 20 agricultural organizations supporting 
this amendment, and they have asked for ``stable, effective and 
predictable pesticide regulation'' that is explicitly created in this 
legislation.
  The amendment guarantees long-term stable funding to EPA that 
provides and expedites the pesticide registration process by using a 
performance-based approach. Additionally, the amendment provides a 
protection for small business and minor use products while funding 
efforts to protect workers.
  The legislation ensures that EPA use sound science in its evaluation 
of products, and that existing rigorous standards are maintained, while 
reducing the timelag between approval and availability of these 
products to farmers and retailers who sell them.
  The amendment is consistent with other user fees legislation, such as 
the successful Prescription Drug User Fee Act.
  Congress has addressed the pesticide fees issue for several years, as 
I have mentioned, by simply rolling it over in appropriations bills. 
But it is truly an issue that deserves the full consideration of all 
parties involved and finality brought to it. And this amendment offers 
that.
  I had offered it in the subcommittee, but because of our 
consideration of not dealing with legislation in the subcommittee, we 
chose, and I chose, to bring it to the floor on behalf of a very broad 
bipartisan group of Senators.
  As in the past, the House and the Senate VA-HUD bills, as I said, 
spoke to a temporary approach, a 1-year fix for the issue.
  Now, of course, I hope we can gain acceptance of this amendment on 
all sides so that we have a long-term solution so Congress can fully 
resolve the issue.
  My amendment, our amendment, has the same budget impact as the 1-year 
rider currently in both the House and the Senate 2004 appropriations 
bills. Now is the time, I do believe, to provide a long-term fix to the 
pesticide fee program at the EPA by including this consensus 
legislation on an appropriations bill moving forward.
  The diverse stakeholder coalition--from the agricultural industry, 
environmental groups, workers, and the consumer community--has worked 
long and hard to forge a consensus and is fully supportive of the terms 
of this amendment.
  So I hope when we get consideration of this--it is possible there may 
be others who wish to speak to it--that we can bring it on this 
legislation and adopt it, hopefully, by consensus of the Senate.
  Mr. President, I ask unanimous consent to add Senator Pryor as a 
cosponsor of my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. I know Senator Dorgan, who supports the initial 
legislation, has some concern about other issues and is on his way to 
the floor to speak to those.
  With that, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DORGAN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Mr. President, my understanding is that the pending 
amendment is an amendment offered by Senator Craig from Idaho dealing 
with pesticide registration fees. Is that correct?
  The PRESIDING OFFICER. That is correct.


                Amendment No. 2159 To Amendment No. 2158

 (Purpose: To permit the Administrator of the Environmental Protection 
                Agency to register a Canadian pesticide)

  Mr. DORGAN. Mr. President, that is a first-degree amendment. I will 
offer a second-degree amendment. I send the amendment to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from North Dakota [Mr. Dorgan] proposes an 
     amendment numbered 2159 to amendment No. 2158.

  Mr. DORGAN. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. DORGAN. Mr. President, I have visited with my colleague, Senator 
Craig, about this second-degree amendment. I have also visited with 
those who are running the Agriculture Committee.
  This is an amendment to the pesticide registration fee amendment 
offered by Senator Craig. Let me point out, I support the underlying 
amendment. I believe it is an important amendment that Senator Craig 
has offered. I intend to vote for it. I will not insist on a vote. In 
fact, I will ask to withdraw my amendment following my presentation. 
But I did want to have a dialog with my colleague from Idaho about an 
issue that is related to the issue of pesticide registration. It deals 
with the issue of harmonization with Canada, something that was 
promised when we did the free trade agreement with Canada, that we 
would harmonize pesticides and herbicide pricing and policies.
  The fact is it has not been done. A group of us in the Senate, a 
bipartisan group, including Senator Craig and Senator Burns, myself, 
and others, have continued to work on this issue because we have a 
circumstance on the northern border where chemical prices are 
substantially different between the United States and Canada, even 
though in many cases the chemical itself is nearly identical--perhaps 
tweaked with one piece or another of the formula, but otherwise nearly 
identical.
  For example, a chemical that is put on canola in Canada and then the 
canola is sent to our country to be crushed at the crushing plant and 
put into our food supply is a chemical our farmers cannot go get in 
Canada and bring back, despite the fact this chemical is substantially 
similar to one used on canola in the United States but is priced much 
lower in Canada. So we have had this promise of chemical harmonization 
for some long while dealing with Canada.
  The current circumstance we believe is unfair to American farmers. 
The bipartisan legislation that is in the second-degree amendment I 
offer gives the EPA 60 days to approve or deny the registration of a 
Canadian pesticide if it has similar use and makeup as a pesticide 
registered in the United States.
  It allows the EPA, if the EPA so chooses, to delegate portions of the 
registration workload to the States to aid the EPA in completing the 
registration process. But the Environmental Protection Agency, under 
this

[[Page 28551]]

approach, is ultimately responsible for this process. According to a 
study done by the North Dakota State University, we still have 
significant price disparities between chemicals that are almost 
identical. If those disparities had been eliminated with harmonization, 
North Dakota producers would have saved $20 million last year. That is 
a substantial amount.
  We have worked with State agriculture commissioners in the various 
States. As I indicated, Republicans and Democrats in the Senate have 
worked together. As a result of that, we are anxious to move this 
legislation. We did have a hearing on a different version of it 
previously. We have now changed that version because of some objections 
to it. We would like to have a hearing and a markup. I understand there 
are some perhaps in the industry who do not support this. But on behalf 
of American farmers, we really need to do it.
  I have offered it as a second-degree amendment. I have learned 
moments ago that the chairman of the Senate Agriculture Committee will 
commit to doing a hearing on this next February. That is a couple of 
months away. That is significant progress. I appreciate very much his 
cooperation, and I know the Senator from Idaho is a member of that 
committee. My hope would be, although there is not a commitment at this 
point, that that hearing, in which we demonstrate bipartisan support 
for this issue, would be followed by a markup. We really do need to 
move this legislation.
  My only purpose for offering the second-degree amendment today is 
that my colleagues and I are frustrated that we have not been able to 
get this done previously. There are many reasons for it, but we do need 
to now take action. That is the purpose of this.
  I say to my colleague from Idaho, as a member of the Agriculture 
Committee, I know he and Senator Cochran, leader of the committee, and 
others believe strongly that we need to have proper hearings on these 
issues. I know my colleague from Idaho is a strong supporter. I ask him 
how he feels about this legislation, the second-degree amendment I have 
offered.
  Mr. CRAIG. If the Senator from North Dakota will yield, Mr. 
President, what the Senator speaks to is a very real problem, 
especially in border States such as his and mine, where farmers across 
that line that is often invisible--economically, environmentally, and 
climactically, but not jurisdictionally, certainly not from a national 
standpoint--can't understand why a product that appears to be the 
same--and as the Senator from North Dakota said, there may be some 
slight difference because it is not licensed in this country--cannot 
cross the border and find a substantial savings and bring it back for 
application on his agricultural crops in the lower 48. Yet product 
raised in Canada, harvested in Canada, can be trafficked into our 
markets, refined, and moved into our food stream.
  There does clearly need to be a resolution of this problem, from an 
economic standpoint, from an environmental standpoint, and from a food 
safety standpoint. That was spoken to in the Canadian free trade 
agreement, the North American Free Trade Agreement. It is something we 
ought to resolve.
  I am pleased that the chairman of the Agriculture Committee is 
willing to hold hearings early next year to review it. I will certainly 
encourage that. I will encourage that we move the next step, to a 
markup, to resolve this issue once and for all. There are remnants left 
of difficulties between the United States and Canada in a variety of 
areas as a result of the free trade agreement. I didn't support that 
agreement initially, but it is the law of the lands involved: Canada, 
the United States, and Mexico.
  We ought to try to resolve these kinds of difficulties that create 
great problems. Twenty million dollars spread across the national 
economy is not so much money; $20 million in a State such as North 
Dakota or Idaho, on individual farmers who are, at best, breaking even 
in some of these crops and in many years below cost of production--that 
savings in itself is a very substantial reduction in the overall cost 
of doing business.
  That is what harmonization was about: Environmentally, regulatorily, 
and certainly as a cost of product, and for food safety and all of 
those things within the food chain. This is an issue that cries out for 
resolution. I am pleased that the Senator is willing to withdraw his 
second degree and that that probably then allows us, hopefully, to go 
forward with the other one, maybe by a voice vote or an acceptance of 
the chairman and the ranking member of the committee.
  I thank the Senator for bringing this issue to the floor. I am 
certainly an advocate of his position and will work to help him resolve 
it.
  Mr. DORGAN. Mr. President, I thank my colleague from Idaho. He has 
been a strong supporter of this approach.
  Perhaps for the record, I might add what farmers are upset about is 
the following. We see Canadian grain coming into our country. It is 
treated with their chemicals but their chemicals are deemed unfit here, 
not because it has the wrong ingredient or it would be unhealthy for 
us. It is just the way it is labeled in order to prevent it from being 
sold in this country.
  On the chemical Liberty for use in canola, there is a $4.40 per-acre 
price difference between the United States and Canada for essentially 
the same chemical.
  On Glyphosate, commonly known as Roundup, there is only about a $2 
per-acre price differential; On a chemical Puma, $11 million more to 
apply just for North Dakota farmers. The chemical Stinger, which is 
sold as Lontrel in Canada--both are similar pesticides, use the same 
active ingredient--there is almost a $10 per-acre difference between 
the chemicals. That is what upsets farmers. They see that they can't 
buy the nearly identical chemicals for $10 an acre less, but they see 
the grain come in from Canada that has been treated with the same 
chemical. That is why the United States-Canada free trade agreement had 
a provision in it that called for harmonization in these areas, and yet 
almost no progress has been made. It is why a group of us are trying to 
do something about it.
  I thank my colleague from Idaho and my colleague from Montana and my 
colleagues on this side of the aisle. I thank Senator Cochran, and 
especially his staff on the Senate Agriculture Committee, on the 
commitment to hold a hearing, in the next couple of months, on this, in 
the month of February. Also, my colleague's belief that we need to move 
along, and he will be pushing for a markup, gives me some hope that we 
will be able to move this legislation.
  Let me conclude by saying again the first-degree amendment offered by 
my colleague from Idaho is one that is needed. It is very important, 
and I strongly support it. It provides the fees for pesticide 
registration. This Congress needs to pass that legislation. I support 
doing it as a first-degree amendment offered by my colleague from 
Idaho.


                      Amendment No. 2159 Withdrawn

  Mr. DORGAN. Mr. President, I ask unanimous consent to withdraw my 
second-degree amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. I hope we will adopt the first-degree amendment of my 
colleague from Idaho by voice vote. Certainly, this appropriations bill 
is going to become law. Whether it is on the floor of the Senate with 
action or part of some omnibus bill, this is going to the President for 
signature. Having my colleague's first-degree amendment part of the 
bill, doing something that needs to get done now, not later, makes a 
lot of sense. I am pleased to be supportive of the amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, it is my understanding, under the 
agreement, that Senator Byrd will be on the floor at noon to speak for 
a period of time. Following that, I understand we will resume 
consideration of the VA-HUD appropriations bill.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page 28552]]

  The bill clerk proceeded to call the roll.
  Mr. CRAIG. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  The PRESIDING OFFICER. Under the previous order, the hour of 12 
having arrived, the Senator from West Virginia, Mr. Byrd, shall be 
permitted to speak for up to 30 minutes.
  Mr. CRAIG. That is the order. I understand we will then recess from 
12:30 until 2:15 for the purpose of the Democrat policy luncheon.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. CRAIG. I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. How much time do I have remaining.
  The PRESIDING OFFICER. The Senator from West Virginia has 29 minutes 
remaining.
  Mr. BYRD. Mr. President, I thank the Chair. I will not use all of the 
remaining time.


                Department of Defense Authorization Bill

  Mr. BYRD. Mr. President, on May 22 of this year, 2003, I cast my vote 
in opposition to the fiscal year 2004 Defense authorization bill. I 
cast that vote to protest the errant course of the defense 
establishment in seeking larger and larger regular defense budgets. The 
budget for the Department of Defense is exploding, even if we do not 
count the vast sums being used to maintain our troops in Iraq and 
Afghanistan.
  The regular defense budget, not including the costs of the war on 
terrorism in Afghanistan or the other war, the war in Iraq which we 
started, has gone up by 31 percent since 2000. I will say that again. 
The regular defense budget, not including the costs of the war on 
terrorism in Afghanistan or the other war which we started in Iraq, has 
gone up by 31 percent since 2000.
  In 2000, Congress authorized $304.1 billion to fund the routine day-
to-day operations of our military. The conference report before the 
Senate today authorizes $401.3 billion to pay the routine bills for our 
defense establishment. As I say, I am not even speaking of the costs of 
Iraq on the one hand or the costs of Afghanistan. So if we were to just 
ignore Afghanistan and Iraq in looking at the costs of the military, we 
are authorizing today in the conference report $401 billion to pay the 
routine bills for our defense establishment as against the $304.1 
billion that Congress authorized in the year 2000--in other words, 
roughly $100 billion more today than we authorized in 2000, just 
ignoring Iraq, on the one hand, and Afghanistan on the other.
  The growth of the so-called peacetime budget of the Department of 
Defense is expected to continue into the foreseeable future. The 
Pentagon estimates that it will request $502.7 billion for routine 
defense operations in the year 2009. Think of that. That is more than a 
half trillion dollars. The Pentagon estimates it will request $502 
billion for routine defense operations in 2009. But a request for half 
a trillion dollars--as we will be undertaking in 2009--should be 
anything but routine, especially if not one red cent of those funds 
would be for any contingency military operation.
  Instead, these growing defense budgets are proof that there is no 
longer any real effort to provide a smarter defense plan that will 
modernize our forces for the 21st century while eliminating the 
vestiges of a cold war era military force. Nearly 3 years ago, Defense 
Secretary Donald Rumsfeld announced he would conduct a series of top-
to-bottom reviews of the Pentagon. I lauded him for doing that. I 
applauded him publicly and in private conversations. I applauded the 
Secretary of Defense. Those reviews were supposed to get rid of old 
weapons systems, field new ones, and refocus the defense establishment 
to get more bang for the taxpayers' buck.
  I, along with many others, supported those efforts as announced by 
the Secretary of Defense. But any hope of modernizing our Armed Forces 
while maintaining fiscal discipline has gone--gone out the window. The 
defense transformation effort which began as a frontal assault on 
irresponsible spending at the Pentagon has been replaced by the quest 
for flexibility--``flexibility,'' the latest buzzword to describe 
efforts to consolidate greater and greater and greater power into the 
hands of a select few at the top of the executive branch.
  I voted against the Defense authorization bill on May 22 of this 
year. Why did I do that? I was the only one, the only Senator who voted 
against it. Why did I do that? I voted against that bill in order to 
voice my protest to spiraling defense budgets when the American people 
are expecting smarter spending by their Government, and I will vote 
against the conference report today to this bill for the very same 
reason, as well as because it gives rubberstamp approval to 
consolidating new, broad powers in the Secretary of Defense.
  This conference report creates the ``National Security Personnel 
System,'' so-called, which gives the Secretary of Defense, Donald 
Rumsfeld, unchecked powers--unchecked powers to rewrite civil service 
rules for civilian employees of the Pentagon. The conference report 
includes sweeping authorities--sweeping authorities to allow the 
Secretary of Defense, Donald Rumsfeld, to waive landmark environmental 
protection laws with a stroke of the pen.
  The conference report establishes new ``flexibilities''--
flexibilities for the Pentagon to use to develop and deploy an unproven 
national missile defense system. That is a sinkhole, a sinkhole for 
your money, the taxpayers' money.
  The conference report grants new multiyear authority to transfer 
appropriations--now, get this. Hear me! The conference report grants 
new multiyear authority to transfer appropriations of unlimited sums. 
This is not chickenfeed we are talking about. We are talking about 
unlimited sums of ``your money,'' the taxpayers' money, from numerous 
accounts in order to increase spending on Navy cruiser conversions and 
overhauls.
  These are but a few examples of the new powers granted to the 
executive branch, downtown, at the other end of the avenue, in this 
bill--this bill. I am not reading from ``Alice in Wonderland.'' I am 
reading from this conference report.
  Our country continues to be threatened by Osama bin Laden. Our troops 
are under fire in Iraq in the aftermath of a preemptive war, a 
preemptive war that we started, a preemptive war that our President, as 
Commander in Chief, started.
  Fie on us, the Congress! For shifting that power to the President 
last October, last October 11. Twenty-three Senators in this body voted 
against shifting that power to the President. I was one of those 23. I 
was against shifting that power to this President or to any President. 
It doesn't make any difference to me what his politics--what his 
political party is, or would be, so help me, God. I would stand against 
that with any President. Fie on us! Only 23 Members in this body stood 
firm for the Constitution of the United States under which, power to 
declare war is vested in the legislative branch. Soldiers are fighting 
and dying half a world away and the wealth of this great country is 
being diverted from the United States Treasury in order to carry out an 
experiment in nation building in Iraq.
  If there were ever a time to demand more accountability and 
efficiency in how taxpayer dollars are spent on our military, this is 
it. But instead of holding the feet of the Secretary of Defense to the 
fire, Congress gives the Secretary vast new powers to hire and fire 
workers as he sees fit.
  Instead of turning the screws--the screws, instead of turning the 
screws--on this Defense Secretary to straighten out this mess, the 
accounting nightmare at the Pentagon, Congress grants the Pentagon more 
flexibility over how it can use funds appropriated to it. We cut the 
strings by which Congress limits the use of taxpayers' money. Instead 
of demanding greater accountability over how our military is preparing 
to meet the military threats of the coming decades, Congress creates 
new loopholes. The inescapable conclusion, is that Congress has been 
distracted from the most important issues

[[Page 28553]]

facing our military posture. Instead, Congress is asked to take action 
on peripheral matters, and even then we simply pass the buck by closing 
our eyes and hoping that the Defense Department can straighten itself 
out if it is invested with enough new powers and ``flexibilities.''
  If the leadership of the Pentagon thinks that ``defense 
transformation'' means getting Congress to stick its head in the sand, 
count me out. My idea of transformation means spending smarter to build 
a stronger military, not turning a blind eye to Executive Branch power 
grabs.
  It is our fault. I can understand how the executive branch seeks to 
grab power. The executive branch is operating 24 hours a day every day, 
365 days a year. Everywhere its imprint is seen throughout the globe, 
Congress sleeps.
  The flexibilities in this bill are the antitheses of accountability. 
For each new ``flexible authority'' that Congress hands over to the 
Secretary of Defense--any Secretary of Defense--Congress signs away one 
more lever that should be used to compel the Secretary to build a 
smarter defense plan.
  The Commander in Chief beats his chest and throws down the gauntlet, 
saying, ``Bring them on,'' in front of the TV cameras, but pictures of 
the fallen dead coming home to Dover are not allowed.
  Oh, we don't want to display the pictures of bringing back the 
caskets at Dover, DE. No. The American people must not see that side of 
the war. This is a stubborn course that we have chosen that could tie 
down our forces in Iraq for months and months and months, and years 
even to come, and it is a course that I oppose today. It is a course I 
have opposed from the beginning. This ill-advised invasion and 
occupation of a Middle Eastern country stands to sap--sap--our military 
power through the attrition of our brave men and women in uniform. The 
effects of such a toll could affect our national security for decades 
to come.
  The United States cannot afford to shelve--to place on the shelf--
efforts to leap forward a generation in military power by investing in 
a smarter defense plan. If our country does not prioritize efforts to 
change our military to respond to the asymmetric warfare of the 21st 
century--whether those threats emanate from North Korea, or a 
belligerent China, or Iran--the long-term toll of the adventure in Iraq 
could weaken our military for years to come, just as our Armed Forces 
were found to be hollow in the years after Vietnam.
  I will vote against the conference report to the Defense 
authorization bill. It transfers vast unchecked powers to the Defense 
Department while avoiding any break with the business-as-usual approach 
to increasing defense spending. It dodges the most important issues 
facing our national defense posture, and I cannot support such a bill.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




                                 RECESS

  The PRESIDING OFFICER. Under the previous order, the Senate stands in 
recess until 2:15 p.m.
  Thereupon, the Senate, at 12:30 p.m., recessed until 2:16 p.m. and 
reassembled when called to order by the Presiding Officer (Mrs. Dole).

                          ____________________




  NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2004--CONFERENCE 
                            REPORT--Resumed

  The PRESIDING OFFICER. Under the previous order, the hour of 2:15 
having arrived, the Senate will proceed to the consideration of the 
conference report to accompany H.R. 1588, which the clerk will report.
  The assistant legislative clerk read as follows:

       Conference report to accompany H.R. 1588, an act to 
     authorize appropriations for fiscal year 2004 for military 
     activities for the Department of Defense, for military 
     construction, and for defense activities of the Department of 
     Energy, to prescribe personnel strength for such fiscal year 
     for the Armed Forces, and for other purposes.

  The PRESIDING OFFICER. Under the previous order, there will be 20 
minutes equally divided prior to a vote on the conference report.
  Mr. REID. Madam President, if the manager will yield, it is my 
understanding the leadership is going to extend the time for the vote 
another 10 minutes.
  Mr. WARNER. Madam President, the distinguished minority leader is 
correct that the time has been extended. The vote is to occur, I 
understand, at 2:45. The 30 minutes intervening is under the control 
equally of the distinguished Senator from Michigan, Mr. Levin, and 
myself.
  Mr. REID. Madam President, I ask consent that that be the order. We 
have a caucus going on now.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Madam President, I encourage any and all Senators who 
desire to address this bill to avail themselves of the opportunity. To 
the extent that I have control over the 15 minutes, I am happy to 
accommodate Senators as they come to the floor.
  I yield such time as the distinguished Senator may require. I hope it 
will be around 5 or 6 minutes.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Madam President, I apologize to our distinguished 
chairman for not having been down here during this discussion. As he 
well knows, I chair the Environment and Public Works Committee. I am 
proud to say we were able to get a bill out, the reauthorization bill. 
I feel very good about that. It will be coming to the floor. It is a 
good compromise but it required my attendance.
  I want to be on record to say that our chairman and the ranking 
member have done a very good job. We have worked closely together 
during the development of the authorization bill. We are making great 
headway. We are turning in the right direction. I particularly applaud 
those who participated in the ultimate compromise that we agreed on 
having to do with the lease program, the 767s. We all understand we 
have a crisis in our tanker fleet. Our KC-135s are getting old and 
there is controversy over how much longer they can be used. 
Nonetheless, our pilots who are performing this significant mission of 
refueling need to have the very best. We are addressing that problem.
  In the area of TRICARE, we have made some advancements that are long 
overdue. I know in my State of Oklahoma, we probably have one of the 
highest populations of retired military, many of them in Lawton and 
scattered throughout the State. I know there are very serious concerns 
we have gone a long way to meet.
  Environmental issues bother me a great deal, and maybe I am more 
concerned about what has happened to our ability to train our troops, 
because I happen to also chair the Environment and Public Works 
Committee. So we deal with the environmental issues.
  But it is very disheartening when you go down to your part of the 
country and see what has happened in some of the endangered species 
programs and how we are addressing those.
  In Fort Bragg, in Camp Lejeune, for example, we are spending such an 
inordinate amount of money protecting the suspected habitat of the red-
cockaded woodpecker that it is having a very deteriorating effect on 
our ability to train. This is something that does concern me greatly, 
and we are starting to address that, I know, in relation to the issue 
of endangered species. We have clarified the law that is going to 
perhaps, hopefully, stop some of the injunctions that have been taking 
place. I think we are making some progress there.
  I am glad we are addressing end strength--not as much as I would like 
to or our chairman would like to because this is a compromise 
situation, but we have to recognize that we allowed our end strength to 
deteriorate, in terms of numbers, to the point that

[[Page 28554]]

we are OPTEMPO of our regular services, we are OPTEMPO for our Guard 
and the Reserves. It is at an unacceptably high rate.
  I do not think there is one Member of this Senate who does not go 
home and talk to his Guard and Reserve units, only to find out that 
critical MOS, military occupation specialties, are being lost because 
they are just overworked. You cannot expect someone who is in a 
citizens militia to have to be full time. Essentially, that is what is 
happening right now.
  So we are starting to address that, and I think we need to go much 
further in the future. When I see that we did have a problem all during 
the 1990s, that I articulated on this Senate floor, when we had a 
lowering in the amount of attention that was given to our military in 
terms of end strength, in terms of modernization, in terms of national 
missile defense, these things were very disturbing to me. I know we are 
now recognizing it.
  I hate to say it in this way, but I really think those who subscribe 
to the idea--or did subscribe to the idea prior to 9/11--that the cold 
war is over and we need not have the size military we once did are just 
dead wrong. I look wistfully back at those days when we knew what our 
enemies had. We had one major superforce out there, and that superforce 
was predictable.
  Now we have the proliferation of both weapons of mass destruction 
throughout the world and the delivery system. We know what countries 
have a delivery system that could reach us here in Washington, DC. We 
need to make up for what was lost during that period of time.
  Lastly, I would agree with Secretary Rumsfeld who at one of our 
earlier meetings suggested that throughout the entire 20th century, the 
percentage of our GDP that went to defense was about 5.7 percent, and 
that dropped down in the 1990s to about 2.7 percent. We are up to 3.4 
percent approximately.
  I think we need to stop and rethink that as an overall picture of a 
plan for the future, perhaps it should be somewhere around 4, 4.5, or 5 
percent because the nature of the threat that is out there is more 
expensive. I think we need to address it. So I think this bill goes a 
long way in that direction.
  I am very pleased with the product we have. We have a long way to go, 
and I hope we can join hands and do that in the future.
  Again, I applaud our chairman and the ranking member for the efforts 
they have put forth in making this legislation a reality.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, I thank my distinguished colleague for 
his steadfast service on our committee these many years, and 
particularly in this past year when we were confronted with a number of 
very serious issues. And I recognize the consideration of this 
conference report coincides with his markup in the Environment and 
Public Works Committee on which I am privileged to serve with him. But, 
I say to the Senator, you manage to do both quite well.
  Mr. INHOFE. I thank the Senator.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I thank Senator Inhofe also for his 
service, his work on the committee. He travels to visit with our 
troops. He is totally dedicated to our troops and the national defense. 
I thank him for his kind words, but also for that commitment.


                              Section 336

  Mr. HATCH. Mr. President, I was hoping that my friend, the 
distinguished chairman of the Armed Services Committee, might yield for 
a question.
  Mr. WARNER. I would be happy to yield to my friend.
  Mr. HATCH. As I was reading the Defense authorization bill, I noticed 
that under section 336, entitled ``Pilot Program for Best-Value Source 
Selection for Performance of Information Services,'' the conference 
committee had modified the normal examination procedures for 
determining the source, either public or private, for the performance 
of information technology services. My question therefore is: Does 
section 336 modify, change or interfere, in any way with provisions of 
Title 10 Sec. 2460, Sec. 2464, or Sec. 2466 commonly referred to as 
``Core'' and ``50/50''?
  Mr. WARNER. I thank the Senator for his question. The answer is no. 
It was not the intent of the conference committee to make any 
modification to Title 10 Sec. 2460, Sec. 2464, and Sec. 2466 which 
address the requirements for the Department of Defense to maintain an 
organic core logistics capability and ensure that at least 50 percent 
of depot level maintenance is performed by employees of the Department 
of Defense. The Department of Defense must still abide by these 
statutory provisions when they make any decision or action provided for 
in section 336.
  Mr. HATCH. I thank the Senator for that answer.


                            tanker provision

  Mr. McCAIN. Madam President, I would like to review with my 
colleagues section 135 of the National Defense Authorization Act for 
fiscal year 2004. Under the leadership of Senate Armed Services 
Committee Chairman Warner, and Ranking Member Levin, Congress recently 
agreed to modify the manner in which the Air Force may acquire Boeing 
767 aerial refueling tankers. This compromise is contained in section 
135.
  In the words of Chairman Warner on October 23, 2003, this compromise 
sought to put this program back into the traditional budget, 
procurement, and authorization process. Section 135 replaces the 
current authorization for the Air Force to lease 100 aircraft, with an 
authorization for the Air Force to lease no more than 20 tankers, and 
to buy no more than 80 aircraft using multiyear procurement authority 
and incremental funding. The original proposal to lease 100 tankers 
would have cost taxpayers $6.7 billion more than buying them outright, 
according to the Congressional Budget Office.
  Mr. WARNER. The Senator from Arizona's understanding is correct. By 
providing for the lease of only 20 planes, and by putting the bulk of 
this acquisition back into the traditional budget, procurement and 
authorization process, this compromise is estimated to save taxpayers 
over $4 billion.
  I would like to take this opportunity to correct the legislative 
record. In a colloquy in the House among Chairman Hunter and 
Congressmen Dicks and Tiahrt, it was stated that this compromise 
codified an agreement with the administration as set forth in a 
November 5, 2003, letter to me from Deputy Secretary Wolfowitz. For the 
record, the compromise does not endorse or codify any such agreement. 
The compromise is intended to ensure that Defense Department acquires 
tankers in a manner that meets its own needs, but also the needs and 
interests of taxpayers. While the Air Force maintained that its 
original lease proposal achieved this goal, it clearly did not. I fully 
expect the Defense Department to execute the terms of this compromise 
in a manner that fully protects American taxpayers' interests.
  Mr. McCAIN. I am grateful to the Senator form Virginia for his 
leadership on this issue. Three of the four defense committees that 
were required to approve the original proposal to lease 100 tankers, 
did so without sufficiently examining the proposal or its effects on 
taxpayers. It was the Senate Armed Services Committee that put the 
brakes on that costly and misguided procurement plan.
  By buying those tankers that it requires rather than leasing them, 
the Air Force can realize very significant savings. The Air Force can 
avoid paying the cost of borrowing the funds from the private market to 
build and acquire the planes, as originally proposed. The Air Force can 
also avoid paying the lease-specific costs that were apparently 
included in the price that it had previously agreed to pay for the 
tankers. Documents we have reviewed suggest that these lease-specific 
costs could be as high as $5.5 million per tanker. Arranging for a 
purchase of the tankers will also allow the Defense Department to 
question many of the other terms and conditions of the Air Force's 
original lease proposal, such as the maintenance and training costs,

[[Page 28555]]

and whether the planes we are buying should be FAA-certified.
  Mr. WARNER. I thank the Senator from Arizona for his steadfast 
leadership and vigilance on this critical issue. There could be no 
doubt as to the Senator's sincerity in always protecting the interests 
of taxpayers.
  Mr. NICKLES. Mr. President, I commend the Senators from Arizona and 
Virginia for their leadership on this important issue. When the Air 
Force's original proposal to lease 100 tankers looked like a done deal 
a couple of months ago, both of these Senators stood up and made us 
consider the proposal in ways that we likely would not have, but for 
their commitment for the interests of both the warfighter and the 
taxpayer. In so doing, we now have before us, among other things, 
Section 135 of the National Defense Authorization Act for Fiscal Year 
2004. As I understand this provision, the Air Force will be authorized 
to use the special non-confirming lease methodology to lease no more 
than 20 tankers, and buy the balance, not to exceed 80, under a 
multiyear procurement/incremental funding methodology.
  Mr. McCAIN. The Senator is correct.
  Mr. NICKLES. The Senator's rationale for agreeing to this compromise, 
whereby the total number of tankers to be leased was reduced by 80 
percent, relied on the Congressional Budget Office's conclusion that 
the fewer planes that the Air Force leased, the greater the savings to 
taxpayers.
  Mr. McCAIN. The Senator is correct. The intent was to maximize 
savings to taxpayers. If the Defense Department, in the words of 
Senator Warner, puts this program in the traditional budget, 
procurement, and authorization process, the taxpayer will see 
significant savings.
  Mr. NICKLES. I understand that the Congressional Budget Office has 
concluded that if the Air Force implements the compromise by acquiring 
the tankers under two separate contracts, gets budget authority at the 
time it orders its planes, and pays progress payments, taxpayers will 
see $5.3 billion in savings over the Air Force's original proposal to 
lease 100 tankers.
  Mr. McCAIN. Yes. On the other hand, if the Air Force executes under a 
single contract--presumably under the current proposed contract--and 
pays at delivery, taxpayers will see savings cut nearly in half, 
according to Congressional Budget Office estimates. Unfortunately, I 
have every reason to believe that the Air Force will proceed in this 
manner, which fundamentally belies the compromise proposal. By 
proceeding accordingly, the Air Force succeeds in deferring having to 
make hard budget decisions to acquire tankers it says it ``urgently'' 
needs, Boeing locks the Air Force into a contract to acquire 100 
tankers, and the investment bank gets its cut for setting up any 
financing and providing other financial services associated with the 
deal. All of this is done at an unnecessarily high cost to taxpayers--
just as under the original proposal.
  Mr. NICKLES. I agree. If the Defense Department proceeds accordingly, 
namely under the current contact, it will be attempting to meet its 
priorities through very many of the same convoluted means that were 
proposed under the original agreement--means that would cost more than 
necessary, thereby further increasing the deficit to unnecessarily high 
levels. Unfortunately, in the absence of a guarantee from the Defense 
Department that it will not implement Section 135 as suggested by the 
Defense Deputy Secretary's letter of November 5, 2003 and the recent 
colloquy in the House, I share your concern.
  Additionally I want to reinforce your statement that it is not the 
intention of Congress, nor does this legislation reflect an agreement 
for the Air Force Secretary to implement the current contract on 
acquiring 100 tankers. We have heard testimony and the Institute of 
Defense Analysis has reported, and I quote, ``We believe that the 
$120.7 million is a conservative, robust estimate of a reasonable 
purchase price for the KC-767A aircraft . . . and . . . should satisfy 
Boeing and its shareholders.'' We should not agree to a purchase price 
of $138.4 million which is significantly higher, because it includes 
lease unique costs.
  I take the opportunity to highlight for our colleagues that the 
Congressional Budget Office has scored this transaction as an $18 
billion direct purchase, requiring full budget authority up front. 
Ordinarily, under these circumstances, I would make a budgetary point 
of order. I will not raise that point of order now. But, what I will do 
is call upon the Secretary of Defense to implement the compromise 
provision in a way that accurately reflects the intent of the 
conference--acquire its tankers for the Air Force in a way that 
maximizes savings to taxpayers. It is anomalous that the Congress would 
have intended to have taxpayers see only half the savings and not touch 
the $6.4 billion maintenance and training contract--a contract that was 
never competed for. In the spirit of compromise, under Section 135, the 
Congress has provided the Department with tools to acquire the tankers 
responsibly and in a way that protects the interests of taxpayers.
  At the end of the day, whatever legislation comes out of this body, 
the administration is responsible for implementing it as the Congress 
intended. After months of investigation, inquiry and debate, there can 
be little doubt that the intent here is to best protect the interests 
of the taxpayer.
  Mr. McCAIN. I thank the Senator for his continuing, active concern on 
this most important issue.
  Mr. FITZGERALD. Mr. President, I understand that preliminary 
estimates suggest that buying no more than 80 tankers in a way that 
avoids lease-specific costs could save taxpayers as much as $5.3 
billion over the Air Force's original proposal to lease 100 tankers.
  Mr. McCAIN. The anticipated savings under the compromise as described 
in Section 135 of the National Defense Authorization Act for Fiscal 
Year 2004 are very significant. The original proposal to lease 100 
tankers was extraordinarily costly, and the compromise allows us to 
avoid those costs. For example, the original proposal would have had us 
pay $7.4 million per plane in private construction financing costs. The 
compromise provides for the Air Force to make progress payments to 
build the planes, and in so doing, to avoid this significant and 
unnecessary cost.
  One of the reasons that the compromise authorizes the Air Force 
Secretary to use incremental funding to buy no more than 80 tankers is 
to allow the Air Force to get the tankers it needs in a manageable way 
that protects taxpayers.
  Senator Warner has said that, contrary to the statements of our House 
colleagues, the compromise does not codify or endorse the tanker 
acquisition plan that Deputy Secretary Wolfowitz described in his 
November 5, 2003, letter. The reason the compromise does not codify 
this approach is because paying for the tankers on delivery as the 
Deputy Secretary proposes could be very costly and could dramatically 
slash the savings that this compromise intends to provide--an outcome 
that is unacceptable.
  Mr. FITZGERALD. As I stated during a Commerce Committee hearing on 
September 2, 2003 regarding this issue, the original lease transaction 
is nothing more than a complex, byzantine transaction that obscured the 
true cost of the tankers, reduced the transparency of the arrangement, 
and would unnecessarily cost American taxpayers billions of dollars. I 
commend the Senator from Arizona for his watchful eye over the 
negotiation and execution of this tanker deal. I also commend Senators 
Warner and Levin for brokering the compromise agreement and putting the 
public interest ahead of a powerful special interest.
  Mr. HATCH. Mr. President, today I rise in support of the fiscal year 
2004 Defense authorization conference report. This report is not only a 
tribute to the Congress's hard work, in particular that of my good 
friend, Chairman John Warner, but it is also a reaffirmation of our 
commitment to meet the challenges of this War on Terror.
  The conference report contains a number of provisions designed to 
alleviate some of the burdens placed on

[[Page 28556]]

our fighting men and women. For example, I am proud to state that the 
report deals directly with a concern of many service members, including 
Utah National Guard and Utah-based Reserve families, by continuing 
payment through December 31, 2004, of special pay for duty while 
subject to hostile fire or imminent danger in the amount of $225 a 
month and $250 a month for family separation allowance. Additionally, 
all service members will receive at least a 3.7 percent pay raise. In 
order to help retain our mid-career service members, their pay will be 
increased between 5.25 and 6.25 percent. The burden for many of our 
Reserve forces will also be lifted regarding healthcare. The report 
provides TRICARE coverage for members, and their families, of the 
Selected Reserve of the Ready Reserve and each member of the Individual 
Ready Reserve, if they do not already have health insurance.
  Keeping our word to our Nation's veterans is vital to maintaining the 
honor of our country. No other issue is as important to our veterans as 
that of concurrent receipt, that is, simultaneously paying veterans a 
military pension and providing them with disability benefits. Under the 
current law, many veterans' retirement pay is reduced or offset dollar-
for-dollar for any disability benefit they receive. Unfortunately, 
proposals to remedy this situation remain controversial due to cost. 
Therefore, I must commend and congratulate Chairman Warner  once again 
for devising a compromise plan that boldly expands upon his previous 
efforts by providing full concurrent receipt for those veterans 
suffering disabilities from combat or combat-related operations and by 
phasing in this benefit, over a 10-year period for those retirees whose 
disability is rated at 50 percent or greater.
  This legislation is also important because it reaffirms our 
transformation policy. Many at home will ask what is ``transformation'' 
and what does it mean to the future of our Nation's military? Simply 
put, transformation is a process of reform that will revolutionize the 
way the military conducts operations. We saw a glimpse of this emerging 
reality during the Iraqi conflict where information was gathered from a 
variety of sensors, whether on the ground or in the air, and that 
information was transmitted very quickly to commanders who could then 
exploit the weakness of our enemy. It was a remarkable operation and it 
reflects the high level of competence and expertise of our Nation's 
service men and women.
  This Defense bill will accelerate transformation and ensure that our 
forces maintain their decisive edge. It is an important accomplishment 
and the chairman, ranking minority member and all the members of the 
committee deserve our thanks. Their efforts to make military 
transformation a reality have led them to fund the research and 
development of such revolutionary systems as the Army's Future Combat 
System, or FCS. FCS will allow our forces to deploy an army brigade 
anywhere in the world within 96 hours. The DDX and the Littoral Combat 
Ship will also be revolutionary in their stealth characteristics, 
automation systems, and command and control capabilities. The committee 
is also continuing its support for the Joint Strike Fighter, which will 
bring a stealth fighter to all of our air and naval/marine air forces.
  That being said, I was disappointed to see that the President's 
request for full funding of the F/A-22 did not occur, although the 
report did authorize the President's request for the procurement of 22 
F/A-22s. This is a system that is a transformational aircraft at its 
core. The F/A-22's supercruise engines allow for extended supersonic 
flight--a magnitude longer than its after-burner predecessors. Using 
stealth capabilities, the F/A-22 is able to penetrate an opponent's 
airspace and engage enemy aircraft at great ranges. Additionally, 
unlike our current air superiority fighter the F-15C, the F/A-22 will 
be able to engage integrated surface-to-air missile systems. Once again 
using stealth technology, the F/A-22 will be able to approach these 
missile sites and destroy them, utilizing internally carried GPS-guided 
bombs. The F/A-22, using this bombing capability, will also have the 
ability to track and launch attacks against ground-fixed and mobile 
targets. However, the truly transformational aspect of the aircraft is 
that it can accomplish all of these missions almost simultaneously. 
Paraphrasing the Air Force's motto, no aircraft comes close to the F/A-
22's capabilities. I cannot say how proud I am and the rest of the 
State of Utah is that the sustainment and maintenance work on this 
extraordinary aircraft will be handled at Hill Air Force Base/Ogden Air 
Logistics Center.
  I am also grateful that the committee was able to maintain the 
momentum toward transformation regarding our industrial policies. 
Instead of reverting to a protectionist posture, the report enables the 
Department of Defense and Congress to gather information on this issue. 
I believe that as the cost of research and development of our Nation's 
weapons systems continues to grow that it will become increasingly in 
our interests to harness the strengths of other nations in joint 
ventures. The future belongs to programs such as the Joint Strike 
Fighter, where the United States has been joined by the United Kingdom, 
Canada, the Netherlands, Italy, Turkey, Singapore and Israel to develop 
this stealthy and capable aircraft that will protect the forces of 
freedom at an affordable price. I commend the committee for its 
foresight on this matter.
  As I close, once again I wish to congratulate my colleagues on the 
Armed Services Committee, especially Chairman Warner, on this fine 
piece of legislation. It was a hard road, but once again the committee 
has risen to the challenge and supported our men and women in uniform. 
The Nation is in their debt.
  Mr. HOLLINGS. Mr. President, I rise today to commend the chairman and 
ranking member of the Armed Services Committee for bringing the 2004 
Defense Authorization Conference Report to the floor today. The 
conference report before us comes at a critical time in our national 
history with our troops engaged in conflict throughout the world.
  The committee's leaders have demonstrated patience and grace under 
pressure, navigating a difficult legislative process. I know firsthand 
how difficult this process can be; I have walked a mile in their shoes. 
I have served as the chairman of the Committee on Commerce, Science, 
and Transportation and now serve as its ranking member. It is in this 
capacity that I rise to express my dismay to learn that the bill agreed 
to by the conference committee includes significant changes to 
legislation under Commerce Committee jurisdiction--the Marine Mammal 
Protection Act, MMPA. The changes include modifications to some of the 
most fundamental standards providing protection of marine mammals under 
the MMPA.
  I am proud to have been one of the original authors of the MMPA back 
in 1972. Overall, it has worked extremely well in balancing the need to 
protect marine mammals while allowing other important activities, 
including the defense of our Nation, to move forward.
  I firmly believe that the U.S. is capable of having both the 
strongest military force in the world, and at the same time, some of 
the best conservation laws of any country. I have been a great 
supporter of our Nation's military, having served on the Defense 
Appropriations Subcommittee for three decades.
  The Committee on Commerce, Science, and Transportation, on which I 
currently serve as the ranking member, has jurisdiction over issues 
relating to marine mammals, including authorizations for and oversight 
of the MMPA. The Commerce Committee plans to take up reauthorization of 
the entire MMPA this Congress. Towards this effort, we have held 
hearings and numerous briefings with the many different entities who 
have an interest in the MMPA, including the Department of Defense, the 
National Oceanic and Atmospheric Administration, NOAA, the Fish and 
Wildlife Service, private

[[Page 28557]]

industry, the scientific research community, and nongovernmental 
organizations. Many of these entities have offered comments, including 
some serious concerns, with respect to the MMPA language now included 
in the DOD authorization bill.
  I regret to say that many of the provisions included in the bill 
before us simply don't make sense. For example, we have had testimony 
from respected scientists this year in hearings before our committee, 
as well as before the Senate Armed Services Committee, that the 
standard for ``harassment'' of marine mammals, now included in this 
bill, is scientifically indefensible. Moreover, some of the provisions 
included in the bill go far beyond DOD activities, including all 
research done by or on behalf of the Federal Government. Although no 
changes to the MMPA were in the bill that passed the Senate, the Senate 
leadership on the conference committee apparently felt that such 
changes would be acceptable.
  The National Marine Fisheries Service, which along with the Fish and 
Wildlife Service, implements the MMPA, estimates that about 38 percent 
of all of the ``small take'' permits that it has issued under the MMPA 
were issued to the Department of Defense. That is over one-third of all 
such activities, and we know that there are numerous other defense 
activities for which no permit has even been sought. Yet not once did 
the leadership of the Senate Armed Service Committee reach out to 
consult with me or my staff on these provisions that will affect over 
one-third of the activities that it regulates.
  We still plan to take up reauthorization of the MMPA in our 
committee, and we still have oversight of its implementation. I intend 
to work with my colleagues on the committee to carefully monitor how 
these changes are interpreted, to ensure that activities that could 
have real impacts on marine mammals do not fall off the radar screen, 
as it were. MMPA was written the way it was because we are still 
learning about how various activities may impact marine mammals. We 
must ensure that under these new standards, the lack of perfect science 
is not used as a basis to avoid the mitigation of potential impacts.
  Mrs. MURRAY. Madam President, as we work to complete the Defense 
authorization bill, we are reminded of our obligation to the brave men 
and women of our military. They are protecting us at home and abroad.
  Congress must make sure they have the equipment and resources they 
need.
  Two years ago, our country was attacked. Suddenly, we have to project 
sustained military force around the world, and we had to protect our 
skies at home--and we had to do it quickly.
  But as our tanker fleet embarked on more than 30,000 air refueling 
missions, we found that our 43-year-old tanker fleet was outdated, too 
often down for repairs, and too expensive to maintain.
  This conference report provides the Air Force with the ability to 
begin recapitalizing this crucial fleet, with 100 new KC-767 air 
refueling tankers. These tankers will enable our air crews to do their 
jobs more effectively, more efficiently and more safely.
  Success has many authors, and I thank my colleagues, including: 
Chairman Warner and Senator Levin for their vigilance on this issue and 
their willingness to work with my Senate colleagues and me to ensure 
the Air Force gets these 100 tankers: Senators Stevens, Inouye, 
Cantwell, Roberts, Brownback and Conrad for their unwavering support 
for this program over the last 2 years; and, on the House side, I thank 
Congressmen Dicks, Larsen, and Murtha, as well as Chairman Hunter and 
Speaker Hastert.
  Fairchild Air Force Base outside of Spokane, Washington is home to 
the 92nd Air Refueling wing.
  I have been to Fairchild. I have visited with the families and talked 
with the brave men and women who fly these tankers. I know the 
difficult missions these crews handle for each of us every day.
  I promised to give them the best equipment we could, and today we're 
delivering on that promise.
  After 2 years of work, I am proud that this legislation provides the 
authority needed for the Air Force to enter into a contract for 100 KC-
767s.
  Section 135, of this conference report authorizes the Air Force to 
enter into a contract for the combined lease and purchase of 100 tanker 
aircraft under the terms and conditions of Section 8159 of the FY02 
Defense Appropriations Act.
  This section specifically authorizes the Air Force to enter into one 
contract for 100 aircraft, 20 by lease and 80 by purchase, or if 
necessary, more than one contract for the same combination of aircraft.
  In their joint report language, the conferees agree that this section 
would--quote--``authorize the secretary to enter into a multiyear 
procurement program, using incremental funding'' for the 100 aircraft 
pilot program.
  This language means the multiyear procurement program authorized by 
Section 135 would allow the Air Force to make payments as agreed to in 
the contract.
  Furthermore, the language states that the Air Force would not be 
required to have the full budget authority required to purchase an 
aircraft in order to place an order for that aircraft under the 
contract.
  I would like to point out that Section 135 was written after 
extensive negotiations between the Congress and the Department of 
Defense.
  The agreement reached on Section 135 is based in part upon a letter 
sent on November 5, 2003 to the chairman and ranking member of the 
Senate Armed Services Committee by the Deputy Secretary of Defense, Mr. 
Wolfowitz.
  The language included in Section 135 of this conference report 
represents a common understanding between the conferees, the Congress 
and the Administration on the agreement under which the Air Force will 
execute this 100 aircraft pilot program.
  In closing, I again thank my colleagues for their help in fulfilling 
the promise I made to the brave men and women of the 92nd Air Refueling 
Wing.
  Within 3 short years, Fairchild Air Force Base will be home to the 
first four of the 100 KC-767 air refueling tankers authorized in this 
bill.
  Fairchild will get another 16 of these state-of-the-art aircraft just 
1 year later.
  I ask unanimous consent that the Wolfowitz letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Washington, DC,

                                                 November 5, 2003.
     Hon. John Warner,
     Chairman, Committee on Armed Services,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: Thank you again for your consideration 
     of the Department of Defense's proposal to lease 100 KC-767A 
     aircraft. As you know, there has been a vigorous debate on 
     the best way to get this program started. Your most recent 
     amendment would allow the Air Force to lease no more than 20 
     of the 100 tankers. The Air Force has developed a proposal to 
     implement that arrangement, and I hope that you will find it 
     acceptable.
       Our proposal strikes a necessary balance between the 
     critical need for new air-refueling tankers and the 
     constraints on our budget. As reflected in the enclosed 
     chart, we intend to lease the initial 20 aircraft and then 
     buy aircraft at a steady rate of 11 to 13 aircraft per year 
     until delivery of the 100th. We commit to add $2.4B, in 
     Fiscal Years (FYs) 2008 through 2010, to the funding profile 
     for the original proposal to lease 100 aircraft. We also will 
     add $1.4B in FY 2012 to 2013. The combination of these added 
     funds achieves an immediate start to the program and allows 
     us to purchase the last 80 aircraft at time of delivery.
       I appreciate the support that you have provided in the past 
     and look forward to working you in the future. If you require 
     further information, please do not hesitate to contact me. A 
     similar letter has been sent to the chairmen and ranking 
     minority members of each of the defense committees.
           Sincerely,
                                                   Paul Wolfowitz,
                                      Deputy Secretary of Defense.

  Ms. MIKULSKI. Mr. President, I am here to stand up for our troops. I 
am going to vote for the Defense Authorization Act because it will give 
our troops the tools they need to fight the battles today and in the 
future. Every day our soldiers are fighting a war on

[[Page 28558]]

many fronts, including in Iraq and Afghanistan. In Iraq soldiers are 
risking their lives every day, while their loved ones at home are 
praying for their safe return. Our troops are making grave sacrifices, 
some losing their lives in service to our Nation. Their families, their 
husbands and wives, parents and children, are also making sacrifices. 
It is the responsibility of Congress to provide the weapons, vehicles, 
and tools that our soldiers need to be an effective fighting force.
  But I also stand up for those who are protecting the United States of 
America--our brave, our gallant Federal employees who are out there 
every day on the front line. I am here to defend the rights of hard-
working civilian employees in the Department of Defense. When I stand 
up for America, I want to be able to stand up for what America believes 
in. And that includes basic rights for workers.
  I think it is terrible that the DOD is using it's budget, which is so 
vital for our troops, as a cover for undermining the basic rights of 
dedicated employees. This bill creates a completely new--and completely 
unfair--personnel system for civilian Defense Department employees. The 
new system undermines the collective bargaining rights of civilian 
personnel. It weakens the rights of DOD employees to appeal personnel 
decisions to an independent body. It rejects the current salary system, 
and seeks to replace it with one that will leave workers vulnerable to 
the whims of their supervisors. It even takes away the guarantee of 
overtime, weekend, holiday, and hazardous duty pay. We should not put a 
system in place that distracts Federal employees from doing their jobs 
and requires them to play office politics.
  This new civilian personnel system will seriously undermine morale, 
and opens the door to cronyism and political patronage. I am tired of 
the attempts by this administration to replace our effective civil 
service system with one that rejects the rights of workers. The 
thousands of civilian Federal employees at the Department of Defense 
are concerned about the security of our country, and work hard every 
day to ensure that our fighting forces are the best in the world. Many 
have served on the front line in the war on terrorism, and have lost 
their lives in the terrorist attacks of September 11, 2001. I am 
ashamed that the Defense Department wants to take away their basic 
rights as workers.
  I think it is terrible that I must choose between supporting our 
troops and supporting our civilian Federal employees. I am tired of the 
cynical manipulation of this process. I feel like I am being set up--
that if we stand up for the workers, we are somehow or another getting 
in the way of national security. I am going to support the 2004 
Department of Defense Authorization because it is important to our 
Armed Forces. You can count on me to continue to fight for everyone who 
is making sacrifices for our Nation. Our troops and our civilian 
Federal employees deserve no less.
  Mr. KENNEDY. The Defense authorization bill contains many provisions 
that provide essential support for our military personnel, especially 
when we are asking so much from them in Iraq and around the world.
  We have demonstrated our great appreciation for them by providing an 
across-the-board military pay raise of 3.7 percent, and a larger raise 
for mid-career personnel, raising the average increase to 4.1 percent. 
The separate increases already available for imminent danger pay and 
the family separation allowance are extended through December 2004.
  The bill also recognizes the contributions of our Reserve personnel, 
by authorizing an allowance of up to $1,000 per month for Active and 
Reserve personnel who experience unusually high deployments. We expand 
commissary privileges for Guard and Reserve family members and we 
expand health care coverage both for Guard and Reserve personnel and 
for their families.
  The bill increases benefits for families whose loved ones have made 
the ultimate sacrifice, by doubling the death benefit to $12,000 and by 
authorizing Survivor Benefit Plan annuities for surviving spouses of 
Guard and Reserve personnel who die on inactive duty training.
  The bill recognizes the toll of these deployments on children, by 
providing $35 million in supplemental impact aid to assist schools with 
large numbers of children of military families.
  The legislation also eases the path to citizenship for immigrants who 
serve in our Armed Forces and provides immigration benefits to 
surviving family members of those killed in service. 37,000 men and 
women in the Army, Navy, Marines, Air Force, and Coast Guard have the 
immigration status of permanent residents serving in our Armed Forces. 
Another 12,000 permanent residents are in the Reserves and the National 
Guard.
  The legislation also improves access to naturalization for lawful 
permanent residents serving in the military. It provides expedited 
naturalization for members of the Selected Reserves during military 
conflicts. It protects spouses, children, and parents of soldiers 
killed in action, by preserving their ability to file for permanent 
residence in the United States.
  Over a dozen immigrant soldiers have been killed in Iraq and these 
benefits are well deserved. These immigration provisions in the bill 
are a tribute to the sacrifices that these future Americans are already 
making for their adopted country. They deserve recognition for their 
bravery and loyalty to the basic ideals and freedoms of our country. 
Unfortunately, although the bill provides many needed benefits for our 
men and women in uniform, it lets down their civilian counterparts.
  Many of us are extremely disappointed that the bill undermines 
fundamental protections for the 700,000 civilian employees of the 
Department of Defense.
  Specifically, the report undermines collective bargaining, premium 
pay, the pay and classification system, third party review, and the 
appeals process. Many of the provisions are disguised as improvements, 
when in fact they undermine years of civil service protections.
  Nearly 40 percent of Defense Department employees affected are 
veterans who have served the nation proudly. More than 8,000 are 
activated reservists serving in Iraq and other parts of the world. They 
are protecting us and we owe it to these patriotic Americans to protect 
their rights. They take pride in their work, their love their country, 
and they have served it with distinction, often for decades.
  The Bush administration has demonstrated its intention to undermine 
workers' again and again. They have proposed privatizing up to half the 
Federal workforce. They have created a Department of Homeland Security 
that doesn't allow its employees to join a union.
  Earlier this year, the administration stripped clerical and other 
workers in the Department of Justice and the U.S. Attorney's offices of 
their long-held union membership. They have even proposed taking 
overtime protections away from more than 8 million hard-working men and 
women.
  It is an affront to these dedicated Federal workers to deprive them 
of their rights, even though no restrictions are placed on the rights 
of employees of government contractors performing similar jobs. Under 
the administration's proposal, we could well see Federal workers 
working alongside private workers with the Federal workers denied the 
same fundamental rights and protections that the private workers 
continue to have.
  These workers repair planes, ships, and tanks. They manage the 
storage and distribution of weapons and supplies. They manage computer 
networks, provide training, analyze intelligence, investigate crimes, 
acquire major weapons systems, perform research on cutting-edge 
technologies, test munitions, care for children, operate hospitals and 
laboratories, and treat patients. Defense employees deserve civil 
service and collective bargaining rights, just as other Federal workers 
do. The administration is wrong to use this must-pass bill as a vehicle 
to deny these workers their basic rights, and I intend to do all I can 
to see that Congress repeals this unfair

[[Page 28559]]

assault on these dedicated civilian workers of the Department of 
Defense.
  Mr. FEINGOLD. Mr. President, first and foremost, I want to thank the 
members of the United States Armed Forces for their service to our 
country. These service men and women are performing admirably in the 
global fight against terrorism and the war in Iraq. They and their 
families are making great sacrifices for the American people. I am 
voting for this authorization legislation to support these people who 
are serving the country with such courage.
  But this is not an easy vote for me. This legislation contains a 
number of good provisions, such as much-deserved pay raises for our men 
and women in uniform, expansion of TRICARE health insurance to some of 
the members of our Guard and Reserve, concurrent receipt for disabled 
veterans, 12 WMD Civil Support Teams, and ``Buy American'' provisions. 
However, the bill also contains two particularly bad policies: the 
elimination of civil service protections for Department of Defense, or 
DOD, civilian employees, and the environmental exemptions granted to 
DOD.
  I am deeply troubled by the provisions included in the conference 
report that will effectively eliminate existing civil service 
protections for the more than 746,000 civilian Department of Defense 
employees. While I think we all can agree that some reforms are needed 
to the civil service system, I am concerned about the administration's 
approach to dismantling this system, in a seemingly department by 
department manner. I opposed the weakening of the civil service system 
during consideration of the bill that created the Department of 
Homeland Security, and I would have opposed the provisions in this bill 
if the Senate had considered them independently of this conference 
report.
  The civil service system was put into place in order to end the 
corrupt patronage system that had permeated Government hiring and 
advancement. The provisions included in this conference report will put 
salary decisions into the hands of managers, which could be a slippery 
slope back to the bad old days of cronyism. I am also concerned that 
this new system will limit appeal rights.
  Some in the administration have argued that the civil service system 
is rigid and could prevent the administration from acting quickly in 
the face of an imminent threat. This is not the case. The existing 
civil service system already provides the administration with broad 
flexibility, while at the same time ensuring that Federal workers have 
a consistent framework of basic protections, including appeal rights.
  In addition, I support the right of workers to join a union, and I am 
troubled by the implication that union membership is somehow a threat 
to our national security. The conference report that we are considering 
today will undermine existing union representation and collective 
bargaining agreements by allowing the Secretary to create a new labor 
relations system.
  The expected enactment of these provisions, coupled with the ongoing 
implementation of the new employment system that was created for the 
Department of Homeland Security, will result in more than half of the 
Federal civilian workforce not being covered by the basic protections 
of the civil service system.
  I am equally troubled by the provisions included in the conference 
report that exempt the DOD from several environmental laws. The Senate 
version of this bill struck a fair balance between the need to protect 
the environment and the need for military readiness. It allowed for 
some exemptions to the Endangered Species Act if the Secretary of 
Interior found that the DOD's resource management plan effectively 
conserved the threatened or endangered species and that DOD would fund 
the plan. The conference version destroys this balance by merely 
requiring that the DOD's management plan confer ``a benefit'' to 
threatened or endangered species. There is no mention of the need for 
DOD to fund its management plan. The new language means that the DOD 
will get exemptions from the ESA merely by having an integrated 
management plan on paper. The purpose of the critical habitat 
designation provisions of the ESA is to attempt full recovery of 
species by preserving habitat. The current bill falls short of that 
promise.
  The assault on our environmental laws goes further. This conference 
report exempts the DOD from key provisions of the Marine Mammal 
Protection Act, MPPA. It allows, among other things, the Secretary of 
Defense to waive its provisions for 2 years if the Secretary believes 
it necessary for national security.
  I am committed to supporting a strong Endangered Species Act, 
particularly because of the successes Wisconsin has had in 
rehabilitating endangered and threatened wildlife and plants. Recent 
news accounts of sensitive whale population deaths caused by high-
frequency Navy sonar systems also trouble me. Our troops in Afghanistan 
and Iraq were expertly trained at DOD facilities that complied with 
environmental laws. It is my understanding that the DOD has never 
requested an exemption to the Endangered Species Act. DOD already has 
the authority to request exemptions from the ESA for national security 
reasons and this new provision in the conference report is unnecessary. 
I agree with Senator Jeffords that the Defense appropriations bill is 
not the appropriate place to have this debate.
  The administration sought even more environmental exemptions than are 
contained in this authorization bill. Although I am disappointed with 
the included exemptions, I am thankful that my colleagues were able to 
limit the damage.
  I will vote for this bill and for the good provisions it contains for 
our men and women in uniform and their families. However, I remain 
deeply concerned about the administration's policy on civil service 
reform and protection of the environment. I will support this flawed 
bill, but I do so with some reluctance and in the hope that the Senate 
will revisit these seriously flawed provisions next year in the proper 
committees.
  Mr. BIDEN. Mr. President, the fiscal year 2004 Department of Defense 
Authorization Conference Report provides important benefits as our 
military personnel continue to do battle in Iraq, Afghanistan, the 
Balkans, South America, and elsewhere. It is not, however, a perfect 
bill. I voted for it because I believe that in a time of war we need to 
take care of our military personnel and our veterans. But, I am 
concerned that this bill unnecessarily undercuts important 
environmental protection measures and civil service protections. I am 
also troubled by some of the nuclear weapons provisions of the bill. 
First let me describe some of the key provisions that I do support in 
this bill.
  This bill provides a 3.7 percent across-the-board pay increase and, 
because of some of the targeted pay raises for mid-career personnel, an 
average pay raise of 4.1 percent. It also authorizes increases in the 
critical pay bonus areas of family separation, hostile fire, and 
imminent danger pay from October of this year until next December. 
These increases are much needed and well-deserved.
  I am also pleased that the bill would allow the Army to add 2,400 
additional personnel. I supported adding 10,000 and would still like to 
see the number grow, but this is, at least, a start.
  Perhaps most important as we create new veterans daily, this bill 
starts to live up to our promises to our veterans. I have long believed 
that the commitment we make to the retirement benefits of a veteran and 
the commitment we make to care for those veterans injured while serving 
should not be mutually exclusive. This bill takes a very real step 
toward allowing veterans full concurrent receipt. Military retirees 
with 20 years of service, active duty or Reserve Component, and a 
Purple Heart or a combat related disability will be eligible for full 
concurrent receipt as of January 1, 2004. The remaining retirees who 
are disabled at 50 percent and above will get full concurrent receipt 
phased in over the next 10 years.
  In addition to the important personnel benefits of this bill, I am 
also

[[Page 28560]]

pleased that the bill makes a common sense commitment on strategic 
airlift. The bill prohibits any decision to retire C-5 As until an A-
model is completely modernized under the Avionics Modernization Program 
and Reliability and Re-Engining Program and then tested for its 
operational capability. This will allow decisionmakers to have the 
facts about what capability can be gained from the modernization 
programs. In addition, the Senate has required a March report updating 
the military's strategic airlift requirement. We know that the old 
requirement, defined pre-9-11, pre-Afghanistan, and pre-Iraq, is too 
low. Until we have a more accurate sense of what is really needed, it 
will be hard for Congress and the military to determine the best way to 
meet the need.
  Let me now detail my concerns with the environmental and civil 
service provisions of this legislation. I believe it is important to 
balance our national security needs with the rights of our children and 
grandchildren to live in a country that has clean air and water. 
America is the home to tremendous natural bounty and diversity. Those 
natural treasures are something we hold in trust, not something we 
should allow destroyed for expediency. As the Nation has advanced, we 
have striven to find ways to balance environmental protection with our 
economic and military needs. We have done this in our environmental 
protection laws, most of which carry national security waiver 
provisions. It is still not clear to me why the conferees felt it was 
appropriate to make changes to two key environmental protection laws 
without taking into account the advice and wisdom of those who oversee 
that legislation daily.
  Let me start by saying that I believe realistic military training is 
absolutely critical to the survival of our military personnel. Until 
now, we have managed to balance that need with our desire to safeguard 
our environment. This bill allows the Department of Defense to get 
around the Endangered Species Act, ESA, and to make enforcement of 
Marine Mammal Protection Act, MMPA, extremely difficult. With respect 
to ESA it is particularly troubling since, again, there is a national 
security waiver provision in that law. In the Senate, we were able to 
craft a compromise that allowed the Defense Department to avoid making 
any new critical habitat designations on installations that had 
Integrated Natural Resources Management Plans that the Secretary of the 
Interior had determined would in fact conserve the species on the 
installation and would be adequately resourced. This bill does not 
provide that safeguard.
  In the case of MMPA, this bill provides a weaker definition of 
``harassment.'' More extraordinary than that, the new weaker definition 
applies not just to military activities, but rather to any scientific 
research conducted by or on behalf of the Federal Government. We have 
been given no rationale or justification for making it easier for 
federally funded scientists to harm marine mammals. The bill makes it 
easier for the Navy to get permits if their activities will have no 
more than a ``negligible impact'' on marine mammals. I also do not see 
why legitimate Naval activities should not receive the same full 
scrutiny they have always received. Again, we were not given good 
justifications for making such a change. At the end of the day, I am 
very disappointed that the conferees agreed to basically allow the 
Department of Defense to begin making their own environmental rules. 
While they have done a very good job managing many environmental 
issues, their track record is not one that suggests complete self-
regulation is warranted or desirable. Their job is to fight and win our 
nation's wars. As a democracy, it is our job to provide them the legal 
framework that allows them to do their job while not sacrificing the 
nation's natural treasures. This bill is a step backwards.
  In the area of civilian personnel reform at the Department of 
Defense, I am again troubled that this bill opens the door to cronyism 
and discrimination, things from which we have long sought to insulate 
our civil service. While I am open to the notion that civil service 
reform may be in order, I am again concerned that it is being done in 
an ad hoc fashion and without the proper input from the committees that 
oversee the entire civil service. I believe that we must be wary of the 
potential politicization of our workforce. The employees of the Defense 
Department are highly dedicated professional, and they must be free 
from political pressure. I will be taking a close look at how the 
administration goes forward with its new authorities. I will be 
watchful that the employees are free from political retaliation and 
secure in their jobs so that they can perform their vital tasks to the 
highest of professional standards.
  Finally, let me say a few words about some of the nuclear weapons 
provisions in this bill. This conference report does a good job, on 
balance, of providing for our cooperative threat reduction and non-
proliferation assistance programs in the former Soviet Union. It 
provides roughly the funding requested by the President and, in 
particular, a needed Presidential waiver provision so that we can 
continue to help build a chemical weapons destruction facility in 
Shchuch'ye, Russia. It requires the Secretary of Energy to study and 
report on the possibility of purchasing and safeguarding excess 
weapons-grade uranium and plutonium from the independent states of the 
former Soviet Union, so as to ensure that such dangerous material 
cannot be diverted to rogue states or terrorists. And it allows the 
President to use some Nunn-Lugar and non-proliferation funds for 
projects outside the former Soviet Union, if he determines that this 
will assist in the resolution of a critical emerging proliferation 
threat or permit the United States to achieve long-standing 
nonproliferation goals.
  I regret that the Congress agreed to repeal the Spratt-Furse 
prohibition of work on low-yield nuclear weapons. I am pleased, 
however, that the conference report states that such work may not 
commence the engineering development phase, or any subsequent phase, of 
a low-yield nuclear weapon unless specifically authorized by Congress. 
I am also pleased that the Secretary of Energy is barred from 
commencing the engineering development phase, phase 6.3, of the nuclear 
weapons development process, or any subsequent phase, of a Robust 
Nuclear Earth Penetrator weapon unless specifically authorized by 
Congress.
  Again, I voted for this bill because it contains many important 
provisions, particularly in this time of war. But I am very concerned 
that some of the provisions agreed to by the conferees are ill-advised 
and premature. I hope that we will be able to reconsider them next 
year.
  Ms. SNOWE. Mr. President, I rise today to speak briefly on the fiscal 
year 2004 National Defense Authorization conference report.
  I want to acknowledge the leadership of the senior Senator from 
Virginia, Senator John Warner, Chairman of the Armed Services Committee 
in bringing this bill to final passage. Of course, I must also 
recognize the ranking member, Senator Carl Levin. I had the privilege 
of working with them on the Committee for several years and I can 
attest that each year they work together tirelessly to pass the defense 
authorization bill because they understand how absolutely vital this 
legislation is to the effectiveness and well-being of our armed forces.
  For that matter, let me also recognize every Senator on the committee 
for their efforts because this conference report authorizes the 
equipment, the training, and the operational funds necessary to support 
our troops who are right now operating across the globe to make our 
Nation and the world more secure.
  It also reflects the service and sacrifice of our troops by making a 
solid investment in their quality of life by increasing their pay and 
enhancing educational and health care opportunities for our active duty 
military members, our National Guard and Reserve troops and their 
family members. And that is only right, for today we are asking a great 
deal of our gallant young men and women as they guard our Nation at 
home and abroad and, of course,

[[Page 28561]]

risk their lives every day to restore freedom and prosperity to the 
oppressed peoples of Iraq and Afghanistan.
  This legislation also recognizes that we owe a continuing debt to 
those who have served honorably by phasing-in for those with a service 
connected disability rated at 50 percent or more the same benefit 
available to every other retired Federal employee--the ability to 
collect full retirement pay and disability entitlements without 
offsets. There is much work to be done before we achieve the full 
equity of concurrent receipt for all disabled military retirees and I 
will continue to support these efforts until we finally achieve the 
goal of full concurrent receipt.
  This $401.3 billion dollar authorization provides $74.3 billion for 
the critical procurement accounts. In particular, this bill makes some 
significant strides by providing almost $12 billion in an area that is 
critical to the security of the Nation--our shipbuilding capacity. It 
has become more and more apparent that as we engage the forces of 
terrorism around the world we have become increasingly dependent on the 
ability of our Navy to not only deliver troops and munitions to the 
fight, but to act as the sea base from which our forces can operate 
without restrictions virtually anywhere in the world.
  Yet, as a former Chair of the Seapower Subcommittee, I remain 
concerned about the Navy's shipbuilding program, particularly with 
respect to the surface combatant force. As part of the 2001 Quadrennial 
Defense Review, the Navy and DoD approved a plan for maintaining a 310-
ship Navy including 116 surface combatants--cruisers, destroyers and 
frigates. Partly because of continuing concerns about the Navy's 
uncertainty regarding plans for future surface combatants, last year's 
authorization directed that the Navy notify Congress should the number 
of active and reserve surface combatant ships drop below 116 and 
provide an operational risk assessment based on that number.
  By the end of fiscal year 2003, the Navy's surface combatant fleet 
had fallen to 106 ships and in the latest report submitted by the Navy 
in June of this year, the Navy notified Congress that by the end of 
fiscal year 2004, it was their intent to reduce the force of surface 
combatants to 103 ships. According to the Navy, accelerating the 
decommissioning of Ticonderoga- and Spruance-class ships will free up 
funds for next-generation destroyer programs without appreciably 
raising the operational risk level to our Naval forces because they are 
``significantly less capable than the more modern and survivable AEGIS-
equipped DDG-51 class ships that are replacing them.''
  Therefore, I am encouraged that this authorization provides $3.2 
billion for the construction of three DDG-51 Arleigh-Burke class 
destroyers for it is these ships, along with cruisers and frigates, 
that provide protection to the carriers and amphibious ships deployed 
to the Persian Gulf and around the world to prosecute the war on 
terrorism. Moreover, it adds $20 million for the DDG Modernization 
program to begin the insertion of advanced technologies that will 
dramatically reduce operation and support costs to the fleet and 
mitigate the risk of back-fitting these technologies on older ships. 
Above all, we must pursue every path necessary to provide technologies 
to our sailors that will ease their workload, enhance their training 
opportunities and increase the survivability of their ships.
  In 2005, the Navy will complete the DDG-51 acquisition program, and 
the next generation of surface combatants, the DD(X) and the Littoral 
Combat Ship (LCS) are being funded in the research and development 
accounts. Although this authorization provides $1 billion for the 
continued development of the DD(X) and $183 million for the continued 
development of the LCS in the RDT&E accounts, there is a looming gap in 
the Shipbuilding and Conversion, Navy account for surface combatants. 
Without a focused effort on the part of the Navy to commit and invest 
in a robust surface combatant program, I am concerned not only about 
the ability of the Navy's surface combatant force to maintain current 
operating tempos but the continuing viability of our shipbuilding 
industrial base.
  This trend not only applies to surface combatants but to our attack 
submarine fleet as well. Although the Navy and the Department of 
Defense has established a requirement of 55 attack submarines, the 
current inventory numbers only 54 of those ships. To compound the 
problem, the Navy continues to place submarines such as the USS 
Jacksonville on the list of submarines to be inactivated rather than 
funding their refueling as a solution to this force structure gap. The 
Senate wisely added $248 million for the refueling of that submarine 
and I am pleased this report sustained that effort.
  I am also disappointed that the conferees have included Section 319 
in this bill, on Military Readiness and Marine Mammal Protection. Under 
the Senate Rules, the Committee on Commerce, Science, and 
Transportation has jurisdiction over issues relating to marine mammals, 
including authorizations for and oversight of the Marine Mammal 
Protection Act (MMPA). The Subcommittee on Oceans, Fisheries, and Coast 
Guard, which I chair, intends to work on reauthorizing the MMPA in its 
entirety this Congress, and we have held a hearing and numerous 
briefings with all concerned marine mammal interests, including the 
Navy and the National Oceanic and Atmospheric Administration.
  By including Section 319 in this bill, the conferees have disregarded 
our jurisdiction and work on the reauthorization of the Marine Mammal 
Protection Act, and they have seriously altered marine mammal policy in 
the United States. I have serious concerns about their changes to the 
definition of harassment, the Department of Defense exemption from the 
MMPA, and the incidental takings language. Changes of this magnitude on 
behalf of the military requires oversight and review by the Commerce 
Committee, and the implications of these changes for other regulated 
parties and interested MMPA stakeholders must be fully understood. Our 
Subcommittee will address these changes and many other marine mammal 
conservation issues as we proceed with full, comprehensive 
reauthorization of the MMPA.
  Importantly, this bill sets aside $63.4 billion in the research and 
development accounts to develop the advanced technologies our troops 
will use to maintain their technological superiority over their 
adversaries. Significantly, conferees authorized $11 billion for the 
critical science and technology programs which brings us close to the 
goal of setting aside 3 percent of the defense budget to invest in the 
``seed corn'' of our future military capability.
  Much of that S&T investment will be executed at universities and 
colleges throughout America. For example, the University of Maine 
system has been on the forefront of the development of chemical and 
biological sensors and decontamination systems. The bill provides them 
with $1 million this year to begin the development of an 
environmentally-friendly photo-catalytic decontamination agent that 
holds much promise for the safe and rapid decontamination of exposed 
personnel as well as for the remediation of chemical agent and 
manufacturing and storage facilities.
  In addition, this bill also authorizes $4 million for continued 
research at the University of Maine into the structural reliability of 
fiber-reinforced polymers composites in ship assemblies that will help 
define and ultimately control the significant property variations found 
in composite plates used in Navy ship construction.
  One of the hallmarks of the Department of Defense is the interwoven 
nature of the military and civilian personnel who work together as our 
national security team. Civilian workers at DOD work alongside their 
military counterparts every single day, sometimes in the most hazardous 
conditions. For example, at the Portsmouth Naval Shipyard in Kittery, 
ME, workers hold a memorial service every year for the gallant crew of 
the USS Thresher, lost at sea in April, 1963 with 112 sailors and 17 
fellow civilian workers from the shipyard. The civilian workers at the 
Department of Defense work

[[Page 28562]]

and sacrifice to keep this Nation secure and we should recognize their 
dedication and professionalism.
  While there are many positive provisions included in the bill, I am 
disappointed that the conferees did not include all of the personnel 
reform provisions put forward by my colleagues, Senators Collins, 
Levin, Sununu and Voinovich, instead adopting many of the provisions 
put forth by the Department. The current civilian personnel system was 
established over a period of decades in order to protect the rights of 
the civilian worker in areas such as merit-based hiring practices, 
equal pay for equal work, appeals of adverse personnel actions and 
collective bargaining. As the new National Security Personnel System 
established in this bill is set in place, the Department must keep 
faith with its civilian employees and provide for third-party appeals, 
third-party dispute resolution as part of the collective bargaining 
process and a credible, transparent performance rating system.
  I will be watching closely as the Department institutes this new 
personnel system to ensure that Federal employee's rights are not 
abrogated and that the highly-skilled civilian defense workforce can 
continue to stand arm-in-arm with their military counterparts to 
provide for the security of our Nation.
  Finally, and most importantly, the bill continues our commitment to 
the men and women in the armed forces and their families through the 
enactment of several important pay and benefits provisions. First, it 
includes an across-the-board pay raise of 3.7 percent for all military 
personnel and once again provides an additional targeted pay raise of 
5.25 percent to 6.25 percent for the senior non-commissioned officers 
and mid-career personnel who are the backbone of our military.
  There are also a number of provisions that will directly aid the 
families of service members such as an increase in the family 
separation allowance from $100 to $250 per month and an increase in the 
special pay for those subject to hostile fire and imminent danger from 
$150 to $225 per month.
  This authorization rightly recognizes that our reservists and 
National Guard troops play an increasingly vital role in the war on 
terrorism, and extends to them expanded benefits in critical areas such 
as medical care and special pay rates. For example, reservists and 
their families will now be provided access to enhanced TRICARE coverage 
including non-mobilized reservists and their families who are either 
unemployed or whose employers do not provide health coverage. In 
addition, reservists and their families will be granted the same 
commissary privileges as active duty personnel.
  Overall, this authorization provides the men and women of our armed 
forces with the equipment they need to accomplish their mission, the 
quality of life they have earned and security for their families. I 
support this legislation and urge my colleagues to pass this conference 
report unanimously because in a year when our Nation is facing 
unprecedented security challenges and dangers, we can do no less.
  Mr. LIEBERMAN. Mr. President, I am disappointed that some provisions 
in this legislation giving the Department of Defense additional 
personnel flexibility go too far in weakening the legal protections of 
DoD civilian employees, who are critical to the military's performance 
and to its fighting men and women. I pledge to actively monitor DoD's 
implementation of its new authority to guard against abuse.
  Throughout the development of this legislation, the administration 
has tried to push a regressive agenda to do away with important worker 
safeguards--and, in the process, to risk opening up the workplace to 
politicization and unfair treatment and to close off important channels 
of communication between labor and management. Congress rejected much 
of this, but some risks remain.
  On the Governmental Affairs Committee, where I serve as Ranking 
Member, we worked hard and forged a sensible bipartisan compromise on 
these issues for the department. This legislation, S. 1166, was 
approved by our committee by a 10 to 1 vote. The provisions of S. 1166 
were considered by the conferees, and some of our compromises were 
incorporated into this conference report. However, at the insistence of 
House majority conferees and the administration, the conference 
agreement also includes a number of provisions that risk opening up the 
workplace to cronyism and arbitrariness and undermining established 
means for fairly resolving issues between labor and management, so it 
is important that Congressional intent be closely adhered to.
  For example, in the area of collective bargaining, the conference 
agreement included the provision of S. 1166 stating that the Secretary 
of Defense has no authority to waive chapter 71 of civil service law, 
which governs labor-management relations. The conferees also retained 
an amendment, which I had offered in our committee, assuring that the 
Secretary of Defense cannot choose to bargain only with large national 
unions and refuse to bargain with others that do not represent large 
numbers of Defense Department employees.
  However, the conferees also agreed to a new provision authorizing the 
Secretary of Defense, together with the Director of the Office of 
Personnel Management, to establish a ``labor relations system'' for the 
Department of Defense to address the ``unique role'' of the 
Department's civilian workforce. As the conference report makes chapter 
71 non-waivable, this new provision overrides chapter 71 only where the 
new provision and chapter 71 are directly inconsistent with each other. 
The new provision authorizing establishment of a labor relations system 
does not conflict with the statutory rights duties, and protections of 
employees, agencies, and labor organizations set forth in Chapter 71--
including, for example, the selection by employees of labor 
organizations to be their exclusive representatives, the determination 
of appropriate bargaining units, the rights and duties of unions in 
representing employees, the duty to bargain in good faith, the 
prevention of unfair labor practices, and others--and such rights, 
duties, and protections will remain fully applicable at the department. 
The conference agreement provides that, in establishing a labor 
relations system, the Secretary will be authorized to ``provide for 
independent third party review of decisions, including defining what 
decisions are reviewable by the third party, what third party would 
conduct the review, and the standard or standards for that review.'' 
The Secretary may use this provision to expedite the review of 
decisions, but not to alter the statutory rights, duties, and 
protections established in chapter 71 or to compromise the right of 
parties to obtain fair and impartial review of decision. The mutual 
trust required for productive labor-management relations requires a 
level playing field.
  The conference report also includes other provisions, which weaken a 
number of safeguards that we had included in S. 1166, including the 
statutory mandate that DoD meet standards for the quality of its system 
for rating employee performance and that the department phase in its 
new personnel system to enable the department to get fair and objective 
processes in place. The conferees also included new provisions that 
would give the Secretary of Defense latitude to waive premium pay for 
employees working irregular schedules or in dangerous situations, and 
to disregard statutory checks against cronyism and politicization in 
promoting, reassigning, and laying off employees.
  Finally, even aside from the weakened employee protections in the 
legislation itself, I am very concerned that the department may try to 
impose its new personnel authorities without adequate preparation and 
funding. Under the new system, the department wants to use employee 
performance, rather than seniority, to determine salary increases. To 
avoid arbitrary pay decisions, however, the department must establish 
personnel systems that can make meaningful distinctions in employee 
performance based on appropriate criteria, and managers must be 
adequately trained to use these new authorities. In evaluating this 
legislation last summer, GAO warned that the

[[Page 28563]]

vast majority of DoD's systems for appraising employee performance are 
not well-enough established to take on the task of supporting a 
meaningful performance-based pay system. Moreover, successful projects 
where pay is based on performance must be adequately funded, or else 
pay levels will be determined by budget constraints rather than by the 
competency and efforts of employees; and colleagues will be pitted 
against each other in competition for limited funding for performance 
pay, thereby disrupting unit cohesion and teamwork.
  An experienced supervisor at the Defense Department, quoted in a news 
article today about this legislation, well expressed these risks in the 
following terms: ``The changes are going to be swift and we're going to 
go into this thing blind,'' he said. ``The worst thing we can do to the 
employees of the DoD . . . is to come in and demoralize them by putting 
in new pay systems that can't be financed or executed.''
  As the department, together with the Office of Personnel Management, 
proceeds to develop the regulations and the personnel systems to 
implement this legislation, I intend to watch closely. I expect the 
department to provide a fully open process, in close collaboration with 
its employees, for developing the regulations necessary to implement 
the new personnel authorities. And the department should not implement 
pay-for-performance or other authorities until personnel systems are in 
place, managers are trained, and funding is available, so that the 
risks of favoritism, politicization, and a demoralized workforce 
inherent in this legislation are kept to a minimum.
   Mrs. BOXER. Mr. President, I support the fiscal year 204 Department 
of Defense authorization bill.
   With so many of our young men and women deployed in Iraq, 
Afghanistan and throughout the world, it is very important that 
Congress support our troops and the important pay increases and 
personnel benefits in this bill.
   This legislation authorizes a 3.7 percent across the board pay 
increase for all uniformed members of the armed services and targeted 
pay raises of 5.25 percent to 6.25 percent for mid-career 
servicemembers. I strongly support these provisions of the bill. These 
pay increases are well earned.
   I am also pleased that imminent danger pay at the level of $225 per 
month and family separation pay of $250 per month was extended until 
December 31, 2004. With United States troops bearing so much of the 
burden in Iraq, many military families are having a difficult time 
making ends meet. Extending these benefits is the least we can do.
   But let me be clear. This $401 billion Defense authorization bill 
contains many troubling provisions that will make us less secure and 
that I oppose.
   First, this legislation repeals a 1989 ban on the research and 
development of low-yield nuclear weapons and provides funding for 
research into new bunker-busting nuclear weapons. Developing new and 
low-yield nuclear weapons will not make us safer--it will only lead to 
a dangerous escalation in the arms race. These provisions send the 
wrong message to the rest of the world and are based on a flawed 
strategy developed by President Bush that contemplates scenarios for 
the preemptive use of nuclear weapons.
   Second, this legislation significantly rolls back environmental 
safeguards on our military bases. The bill prohibits the Secretary of 
Interior from designating critical habitat under the Endangered Species 
Act on any lands owned or controlled by the Department of Defense if 
the lands are subject to a management plan developed by the military 
that provides a ``benefit'' to the species. the conference report also 
gives the military greater leeway to conduct activities that might 
disturb marine mammals, such as whales. Under this bill, the Secretary 
of Defense may exempt any action or category of actions from the 
requirements of the Marine Mammal Protection Act, if the Secretary 
deems it is necessary for national defense. These environmental 
rollbacks are unfortunate. I urge the Department of Defense to take 
extra care not to abuse these new broad authorities.
   Finally, I am concerned this bill did not do more to limit sole-
source contracting by the Department of Defense. During Senate 
consideration of this bill, I offered an amendment stating that the 
Department of Defense should meet its own goal of replacing 
Halliburton's sole-source contract to reconstruct Iraq's oil industry 
with a fully competitive contract by August 31, 2003.
   It is now November and Halliburton's sole source contract is still 
in place and a new competitive contract has not been awarded. I 
appreciate that the final bill contains a provision requiring a report 
within 30 days on why this sole-source contract has been allowed to 
continue. However, it is regrettable that conferees did not establish a 
deadline for the termination of Halliburton's sole-source contract.
   Despite these concerns, I want to thank the chairman and the ranking 
member of the Senate Armed Services Committee for their hard work on 
this legislation. It is a bill that will help our military men and 
women who are serving to protect our Nation.
  Ms. CANTWELL. Mr. President, I rise today to express my support for 
the Department of Defense authorization conference bill before us 
today. The bill will strengthen our Nation's military readiness, 
procure vitally important weapons systems and provide for our veterans. 
At the same time, I wish to highlight my concerns about provisions in 
the bill relating to civilian defense workers and the environment.
  I am pleased that the bill allows the U.S. Air Force to move forward 
with the KC-767 Global Tanker Transport program. By allowing the 
modernization of our aging tanker fleet, the bill promotes our national 
security and the security of our friends and allies.
  I became involved in this issue more than 2 years ago after visiting 
Fairchild Air Force Base in Washington State, which is one of the 
premier basing locations for the Air Force's KC-135 refueling tankers. 
It was clear to me then, and it is clear to me now, that these aging 
planes need to be replaced.
  With an average age of over 40 years, the KC-135s are the oldest 
planes in the Air Force, older than most of the pilots that fly them 
and older than virtually all large commercial aircraft.
  The bill authorizes a program that will provide the Air Force one 
hundred KC-767 aircraft by leasing the first twenty planes and 
purchasing the remaining eighty. This arrangement is the result of a 2-
year effort to find the best way to provide our pilots with the 
equipment that they desperately need, while protecting the interests of 
taxpayers. This has been accomplished.
  I want to congratulate my colleagues, Senator Warner and Senator 
Levin, for their leadership on the Senate Armed Services Committee to 
develop a solution that will reach our goals. I also want to thank the 
Air Force and the Department of Defense for working to find the funds 
that will carry out this program.
  I am particularly proud that the Air Force was able to improve our 
military capability by procuring an American product. Boeing has been 
the industry leader in the tanker market for fifty years and it has 
helped ensure our military's air power dominance.
  The 767 is built by thousands of men and women in my home State and 
is sold around the world. I am excited to see that because of this 
legislation, the Boeing 767 tanker will keep our military flying in the 
21st century.
  I am also pleased that the bill provides for our Nation's veterans. I 
am profoundly grateful for the service of America's veterans and for 
the sacrifices they have made to defend our Nation and our freedom. We 
have an important responsibility to ensure that our veterans are 
provided benefits and assistance that they deserve.
  Specifically, the bill authorizes that the full concurrent receipt 
will be phased in over a 10-year period for disabled military retirees 
and National Guard and Reservists who have at least 20 years of 
service. In each of the next 10 years, service members will receive an 
additional 10-percent increase, until the full concurrent receipt is 
reached in 2014.

[[Page 28564]]

  The bill also expands the Combat-Related Special Compensation Program 
that was enacted as part of the Fiscal Year 2003 National Defense 
Authorization Act. This year's bill provides concurrent receipt to 
military retirees, National Guard and Reservists who have at least 20 
years of service, any retiree who was awarded the Purple Heart, or any 
retiree with a service-connected disability incurred as a direct result 
of armed conflict, while engaged in hazardous service, in the 
performance of duty under conditions simulating war, or through an 
instrumentality of war.
  A strong national defense depends on active duty forces, Guard and 
Reserve personnel, a civilian workforce, military contractors and 
military communities. Civilian workers in my State play a key role in 
ensuring that the U.S. military is the best-trained and best-equipped 
in the world. Over 16,000 highly skilled and dedicated workers in the 
International Association of Machinists Local 160, the Bremerton Metal 
Trades Council, and other unions and organizations in Kitsap County 
help ensure that our sailors have the ships and equipment they need to 
combat terrorism and protect our security.
  Accordingly, I am concerned about provisions in the bill that would 
erode existing protections for civilian DOD workers. These provisions 
will set back our efforts to ensure a fair and effective civil service 
system. Specifically, these provisions could weaken collective 
bargaining rights at the local level, reduce due process protections 
for DOD workers, and scale back appeals rights along with protections 
against favoritism in hiring in the workplace.
  Given the recent contributions of our civilian workers in the war 
effort in Iraq and Afghanistan, we should not be taking away long-
standing protections that have helped make the U.S. military the 
strongest in the world. I intend to work to ensure effective 
congressional oversight of the implementation of these controversial 
personnel provisions.
  I am also troubled by provisions in the bill that would weaken 
current environmental protections for marine mammals and other species. 
For several decades, the military services have demonstrated a strong 
commitment to natural resource conservation while fulfilling their 
primary missions. Puget Sound is home to many military installations 
and sensitive species. Based on our experience in Washington State, I 
believe that we can have both the highest levels of military readiness 
and natural resource conservation.
  However, I am very troubled that the bill would weaken both the 
Marine Mammal Protection Act (MMPA) and the Endangered Species Act 
(ESA). Both of these acts currently provide significant environmental 
protections, while providing the military the flexibility to conduct 
training and other exercises. Because species recovery efforts pose 
unique challenges, I believe that amendments to these acts are best 
considered by the Commerce Committee and the Environment and Public 
Works Committee.
  On balance, however, this bill marks a major step forward in support 
of America's soldiers, sailors, marines and air force personnel and our 
Nation's security. I am pleased to vote for it.
  Mr. LIEBERMAN. Mr. President, I rise to express my support for the 
fiscal year 2004 Defense Authorization bill. At the same time, I am 
compelled to state for the record my dissatisfaction with the process 
that first delayed the conference report for months, and then presented 
the conferees with a conference report and a deadline for filing that 
precluded Senators from familiarizing themselves adequately with the 
final product.
  Despite my concerns about the process, and my opposition to three 
specific provisions in this bill, the men and women in uniform 
protecting the United States need the support this bill provides. I 
commend Senator Warner and Senator Levin for their dedication and 
leadership in bringing this difficult process to a successful 
conclusion. Our security depends upon the unrivaled strength of 
America's military and the unmatched skills, dedication and bravery of 
America's servicemen and -women, which they are demonstrating on a 
daily basis. This defense blueprint ensures that we will be able to 
continue to give our troops in the field the best possible equipment, 
while at the same time preparing them for future challenges. The funds 
authorized in this bill will allow our military to continue to conduct 
operations with the intensity and effectiveness that the worldwide 
fight against terror requires. Secondly, and no less important, our 
military services will be able to continue transformation at the pace 
necessary to meet the challenges they will face in the coming decades.
  There are many important provisions in this bill. I want to briefly 
highlight ones that I think are particularly important. First, the 
strength of our military depends primarily on the men and women who are 
serving with such dedication and courage. They deserve fair 
compensation and adequate support for their families. This bill 
authorizes critical increases in pay and improvements in their quality 
of life that are so important to America's soldiers and their families. 
This bill increases base pay by 4.1 percent, increases family 
separation allowance, increases hostile fire pay, authorizes the first 
increment of concurrent receipt for disabled retirees, expands 
commissary access for Selected Reserve members and their families, and 
enhances health care benefits for reservists. I am particularly pleased 
that we have made progress in increasing the benefits for our 
reservists and their families, because they are bearing an important 
share of the sacrifices our military is making for our defense.
  We have also included important provisions to maintain the momentum 
in transforming our military services. The Airland Subcommittee, where 
I have the honor of serving as Ranking Member, under the able 
leadership of Senator Sessions, has fully supported the critical 
programs for transforming the Army and Air Force, such as the Army's 
interim brigades and the Future Combat System, and the Air Force F-22 
fighter and the Joint Strike Fighter. I am also pleased that we have 
included a provision to improve the Department of Defense's capacity to 
expand high speed high bandwidth capabilities for network centric 
operations, which is critical for our military to expand it's military 
dominance.
  Despite my approval of the bill, I oppose some of the labor/personnel 
and environmental provisions contained in the legislation, and I did 
not sign the conference report to signal my disagreement with these 
provisions. I am disappointed that some provisions giving the 
Department of Defense additional personnel flexibility went too far in 
weakening the legal protections of DOD civilian employees who are 
critical to the military's performance and to its fighting men and 
women and that key work of the Government Affairs Committee, which has 
primary jurisdiction, was ignored in propounding these provisions. I 
intend to describe at another time my concerns with the personnel 
provisions in this bill.
  On the environmental front, I am disappointed that the conference 
bill contains unnecessarily broad exemptions for the Department of 
Defense from an array of environmental protections, most of which 
originated in the House of Representatives. Without question, we can 
protect our troops and conserve our natural resources--especially our 
wildlife and marine mammals--at the same time. We have built the 
strongest military force in the world while the Department of Defense 
has complied with the same environmental laws as everyone else. This 
bill undermines the protections for wildlife under the Endangered 
Species Act by allowing an Integrated Natural Resources Management Plan 
certified in writing to confer an undefined ``benefit'' on species to 
substitute for critical habitat designation. Unlike the Senate's bill, 
the conference bill does not require the Department of Defense to fund 
or dedicate resources to implement or monitor the plan; or the 
Department of Interior to determine that the plan will effectively 
conserve species within the lands it covers. While I would hope that 
the Department of Defense would

[[Page 28565]]

feel obliged to dedicate sufficient resources, the country would be 
better served to have required it.
  The bill's changes to the Marine Mammal Protection Act for military 
readiness and federally funded scientific research activities were not 
part of the Senate's bill. Quite simply, they may have disastrous 
consequences for whales and other species living off our Nation's 
coasts. For example, the Marine Mammal Protection Act's core 
prohibition against taking actions with the potential to injure or 
disturb marine mammals has been severely weakened. Now, only acts that 
injure or have the significant potential to injure marine mammals, or 
that are likely to disturb their behavioral patterns to the point of 
abandonment or significant alteration, are prohibited. And these 
changes also are an unnecessary intervention into the work of the 
committee with expertise. They come just as the Senate and House 
committees with jurisdiction over these questions have begun their work 
of reauthorizing the Marine Mammal Protection Act. I only hope the 
committees will revisit these provisions in the reauthorization of that 
legislation.
  In closing, let me express my concerns about how the conference was 
managed. It is unfortunate, in my view, that on an issue as important 
as this--the very essence of our Nation's ability to wage the current 
war against terrorism and at the same time prepare for unknown 
challenges in the future--that it took months to reach a consensus on 
this bill and that the final conference report was presented to all 
members with inadequate time to review the final product prior to 
filing. Such an important bill should not be handled in this manner.
  Mr. LEVIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Madam President, between now and the hour of 2:45, I 
yield such time as I have to the distinguished Senator from Nevada.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Madam President, I rise today to make some brief comments 
about the Defense authorization bill.
  First, I compliment the chairman and ranking member for working hard 
on this legislation. I also thank the professional staff, both on the 
committee as well as the personal staffs. It was my first year on the 
committee, and it was an incredible process. There were many 
controversial and complex issues on which we worked together.
  In the end, we have done a lot for the members of our military, our 
Armed Forces serving in this country and around the world. With the 
global war on terrorism, these issues have become more important than 
ever: To make sure they have the resources to fight the global war on 
terrorism and to ensure a quality of life so we can maintain the all-
volunteer professional armed services we have.
  Several issues covered in my subcommittee, the Readiness 
Subcommittee, were very important. We have a problem with our ranges. 
Dealing with readiness, we have to have the proper training facilities. 
This bill helps us address some of those issues. The military does such 
a fabulous job protecting the environment on its training ranges that 
the use of those ranges almost became threatened. This bill makes sure 
that the training ranges and the environment are protected, while the 
military can still use the training ranges. That was a very important 
part of this Defense authorization bill.
  I also think about what we have done for military families. That 
cannot be overemphasized because of the sacrifices they make for this 
country. It is not just the people in uniform, but it is the families 
and the sacrifices they make for the country. It is important that we 
take care of their quality of life. I am very proud of the work we have 
done in this Defense authorization bill.
  I hope next year we can complete this bill earlier in the year, 
before Defense appropriations is done, because it is a better way to do 
it. The issues are complex. Many times they are controversial. But we 
have to be willing to put our personal interests, our party's interests 
behind the interests of our Nation and the interests of our military.
  The Defense authorization bill is one place where we can join hands 
across the aisle, as we have done on so many issues this year, and 
continue to work to make sure our military is so far superior to any 
other military in the world that if there is ever a question whether we 
go into battle, we know we have the upper hand.
  Madam President, I thank the chairman for all the great work he has 
done.
  I yield the floor.
  Mr. WARNER. Madam President, I thank my distinguished colleague for 
his remarks and, more importantly, his active participation in our 
committee's work throughout this year.
  Mr. LEVIN. Madam President, I ask unanimous consent that the Senator 
from Arkansas be recognized for 2 minutes immediately prior to the 
vote.


                           Order of Procedure

  Mr. REID. Reserving the right to object, Madam President, we have the 
military construction conference report coming up right after the vote, 
and there is no time set for the two managers to speak.
  I ask unanimous consent that there be 4 minutes equally divided for 
the two managers of the bill to speak prior to that vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Is there objection to the extra 2 minutes? Without objection, it is 
so ordered.
  The Senator from Arkansas.
  Mr. PRYOR. I thank the Chair.
  Madam President, I rise today in support of the 2004 Defense 
authorization conference report. Even though there are some provisions 
I am disappointed in--some of the environmental matters and how those 
issues got worked out, and a few other issues, and I don't want to 
dwell on the negative--there are two reasons I signed on to the 
conference report and why I encourage my colleagues to vote for this 
conference report.
  Those two reasons are sitting right in the front, Senator John Warner 
and Senator Carl Levin. They have demonstrated a true spirit of 
bipartisanship. It has been a great model for me as a new Senator to 
sit on this committee and watch these two Senators fight for their 
causes but do it in a very fair and open manner and deal with each 
other in such a constructive way. I thank them for their leadership.
  They worked through dozens and dozens of very difficult issues. 
Nobody got their way completely. But they showed great leadership and 
great stewardship. I want to publicly acknowledge them and thank them, 
especially Chairman Warner because he has been extremely fair to the 
minority.
  Again, we don't always get our way, but I think he has demonstrated 
the camaraderie and the comity that we should have in the Senate.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Madam President, I thank our colleague for his kind 
remarks. I simply say, spoken like the true son of a great United 
States Senator, with whom I was privileged to serve and who emulated 
all of the characteristics the Senator from Arkansas has bestowed on 
me, undeserving as they may be, one David Pryor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I thank our dear friend, Mark Pryor. 
Senator Warner and I came together and we came with his father at the 
same time. His dad and his mother, Barbara, have been dear friends of 
ours. Mark Pryor has made an extraordinary contribution as a new 
Senator to this body and to our Armed Services Committee. He has made a 
great contribution. We are grateful for that and for his remarks this 
afternoon.
  Mr. President, I rise once again to join with Senator Warner in 
urging

[[Page 28566]]

the Senate to adopt the conference report on H.R. 1588, the National 
Defense Authorization Act for fiscal year 2004.
  As we stand on the floor of the Senate today, America's armed forces 
are engaged in military operations around the world on a scale unknown 
since the end of the Vietnam war nearly three decades ago. According to 
the latest reports, we have 132,000 troops deployed in Iraq with an 
additional 87,000 serving in support roles outside of Iraq. We have 
9,000 troops in Afghanistan, with an additional 35,000 serving in 
support roles. Tens of thousands more soldiers, sailors airmen and 
marines are deployed elsewhere around the world.
  In the last 2 years, we have also seen the largest sustained callups 
of National Guard and Reserve components since the Vietnam war. We have 
seen units deployed for extended periods, and repeated deployments of 
the same units. Throughout this period, our men and women in uniform 
have shown extraordinary ability, professionalism, and dedication, 
conclusively demonstrating once again that they are by far the best 
trained, best equipped, best disciplined, most highly skilled and 
motivated military force in the world. Nonetheless, there are 
indications that the unprecedented demands we have been placing on our 
Armed Forces are starting to have an impact on morale.
  I will vote for this conference report because it contains so many 
important provisions for our national security and for our men and 
women in uniform.
  It includes an across-the-board military pay increase, along with a 
series of other increased pays and benefits for our men and women in 
uniform and their families. The conference report includes Senator 
Harry Reid's amendment on concurrent receipt; Senator Daschle's 
amendment on TRICARE; Senator Kennedy's amendment on expedited 
citizenship for lawful immigrants serving in the military; and an 
increase in Army troop strength on which Senator Jack Reed played a 
leading role. It includes important Senate provisions that authorize an 
expansion of our cooperative threat reduction programs to countries 
outside the former Soviet Union.
  The provision authorizing the establishment of a new National 
Security Personnel System did not come out entirely the way I would 
have liked, but the Senate was able to include a number of important 
protections for civilian employees at the Department of Defense. 
Senator Collins' strong commitment to a bipartisan, fair, and balanced 
approach to this issue made this a far better provision than it would 
otherwise have been.
  The conference report contains a number of other provisions that 
concern me. For example, I believe that provisions addressing the 
Endangered Species Act and the Marine Mammal Protection Act go beyond 
what is needed to address the legitimate needs of the Department of 
Defense. I am also disappointed by the outcome of the conference on 
nuclear weapons issues, which take the United States in a dangerous new 
direction.
  Despite my concerns about these issues, I will vote for this 
conference report because it contains so many other provisions that are 
so important for our national defense and for our men and women in 
uniform. I urge my colleagues to join me in supporting this conference 
report, which will help provide our military the training and equipment 
that they need and the compensation and benefits that they deserve.
  Thanks again to Senator Warner and both our staffs, who we 
specifically thanked last night for all their work which made this 
conference report possible.
  The PRESIDING OFFICER. All time has expired. The question is on 
agreeing to the conference report.
  Mr. WARNER. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 95, nays 3, as follows:

                      [Rollcall Vote No. 447 Leg.]

                                YEAS--95

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                                NAYS--3

     Akaka
     Byrd
     Jeffords

                             NOT VOTING--2

     Edwards
       
     Kerry
  The conference report was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________




   MILITARY CONSTRUCTION APPROPRIATIONS ACT, 2004--CONFERENCE REPORT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of the conference report to accompany H.R. 
2559, which the clerk will report.
  The bill clerk read as follows:

       The Committee of Conference on the disagreeing votes of the 
     two Houses on the amendment of the Senate to the bill (H.R. 
     2559) making appropriations for military construction, family 
     housing, and base realignment and closure for the Department 
     of Defense for the fiscal year ending September 30, 2004, and 
     for other purposes, having met have agreed to recommend and 
     do recommend to their respective Houses as follows:
       That the House recede from its disagreement to the 
     amendment of the Senate, and agree to the same with an 
     amendment, signed by all of the conferees on the part of both 
     Houses.

  (The conference report is printed in the proceedings of the House in 
the Record of November 4, 2003.)
  The PRESIDING OFFICER. There are now 4 minutes, equally divided.
  Mrs. HUTCHISON. Madam President, I am pleased to present the fiscal 
year 2004 military construction appropriations conference report for 
the Senate's consideration. This bill provides $9.316 billion for 
military construction, family housing, and base realignment and closure 
activities for the Department of Defense for fiscal year 2004.
  The negotiations over this conference report were 
uncharacteristically long and difficult for a military construction 
bill. This difficulty stemmed from two sources. First, and quite 
simply, there is less money this year for military construction. The 
administration's request was $1.6 billion below the amount appropriated 
last year. Even with an allocation slightly above the President's 
request, this conference agreement provides $1.4 billion less than last 
year.
  Compounding this difficulty were two very different points of view 
about military construction on the part of the Senate and House this 
year. The administration is in the midst of the most sweeping 
restructuring of our overseas basing structure since the end of World 
War II. This restructuring will

[[Page 28567]]

involve the closure of hundreds of installations, the construction or 
expansion of perhaps dozens more, the return of significant numbers of 
U.S. troops to the continental United States, and major changes to the 
way our Nation stations and deploys its armed forces. This plan is 
still very much a work in progress. In testimony and briefings by 
Defense Department officials and military commanders this year--at this 
time--the scope, timing, and cost are not yet determined.
  In the face of this uncertainty, the Senate was unwilling to commit 
prematurely to all of the new construction proposed for U.S. facilities 
in Europe and Korea, and instead chose to shore up badly needed 
investment in U.S. military facilities in the United States.
  The House chose a different approach, voicing many of the same 
concerns as the Senate but agreeing nevertheless to fund most of the 
overseas construction. To pay for that construction the House made 
significant cuts to the President's priorities for domestic military 
construction spending, including nearly $50 million from already 
underfunded programs for the National Guard. These different priorities 
set the stage for the difficult conference we have just concluded.
  Fortunately, I believe we have crafted a conference agreement that 
accommodates the most pressing authorities of both chambers and the 
administration within the funding we were allocated. The Senate agreed 
to reinstate a number of projects in Europe for which our commander 
there, General Jones, made personal appeals. After hearing from General 
LaPorte, we also provided funding for two additional barracks projects 
in Korea on the condition that a facilities master plan and cost-
sharing arrangements with the Korean government are completed before 
construction on these projects begins. Funding for domestic projects 
was decreased somewhat but we were successful in reinstating $108 
million in cuts made by the House to the President's budget request, 
including over $42 million for sorely needed Guard projects. The 
conferees also agreed to create a commission that will study the 
structure of our overseas bases in light of changing political and 
military circumstances and provide Congress an independent assessment 
of our future basing requirements overseas.
  In short, the conference agreement represents what conference 
agreements usually do--a respectable compromise among competing 
priorities.
  I would like to express my deepest appreciation to the ranking member 
on the military construction appropriations subcommittee, Senator 
Dianne Feinstein of California. We have worked extraordinarily closely 
throughout this process--and through two supplemental appropriations 
bills passed this year--and I have appreciated her counsel as we have 
faced these difficult issues. Her staff, Christina Evans and B.G. 
Wright, worked hand in hand with my staff, Dennis Ward and his 
assistant, Sean Knowles. I don't think a better cross-party working 
relationship exists in the Senate. This truly has been bipartisan 
effort. They have worked together to make the very best military 
construction bill that could possibly be made.
  I thank Senator Feinstein for her engagement and willingness to work 
together for our military.
  I am pleased to present the fiscal year 2004 Military Construction 
appropriations conference report and recommend its adoption by the 
Senate.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I thank the chairman of the 
committee with whom I have had the pleasure of working now for a number 
of years. I want to say this: She has done a fine job. There was a very 
difficult conference situation. The House and the Senate bills were 
very different. In the first place, we received $1 billion less in 
allotment to work from; that is, 14 percent less. In the second place, 
the House bill went in one direction and our bill went in another. It 
is really thanks to the chairman for her very shrewd bargaining with 
the House that we have a bill and that we have a bill as good as this 
bill is.
  This is a difficult time. We try to do the most we can with barracks 
and schools and centers for our troops both in this country and abroad.
  I want to say to those Members who had adds and had to have those 
adds cut that I am very sorry. We had to reconcile the two bills, and 
that was very difficult.
  But Senator Hutchison did a super job. I thank her very much.
  At a time when American troops are continuing to fight the enemy in 
Iraq and Afghanistan, it is imperative that Congress do its part and 
provide the funds necessary to support the infrastructure requirements 
of our service members and their families.
  I wish we could do more. The 2004 military construction conference 
report provides $9.3 billion for a myriad of mission-critical and 
quality-of-life construction projects in the United States and 
overseas, including barracks, schools, hospitals, and family housing 
units. That is the good news. The bad news is that this conference 
report is more than $1 billion below the amount Congress appropriated 
for military construction last year. And yet, as old infrastructure 
continues to deteriorate and new missions require new facilities, the 
military's infrastructure requirements are growing, not declining.
  In the process of completing this bill, the Senate conferees had to 
balance a number of meritorious projects against available funds and 
military priorities, and we had to make some tough cuts. Because of the 
scarcity of resources made available by the administration for military 
construction, and the differing philosophies between the House and 
Senate military construction subcommittees, this has been an especially 
difficult year. However, the House and Senate conferees were able to 
bridge most of their differences and provide the best package possible 
under the circumstances, and I commend Senator Hutchison for her 
perseverance in achieving that goal.
  There are many good items in this legislation. The conference report 
provides more than $5 billion for military construction, including $730 
million for the Guard and Reserve components, nearly double what the 
President had requested. The bill includes $1.2 billion for barracks, 
$176 million for hospitals and medical facilities, and $3.8 billion for 
family housing construction and maintenance.
  The legislation also establishes an Overseas Basing Commission to 
assess the adequacy of U.S. military installations overseas and to 
review the Defense Department's planned restructuring of the deployment 
of U.S. forces overseas. This could not be a more timely initiative, 
given the Defense Department's plans to make sweeping changes in the 
U.S. military footprint in Europe and Korea.
  Overseas basing issues were among the most difficult that the 
conference had to deal with this year. In the middle of the budget 
cycle, the Defense Department announced a sweeping restructuring of 
U.S. installations in Europe and Korea. I support the Defense 
Department's review of our overseas installation requirements--it is 
probably long overdue--but there are many, many elements to a 
restructuring of the magnitude envisioned by the Secretary of Defense, 
and it is not something that should be rushed. Senator Hutchison and I 
have discussed this issue at length, and I believe we both have strong 
reservations about committing billions of U.S. taxpayer dollars to a 
new overseas basing structure that is a radical departure from the 
existing footprint without first seeing a comprehensive plan for the 
redeployment of U.S. troops, and the impact it will have on 
installations here at home.
  Given the current precarious state of America's diplomatic relations 
with a number of our traditional allies, I also think the 
administration should redouble its efforts to work with governments in 
Europe and Korea to gain their support--both political and financial--
for such a massive reshuffling of U.S. bases before embarking on this 
effort.
  Even with those reservations, this conference report includes $354 
million for projects at enduring installations

[[Page 28568]]

in Europe, $169 million for the NATO Security Investment Program, which 
provides the U.S. share of funding for NATO construction projects, and 
$89 million for U.S. military projects in Korea.
  As I said before, I wish we had more resources to devote to 
infrastructure requirements for our military. The need is real, and I 
hope that the administration will request more money for military 
construction next year, so that we do not have to continue to juggle 
priorities and postpone funding urgently needed facilities.
  Again, I thank Senator Hutchison for her leadership on this 
subcommittee, and I also thank the subcommittee staff, including 
Christina Evans and B.G. Wright of the minority staff, Dennis Ward and 
Sean Knowles of the majority staff, and Chris Thompson of my staff.
  I urge my colleagues to support this measure, and I yield the floor.
  Mr. NICKLES. Mr. President, the conference report to accompany H.R. 
2559, the 2004 Military Construction appropriations bill, provides $9.4 
billion in discretionary budget authority and $10.3 billion in 
discretionary outlays in fiscal year 2004 for Military Construction and 
Family Housing appropriations. The $10.3 billion in outlays includes 
outlays from previously enacted legislation.
  The bill is $112 million in budget authority and $38 million in 
outlays above the Subcommittee's 302(b) allocation. These totals result 
from the $112 million in non-emergency funds enacted in P.L. 108-106, 
the 2004 Iraq supplemental, that count against the bill's 302(b) 
allocation. The bill provides $193 million more in budget authority and 
$15 million more in outlays than the President's budget request. The 
bill provides $1.3 billion in budget authority less and $226 million in 
outlays more than the 2003 enacted level.
  I ask unanimous consent that a table displaying the Budget Committee 
scoring of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

H.R. 2559, MILITARY CONSTRUCTION APPROPRIATIONS, 2004.--SPENDING TOTALS--
                            CONFERENCE REPORT
                     [Fiscal Year 2004, $ millions]
------------------------------------------------------------------------
                                     General
             Category                purpose     Mandatory      Total
------------------------------------------------------------------------
Conference report:\1\
    Budget authority.............        9,428            0        9,428
    Outlays......................       10,285            0       10,285
Senate 302(b) allocation:
    Budget authority.............        9,316            0        9,316
    Outlays......................       10,247            0       10,247
2003 level:
    Budget authority.............       10,751            0       10,751
    Outlays......................       10,059            0       10,059
President's request:
    Budget authority.............        9,235            0        9,235
    Outlays......................       10,270            0       10,270
House-passed bill:\1\
    Budget authority.............        9,308            0        9,308
    Outlays......................       10,320            0       10,320
Senate-passed bill:\1\
    Budget authority.............        9,308            0        9,308
    Outlays......................       10,311            0       10,311
 
  CONFERENCE REPORT COMPARED TO
 
Senate 302(b) allocation:
    Budget authority.............          112            0          112
    Outlays......................           38            0           38
2003 level:
    Budget authority.............       -1,323            0       -1,323
    Outlays......................          226            0          226
President's request:
    Budget authority.............          193            0          193
    Outlays......................           15            0           15
House-passed bill:
    Budget authority.............          120            0          120
    Outlays......................          -35            0          -35
Senate-passed bill:
    Budget authority.............          120            0          120
    Outlays......................          -26            0          -26
------------------------------------------------------------------------
\1\Includes $112 million in BA and $38 million in outlays of non-
  emergency spending (provided by the Emergency Supplemental for Iraq
  and Afghanistan, PL 108-106) that the President did not request and
  the Congress did not designate as a contingent emergency as is
  required by section 502(c) of H. Con. Res. 95, the 2004 Budget
  Resolution.
 
Note.--Details may not add to totals due to rounding. Totals adjusted
  for consistency with scorekeeping conventions.

  Mrs. HUTCHISON. Madam President, I call the question and ask for the 
yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the conference report.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. REID. I announce that the Senator from North Carolina (Mr. 
Edwards) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 98, nays 0, as follows:

                      [Rollcall Vote No. 448 Leg.]

                                YEAS--98

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Biden
     Bingaman
     Bond
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Cantwell
     Carper
     Chafee
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (FL)
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     McCain
     McConnell
     Mikulski
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Santorum
     Sarbanes
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
     Wyden

                             NOT VOTING--2

     Edwards
     Kerry
       
  The conference report was agreed to.
  Mr. BOND. I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Missouri.

                          ____________________




 DEPARTMENTS OF VETERANS AFFAIRS AND HOUSING AND URBAN DEVELOPMENT AND 
        INDEPENDENT AGENCIES APPROPRIATIONS ACT, 2004--Continued

  Mr. BOND. Madam President, is the pending business now the VA-HUD 
appropriations bill?
  The PRESIDING OFFICER. Yes.
  Mr. BOND. Madam President, there are about 45 seconds worth of things 
that we need to clear up, pending amendments. Then I intend to turn to 
the distinguished minority whip for the offering of an amendment, on 
which we will have a very short time limit.
  I see my colleague, Senator Mikulski, is in the Chamber.


                           Amendment No. 2156

  Madam President, I believe we have had a full debate on the Bond 
amendment. I call up the Bond amendment and ask for its adoption.
  The PRESIDING OFFICER. There are two Bond amendments pending.
  Mr. BOND. This is the Bond amendment on small engines.
  The PRESIDING OFFICER. Amendment No. 2156 is now pending.
  Mr. BOND. Madam President, I ask for its adoption.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered. The amendment is agreed to.
  The amendment (No. 2156) was agreed to.
  Mr. BOND. Madam President, I ask unanimous consent to add, as 
cosponsors, Senators McConnell, Talent, and Chambliss.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 2158

  Mr. BOND. Next, Madam President, I call up the Craig amendment on 
pesticides.
  The PRESIDING OFFICER. Amendment No. 2158 is now pending.
  Is there further debate?
  Mr. BOND. Madam President, I think we have had a full debate on that 
amendment. I know of no other debate.
  The PRESIDING OFFICER. If not, without objection, the amendment is 
agreed to.
  The amendment (No. 2158) was agreed to.

[[Page 28569]]


  Mr. HARKIN. Madam President, I am pleased to have joined Mr. Craig in 
offering this amendment to add the Pesticide Maintenance Fees 
Reauthorization Act of 2003 to the VA-HUD appropriations bill.
  The authority for the Environmental Protection Agency to collect 
these maintenance fees for the reregistration of pesticides expired 2 
years ago. Since that time, authority has been extended through riders 
on the VA-HUD appropriations bill. This amendment would provide a long-
term authorization that has been agreed to by the Senate and House 
Agriculture Committees and a broad array of stakeholders, including 
environmental and agricultural groups.
  This proposal ensures that EPA continues to collect fees from the 
industry of an estimated $20 million per year. This will cover the 
costs of reevaluating chemicals first registered prior to 1984, 
including the cost of 200 EPA employees engaged in this important work. 
The EPA has no alternative but to collect these fees or sharply reduce 
their commitment to oversight of these chemicals. A slowdown in 
consideration of these applications is neither in the interest of the 
environment, nor of the farmers or chemical manufacturers.
  This is a bill that has broad support, and it is important to get 
this done this year, so that it is in place for next year's budget. 
Adoption of this amendment will ensure that EPA has resources to 
evaluate and approve safer, more effective chemicals, and that older 
pesticides are reviewed for safety in accordance with the Food Quality 
Protection Act of 1996. I urge my colleagues to support this amendment.


                           Amendment No. 2167

  Mr. BOND. Madam President, I am going to send a very brief amendment 
to the desk that removes the emergency designation. The committee has 
reallocated funds to us so that our bill now comes within the 
allocation offered by our committee.
  Madam President, the amendment was with us in the cloakroom. I 
apologize to my colleague in the chair. Here it is. This is it.
  Madam President, I send this amendment to the desk and ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond] proposes an amendment 
     numbered 2167.

  The amendment is as follows:

   (Purpose: To remove the emergency designation on VA Medical Care)

       Beginning on page 9, line 20, strike ``: Provided, That'' 
     and all that follows through ``Congress'' on line 5, page 10.

  Mr. BOND. Madam President, it simply strikes the emergency clause. I 
think there is no debate on that. I ask for its immediate adoption.
  The PRESIDING OFFICER. Is there further debate?
  The Senator from Maryland.
  Ms. MIKULSKI. Madam President, I thank Senator Bond and Senator 
Stevens for working very closely with us to ensure that promises made 
to veterans are promises kept. This $1.3 billion is a dire need. I am 
ready to give my consent to this amendment, and the veterans of America 
will be happy because of it.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, without objection, the amendment is agreed to.
  The amendment (No. 2167) was agreed to.
  Ms. MIKULSKI. I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BOND. Madam President, I thank my colleagues.
  Madam President, I also ask unanimous consent to add Senator Miller 
of Georgia as a cosponsor to amendment No. 2156.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, I have spoken to the two managers of the 
bill. The distinguished Senator from New Jersey, Mr. Lautenberg, has 
agreed to allow the Senators from New York and Wyoming to go forward. 
Senators Clinton and Enzi have an amendment to offer. They have agreed 
to 20 minutes equally divided, followed by a vote on or in relation to 
that amendment, with no second-degree amendments in order. I ask 
unanimous consent that be the case.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from New York.


                           Amendment No. 2152

  Mrs. CLINTON. Madam President, I thank the minority whip and the 
chairman and ranking member of the subcommittee for an opportunity to 
discuss this very important amendment.
  I call up amendment No. 2152.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New York [Mrs. Clinton], for herself, Mr. 
     Enzi, Ms. Cantwell, Mr. Grassley, Mrs. Murray, Mr. Smith, Mr. 
     Schumer, Mr. Wyden, Mr. Harkin, Ms. Stabenow, Mr. Kerry, Mr. 
     Dodd, and Mr. Lieberman, proposes an amendment numbered 2152.

  Mrs. CLINTON. Madam President, I ask unanimous consent that reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To permit the use of funds for the Capital Asset Realignment 
for Enhanced Services (CARES) initiative of the Department of Veterans 
  Affairs for purposes of enhanced services while limiting the use of 
 funds for the initiative for purposes of the closure or reduction of 
services pending a modification of the initiative to take into account 
long-term care, domiciliary care, and mental health services and other 
                                matters)

       At the end of title I, add the following:
       Sec. 116. (a) Limitation on Use of Funds for CARES 
     Initiative.--No funds appropriated or otherwise made 
     available for the Department of Veterans Affairs for a fiscal 
     year before fiscal year 2005 may be obligated or expended to 
     take any actions proposed under the Capital Asset Realignment 
     for Enhanced Services (CARES) initiative that would result in 
     the closure of a Department of Veterans Affairs health care 
     facility, or reduction in services at such a facility, until 
     the Secretary of Veterans Affairs--
       (1) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning procedures to require 
     that no changes be made in long-term care, domiciliary care, 
     or mental health services without a completed and separate 
     Capital Asset Realignment for Enhanced Services planning 
     process intended to assess the future demand for such 
     services;
       (2) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to take into 
     account the impact that any transfer of health care services 
     under the initiative will have on the access of veterans to 
     primary outpatient care, inpatient hospital care, and 
     tertiary hospital care in rural and frontier population 
     areas, as defined by the Census Bureau, taking into 
     consideration such travel matters as road conditions, numbers 
     of lanes on roads, and seasonal changes in and other factors 
     relating to the weather;
       (3) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to permit 
     veterans to testify at hearings of the Capital Asset 
     Realignment for Enhanced Services Commission and reconvenes 
     the Commission for further hearings on the initiative in 
     regions where the Commission has held hearings without 
     permitting veterans to testify;
       (4) modifies the Capital Asset Realignment for Enhanced 
     Services initiative national planning process to hold at 
     least one hearing regarding the realignment of services under 
     the initiative within 30 miles of each Department of Veterans 
     Affairs facility that would experience a realignment of 
     services under the national plan for the initiative; and
       (5) submits to Congress a report on the Capital Asset 
     Realignment for Enhanced Services initiative national 
     planning process that sets forth the results of the 
     modifications under paragraphs (1), (2), (3), and (4).
       (b) Availability of CARES Initiative Funds for Enhanced 
     Services.--Notwithstanding any other provision of law, 
     neither subsection (a) nor any other provision of law shall 
     be construed to limit the obligation or expenditure of funds 
     under the Capital Asset Realignment for Enhanced Services 
     initiative for the provision of enhanced services as long as 
     the provision of such services does not involve the closure 
     of a Department health care facility or a reduction in 
     services as such a facility.

  Mrs. CLINTON. Madam President, my cosponsor and I, Senator Enzi of 
Wyoming, are offering this amendment

[[Page 28570]]

today, which is a bipartisan amendment. The sponsors include Senators 
Murray, Grassley, Cantwell, Smith, Wyden, Schumer, Harkin, Stabenow, 
Kerry, Dodd, Lieberman, and Levin.
  Our amendment would prevent any spending directed toward closing or 
reducing services under the so-called CARES plan until this plan 
considers long-term care, domiciliary care, and mental health care, as 
well as rural health care issues.
  It would also offer veterans, many of whom have not been able to 
offer their views, a meaningful opportunity to participate in the CARES 
process.
  This amendment is supported by the American Legion, the Eastern 
Paralyzed Veterans, the Vietnam Veterans of America, and the American 
Federation of Government Employees.
  I want to be absolutely clear, this amendment does not affect, in any 
way, the CARES Commission or the VA moving forward on enhancing or 
increasing services for our veterans. It contains explicit language 
that allows enhancements under CARES to go forward.
  I know the Secretary of the Veterans' Administration, a very 
distinguished gentleman, certainly has made the case strongly to 
veterans service organizations and to my colleagues that this amendment 
would stop enhancements.
  It absolutely does not. The clear language makes it absolutely 
positive that we are not stopping enhancements. But what we are doing 
is saying: Wait a minute. The process that has ended up with 
recommending the closure of many of our VA hospitals, three of them in 
the State of New York alone, and the fact that in testifying, as my 
colleague Senator Schumer and I did before the CARES commission in 
Canandaigua, one of the hospitals that is on the target list to be 
closed, the commissioners had to admit they did not take into account 
mental health services, domiciliary services, and long-term services.
  I am hoping this amendment will help us get a handle on some of these 
decisions that appear to be ill-advised and not part of a larger plan 
aimed at helping our veterans and that, in fact, the Department would 
go back to the drawing board to develop a plan through a fair process 
that would explicitly take into account mental health, domiciliary, and 
long-term care.
  There is much to be said about this important amendment.
  I ask unanimous consent to print in the Record a letter of support 
from the American Legion.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                          The American Legion,

                                Washington, DC, November 10, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate, Russell Senate Office Building,
     Washington, DC.
       Dear Senator Clinton: The American Legion supports your 
     proposed amendment to S. 1584, to limit the use of funds for 
     the Capital Asset Realignment for Enhanced Services (CARES) 
     initiative of the Department of Veterans Affairs, pending a 
     modification to take into account long-term care, domiciliary 
     care, mental health care and other issues.
       As for the CARES initiative in general, The American Legion 
     supports the program. However, in doing so we continue to 
     monitor the process, share dialogue with the CARES 
     Commission, and have several times expressed concern over the 
     very issues set forth in the amendment.
       We appreciate the fact that you and your colleague, Senator 
     Mike Enzi, share the Legion's concerns on these important 
     matters.
           Sincerely,
                                              John A. Brieden III,
                                               National Commander.

  Mrs. CLINTON. The bottom line is that this process, which holds such 
promise to make sure we have the right mix of services for our 
veterans, is seriously flawed.
  On Sunday, I was with a group of veterans served by the Manhattan VA. 
Their concerns range from the blinded veteran who suffered a service-
connected loss of hearing and sight in the Vietnam war, who cannot 
possibly get to any other VA because of transportation problems, to the 
closure of important research that is being done on that campus in 
conjunction with the New York University Medical School, to the very 
serious problems raised by veterans who are getting superb mental 
health services and cannot get them anywhere else if these facilities 
are closed or the services reduced.
  I wish the VA would hear us on this. I know they are opposed to it. I 
know they are concerned about it. But the exclusion of factors 
affecting mental health and long-term care is absolutely unacceptable. 
In fact, the VA has told us that next year in the strategic plan, they 
will get to those important services. How can we be closing facilities 
and not having taken into account those services?
  I ask unanimous consent to print in the Record a letter of support 
from the Vietnam Veterans of America and the American Federation of 
Government Employees.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                  Vietnam Veterans of America,

                             Silver Spring, MD, November 12, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate, Russell Senate Office Building,
     Washington, DC.
       Dear Senator Clinton: On behalf of Vietnam Veterans of 
     America (VVA), I wish to thank you and Senator Michael B. 
     Enzi for your bi-partisan efforts to ensure that vitally 
     needed veterans health care facilities are not closed in a 
     precipitous manner. Your amendment to be offered to the FY04 
     VA-HUD Appropriations bill is a much needed modification of 
     the Capital Asset Realignment for Enhanced Services (CARES) 
     process that will provide for a cooling off period and full 
     public consideration before any Department of Veterans 
     Affairs (VA) medical facility is closed or services further 
     reduced. As long as the needed enhancements and new 
     construction contained in the CARES plan can proceed, VVA 
     strongly supports this amendment.
       The process of devising a mathematical formula for CARES 
     had been underway for several years before anyone in the 
     veterans service organization community knew about this 
     effort. The CARES process is ostensibly designed as a data-
     driven system. VVA has objected for more than a year to the 
     data used, and to the civilian formula that is being 
     inappropriately applied to veterans health care needs using 
     that data. The data is not a needs assessment, but rather a 
     snapshot of what services are left after six to seven years 
     of reductions in staff in the core VA area of specialized 
     services, most particularly in mental health. The original 
     civilian formula still in use does not address the special 
     medical needs of the veterans' community.
       All who served in the military practiced a very dangerous 
     occupation. Our wounds, toxic exposures, and even mental 
     health needs are dramatically different in prevalence and in 
     kind from those of the general civilian populace. The VA was 
     created to be a veterans' health care system that addresses 
     those special needs of veterans, and not just general health 
     care that happens to be for veterans. The formula that VA is 
     using estimates one to three presentations (illnesses, 
     medical conditions, or maladies) per individual, whereas 
     veterans using the VA system average five to seven 
     presentations per person. As a result, the current formula 
     will always underestimate the resources needed to properly 
     care for veterans. Although there were some adjustments made, 
     separate from the formula, to increase facilities for Spinal 
     Cord Injury (SCI) and for Blind and Visually Impaired 
     Rehabilitation, no such adjustment was made for mental 
     health.
       The formula simply does not properly address mental health 
     care needs of veterans, nor long-term care, nor the needs of 
     veterans returning from Iraq and Afghanistan. It is not 
     surprising that a disproportionate number of the targeted 
     facilities are psychiatric facilities. VVA believes that what 
     is needed is development of a veterans health care formula, 
     and a true needs assessment of the entire veterans' community 
     by geographic area.
       VVA believes in the concept of stewardship, that it is the 
     task of each of us to leave things better than we found them. 
     VVA understands and supports the impetus of Senators Bond and 
     Mikulski to force the VA to plan for future needs before 
     providing any further construction funds for facilities that 
     might be abandoned in just a few years. This is what led to 
     the CARES process.
       VVA also is grateful to Secretary of Veterans Affairs 
     Anthony J. Principi for his response to the concerns of the 
     veterans' community about CARES. VVA is also grateful to 
     CARES Commission Chair Everett Alvarez and the other 
     distinguished members of that body for their work in trying 
     to ameliorate the results of the inappropriate formula and 
     bad data. We also recognize that the process is not yet over.
       However, even though the CARES process is not yet finished, 
     the fact that mental

[[Page 28571]]

     health facilities have been so prominently and 
     inappropriately targeted for closure is ample cause for 
     alarm. It is important to note that the chair of VA Advisory 
     Committee on Serious Mental Illness testified before the 
     CARES Commission hearing held in the Russell Senate Office 
     Building in September 2003 that 65 percent of the 
     organizational capacity that VA possessed in 1996 for mental 
     health care is now gone.
       It is also important to note that the dire shortage of 
     funding of the veterans health care system, which has become 
     a structural shortfall that is widening with each passing 
     year, is contributing to the distortions of plans for proper 
     care for all eligible and much deserving veterans in the 
     nation, both rural and urban residents. After adding 
     additional funds to the VA-HUD Appropriations bill for 2004, 
     currently under consideration, we urge that the Senate work 
     with the President to move to address this gross and growing 
     scarcity of resources at VA medical facilities.
       In summary, VVA supports the amendment you plan to propose, 
     along with Senators Enzi, Kerry, Dodd, Lieberman, Cantwell, 
     Grassley, Murray, Smith, Schumer, Wyden, Harkin, Stabenow, 
     Kerry, Levin, and others that would have the effect of 
     preventing any closures until further consideration can be 
     given as to whether these proposed closures or diminishment 
     of staff are indeed in the best interest of our nation's 
     veterans. It is our understanding that this amendment does 
     not mean that any of the enhancements, remodeling, or 
     construction in the proposed CARES plan will be delayed or 
     stopped.
       Again, thank you and Senator Enzi for your strong 
     leadership on this issue.
           Sincerely,
                                                  Thomas H. Corey,
     National President.
                                  ____

                                            American Federation of


                                Government Employees, AFL-CIO,

                                Washington, DC, November 12, 2003.
       Dear Senator: On behalf of the American Federation of 
     Government Employees, AFL-CIO, which represents 600,000 
     government employees, including 150,000 employees in the 
     Department of Veterans' Affairs (VA), I strongly urge you to 
     support the bipartisan amendments on CARES offered by Senator 
     Hillary Rodham Clinton (D-NY) and Senator Michael Enzi (R-
     WY).
       Under VA's planning process--Capital Assets Realignment for 
     Enhanced Services--known as CARES, the VA is proposing to 
     close VA nursing homes, domiciliaries, and inpatient mental 
     health care beds without fully considering how the VA will 
     meet the surging long-term care needs of elderly veterans or 
     the needs of homeless veterans. The Clinton-Enzi amendment 
     would allow the VA to spend funds to improve and repair 
     facilities but would hold in abeyance the expenditure of 
     funds to close or reduce services at VA facilities until the 
     CARES process addresses VA's needs for nursing home care 
     facilities, domiciliaries and mental health care delivery.
       VA's own data projections indicate that in order to meet 
     the current and future health care needs of elderly veterans 
     the VA will need roughly 17,000 additional nursing home beds 
     by 2022. The current CARES proposals target nursing home beds 
     for closure without considering how the VA will meet the 
     surging demand for veterans' nursing home and adult day care.
       Veterans deserve access to quality care. Congress must make 
     sure that VA plans for current and future veterans' demand 
     for nursing home care, mental health services and supportive 
     environments like domiciliaries.
       AFGE strongly urges you to vote yes for the Clinton-Enzi 
     amendment on CARES. If you have any questions, please contact 
     Linda Bennett at 202-639-6456.
           Sincerely yours,

                                                   Beth Moten,

                                                         Director,
                      Legislative and Political Action Department.

  Mrs. CLINTON. In summary, I am offering this amendment because I 
believe that the Draft National CARES Plan and the process used to 
develop it are deeply flawed. The Plan has not adequately taken into 
account the impact of these proposals on long term care, domiciliary 
care and mental health services. The Development of Veterans Affairs 
needs to go back to the drawing board and develop its plan through a 
fair process that takes into account all relevant factors and allows 
veterans to fully participate in the plan's development.
  At this time in our nation's history, with U.S. troops bravely 
serving in Iraq, Afghanistan and elsewhere, it sends exactly the wrong 
message to propose such drastic changes in veterans' health care 
without proper throught and deliberation. Our troops are fighting 
overseas to defend our values and way of life. We owe it to our current 
and future veterans to make sure that we provide the best health care 
possible for them and not rush to implement recommendations that 
provide our veterans with less adequate health care.
  As a starting point, our bottom-line goal should be the delivery of 
high quality health care services to our veterans, delivered as 
efficiently as possible. Unfortunately, the hasty procedures that the 
Department of Veterans Affairs followed to develop these 
recommendations are fundamentally flawed.
  Veterans' health care is too important an issue to require an 
adherence to artificial deadlines and hasty recommendations. With 
literally the lives of veterans at stake, the Commission should not 
engage in a rush to judgment over closing VA facilities.


   failure to consider long term, domiciliary and mental health needs

  As a result of the flawed CARES process, several important factors 
that are critical to veterans' health care have been neglected. In this 
rushed process, the impact of the proposed changes to long-term care, 
domiciliary care and mental health needs were not considered. The 
exclusion of these important factors taints the recommendations of the 
draft national plan. For example, the Draft National CARES Plan states 
that its mental health outpatient psychiatric provisions are 
``undergoing revision'' and ``should be available for next year's 
strategic planning cycle.'' As you can see from this panel, we found a 
speech on the VA web site in which then-Deputy Secretary Mackay 
admitted in April that ``As you are also aware, there have been aspects 
of care that have been left out of his CARES plan. Long-term care, 
domiciliary care, and outpatient mental health care were all determined 
to need more work before reliable forecasts could be made.''
  Incredibly, despite this admission, the Draft National CARES Plan 
proposes reductions in beds in facilities that provide mental health 
services. Similarly, there is widely expected to be an increase in the 
demand for long term beds for veterans over the next 20 years. However, 
the Draft National Plan does not contain any analysis of how many long-
term beds are needed in the coming decades and yet still recommends 
closing facilities with long-term beds.
  During a meeting between members of the New York delegation and VA 
Secretary Anthony Principi a few weeks ago, Secretary Principi 
acknowledged that a plan for long-term psychiatric needs has not yet 
been developed. With all due respect to Secretary Principi and the 
Commission, it seems to me that developing a Draft National Plan before 
developing a plan for mental health needs is getting it exactly 
backwards. A plan for addressing mental health care should have been 
developed before the Draft National Plan was released, not after.
  The Draft National Plan's failure to consider long-term mental health 
care has disastrous implications for veterans around the country, 
including thousands in New York. One of the facilities targeted by the 
CARES plan is the VA hospital in Canandaigua. I have visited the VA 
Hospital at Canandaigua and was greatly impressed by the quality of 
care provided at the facility as well as the overwhelming support that 
the VA hospital has in the community. And indeed, it is a cruel irony 
that Canandaigua has been recommended for closure in the same year that 
it received the highest facility rating in patient satisfaction in the 
country.
  The omission of mental health care needs from the Draft National Plan 
is particularly striking because of the effect that the closure of the 
Canandaigua VA will have on the veterans with mental health care needs 
who are currently receiving care at the facility. Veterans at 
Canandaigua receive a specialized level of treatment for mental health 
illness that is not readily available at other facilities. Further, if 
the Canandaigua VA were to close, many veterans would be forced to 
drive long distances for care. As my colleague Senator Enzi has pointed 
out, the CARES national plan has not adequately taken into account the 
impact of the recommendations on rural health care.

[[Page 28572]]

  The Draft National CARES Plan for VISN 3 recommends eliminating all 
inpatient services at Montrose VA hospital and transferring most of 
these services to the Castle Point VA hospital. A decision to follow 
through on this recommendation would be a serious blow to veterans who 
currently rely on the Montrose VA hospital for their care.
  As I mentioned previously, the need for long term beds has not been 
properly assessed and current projections forecast that there will be a 
significant increase in the need for psychiatry beds through 2012. In 
order to ensure adequate capacity to handle the projected case load, 
local veterans organizations support retaining all services at Montrose 
and Castle Point.
  Moving inpatient services from Montrose to Castle Point will require, 
by VA's own admission between $85 and $100 million and take at least 5 
and maybe as many as 10 years to accomplish. However, the Draft 
National CARES plan provides no explanation for what will happen to 
services at Montrose in the meantime. Further, there is no analysis of 
how veterans will get services if future budgets do not include enough 
funds for the transition. The often substantial waiting periods that 
veterans living in this region already experience at the Montrose and 
Castle Point Campuses and their satellite facilities underline the 
strain the system is experiencing.
  The Draft National CARES Plan will also have a significant impact on 
the Castle Point VA. Wait times at Castle Point are already too long. 
With the closure of Montrose and the shifting of veterans to Castle 
Point, the wait times are likely to get even worse. In addition, many 
area veterans have questioned the adequacy of space available for 
expansion at Castle Point.
  The CARES Draft National Plan recommends developing ``a plan to 
consider the feasibility of consolidating inpatient care [from 
Manhattan] at Brooklyn.'' Yet, once again there is no requirement that 
the development of this ``plan'' solicit the input of veterans. 
Further, the proposal does not properly take into account how the 
consolidation of inpatient care in Brooklyn will impact the 
relationship between the New York University School of Medicine (NYU) 
and the Manhattan VA. The NYU-Manhattan VA relationship, and the high 
quality of care for veterans it produces, would be imperiled by the 
potential closure of the Manhattan VA.
  Finally, the practical matter of transportation deserves an important 
role in your deliberations. The high quality tertiary services at the 
Manhattan VA attract veterans from New York, and other states including 
New Jersey and Pennsylvania. One of the reasons the Manhattan VA is 
able to serve these veterans is its amazing accessibility, located, as 
it is, in the heart of Manhattan, at the center of a mass transit 
system that is unmatched anywhere else in the Nation.
  Since the release of the CARES Draft National Plan, a frequent 
complaint that I have heard from area veterans has been that the VA has 
not been listening to their concerns. Veterans who contributed to the 
VISN 2 market plan, which called for no closures in VISN 2, feel 
betrayed by the decision to overrule the market plan and call for this 
facility's closure.
  Further, the VA did not hold hearings near many facilities on the 
closure list around the nation. Our amendment would require new 
hearings within 30 miles of a facility where a reduction in services is 
proposed and require that veterans be allowed to testify.
  In meeting with the veterans of New York, I have learned a tremendous 
amount about the value of the New York VA facilities and the quality of 
health care that is delivered there. And as letters to my office from 
veterans who use the facility demonstrate, the veterans' community in 
New York is united behind keeping these facilities open.
  One veteran who wrote to me explained that he suffered a massive blow 
to the head while serving in the Marines and suffers from Organic Brain 
Syndrome and Organic Affective Disorder. He currently uses the 
Canandaigua VA's day treatment program. He wrote to me that ``I have a 
lot of difficulty with my short term memory and the thought of losing 
one of the places that I am most familiar with bother me. . . . [I]t 
has taken a long time but I have finally reached a little bit of 
independence. By losing this hospital, I will be losing that 
independence. Also, the place that I live is very rural and there are 
no other facilities in my area. The idea of sitting around the house 
day after day depresses me.''
  Another veteran from Rockland County wrote to me about the potential 
closure in Montrose stating that ``I was wounded in 1944 during World 
War II by shrapnel in the mouth causing the loss of several teeth. In 
early 1945, I was captured by German soldiers and held as a POW until 
the end of World War II. . . if [Montrose] were to close, I would have 
to travel an additional 45 minutes to one hour depending on weather for 
treatment at Castle Point VA Hospital. I am 84 years old and 
transportation is getting more difficult for me. As you know there is 
no public transportation to this facility.''
  Our Nation's veterans have served their country with distinction. Our 
nation made a pact with those who serve their country in the Armed 
Forces--a commitment that those who served would have access to quality 
health care through the VA hospital system. Yet this ill-considered and 
rushed Draft National CARES Plan threatens to undermine our commitment 
to our nation's veterans. That is we are this offering legislation in 
the Senate to halt any spending towards closure or reduction in 
services until long-term, domiciliary, mental health care and rural 
care are adequately considered and veterans are allowed to fully 
participate in the CARES process. If this amendment passes, the 
Department of Veterans Affairs and the CARES Commission can begin anew 
by taking into account the proper factors and input from veterans. I 
urge my colleagues to support the Clinton-Enzi amendment.
  I also ask unanimous consent to print the letter from the Eastern 
Paralyzed Veterans Association.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                 Eastern Paralyzed


                                         Veterans Association,

                                                November 10, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate,
     Washington, DC.
       Dear Senator Clinton: The Eastern Paralyzed Veterans 
     Association strongly supports your proposed amendment to S. 
     1584, the FY 2004 VA-HUD Appropriations Bill to prohibit the 
     Department of Veterans Affairs (VA) use of appropriated funds 
     for the implementation of the VA's Capital Asset Realignment 
     for Enhanced Services (CARES) initiative until CARES 
     addresses such vitally important issues as mental health 
     care, long term care, domiciliary care, and other outstanding 
     issues. We have closely monitored the CARES process since its 
     inception and, while we agree with VA that infrastructure 
     analysis is necessary, we cannot support the National plan 
     currently being considered for implementation until these 
     concerns are addressed, as would be required by your 
     legislation.
       From the outset, VA has claimed that CARES would be a data 
     driven process with sound and justifiable conclusions and 
     proposals. Unfortunately this has not been the case. VA has 
     refused to run data on its mental health programs and has 
     maintained that CARES would not impact on this population. 
     Despite these claims, 12 of the 14 VA facilities slated for 
     closure or discontinuation of in-patient services have a 
     major psychiatric service component. Additionally, the CARES 
     National plan includes nothing with regard to long term and 
     domiciliary care; two services that VA is Congressionally 
     mandated to provide over the next twenty years. Finally, the 
     data that was used to formulate the National plan completely 
     excluded veterans in Priority Groups 7 and 8 from the twenty-
     year projected usage data. By excluding Priority 7 and 8 
     veterans from the CARES projections, VA is creating a system 
     that will be unable to treat these veterans. This cannot be 
     allowed to occur.
       While CARES was well intentioned, the fact that this 
     process has so many flaws on so many levels forces us to 
     oppose it until these issues are addressed. Your amendment 
     would require just that. Eastern Paralyzed Veterans 
     Association is grateful that you, together with Senator Mike 
     Enzi, will introduce this amendment to insure that these 
     issues are dealt with before allowing the process to advance. 
     Thank you.
           Sincerely,
                                                  Gerard M. Kelly,
                                               Executive Director.


[[Page 28573]]

  Mrs. CLINTON. I see my colleague and partner Senator Schumer. I yield 
to him such time as he needs.
  Mr. SCHUMER. I thank my colleague from New York and all of those who 
have worked so hard. I plead to my colleagues, the CARES Commission had 
a good idea. Let's study and see how we can make health services better 
for veterans. But looking at what they recommended in New York State, 
something went amuck; to close the Canandaigua Hospital makes no sense 
whatsoever. It is desperately needed by so many veterans. It is a 
fountain point of the community, and it does special work in mental 
health and psychological services that no hospital within miles and 
miles and miles around, tens of miles, hundreds of miles around, can 
do.
  All we are asking is a chance. Let the CARES Commission go back to 
the drawing board and figure out what they did wrong. Let them look at 
what they have done wrong in New York in terms particularly of 
Canandaigua but also of Montrose and the Manhattan VA hospital where 
anyone who looks at it up close sort of scratches their head in 
wonderment and says: How did they come up with these recommendations? 
This is a bipartisan bill. It does not stop any kind of restructuring 
except for the fact that it says: Go back and look at other factors 
they seem to have missed.
  It is desperately needed in many parts of the country. The veterans 
groups of America are totally for this amendment.
  This Chamber and the other just voted for $87 billion for Iraq. 
Whatever one's opinion of that was, how can we at the same time turn 
our backs on so many of those veterans who fought in other wars? I know 
the intentions of the commission may have been good, but the effect, at 
least in our State, is to do just that. It is to turn its back on tens 
of thousands of veterans who served their country, many of whom were 
wounded in the course of battle.
  This is a pro-veteran amendment, supported by veterans throughout the 
country. I urge my colleagues to support it.
  I thank my colleague from New York for the great job she has done. We 
have worked as a team to try to prevent this from happening. This 
amendment gives us a good opportunity to go back and reargue. We hope 
our colleagues will support it.
  Mrs. CLINTON. Madam President, this is an issue that affects veterans 
across our country. My cosponsor, Senator Enzi, is concerned 
particularly about the impact on his veterans who live in rural areas 
and are not going to be able to travel the long distances that will be 
required if services are reduced, if facilities are closed. I know my 
colleagues from Iowa, Michigan, Washington, Oregon, Texas, in addition 
to Wyoming, have asked for similar relief.
  I hope my colleagues who are in States that, under this process, are 
in line to get enhancements and increases will vote for this because it 
doesn't affect your enhancements. It does not affect your increase, but 
it gives those of us who have mental health needs, who have rural 
health needs, who have domiciliary and long-term health needs the 
opportunity to get this process right and to fix the problems that 
would lead to the closure and reduction of services that are so needed 
in so many States for so many veterans.
  I hope this amendment will find favor with my colleagues and will 
give those of us who are particularly on shaky ground because of the 
recommendations of this commission a chance to have a more rational 
process that really takes into account the needs of our veterans.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. ENZI. Mr. President, I am pleased to be a cosponsor of this 
amendment and I hope to clarify some of the reasons I believe every 
Senator should support our efforts.
  I think everyone in this Chamber agrees on the importance of our 
national veterans community. Just yesterday ceremonies throughout the 
Nation and speeches here on the Senate floor paid tribute to those who 
have been willing to sacrifice so much. When young men and women 
volunteer their lives for the fight for freedom and democracy we, as a 
nation, promise to take care of them.
  The amendment Senator Clinton introduced today addresses the Capital 
Asset Realignment for Enhanced Services or CARES process from the 
Department of Veteran's Affairs.
  I believe the intent of the CARES process is good. If we can clear up 
some of the unused space in the VA health care system and remove 
redundancy in services, we can save money and put it towards effective 
health care for our veterans. I do not believe, however, that rushing 
into changes for the sake of making changes is a good policy. How can 
we expect good changes to come from a broken system?
  There is no doubt in my mind that the CARES Commissioners have the 
best interests of veterans at heart. I believe that given enough time 
and proper information, they will be able to make changes in veterans 
health care that will fully benefit current and future veterans for 
years to come. I must admit, however, that they currently have neither 
the time nor the proper information to make good changes.
  Now, let's be clear about what this amendment does and does not do. 
It does not prevent the CARES process from moving forward. It does not 
prevent improvements from being made or new hospitals from being built. 
It does not kill the CARES initiative.
  It does require the VA to commit to a separate process for long-term 
care, domiciliary care, and mental health care needs. It does require 
the VA to confirm that they have examined local travel factors such as 
road and weather conditions. It does require the CARES Commission to 
hold hearings within 30 miles of each facility targeted for a closure 
or a reduction of services and it requires veteran participation in 
these hearings.
  Let me touch on a couple of these requirements. One is that there be 
a CARES Commission hearing within 30 miles of every facility facing a 
realignment of services under the national plan.
  We recently had a CARES hearing in Cheyenne, WY near the Cheyenne VA 
Medical Center. I think the hearing went extraordinarily well. The 
veterans who attended where given an opportunity to understand more 
about the future of their health care. Likewise, the CARES 
Commissioners were able to hear the veteran's concerns through the 
veterans service organizations. Just holding a hearing in Denver about 
reducing services in Cheyenne--a town more than 100 miles away--would 
have sent a strong statement to Wyoming veterans that the VA cared 
neither for their health nor their opinions.
  I believe each facility and community should have the opportunity to 
have this same interaction. Each community should be able to understand 
what the changes will mean for them and what differences in services 
the veterans will face. I now the burden falls to the CARES 
Commissioners to attend and consider the testimony at these additional 
hearings, but I believe they will then be better informed about the 
decisions they will need to make.
  I also want to point out the travel issue in the amendment. I think 
we all realize the difficult nature of taking weather into 
consideration nationally. After all, northern Wyoming's winter and 
southern Florida's winter are hardly the same. What this part of the 
amendment intends to do is ensure that the local factors were 
considered when drafting the national plan. Distance cannot be the only 
factor considered--we all know that even in Washington, DC, 30 miles 
travel distance doesn't mean 30 minutes travel time.
  Let me say again, this amendment does not stop the CARES process. It 
merely requires the VA to consider a couple of factors that we believe 
should have been considered from the very beginning.
  I know letters from some veterans service organizations may have 
raised concerns for my colleagues about our amendment. these 
organizations were

[[Page 28574]]

able to meet with the Secretary of Veterans Affairs and had many of 
their worries addressed. the Secretary told them that no services would 
be reduced until replacement services are fully available. He also 
stressed that no net changes would be made in long-term care, 
domiciliary care, or mental health care.
  I think this meeting was a great idea. It is, however, a shame that 
it took news of this amendment to get the VA, moving. I am very glad 
that the veterans organizations had the opportunity to meet with the 
Secretary. Through this amendment we are trying to make sure the VA 
addresses the concerns of Congress. We are just trying to make sure 
that the promises made are promises kept.
  Again, I want to reiterate my support for the CARES Commissioners 
themselves. They are doing their best to make good decisions in a 
broken system. I appreciate their patience and most of all their 
willingness to serve America's veterans. I urge my colleagues to 
support the amendment.
  Mr. REID. Madam President, I rise to speak against this amendment, 
and in support of the CARES process.
  As many Senators are aware, Nevada has experienced unprecedented 
growth over the last decade. In Clark County alone, the home of Las 
Vegas, 14 new schools are constructed each year to keep up with the 
approximately 8,000 people that move to the county each month.
  The growth in our veterans population has been just as rapid. With 
approximately 245,000 veterans, Nevada has the second highest 
concentration of veterans in the country. Only Alaska ranks higher.
  About 176,000 of Nevada's veterans have served in a war: 18 percent 
in the Gulf War, 49 percent in Vietnam, 21 percent in Korea, and 21 
percent in World War II. Many of our veterans even served in multiple 
wars.
  Therefore, Nevada's veterans have been combat-tested. And 
regrettably, the average age of our veterans' population is growing 
older each year. The rising average age, coupled with the many years of 
often very harsh service to defend our Nation's freedom, has placed a 
tremendous strain and great demand on the veterans health care system 
in Nevada.
  More than 70,000 veterans are enrolled in the Reno and southern 
Nevada VA health care facilities, with more coming in each day. We have 
an excellent VA hospital in Reno, but other parts of northern Nevada 
are underserved. And the Las Vegas area continues to be one of the most 
densely populated regions of the country for veterans seeking quality 
health care and one of the most severely underserved.
  In the past several years, the VA has not kept pace with the demand 
and growth in our State. Long lines, prolonged waiting times, old and 
crowded facilities: this is no way to provide health care to our 
courageous veterans, and it is no way to deal with the population 
explosion in Nevada.
  So when this subcommittee called for a new plan and independent 
commission to examine the VA's resources and reallocate resources based 
on the greatest demand, I applauded that action. I also welcomed VA 
Secretary Tony Principi's active role and interest in supporting 
Nevada. He has been an honest advocate for our Nation's veterans, and a 
bright spot in the President's cabinet.
  It came as no surprise to me that the CARES plan, which is the 
subject of this debate, found Nevada to be dramatically underserved by 
the VA.
  The draft CARES plan contains $130 million in upgrades to improve 
health care facilities for the veterans who live in Nevada.
  The plan also calls for the construction of a major medical center, 
clinic and nursing home in the Las Vegas area. This new hospital is 
only one of two hospitals recommended in the entire VA plan. I credit 
our hardworking VA staff in Nevada and the thousands of veterans 
themselves for making sure that the CARES Commission got the message 
about Nevada's desperate needs.
  Therefore, I must oppose any effort to delay, derail or diminish the 
CARES process and the money and resources that would flow to the 
veterans in my State under the draft plan.
  I have the greatest respect and admiration for the Senator from New 
York. I understand her concerns, and the concerns of other senators, 
about certain CARES recommendations that will impact other States. But 
these concerns should be addressed directly with the VA, and not by 
cutting off appropriations to the VA for the CARES process to continue.
  The veterans of Nevada can't wait much longer for the upgrades and 
new facilities that they desperately need and deserve.
  I therefore will vote against this amendment, and I would urge my 
colleagues to do the same.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Madam President, how much time remains?
  The PRESIDING OFFICER. There are 10 minutes in opposition.
  Mr. BOND. Madam President, I yield myself 7 minutes, and I reserve 
time for my colleague.
  I rise in strong opposition to the Clinton-Enzi amendment. It would 
deny up to $1 billion in funds to support our Nation's veterans. I 
especially object to the amendment because it would likely extend 
waiting lines for veterans already waiting for medical care.
  Before I go into further explanation, I ask unanimous consent to 
print in the Record letters from the Veterans of Foreign Wars, Amvets, 
Disabled American Veterans, and the Paralyzed Veterans of America.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                          Veterans of Foreign Wars


                                         of the United States,

                                 Washington, DC, November 6, 2003.
     To: All Members of the U.S. Senate.
     From: Robert E. Wallace, Executive Director, VFW Washington 
         Office.
     Re: Clinton/Enzi amendment to H.R. 2861.

        On behalf of the 2.6 million members of the Veterans of 
     Foreign Wars of the United States (VFW) and our Ladies 
     Auxiliary, I would like to take this opportunity to urge you 
     to oppose the Clinton/Enzi Amendment to H.R. 2861, the FY 
     2004 VA/HUD Appropriations bill.
        This amendment would limit the use of funds for the 
     Capital Asset Realignment for Enhanced Services (CARES) 
     initiative. The VFW is concerned that if this amendment 
     passes, the CARES process will essentially be put on 
     indefinite hold.
        We share Senators Clinton's and Enzi's concerns regarding 
     long-term care, domiciliary care, and mental health services; 
     however, it is our understanding that the CARES Commission is 
     currently reviewing the data to include these services. 
     Therefore, at this stage, we believe it is important to move 
     ahead as the location and mission of some VA facilities need 
     to change to improve veterans' access; to allow more 
     resources to be devoted to medical care, rather than the 
     upkeep of inefficient buildings; and to adjust to modern 
     methods of health care service delivery. Our nation's 
     veterans deserve no less.
        Again, I urge you not to support the Clinton/Enzi 
     Amendment regarding the limiting of funds for the VA CARES 
     initiative.
                                  ____

                                                           AMVETS,
                                     Lanham, MD, November 7, 2003.
     To: All Members of the U.S. Senate.
     From: S. John Sisler, National Commander.
     Re: Consideration of CARES amendment in VA/HUD appropriations 
         bill.

        It is our understanding that Sen. Hillary Rodham Clinton 
     may offer an amendment to S. 1584, the VA/HUD appropriations 
     bill, that would block the Department of Veterans Affairs 
     from spending any money to enact the CARES Commission 
     recommendations.
        On behalf of the nationwide membership of AMVETS (American 
     Veterans), I write to express our strong opposition to Sen. 
     Clinton's proposed amendment aimed to stop progress of the 
     Department of Veterans Affairs National Capital Asset 
     Realignment for Enhanced Services (CARES) Plan.
        The CARES initiative is clearly needed to assess what 
     facilities will best meet the healthcare needs of America's 
     veterans. AMVETS believes that adoption of the amendment 
     would further delay moving forward with construction projects 
     that are obviously essential to patient safety and that will 
     eventually pay for themselves as a result of modernization.
        AMVETS agrees with the Department of Veterans Affairs that 
     many of their facilities need to be upgraded or replaced. We 
     also agree with the Department that part of the solution for 
     providing high quality health care to America's veterans is 
     upgrading some facilities and replacing others with new

[[Page 28575]]

     and modern medical care treatment facilities.
        AMVETS and I ask that you oppose any amendment that would 
     cause the VA National CARES process to be used as an excuse 
     to defer vital infrastructure maintenance and construction 
     projects.
                                  ____



                                   Disabled American Veterans,

                                 Washington, DC, November 7, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate,
     Washington, DC.
       Dear Senator Clinton: On behalf of the more than one 
     million members of the Disabled American Veterans (DAV), we 
     write to express our concern over your proposed amendment to 
     limit the use of funds for the Department of Veterans Affairs 
     (VA) Capital Asset Realignment for Enhanced Services (CARES) 
     initiative, pending modification of the initiative to include 
     long-term care, domiciliary care, and mental health services 
     in addition to reconvening the Commission for further 
     hearings.
       Intially, please know that preservation of the integrity of 
     the VA health care system is of the utmost importance to the 
     DAV and our members, and we greatly appreciate your efforts 
     and insistence that long-term care, domiciliary care, and 
     mental health services are included in the CARES initiative. 
     These specialized programs are an integral part of providing 
     sick and disabled veterans comprehensive health care. 
     However, we are concerned your amendment may completely stall 
     the CARES process and prohibit VA from making the necessary 
     changes to improve its health care system and enhance access 
     and services for veteran patients.
       As you are aware, over the past seven years, following 
     national trends, VA's Veterans Health Administration 
     converted from a primarily hospital-based system to an 
     outpatient focused health care delivery model. With these 
     sweeping changes, there clearly came a need to reassess VA's 
     physical structures and the need to realign, renovate, and 
     modernize VA facilities to meet the changing health care 
     needs of veterans today and well into the future. Many VA 
     medical facilities have an average age of 54 years and are in 
     critical need of repair. Unfortunately, VA's construction 
     budget has decreased sharply over the last several years with 
     political resistance to fund any major projects before a 
     formal plan was developed. VA responded with the CARES 
     initiative. However, many desperately needed construction and 
     maintenance projects, including seismic repairs that could 
     potentially compromise patient safety, have been 
     unnecessarily delayed. DAV strongly believes that CARES 
     should not distract VA or Congress from its obligation to 
     protect its physical assets whether they are to be used for 
     current capacity or realigned.
       On a national level, DAV firmly believes that realignment 
     of capital assets is critical to the long-term health and 
     viability of the entire VA health care system. We do not 
     believe that restructuring is inherently detrimental to the 
     VA health care system. However, we will remain vigilant and 
     press VA to focus on the most important element in the 
     process, enhancement of services and timely delivery of high 
     quality health care services to our nation's sick and 
     disabled veterans.
       VA Secretary Anthony J. Principi met with DAV and other 
     veterans service organizations this morning and gave us his 
     personal commitment that there would be no realignment or 
     reduction in services as a result of CARES for mental health 
     or long-term care until a definitive plan is developed and in 
     place to absorb the workload for these specialized services. 
     His promise to us satisfies our over-arching concern about 
     the inclusion of these essential programs. Therefore, we 
     believe the CARES process should be allowed to proceed at 
     this critical juncture.
       Again, we want to thank you for your efforts on CARES and 
     for your strong leadership and support of veterans' issues. 
     We very much look forward to continuing a positive and 
     meaningful working relationship with you regarding matters of 
     great importance to veterans. We hope that you will 
     reconsider your position on this issue based on these new 
     developments.
           Sincerely,

                                              David W. Gorman,

                                               Executive Director,
     Washington Headquarters.
                                  ____



                                Paralyzed Veterans of America,

                                 Washington, DC, November 7, 2003.
     Members,
     U.S. Senate,
     Washington, DC.
       Dear Senators: On behalf of the Paralyzed Veterans of 
     America (PVA) I am writing to express our concerns regarding 
     an amendment we understand will be offered by Senator Hillary 
     Rodham Clinton to the VA, HUD, Independent Agencies 
     Appropriation bill. As we understand, this amendment 
     addresses the Department of Veterans Affairs' Capital Asset 
     Realignment for Enhanced Services (CARES) process and, if 
     passed, will limit the expenditure of funds for the process 
     greatly delaying necessary improvements to the VA's medical 
     care system.
       While PVA concurs with Senator Clinton that the CARES 
     process inadequately addresses issues of long-term care, 
     mental health services and rural health care we believe that 
     the amendment will so severely restrain the process that the 
     many beneficial aspects of CARES will be seriously harmed. 
     Delay of CARES projects that will benefit veterans, and in 
     particular veterans with spinal cord injury or dysfunction, 
     can only serve to weaken the VA health care system upon which 
     our members and millions of other veterans rely.
       Veterans' service organizations have received assurances 
     from Secretary of Veterans Affairs Anthony Principi that no 
     VA beds will be closed or capacity reduced until appropriate 
     alternative health care resources have been identified and 
     put in place. Additionally, the Secretary has assured us that 
     long term care and mental health services will be included in 
     the planning process with specificity to be provided as to 
     who will be involved, how the process will operate and what 
     timelines will be put in place. Finally the Secretary has 
     indicated that the issue of inter-VISN (Veterans Integrated 
     Service Network) planning and cooperation will be addressed.
       In light of these assurances and the need to proceed with 
     the positive findings, to date, of the CARES process, PVA 
     believes any restrictions on funding for the CARES process 
     can only serve to delay improvements in capacity and access 
     of VA health care. We request that no limitation be placed on 
     appropriated dollars for the Department of Veterans Affairs 
     and that the CARES process be allowed to expeditiously move 
     forward.
           Sincerely,
                                              Delatorro L. McNeal,
                                               Executive Director.

  Mr. BOND. These organizations all oppose the Clinton-Enzi amendment 
because they understand the problem the VA has.
  In 1999, the General Accounting Office found that VA could spend 
billions of dollars operating hundreds of unneeded buildings over the 
next 5 years. The GAO reported that the VA wastes more than $1 million 
per day on medical care funds for unneeded infrastructure instead of 
direct patient care. This money could be used to provide medical care 
to over 100,000 veterans.
  Our committee, the VA-HUD committee, after the GAO report, directed 
the VA to do something about it, to develop a comprehensive strategy. 
Thus, in 1999, under the Clinton administration, the VA created the 
CARES Commission to address this concern.
  I have traveled around the State of Missouri. I have seen firsthand 
the need for construction funds to update surgical and intensive care 
units. By the way, I gave at the office. One of the first closures the 
VA instituted was of a surgery center in the State of Missouri because 
they weren't doing enough surgeries to be proficient. I believed our 
veterans needed the best care. So now we have a primary care facility 
and we send them to a surgical hospital where they do enough surgeries 
to be proficient and safe.
  We know we have different needs from veterans than when the VA was 
set up many years ago. The Clinton-Enzi amendment would deny over $600 
million in construction funds to build new hospitals in States such as 
Nevada, Florida, and Colorado. It would deny funds to address safety, 
seismic and other deficiencies for facilities in Kentucky, California, 
Colorado, Ohio, Pennsylvania, and others. It would deny construction of 
48 new community-based outpatient clinics.
  It would deny funding for 37 nursing home investments, such as 
construction of new nursing homes in West Virginia and Pennsylvania. 
This is not a fatally flawed process. I cannot agree with the assertion 
of the Senator from New York. In an October 27 letter to all Senators, 
this year Secretary Principi outlines the great extent to which he has 
gone to ensure that the process and review be thorough at every stage. 
Local veterans groups, union officials, as well as affiliate 
representatives participated directly in the development of these 
plans.
  The CARES Commission received more than 169,000 public comments. I 
take exception to the characterization of the plan as a ``cost 
cutting'' plan. The draft proposes to spend $4.6 billion in 
construction funds to expand services. It preserves more than 97 
percent of the current bed capacity. Further, the draft plan provides 
for no reduction in VA capacity to provide domiciliary or long-term 
care, including long-term mental health care. Let me repeat that. The 
draft plan provides for no reduction in VA capacity to provide 
domiciliary or long-term care, including long-term mental health care.

[[Page 28576]]

  In some areas, the draft plan would increase overall bed capacity. In 
New York State, the realignment would increase overall bed capacity by 
about 10 percent. The CARES Commission has held field hearings, and the 
Senator from New York has attended two of them. The CARES Commission 
held 38 field hearings with over 700 witnesses and made 68 site visits. 
Clearly, Secretary Principi and the CARES Commission have been 
thorough, responsive, fair, and open.
  This is a process that still is in its development stage. The Senate 
authorizing committee, chaired by Senator Specter, is working on 
legislation to establish funding for CARES, which will provide Congress 
an opportunity to review the final CARES plan before it can be 
implemented. The VA Committee held a hearing with Secretary Principi 
and the CARES Commission chair, Everett Alvarez, to provide oversight 
on the process.
  I am committed to and fully supportive of CARES because we need to 
support veterans' medical care over unneeded buildings. To keep 
unneeded or excess buildings in operation deprives veterans of the care 
they need. There has been much opposition to this.
  Mr. President, to reiterate, I oppose vigorously the Clinton-Enzi 
amendment to stop the VA's Capital Asset Realignment for Enhanced 
Services or CARES process. The amendment would deny up to $1 billion in 
funds to support our Nation's veterans. I object to this amendment 
because I believe in putting the needs of veterans ahead of the costs 
of keeping open unneeded buildings. I especially object to this 
amendment because it would likely extend the waiting lines for veterans 
already waiting for medical care. It is imperative that the CARES 
process moves forward so that the VA can move its outdated medical care 
infrastructure into the 21st Century.
  Before I explain my reasons for opposing this amendment, I ask that 
letters from the Veterans of Foreign Wars, AMVETS, Disabled American 
Veterans, and the Paralyzed Veterans of America be added to the Record. 
As the largest veterans' service organizations in the Nation, they all 
oppose the Clinton-Enzi amendment because of its negative impact on 
veterans.
  Why does the amendment hurt veterans? In 1999, the General Accounting 
Office (GAO) performed a study of the VA's medical care infrastructure 
and found that the VA ``could spend billions of dollars operating 
hundreds of unneeded buildings over the next five years.'' The GAO 
reported that the VA wastes $1 million per day in medical care funds on 
unneeded infrastructure, instead of direct patient care. Therefore, 
instead of wasting some $400 million annually on unneeded buildings, 
the VA could use these funds to provide medical care to over 100,000 
needy veterans.
  In response to the GAO's report, our committee directed VA to develop 
a comprehensive strategy to realign its medical care facilities so that 
it can deliver health care in a more accessible and effective manner. 
Thus, in 1999, the VA created the CARES initiative during the Clinton 
Administration to address this concern.
  The amendment also hurts veterans by denying much-needed construction 
funds to areas that need modernized facilities to serve its veteran 
population. In my travels around my own home State of Missouri, I have 
seen first-hand the need for construction funds to update surgical 
suites and intensive care units, among other things. For those Senators 
who have veterans in rural areas, they know that there is a critical 
need for outpatient clinics so veterans do not have to travel hundreds 
of miles to the nearest hospital. With an aging veteran population, 
there is a significant need to build nursing homes and long-term care 
facilities. The Clinton-Enzi amendment will deny over $600 million in 
construction funds to these places. It will deny funds to build new 
hospitals in States such as Nevada, Florida, and Colorado. It will deny 
funds to address safety, seismic, and other deficiencies for facilities 
in States such as Kentucky, California, Colorado, Ohio, and 
Pennsylvania. It will deny the construction of 48 new community based 
outpatient clinics throughout the country. It will deny funding for 37 
nursing home investments, such as the construction of new nursing homes 
in States such as West Virginia and Pennsylvania.
  Another reason why I oppose the Clinton-Enzi amendment is that the 
CARES process is still in its developmental stage and it is premature 
to pull the plug. Yet, Senator Clinton has already concluded that the 
CARES process is ``fundamentally flawed'' and the CARES Commission has 
``neglected'' the important health care issues facing our veterans. 
Further, she characterizes CARES as a ``cost-cutting'' plan.
  I do not agree with the Senator's assertions and I think it is 
unfortunate that she has been so critical of Secretary Principi who has 
been extremely responsive to the Congress's concerns. To Secretary 
Principi's credit, he has made the CARES process open and fair for all 
affected parties, including veterans to participate.
  In an October 27, 2003 letter sent to all Senators, Secretary 
Principi outlines the great extent he has gone through to ensure that 
``the process and review be thorough at every stage.'' Local veterans 
groups, local officials, union officials as well as affiliate 
representatives participated directly in the development of local 
plans. Since the announcement of the Draft National CARES Plan, the 
CARES Commission has received more than 169,000 public comments. 
According to the VA, all comments will be made a part of the official 
record and will be considered by the CARES Commission during its 
deliberations.
  I take great exception to Senator Clinton's characterization of CARES 
as a ``cost-cutting plan.'' The Draft plan proposes to spend $4.6 
billion in construction funds to expand services. It preserves more 
than 97 percent of VA's current bed capacity. Ninety-seven percent. It 
increases outpatient capacity by more than 12 million visits a year. It 
creates 48 new community-based outpatient clinics and at least 2 new 
hospitals. Further, the Draft plan provides for no reduction in VA 
capacity to provide domiciliary or long-term care, including long-term 
mental health care. Let me repeat that last sentence. The Draft plan 
provides for no reduction in VA capacity to provide domiciliary or 
long-term care, including long-term mental health care. Moreover, in 
some areas, the Draft plan's realignment would increase overall bed 
capacity. For example, in New York State, the realignment would 
increase overall bed capacity by about 10 percent. The Draft plan 
provides for all of these enhanced services and additional facilities 
despite the VA's projections that the veteran population is expected to 
decline by more than 25 percent over the next 20 years. I ask my Senate 
colleagues, does this sound like a cost-cutting plan?
  Further, the CARES Commission has held a number of field hearings and 
site visits across the Nation to listen first-hand to the concerns of 
interested parties. In fact, Senator Clinton participated in two CARES 
hearings. In total, the CARES Commission held 38 field hearings that 
included over 700 witnesses and made 68 site visits. In some instances, 
the Commission altered its schedule to respond to local interests such 
as in New York.
  Clearly, Secretary Principi and the CARES Commission have been 
thorough, responsive, fair, and open in moving the process. For 
example, at Senator Schumer's request, Secretary Principi agreed to 
visit the Canandaigua VA hospital before making any final decision.
  I also stress again that the CARES process is still in its 
developmental stage. The Commission has not completed its work. No 
final decisions have been made. The current plan is only a draft and is 
an interim step to the overall process. Delaying or stopping this 
process is premature and ends up hurting more than helping our 
veterans. The CARES Commission must complete the plan and the Secretary 
and the Congress must approve it.
  The Senate authorizing committee, chaired by Senator Specter, is 
working on legislation that establishes criteria for funding CARES 
projects,

[[Page 28577]]

 which will provide the Congress an opportunity to review the final 
CARES plans before it can be implemented. In fact, the Veterans Affairs 
Committee held a hearing with Secretary Principi and the CARES 
Commission Chair Everett Alvarez to provide oversight on the process 
and to ensure that the process was moving in a public and deliberative 
manner. The Committee also recently passed legislation that was 
originally sponsored by Senator Bob Graham and co-sponsored by nine 
other senators, including Senator Clinton that would give the Congress 
60 days to approve before any VA facility could be closed. If enacted, 
this legislation ensures that the Congress is involved in the 
implementation of the CARES plan.
  I am committed and fully supportive of CARES because I believe in 
supporting veterans medical care needs over unneeded buildings. I 
believe that CARES is the most important initiative in the VA and it 
must be done. We cannot afford any more delays. For too long, the VA 
was unable to rationalize its infrastructure and millions of medical 
care dollars were wasted on empty, obsolete, or redundant buildings 
instead of focusing those dollars on medical care for our veterans. 
Now, after nearly 4 years of work on CARES, the VA is developing a 
national plan that will ensure that the medical care needs of our 
Nation's veterans come first and they will receive the best care in 
modernized 21st Century facilities. We owe it to our veterans to move 
away from the old medical model of hospital-centered medicine to the 
contemporary, modern patient-centered medicine model.
  The veterans also agree with my view and oppose this amendment. The 
VFW's November 6, 2003 letter states, ``we believe it is important to 
move ahead as the location and mission of some VA facilities need to 
change to improve veterans' access; to allow more resources to be 
devoted to medical care, rather than the upkeep of inefficient 
buildings and to adjust to modern methods of health care service 
delivery. Our Nation's veterans deserve no less.''
  The sponsors of this amendment have tried to assuage the concerns of 
Senators who expect to receive new medical facilities in their State by 
limiting the amendment to facilities where closures may occur. However, 
I tell my colleagues, do not be fooled. This amendment would still 
prevent new hospitals, clinics, and nursing homes to be constructed 
because the VA cannot break up its CARES plan into separate pieces. 
There is only one plan for the Nation. It is a National Plan and it 
cannot be separated into pieces. In addition, many new construction 
projects under CARES cannot be financed unless some obsolete facilities 
are closed. In some areas, such as Chicago and Pennsylvania, 
construction for new facilities will be financed by the proceeds of 
leases of the closed facilities. Finally, this amendment continues the 
wasteful practice of spending medical care funds on unnecessary and 
empty buildings. Under CARES, these funds would be re-focused on direct 
patient care, the construction of new outpatient clinics, and operating 
costs for new hospitals, such as the proposed facilities in Las Vegas 
and Orlando. Implementing CARES will allow the VA to serve more 
veterans and especially ensure that our most vulnerable veterans will 
not be forced to wait for several months or years to obtain medical 
care.
  I urge my colleagues to place the needs of veterans ahead of unneeded 
facilities. Efforts to delay the CARES process will cause significant 
harm to our veterans. Outside of funding for VA medical care, CARES is 
my highest priority for VA. I have supported CARES from its inception 
in 1999, including the implementation of the pilot program in VISN 12. 
I strongly urge my colleagues to oppose the Clinton-Enzi amendment and 
allow the VA to move the CARES process forward.
  The PRESIDING OFFICER (Mr. Cornyn). Who yields time?
  Ms. MIKULSKI. Mr. President, first, I compliment our two colleagues 
from New York on their advocacy for veterans and the attempt to work to 
form a bipartisan coalition and for being concerned about mental health 
services and long-term care, as well as the rural needs.
  I say to my two colleagues, we on the VA Committee have to be 
concerned that we are in the veterans health care business and not in 
the veterans health real estate business. So we want to advocate for 
services, not for buildings.
  I think the Senator is also aware that we just had to work very hard 
to forage to come up with the $1.3 billion to meet the compelling needs 
for our veterans. I ask the Senator from New York, with her very strong 
advocacy and the support of a bipartisan list of cosponsors, would she 
consider a different approach--that, perhaps, report language be in the 
bill acknowledging the validity of the concerns raised by her, Senator 
Enzi, and others, talking about the need for long-term care, and pay 
attention to this as well as the rural health care?
  I say to my dear and esteemed colleague, the CARES project or process 
is due December 3. To make these recommendations, some of which are 
quite excellent--inclusion, participation, et cetera--would derail 
CARES. It could affect our spinal injury programs or more outpatient 
clinics. I know it could have unintended consequences.
  Would the Senator consider an alternative other than having the vote 
on the amendment?
  Mrs. CLINTON. Mr. President, I appreciate greatly the understanding 
of my friend and colleague. I am somewhat concerned, however. We have 
many charts, but I will not go into them, under the circumstances. They 
are very clear that there has not been adequate conversation on mental 
health and the other needs. I respect what the Senator from Missouri 
said. If you look overall, there may not be a loss of services defined 
in a certain way, but that is not necessarily tied to where the 
veterans need the services, or where the high-quality services have 
historically been given.
  I also add that Senator Enzi, my esteemed cosponsor, is at this 
moment chairing a hearing. We were, obviously, unprepared to get this 
up and get it out. But he told us to go ahead. I would like the 
opportunity to discuss this with my cosponsor. I don't want to make a 
decision without his awareness of what the Senator's idea is.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that this 
colloquy be extended for another 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. CLINTON. Mr. President, I suggest that we at least have an 
opportunity to discuss this with not only the prime cosponsor, but all 
the other cosponsors because many of us feel very strongly about the 
way this CARES process proceeds.
  Could the managers of the bill tell us what the plan is, and whether 
we are going to have votes on this bill when we finish the 30 hours? 
Where do we stand in the process? That would give me a better idea as 
to how to respond to the offer of the Senator from Maryland.
  Mr. BOND. Mr. President, in order to get this bill completed, we are 
going to have to wrap it up one way or the other by 6 o'clock tonight. 
It can either walk out or go out feet first. I will join my colleague 
from Maryland in saying if she wants to withdraw the amendment, I 
understand her concerns. I am sympathetic to the concerns. We would be 
delighted to put it in report language and work with the Secretary of 
the VA to make sure her concerns are fully addressed.
  But in the meantime, unless the Senator is ready to acquiesce, I ask 
unanimous consent that this amendment and the yeas and nays be set 
aside temporarily until we can have further discussions with the 
Senator from New York and the other sponsors.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________




            BASIC PILOT PROGRAM EXTENSION AND EXPANSION ACT

  Mr. BOND. Mr. President, I have been asked by the leadership to bring 
up Calendar No. 374, S. 1685, the Immigrant Pilot Program. I believe it 
has been cleared on both sides.
  I ask unanimous consent that the Senate proceed to its immediate 
consideration.

[[Page 28578]]

  The PRESIDING OFFICER. The clerk will state the bill by title.
  The legislative clerk read as follows:

       A bill (S. 1685) to extend and expand the basic pilot 
     program for employment eligibility verification, and for 
     other purposes.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and inserting in lieu 
thereof the following:
  [Strike the part shown in black brackets and insert the part shown in 
italic.]

                                S. 1685

       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 ``Basic Pilot Program 
     Extension and Expansion Act of 2003''.

     [SEC. 2. EXTENSION OF PROGRAMS.

       [Section 401(b) of the Illegal Immigration Reform and 
     Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is 
     amended by striking ``6-year period'' and inserting ``11-year 
     period''.

     [SEC. 3. EXPANSION OF THE BASIC PILOT PROGRAM.

       [(a) In General.--Section 401(c)(1) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended by striking ``in,'' and all 
     that follows through the semicolon and inserting ``in all 
     States;''.
       [(b) Conforming Amendments.--Section 402(c) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended--
       [(1) in paragraph (2)(B), by striking ``or entity 
     electing--'' and all that follows through ``(ii) the citizen 
     attestation pilot program'' and inserting ``or entity 
     electing the citizen attestation pilot program'';
       [(2) by striking paragraph (3); and
       [(3) by redesignating paragraph (4) as paragraph (3).]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Basic Pilot Program 
     Extension and Expansion Act of 2003''.

     SEC. 2. EXTENSION OF PROGRAMS.

       Section 401(b) of the Illegal Immigration Reform and 
     Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is 
     amended by striking ``6-year period'' and inserting ``11-year 
     period''.

     SEC. 3. EXPANSION OF THE BASIC PILOT PROGRAM.

       (a) In General.--Section 401(c)(1) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended by inserting after ``United 
     States'' the following: ``, and the Secretary of Homeland 
     Security shall expand the operation of the program to all 50 
     States not later than December 1, 2004''.
       (b) Report.--Section 405 of the Illegal Immigration Reform 
     and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a 
     note) is amended--
       (1) by striking ``The'' and inserting:
       ``(a) In General.--The'', and
       (2) by adding at the end the following new subsection:
       ``(b) Report on Expansion.--Not later than June 1, 2004, 
     the Secretary of Homeland Security shall submit to the 
     Committees on the Judiciary of the House of Representatives 
     and the Senate a report--
       ``(1) evaluating whether the problems identified by the 
     report submitted under subsection (a) have been substantially 
     resolved; and
       ``(2) describing what actions the Secretary of Homeland 
     Security shall take before undertaking the expansion of the 
     basic pilot program to all 50 States in accordance with 
     section 401(c)(1), in order to resolve any outstanding 
     problems raised in the report filed under subsection (a).''
       (c) Conforming Amendments.--Section 402(c) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended--
       (1) in paragraph (2)(B), by striking ``or entity electing--
     '' and all that follows through ``(ii) the citizen 
     attestation pilot program'' and inserting ``or entity 
     electing the citizen attestation pilot program'';
       (2) by striking paragraph (3); and
       (3) by redesignating paragraph (4) as paragraph (3).
       (d) Additional Technical and Conforming Amendments.--Title 
     IV of the Illegal Immigration Reform and Immigrant 
     Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended 
     by striking ``Attorney General'' each place that term appears 
     and inserting ``Secretary of Homeland Security''.

  Mr. BOND. Mr. President, I ask unanimous consent that the Leahy-
Brownback amendment at the desk be agreed to; the committee substitute, 
as amended, be agreed to; the bill, as amended, be read the third time 
and passed; the motions to reconsider be laid upon the table en bloc; 
and any statements relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 2170) was agreed to, as follows:


                           amendment no. 2170

  (Purpose: To extend the duration of the immigrant investor regional 
  center pilot program for 5 additional years, and for other purposes)

       At the end, add the following:

     SEC. 4. PILOT IMMIGRATION PROGRAM.

       (a) Processing Priority Under Pilot Immigration Program for 
     Regional Centers to Promote Economic Growth.--Section 610 of 
     the Departments of Commerce, Justice, and State, the 
     Judiciary, and Related Agencies Appropriations Act, 1993 (8 
     U.S.C. 1153 note) is amended--
       (1) by striking ``Attorney General'' each place such term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) by adding at the end the following:
       ``(d) In processing petitions under section 204(a)(1)(H) of 
     the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) 
     for classification under section 203(b)(5) of such Act (8 
     U.S.C. 1153(b)(5)), the Secretary of Homeland Security may 
     give priority to petitions filed by aliens seeking admission 
     under the pilot program described in this section. 
     Notwithstanding section 203(e) of such Act (8 U.S.C. 
     1153(e)), immigrant visas made available under such section 
     203(b)(5) may be issued to such aliens in an order that takes 
     into account any priority accorded under the preceding 
     sentence.''.
       (b) Extension.--Section 610(b) of the Departments of 
     Commerce, Justice, and State, the Judiciary, and Related 
     Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is 
     amended by striking ``10 years'' and inserting ``15 years''.

     SEC. 5. GAO STUDY.

       (a) In General.--Not later than 1 year after the date of 
     enactment of this Act, the General Accounting Office shall 
     report to Congress on the immigrant investor program created 
     under section 203(b)(5) of the Immigration and Nationality 
     Act (8 U.S.C. 1153(b)(5)).
       (b) Contents.--The report described in subsection (a) shall 
     include information regarding--
       (1) the number of immigrant investors that have received 
     visas under the immigrant investor program in each year since 
     the inception of the program;
       (2) the country of origin of the immigrant investors;
       (3) the localities where the immigrant investors are 
     settling and whether those investors generally remain in the 
     localities where they initially settle;
       (4) the number of immigrant investors that have sought to 
     become citizens of the United States;
       (5) the types of commercial enterprises that the immigrant 
     investors have established; and
       (6) the types and number of jobs created by the immigrant 
     investors.

  The committee amendment, as amended, was agreed to.
  The bill was read the third time and passed, as follows:

                                S. 1685

       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 ``Basic Pilot Program 
     Extension and Expansion Act of 2003''.

     SEC. 2. EXTENSION OF PROGRAMS.

       Section 401(b) of the Illegal Immigration Reform and 
     Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is 
     amended by striking ``6-year period'' and inserting ``11-year 
     period''.

     SEC. 3. EXPANSION OF THE BASIC PILOT PROGRAM.

       (a) In General.--Section 401(c)(1) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended by inserting after ``United 
     States'' the following: ``, and the Secretary of Homeland 
     Security shall expand the operation of the program to all 50 
     States not later than December 1, 2004''.
       (b) Report.--Section 405 of the Illegal Immigration Reform 
     and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a 
     note) is amended--
       (1) by striking ``The'' and inserting:
       ``(a) In General.--The'', and
       (2) by adding at the end the following new subsection:
       ``(b) Report on Expansion.--Not later than June 1, 2004, 
     the Secretary of Homeland Security shall submit to the 
     Committees on the Judiciary of the House of Representatives 
     and the Senate a report--
       ``(1) evaluating whether the problems identified by the 
     report submitted under subsection (a) have been substantially 
     resolved; and
       ``(2) describing what actions the Secretary of Homeland 
     Security shall take before undertaking the expansion of the 
     basic pilot program to all 50 States in accordance with 
     section 401(c)(1), in order to resolve any outstanding 
     problems raised in the report filed under subsection (a).''
       (c) Conforming Amendments.--Section 402(c) of the Illegal 
     Immigration Reform and Immigrant Responsibility Act of 1996 
     (8 U.S.C. 1324a note) is amended--
       (1) in paragraph (2)(B), by striking ``or entity electing--
     '' and all that follows through

[[Page 28579]]

     ``(ii) the citizen attestation pilot program'' and inserting 
     ``or entity electing the citizen attestation pilot program'';
       (2) by striking paragraph (3); and
       (3) by redesignating paragraph (4) as paragraph (3).
       (d) Additional Technical and Conforming Amendments.--Title 
     IV of the Illegal Immigration Reform and Immigrant 
     Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended 
     by striking ``Attorney General'' each place that term appears 
     and inserting ``Secretary of Homeland Security''.

     SEC. 4. PILOT IMMIGRATION PROGRAM.

       (a) Processing Priority Under Pilot Immigration Program for 
     Regional Centers to Promote Economic Growth.--Section 610 of 
     the Departments of Commerce, Justice, and State, the 
     Judiciary, and Related Agencies Appropriations Act, 1993 (8 
     U.S.C. 1153 note) is amended--
       (1) by striking ``Attorney General'' each place such term 
     appears and inserting ``Secretary of Homeland Security''; and
       (2) by adding at the end the following:
       ``(d) In processing petitions under section 204(a)(1)(H) of 
     the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(H)) 
     for classification under section 203(b)(5) of such Act (8 
     U.S.C. 1153(b)(5)), the Secretary of Homeland Security may 
     give priority to petitions filed by aliens seeking admission 
     under the pilot program described in this section. 
     Notwithstanding section 203(e) of such Act (8 U.S.C. 
     1153(e)), immigrant visas made available under such section 
     203(b)(5) may be issued to such aliens in an order that takes 
     into account any priority accorded under the preceding 
     sentence.''.
       (b) Extension.--Section 610(b) of the Departments of 
     Commerce, Justice, and State, the Judiciary, and Related 
     Agencies Appropriations Act, 1993 (8 U.S.C. 1153 note) is 
     amended by striking ``10 years'' and inserting ``15 years''.

     SEC. 5. GAO STUDY.

       (a) In General.--Not later than 1 year after the date of 
     enactment of this Act, the General Accounting Office shall 
     report to Congress on the immigrant investor program created 
     under section 203(b)(5) of the Immigration and Nationality 
     Act (8 U.S.C. 1153(b)(5)).
       (b) Contents.--The report described in subsection (a) shall 
     include information regarding--
       (1) the number of immigrant investors that have received 
     visas under the immigrant investor program in each year since 
     the inception of the program;
       (2) the country of origin of the immigrant investors;
       (3) the localities where the immigrant investors are 
     settling and whether those investors generally remain in the 
     localities where they initially settle;
       (4) the number of immigrant investors that have sought to 
     become citizens of the United States;
       (5) the types of commercial enterprises that the immigrant 
     investors have established; and
       (6) the types and number of jobs created by the immigrant 
     investors.

                          ____________________




 DEPARTMENTS OF VETERANS AFFAIRS AND HOUSING AND URBAN DEVELOPMENT AND 
        INDEPENDENT AGENCIES APPROPRIATIONS ACT, 2004--Continued

  Mr. BOND. Mr. President, I see the distinguished Senator from New 
Jersey in the Chamber. I believe he has an amendment, and if the 
pricetag is reasonable, we may be able to accept it.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. LAUTENBERG. I appreciate the manager's interest in permitting me 
to offer this amendment. I will try to do it as quickly as I can.
  Mr. President, I ask unanimous consent that the pending amendment be 
set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 2171 to Amendment No. 2150

  Mr. LAUTENBERG. Mr. President, I send an amendment to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Jersey [Mr. Lautenberg], for himself, 
     Ms. Mikulski, Mr. Jeffords, Mrs. Boxer, Mr. Corzine, Mr. 
     Schumer, Mr. Leahy, Mr. Lieberman, Mr. Kerry, Mr. Kennedy, 
     Mr. Edwards, Ms. Cantwell, and Mr. Durbin, proposes an 
     amendment numbered 2171.

  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To maintain enforcement personnel for the Environmental 
            Protection Agency at the fiscal year 2003 level)

       On page 98, line 5, before the period at the end, insert 
     the following: ``, of which, in addition to any other amounts 
     provided under this heading for the Office of Enforcement and 
     Compliance Assurance, $5,400,000 shall be made available for 
     that office''.

  Mr. LAUTENBERG. Mr. President, I rise to offer this amendment on 
behalf of myself and Senator Mikulski. We are pleased to have as 
cosponsors Senators Jeffords, Kerry, Lieberman, Boxer, Schumer, Leahy, 
Corzine, Durbin, Cantwell, Kennedy, and Edwards.
  This appropriations bill cuts the number of enforcement officers in 
EPA's Office of Enforcement and Compliance Assurance by 54 positions. 
The amendment I am offering would restore those 54 positions so that 
EPA would have the same number of enforcement officers in fiscal year 
2004 that the agency had in 2003.
  Maintaining the current level of enforcement capacity is the least we 
ought to do in view of the reductions in enforcement staffing we have 
seen made in recent years.
  An EPA report that was released earlier this year on the Nation's 
enforcement of the Clean Water Act paints a disheartening picture. It 
shows additional officers are critically needed. Without this 
amendment, the total staffing reductions made since fiscal year 2001 
will equal 100 enforcement positions. That is equivalent to eliminating 
all of EPA's enforcement personnel for both the Northeast and Southeast 
regions.
  The cost of the 54 positions my amendment would retain would be 
approximately $5.4 million. This cost, as the Senator from Missouri 
noted, will be offset by a tiny reduction of .003, or three one-
thousandths of a percent, in EPA's $22.2 billion environmental programs 
and management account. Again, these positions are only going to keep 
the level of enforcement staffing where it presently is.
  Our colleagues in the House have already approved a similar 
amendment. In July, they voted to add 54 enforcement positions back 
into the bill at the same cost using the same offset as the amendment 
before us.
  The cuts in enforcement are taking a heavy toll, and the facts are 
these: Between 1999 and 2001, 76 percent of the country's major 
facilities with significant environmental violations received no formal 
enforcement action whatsoever. Inspections are down. There has been a 
45-percent decrease in enforcement actions, and the penalties that are 
levied averaged a paltry $6,000. We have practically hung out a sign 
that tells polluters it is all right to flaunt the law, and the fines 
are hardly a deterrent to businesses generally.
  The damage they do, however, is not free, and society will pay the 
price for the mounting violations, additional fish advisories, higher 
asthma rates, more trips to the hospital, and worse.
  An internal EPA survey that was leaked to the press in January 
painted a dismal and frightening picture of what is happening at some 
of the largest facilities across the country. Fifty percent of major 
facilities are exceeding their permitted toxic release limits by 100 
percent, 21 percent of the facilities are exceeding their toxic release 
limits by 500 percent, and 13 are exceeding toxic limits by an alarming 
1,000 percent.
  These are alarming statistics, and they portray a terrible picture.
  I am pleased my colleagues will be considering what it means to these 
families who live downriver or downwind from these plants. None of us 
in this Chamber would ever knowingly subject our families to 
concentrations of mercury, dioxins, or other deadly toxins in our lakes 
and rivers that are 10 times the safe level. But we are doing that. If 
we don't stop companies from violating our environmental laws, we will 
continue to do that.
  To my colleagues, I say we are not powerless; we can stop these 
dangerous violations, or at least keep them contained to a no larger 
level, which is an important first step this amendment takes care of.
  I submit this amendment for consideration by the ranking member, the 
distinguished Senator from Maryland, and the chairman, the 
distinguished

[[Page 28580]]

Senator from Missouri. I understand there has been a review of my 
amendment.
  Ms. MIKULSKI. Mr. President, there has been a review of the Senator's 
amendment.
  Mr. BOND. Mr. President, I believe we can accept this amendment. This 
is an increase, obviously. Our budget has been short in every area. We 
share the concern of the author of this amendment in ensuring EPA 
enforcement is strong enough.
  There is no objection on this side.
  Ms. MIKULSKI. Mr. President, I am an enthusiastic cosponsor of the 
Lautenberg amendment. He is absolutely right. This money is needed 
because it essentially restores funding for the environmental cops on 
the beat. We wanted to do this in our bill, but circumstances shackled 
us from doing so.
  This is a good amendment. We are happy to accept it. I thank the 
Senator for his longstanding advocacy in this area.
  The PRESIDING OFFICER. Is there further debate on this amendment?
  Mr. BOND. Mr. President, a request has been made by the distinguished 
ranking member of the Appropriations Committee that we have a voice 
vote and not just accept these amendments without objection. It would 
be in order to ask for a voice vote.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, the question is on agreeing to amendment No. 2171.
  The amendment (No. 2171) was agreed to.
  Mr. LAUTENBERG. I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BOND. Mr. President, Senator Ensign has a statement he wishes to 
make, but in the meantime we have a number of amendments that have been 
cleared on both sides.


                Amendment No. 2172 to Amendment No. 2150

  Mr. BOND. Mr. President, I send an amendment to the desk on behalf of 
Senator Hollings and Senator Graham of South Carolina. This is an 
amendment permitting the Secretary of VA to enter into an enhanced-use 
lease for the Medical University Hospital Authority in Charleston.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Mr. Graham of 
     South Carolina, for himself and Mr. Hollings, proposes an 
     amendment numbered 2172 to amendment No. 2150.

  Mr. BOND. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To authorize the Secretary of Veterans Affairs to enter into 
an enhanced-use lease at the Charleston Department of Veterans Affairs 
              Medical Center, Charleston, South Carolina)

       At the end of title I, add the following:
       Sec. 116. Notwithstanding paragraph (2) of section 8163(c) 
     of title 38, United States Code, the Secretary of Veterans 
     Affairs may enter into an enhanced-use lease with the Medical 
     University Hospital Authority, a public authority of the 
     State of South Carolina, for approximately 0.48 acres of 
     underutilized property at the Charleston Department of 
     Veterans Affairs Medical Center, Charleston, South Carolina, 
     at any time after 30 days after the date of the submittal of 
     the notice required by paragraph (1) of that section with 
     respect to such property. The Secretary is not required to 
     submit a report on the lease as otherwise required by 
     paragraph (4) of that section.

  Mr. BOND. Mr. President, I believe this amendment has been cleared on 
both sides.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
2173.
  The amendment (No. 2173) was agreed to.
  Mr. BOND. I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 2173 to Amendment No. 2150

  Mr. BOND. Mr. President, I send to the desk an amendment by Senator 
Mikulski which provides for the Corporation National Service to refrain 
from disclosing any information. I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Ms. Mikulski, for 
     herself and Mr. Bond, proposes an amendment numbered 2173 to 
     amendment No. 2150.

  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To require notice and comment rulemaking, and prohibit 
 disclosure of selection information, by the Corporation for National 
                         and Community Service)

       On page 92, line 22, strike the period and insert the 
     following: ``: Provided further, That, for fiscal year 2004 
     and every year thereafter, the Corporation shall make any 
     significant changes to program requirements or policy only 
     through public notice and comment rulemaking:  Provided 
     further, That, for fiscal year 2004 and every year 
     thereafter, during any grant selection process, no officer or 
     employee of the Corporation shall knowingly disclose any 
     covered grant selection information regarding such selection, 
     directly or indirectly, to any person other than an officer 
     or employee of the Corporation that is authorized by the 
     Corporation to receive such information.''.

  Ms. MIKULSKI. Mr. President, this amendment is simple and 
straightforward. It does two things. It says the Corporation for 
National Community Service must change the rules. It protects the 
integrity of the grant process by preventing corporation officials from 
disclosing sensitive grant information and insists that any changes for 
rules for volunteer programs must have public comment.
  One of my guiding principles is that people have a right to know, to 
be heard and to be represented. The Mikulski-Bond amendment upholds 
this principle. It ensures that the public gets a meaningful chance to 
comment on decisions that affect their communities and the volunteers 
who serve them.
  Recently, National Service tried to change the rules for AmeriCorps. 
I was very troubled by the corporation's actions for two reasons: the 
process and the policy. My first concern was the process or actually 
the lack of a process. The corporation acted behind closed doors 
without input from Congress, volunteer advocates, or the communities 
they serve. States, communities, and advocates were told they had just 
1 business day to review sweeping new rules, to ask questions about 
them, and to offer suggested changes. The corporation ``jackpotted'' 
advocates, volunteers, States, and local communities.
  My second concern is policy. The AmeriCorps rules changes would hurt 
communities who depend on volunteers by eliminating support for long-
standing, successful volunteer programs and by increasing financial and 
administrative burdens on communities and volunteer organizations.
  I commend the board of directors for stepping in to stop the 
corporation. But it is clear that the corporation needs specific 
direction to ensure that the public has a right to be heard. The 
corporation doesn't have a Senate-confirmed CEO. We are working on a 
bipartisan basis to get David Eisner confirmed as the new CEO, but the 
staff must not make rule changes without leadership and public comment.
  This amendment is good process, and good policy. It makes sure that 
the public has an opportunity to comment on any changes to National 
Service programs. And the amendment protects the integrity of the 
National Service grant process.
  I thank Senator Bond for working with me on this amendment. I urge my 
colleagues to support it.
  I thank the Senator from Missouri for his strong efforts to reform 
the fiscal and sloppy practices that are at the corporation. The 
volunteers are terrific, and now with the new CEO, I think we will be 
able to move ahead.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. I thank my colleague from Maryland for her very thoughtful 
and well-crafted amendment. She has

[[Page 28581]]

been regarded as really one of the greatest defenders of the concept of 
AmeriCorps national service. Nobody has been a stronger champion of 
volunteer service. I have been pleased to be a junior partner to her in 
this effort. She has it just right. The volunteers are wonderful. The 
purpose is wonderful. We have had more than a few bumps in the road in 
terms of how the program has been administered, but we have high hopes 
that the new administration in that agency, with the new head, the 
financial officer, the chairman, will be on the right track.
  I urge my colleagues to adopt this amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  If not, the question is on agreeing to amendment No. 2173.
  The amendment (No. 2173) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BOND. Mr. President, I now see my distinguished colleague from 
Nevada is in the Chamber. I yield the floor to him for such comments as 
he wishes to make.
  The PRESIDING OFFICER. The Senator from Nevada.


                           Amendment No. 2152

  Mr. ENSIGN. Mr. President, I rise in opposition to the Clinton-Enzi 
amendment.
  First, I ask unanimous consent that letters from the Disabled 
American Veterans, Veterans of Foreign Wars, AMVETS, and the Paralyzed 
Veterans of America, all expressing their opposition to the Clinton-
Enzi amendment, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                   Disabled American Veterans,

                                 Washington, DC, November 7, 2003.
     Hon. Hillary Rodham Clinton,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Clinton: On behalf of the more than one 
     million members of the Disabled American Veterans (DAV), we 
     write to express our concern over your proposed amendment to 
     limit the use of funds for the Department of Veterans Affairs 
     (VA) Capital Asset Realignment for Enhanced Services (CARES) 
     initiative, pending modification of the initiative to include 
     long-term care, domiciliary care, and mental health services 
     in addition to reconvening the Commission for further 
     hearings.
       Initially, please know that preservation of the integrity 
     of the VA health care system is of the utmost importance to 
     the DAV and our members, and we greatly appreciate your 
     efforts and insistence that long-term care, domiciliary care, 
     and mental health services are included in the CARES 
     initiative. These specialized programs are an integral part 
     of providing sick and disabled veterans comprehensive health 
     care. However, we are concerned your amendment may completely 
     stall the CARES process and prohibit VA from making the 
     necessary changes to improve its health care system and 
     enhance access and services for veteran patients.
       As you are aware, over the past 7 years, following national 
     trends, VA's Veterans Health Administration converted from a 
     primarily hospital-based system to an outpatient focused 
     health care delivery model. With these sweeping changes, 
     there clearly came a need to reassess VA's physical 
     structures and the need to realign, renovate, and modernize 
     VA facilities to meet the changing health care needs of 
     veterans today and well into the future. Many VA medical 
     facilities have an average age of 54 years and are in 
     critical need of repair. Unfortunately, VA's construction 
     budget has decreased sharply over the last several years with 
     political resistance to fund any major projects before a 
     formal plan was developed. VA responded with the CARES 
     initiative. However, many desperately needed construction and 
     maintenance projects, including seismic repairs that could 
     potentially compromise patient safety, have been 
     unnecessarily delayed. DAV strongly believes that CARES 
     should not distract VA or Congress from its obligation to 
     protect its physical assets whether they are to be used for 
     current capacity or realigned.
       On a national level, DAV firmly believes that realignment 
     of capital assets is critical to the long-term health and 
     viability of the entire VA health care system. We do not 
     believe that restructuring is inherently detrimental to the 
     VA health care system. However, we will remain vigilant and 
     press VA to focus on the most important element in the 
     process, enhancement of services and timely delivery of high 
     quality health care services to our nation's sick and 
     disabled veterans.
       VA Secretary Anthony J. Principi met with DAV and other 
     veterans service organizations this morning and gave us his 
     personal commitment that there would be no realignment or 
     reduction in services as a result of CARES for mental health 
     or long-term care until a definitive plan is developed and in 
     place to absorb the workload for these specialized services. 
     His promise to us satisfies our over-arching concern about 
     the inclusion of these essential programs. Therefore, we 
     believe the CARES process should be allowed to proceed at 
     this critical juncture.
       Again, we want to thank you for your efforts on CARES and 
     for your strong leadership and support of veterans' issues. 
     We very much look forward to continuing a positive and 
     meaningful working relationship with you regarding matters of 
     great importance to veterans. We hope that you will 
     reconsider your position on this issue based on these new 
     developments.
           Sincerely,

                                              David W. Gorman,

                                               Executive Director,
     Washington Headquarters.
                                  ____



                                            American Veterans,

                                     Lanham, MD, November 7, 2003.


                               memorandum

     To: All Members of the U.S. Senate.
     From: S. John Sisler, National Commander.
     Re: Consideration of CARES amendment in VA/HUD appropriations 
         bill.

       It is our understanding that Sen. Hillary Rodham Clinton 
     may offer an amendment to S. 1584, the VA/HUD appropriations 
     bill, that would block the Department of Veterans Affairs 
     from spending any money to enact the CARES Commission 
     recommendations.
       On behalf of the nationwide membership of AMVETS (American 
     Veterans), I write to express our strong opposition to Sen. 
     Clinton's proposed amendment aimed to stop progress of the 
     Department of Veterans Affairs National Capital Asset 
     Realignment for Enhanced Services (CARES) Plan.
       The CARES initiative is clearly needed to assess what 
     facilities will best meet the healthcare needs of America's 
     veterans. AMVETS believes that adoption of the amendment 
     would further delay moving forward with construction projects 
     that are obviously essential to patient safety and that will 
     eventually pay for themselves as a result of modernization.
       AMVETS agrees with the Department of Veterans Affairs that 
     many of their facilities need to be upgraded or replaced. We 
     also agree with the Department that part of the solution for 
     providing high quality health care to America's veterans is 
     upgrading some facilities and replacing others with new and 
     modern medical care treatment facilities.
       AMVETS and I ask that you oppose any amendment that would 
     cause the VA National CARES process to be used as an excuse 
     to defer vital infrastructure maintenance and construction 
     projects.
                                  ____

                                          Veterans of Foreign Wars


                                         of the United States,

                                 Washington, DC, November 6, 2003.
     To: All Members of the U.S. Senate.
     From: Robert E. Wallace, Executive Director, VFW Washington 
         Office
     Re: Clinton/Enzi Amendment to H.R. 2861.

       On behalf of the 2.6 million members of the Veterans of 
     Foreign Wars of the United States (VFW) and our Ladies 
     Auxiliary, I would like to take this opportunity to urge you 
     to oppose the Clinton/Enzi Amendments to H.R. 2861, the FY 
     2004 VA/HUD Appropriations bill.
       This amendment would limit the use of funds for the Capital 
     Asset Realignment for Enhanced Services (CARES) initiative. 
     The VFW is concerned that if this amendment passes, the CARES 
     process will essentially be put on indefinite hold.
       We share Senators Clinton's and Enzi's concerns regarding 
     long-term care, domiciliary care, and mental health services; 
     however, it is our understanding that the CARES Commission is 
     currently reviewing the data to include these services. 
     Therefore, at this stage, we believe it is important to move 
     ahead as the location and mission of some VA facilities need 
     to change to improve veterans' access; to allow more 
     resources to be devoted to medical care, rather than the 
     upkeep of inefficient buildings; and to adjust to modern 
     methods of health care service delivery. Our Nation's 
     veterans deserve no less.
       Again, I urge you not to support the Clinton/Enzi Amendment 
     regarding the limiting of funds for the VA CARES initiative.
                                  ____



                                Paralyzed Veterans of America,

                                 Washington, DC, November 7, 2003.
     Members,
     U.S. Senate,
     Washington, DC.
       Dear Senator: On behalf of the Paralyzed Veterans of 
     America (PVA) I am writing to express our concerns regarding 
     an amendment we understand will be offered by Senator Hillary 
     Rodham Clinton to the VA, HUD, Independent Agencies 
     Appropriation bill. As we understand, this amendment 
     addresses the Department of Veterans Affairs' Capital Asset 
     Realignment for Enhanced Services (CARES) process and, if 
     passed, will limit the expenditure of funds for the process

[[Page 28582]]

     greatly delaying necessary improvements to the VA's medical 
     care system.
       While PVA concurs with Senator Clinton that the CARES 
     process inadequately addresses issues of long-term care, 
     mental health services and rural health care we believe that 
     the amendment will so severely restrain in the process that 
     the many beneficial aspects of CARES will be seriously 
     harmed. Delay of CARES projects that will benefit veterans, 
     and in particular veterans with spinal cord injury or 
     dysfunction, can only serve to weaken the VA health care 
     system upon which our members and millions of other veterans 
     rely.
       Veterans' service organizations have received assurance 
     from Secretary of Veterans Affairs Anthony Principal that no 
     VA beds will be closed or capacity reduced until appropriate 
     alternative health care resources have been identified and 
     put in place. Additionally, the Secretary has assured us that 
     long term care and mental health services will be included in 
     the planning process with specificity to be provided as to 
     who will be involved, how the process will operate and what 
     timelines will be put in place. Finally the Secretary has 
     indicated that the issue of inter-VISN (Veterans Integrated 
     Service Network) planning and cooperation will be addressed.
       In light of these assurance and the need to proceed with 
     the positive findings, to date of the CARES process, PVA 
     believes any restrictions on funding for the CARES process 
     can only serve to delay improvements in capacity and access 
     of VA health care. We request that no limitation be place on 
     appropriated dollars for the Department of Veterans Affairs 
     and that the CARES process be allowed to expeditiously move 
     forward.
           Sincerely,
                                              Delatorro L. McNeal,
                                               Executive Director.

  Mr. ENZI. As we observed Veterans Day yesterday, and remembered the 
sacrifices each and every veteran has made to grant us our current 
freedoms, Congress should be doing all it can to help modernize and 
improve the VA healthcare system at the earliest possible time. This 
amendment would derail this effort.
  Congress should be finding new and innovative ways to get healthcare 
services delivered in a more timely and convenient way to our former 
servicemen and women. This amendment would postpone this effort.
  Finally, Congress needs to ensure that the foundation and future of 
the VA healthcare system is stable and secure, giving our veterans the 
peace of mind that they will receive high quality and accessible 
healthcare whenever it is required. This amendment would hinder this 
effort.
  The VA will soon finalize its 20-year Capital Asset Realignment for 
Enhanced Services initiative, better known as the CARES plan, for 
updating medical facilities. Starting in the last administration and 
continuing in the present one, VA evaluated its future need for 
healthcare facilities, matched projected needs against current 
facilities, and developed a plan to match resources to needs.
  The amendment being proposed would impose unnecessary conditions 
before VA could go forward with this vital plan.
  Through CARES, VA is examining where its facilities are located, 
where veterans are projected to be living in the next 20 years, and 
what their health needs will be. Nationwide, VA provides medical care 
to almost 5 million veterans.
  VA's legacy facilities are old, with the average age over 50 years, 
many dating back all the way to World War I or even earlier. These 
initial facilities were designed to provide medicine as it was 
practiced a half century ago, and in most cases, are poorly located to 
serve veterans where they live today or are expected to live in the 
future.
  CARES will enable VA to leverage scarce resources by directing 
funding from the maintenance of obsolete facilities and applying that 
funding to the direct provision of healthcare services and staffing. It 
calls for construction of new facilities where the veteran population 
is growing, such as the southeastern and western United States. 
Additionally, it provides for the realignment of facilities that are 
redundant, out of date, or poorly located.
  The Draft National CARES Plan contains over $4.6 billion in capital 
investments, including 11 million square feet of renovation, 9 million 
square feet of new construction, 2 new hospitals, 48 new high priority 
community based outpatient clinics, 2 new blind rehabilitation centers, 
and 4 new spinal cord injury units.
  The Draft National CARES Plan, completed in August in this year, is a 
comprehensive integrated national proposal. The CARES process has been 
thorough and inclusive, combining a set of national assessment 
standards with planning at the local and regional levels.
  This plan is now under review by the independent CARES commission, 
established by Secretary Principi to objectively examine the plan, to 
obtain comments and conduct public hearings to ensure stakeholder views 
are considered. The CARES commission conducted 38 hearings, heard from 
over 700 witnesses; including employees, local government officials and 
veterans; and took over 180,000 comments.
  The bottom line is that the Draft National CARES Plan has been 
exposed to lengthy and close public analysis, and those observations 
will be included within the final plan. Next month, the CARES 
commission will submit their independent and comprehensive plan 
recommendations to the Secretary, which he will accept or reject as a 
whole.
  Placing further conditions on an already well-detailed plan, which 
this amendment would do, would hold up, and even disrupt, VA's long 
delayed modernization process.
  For example, the House and Senate Appropriations Committees have 
declined to provide more than minimal funding for VA medical 
constructions until VA provides a nationwide plan for managing its 
medical facilities. CARES is that plan.
  Further, this amendment would inherently prevent VA from implementing 
many critical components of the CARES plan. Anything less than full 
implementation of the CARES plan recommendations will lead to 
inequitable access to care. It cannot go forward with only parts of the 
plan. CARES is a comprehensive national plan, and it must be accepted 
in its totality to be effective.
  Knowing this to be true, four of the major national veterans' service 
organizations: the Disabled American Veterans, the Veterans of Foreign 
Wars, the Paralyzed Veterans of America, and AMVETS, have come out in 
either strong opposition or have raised serious concerns about the 
Clinton-Enzi amendment.
  I believe it is critically important that we consider the red flags 
raised by these organizations that represent almost 4 million veterans 
nationwide.
  Let us consider the actions taken by the committee of jurisdiction 
over the CARES initiative, the Senate Veterans' Affairs Committee. As a 
member of this committee, I have been intimately involved in the step-
by-step process of analyzing this initiative, and I believe the VA 
committee has dedicated more than ample time and resources to the study 
of this plan.
  The committee held an extensive hearing on the CARES initiative just 
this past September, receiving updates from top VA officials and the 
Secretary himself, on the progress of the plan.
  Ultimately more important, the VA committee in September voted 
unanimously to give the Secretary the authority to implement the Draft 
National CARES plan once it is completed. In doing so, the committee 
outlined very specific priorities for the implementation of this plan.
  First, and what is paramount for the CARES process to be viable, any 
medical facility that is closed must be replaced with a facility that 
adequately serves the healthcare needs of the region. Second, any 
locality that is in need of a full-service hospital must receive one. 
And third, any region that is in need of an outpatient clinic to 
provide basic care services must receive one.
  These priorities, as agreed to by every member of the VA committee, 
emphasize, in my belief, that we support the CARES initiative and want 
it to move forward as quickly as possible. This amendment, without 
question, would not allow this to happen
  In my opposition to this amendment, I do understand the concerns of 
the sponsors. However, I believe that they have been more than 
adequately addressed.

[[Page 28583]]

  The sponsors believe that the CARES process has neglected to address 
the areas of long-term care, domiciliary care and mental health, mainly 
in rural areas. I strongly disagree with these assertions.
  By design, the VA seeks to provide long-term care services in the 
least restrictive setting that is compatible with a veteran's medical 
condition and personal circumstances. This allows VA to reserve nursing 
home care for veterans who can no longer be safely cared for in home- 
and community-based settings.
  VA expects to meet most of the future growth for long-term care 
services through non-institutional settings that keep veterans close to 
spouse, home and friends.
  Since there are critical renovation and replacement nursing home 
needs that have been recognized, the plan includes several needed 
nursing home renovations and replacements that are believed to be 
within the projected outcomes of the new model.
  In planning for CARES, the networks were to develop options taking 
care to preserve current bed levels for nursing home and inpatient 
long-term mental health programs.
  More recent data is now available and suggest that both disability 
among the elderly and nursing home utilization rates have diminished. 
The discrepancy between projected needs from the current planning model 
and actual current demand prompted VA, earlier this year to commence in 
an intensive review and refinement of the long-term care planning 
model.
  However, because the new data could not be incorporated into a new 
planning model for the current cycle of the CARES process, VA chose to 
treat the long-term care issues neutrally; that is, there will be no 
major changes or negative impact on care or capacity in long-term care. 
Once the data from the new model is available and analyzed, it will be 
used for future strategic planning activities.
  On the issue of rural coverage, VA is, in fact, very sensitive to the 
healthcare needs of rural and frontier veterans. It was a principal 
factor for several of the CARES commission hearings to be located in 
rural locales. Additionally, the Draft National CARES plan calls for 
the designation of critical access hospitals, recognizing the vital 
role that many of VA's small facilities fulfill in providing access to 
acute hospital care in rural or less densely populated areas. Moreover, 
it recommends 48 new sites for community-based outpatient clinics, many 
of those in rural areas.
  The amendment before us is really nothing more than a solution in 
search of a problem. The VA has gone to great lengths to incorporate 
every stakeholder, especially our veterans, in the CARES process 
throughout.
  I believe they have done an excellent job in creating a realistic and 
practical vision for the future of VA healthcare services, and we in 
the United States Senate should help them make that vision a reality.
  What this all boils down to is how do we best serve the immediate and 
growing needs of our Nation's veterans. No one here is saying that the 
draft plan is perfect. However, we need to possess the wisdom and 
foresight to say we have all the necessary components in place to make 
a positive change and we should move forward.
  Many injured or ill Vietnam veterans were disillusioned and critical 
when treated at VA medical facilities designed and built to treat their 
World War II fathers or even World War I grandfathers. Veterans of Iraq 
and Afghanistan are now returning to many of those same facilities.
  It is time to take the first step toward bringing the level of care 
for all our veterans into the 21st century. They have waited long 
enough, and we need to act now to improve the lives of each and every 
veteran in America.
  In summary, we all have made commitments to our veterans that we 
should take care of them. These are the men and women who have donned 
the uniform of the United States and have made incredible sacrifices so 
that we can live in freedom. We live in the greatest country, I 
believe, in the history of the world, with the most freedoms of any 
people in the history of the world. This country of ours has only 
remained free because people have been willing to lay their lives down 
to ensure those freedoms for us, our children, and our grandchildren.
  The amendment that has been proposed today would violate the 
commitment to our U.S. veterans. I say that because the veterans are 
moving away from the old rust belt. We should be taking the health 
care, which is their primary issue, to our veterans. Services, need to 
follow where the veterans are moving. We should not be trying to prop 
up institutions, instead, we should be moving the healthcare services 
where those veterans are relocating.
  Secretary Principi is doing a wonderful job of trying to put the 
priorities of the veterans over process, over other constituencies, and 
maybe over a congressional district. He is trying to reform the system, 
recognizing that veterans are moving and that the money should follow 
so that the services are provided to those veterans.
  I live in the fastest growing State and the fastest growing 
metropolitan area in the United States. It must have the kind of 
quality of lifestyle that veterans like because they are moving there 
in droves. Per capita, our State now has the most veterans in the 
United States. Yet, for instance, the Las Vegas metropolitan area that 
has 1.6 million people does not have a VA hospital. There are a couple 
hundred thousand veterans living in the area and we have no VA 
hospital. We have VA clinics but no VA hospital. So when our veterans 
need surgery or have complicated procedures, they have to travel away 
from their families down to southern California to get those services.
  We can understand it in smaller population areas, maybe, but in a 
major metropolitan area, where veterans are choosing to live, that is 
not keeping the commitment we have made to our veterans.
  So I rise in strong opposition to this amendment and will fight 
against its passage. If there is a vote on it, we will fight against 
the votes to pass it, or if it is tried to be snuck in the omnibus 
bill, if this bill does not actually get passed today, we will fight 
against putting it in the omnibus bill. The reason why is because it is 
so important that we look the men and women in the face who are serving 
in our military today and say we are going to keep the commitment we 
are making to them today.
  They already made the sacrifices, and now we need to keep our 
commitment to them. In the future, we will keep our commitment to them 
and they can count on that.
  Secretary Principi and the administration, I believe, are trying to 
do the right thing. They are trying to say that as the veterans are 
moving, we recognize that. For a long time the VA has needed updating 
and changing, and they finally have the courage to start doing that. As 
a legislative body, let us not stop that process.
  My colleague Senator Reid and I have worked very hard on improving 
the services for veterans in our State, both in northern and southern 
Nevada, as all Senators try to do for their State. The bottom line is 
we should not hurt the services in the fastest growing areas of our 
country where the waits are so long, where people have to travel out of 
State to get the proper medical services. Let us look at our veterans 
and say no matter where they move in the United States, they are going 
to get the kind of services they have earned. And make no mistake about 
it, they have earned those services.
  Anybody who has taken a look at what I believe is this ill-conceived 
amendment will say this would, in effect, do harm to many veterans in 
this country and they deserve better than that.
  I thank the manager of the bill and the ranking member for the time, 
and I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.


                Amendment No. 2174 to Amendment No. 2150

  Mr. BOND. Mr. President, I thank the Senator from Nevada. We are 
working on some possible amendments from the Senator from Illinois. 
Also, Senator Mikulski has a major amendment. I would like to move very 
quickly to do some amendments that I believe will

[[Page 28584]]

not require any extended discussion. First for myself, I send an 
amendment to the desk and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri (Mr. Bond) proposes an amendment 
     numbered 2174.

  Mr. BOND. Mr. President, I ask unanimous consent that the reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: Increase funds for the Office of Federal Housing Enterprise 
  Oversight to conduct audits, investigations and examinations and to 
                   provide for additional emergency)

       On page 61, beginning on line 7, strike out 
     ``$32,415,000,'' and all that follows through the period on 
     line 16 and insert in lieu thereof ``$39,915,000, to remain 
     available until expended, to be derived from the Federal 
     Housing Enterprise Oversight Fund: Provided, That not less 
     than 60 percent of total amount made available under this 
     heading shall be used for licensed audit personnel and audit 
     support: Provided further, That an additional $10,000,000 
     shall be made available until expended, to be derived from 
     the Federal Housing Enterprise Oversight Fund only upon a 
     certification by the Secretary of the Treasury that these 
     funds are necessary to meet an emergency need: Provided 
     further, That not to exceed such amounts shall be available 
     from the general fund of the Treasury to the extent necessary 
     to incur obligations and make expenditures pending the 
     receipt of collections to the Fund: Provided further, That 
     the general fund amount shall be reduced as collections are 
     received during the fiscal year so as to result in a final 
     appropriation from the general fund estimated at not more 
     than $0.''.

  Mr. BOND. At the request of the administration, this amendment would 
increase funding for the Office of Federal Housing Enterprise 
Oversight, OFHEO, for this year by $7.5 million. These funds are 
intended to strengthen OFHEO's examination, legal and human resources 
functions, and the fund's special investigation. The amendment includes 
an additional $10 million that is available only upon certification by 
the Secretary of the Treasury that there is an emergency need for 
additional funds.
  There is, I believe, a compelling need to reform the regulatory 
structure governing Fannie Mae and Freddie Mac. At a minimum, the 
senior management of OFHEO must be replaced, and replaced now.
  Senior management, in my view, has repeatedly failed to meet the most 
basic requirements of OFHEO's missions. For example, it took over 10 
years for OFHEO to issue its risk-based capital standards, despite the 
fact that this is OFHEO's primary mission and key to its regulatory 
oversight of the GSEs.
  This failing became even more evident when OFHEO publicly praised 
Freddie Mac's management just days before Freddie Mac's management was 
removed for accounting irregularities.
  I applaud the work of the Banking Committee in the Senate and in the 
House, Senator Shelby, Congressman Baker, and the ranking members for 
making regulatory reform of OFHEO a priority. I look forward to working 
with them next year to help develop the right regulatory system.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. I concur with my colleague.
  The PRESIDING OFFICER. Is there further debate? If not, the question 
is on agreeing to the amendment.
  The amendment (No. 2174) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 2175 To Amendment No. 2150

  Mr. BOND. I send to the desk an amendment on behalf of Senator 
Stevens relating to the Native American Housing Assistance and 
Determination Act.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Mr. Stevens, 
     proposes an amendment numbered 2175 to amendment No. 2150.

  The amendment follows:

(Purpose: To provide an allocation of funding under the Native American 
Housing Assistance and Self-Determination Act of 1996 for the State of 
                                Alaska)

       On page 86, between lines 11 and 12, insert the following:

     SEC. 2__. NATIVE AMERICAN HOUSING.

       Allocation of Funding.--Of the amounts made available to 
     carry out the Native American Housing Assistance and Self-
     Determination Act of 1996 (25 U.S.C. 4101 et seq.) for fiscal 
     year 2004, there shall be made available to each grant 
     recipient the same percentage of funding as each recipient 
     received for fiscal year 2003.

   Mr. BOND. This is an amendment dealing with Native American housing. 
It is a simple amendment.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Ms. MIKULSKI. Mr. President, I have no objection. This has been a 
longstanding issue raised by our colleague from Alaska. It is a very 
compelling situation.
  The PRESIDING OFFICER. If there is no further debate on the 
amendment, the amendment is agreed to.
  The amendment (No. 2175) was agreed to.


                Amendment No. 2176 To Amendment No. 2150

  Mr. BOND. On behalf of the Senators from Illinois, Mr. Durbin and Mr. 
Fitzgerald, I send an amendment to the desk dealing with the North 
Chicago VA Medical Center, making it available to the maximum extent 
feasible. I ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Mr. Durbin, for 
     himself and Mr. Fitzgerald, proposes an amendment numbered 
     2176 to amendment No. 2150.

  Mr. BOND. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

    (Purpose: To insert a provision relating to VA-Navy sharing of 
             facilities at North Chicago VA Medical Center)

       At the appropriate place, insert the following:
       Sec.  . Notwithstanding any other provision of law, the 
     Secretary of Veterans Affairs shall make the North Chicago VA 
     Medical Center available to the Navy to the maximum extent 
     feasible. The Secretary shall report to the Senate 
     Appropriations Committee by June 30, 2004, regarding the 
     progress in modifying North Chicago VA Medical Center's 
     surgical suite and emergency and urgent care centers for use 
     by veterans and Department of Defense beneficiaries. Further, 
     the Secretary shall consider having the new joint VA/Navy 
     ambulatory care center to serve both veterans and Department 
     of Defense beneficiaries sited on or adjacent to the North 
     Chicago VA Medical Center and shall consult with the 
     Secretary of the Navy to select the site for the center. The 
     Secretary of Veterans Affairs shall report to the Senate 
     Appropriations Committee on the site selection by June 30, 
     2004.

  Mr. BOND. I yield for any statement by the Senator from Illinois.
  Mr. DURBIN. I thank the chairman and the ranking Democrat for 
accepting this amendment on behalf of Senator Fitzgerald and myself. We 
are trying to encourage the cooperation of the North Chicago Veterans 
Hospital and the Great Lakes Training base for the benefit of the 
veterans, the sailors, and the taxpayers.
  Ms. MIKULSKI. This is an excellent amendment. We concur.
  Mr. BOND. This is something we need to do throughout the system, and 
we need to have a better integration of the health care facilities of 
the active military and the Veterans Affairs. I commend the Senators 
from Illinois and hope this model can be adopted elsewhere.
  Mr. DURBIN. Mr. President, I want to thank the bill managers for 
accepting the amendment that I am offering today, along with Senator 
Fitzgerald, to encourage further sharing of health care facilities 
between the Department of Veterans Affairs and the Navy in North 
Chicago, IL.
  The Illinois delegation has worked in a bipartisan manner for four 
years to encourage sharing between the North Chicago VA Medical Center 
and the Great Lakes Naval Training Center

[[Page 28585]]

(NTC) because of the proximity of the medical facilities. The Navy's 
hospital is 1\1/2\ miles from the North Chicago VA Medical Center, and 
the VA property adjoins Great Lakes NTC. The aim of the delegation was 
to keep the North Chicago VA Medical Center open, improve options for 
medical care for the Navy, improve training options for VA and Navy 
medical personnel, reduce costs, and improve access to health care for 
veterans and Department of Defense beneficiaries.
  The VA's process to consolidate veteran's health care facilities in 
the Chicago area allowed the North Chicago VA Medical Center to stay 
open, but with the proviso that more sharing between the VA and the 
Navy would take place.
  The Navy agreed to use the North Chicago VA Medical Center facilities 
as much as possible, in lieu of the Navy's outdated hospital, but 
renovation of a currently closed ward at the North Chicago VA Medical 
Center is required for a surgery suite, and the emergency and urgent 
care centers must be upgraded. The VA is planning to award a design 
contract for this work at the end of this year.
  For its part, the Navy has agreed to build a new ambulatory care 
center that could be used for active duty military personnel as well as 
for veterans. It will be paid for out of the Navy's budget, but I 
believe that the VA should have input into the site selection. Having 
the ambulatory care center on or adjacent to the North Chicago VA 
Medical Center would make sense. The center will be used by both 
veterans and military personnel, and having it on or adjacent to the VA 
facility would ease veterans' access to it. The North Chicago VA 
Medical Center sits on a large tract of land, and, while the Naval base 
is accessible, it still requires gaining entry through the enhanced 
security procedures of a military base, making it more difficult for 
veterans if the center were physically on the base.
  The amendment that Senator Fitzgerald and I offer today requires a 
report regarding the progress in modifying North Chicago VA Medical 
Center's surgical suite and emergency and urgent care centers for use 
by veterans and Department of Defense beneficiaries, demonstrating 
continued Congressional interest that these plans stay on track and on 
schedule. The amendment also requires that the Secretary of Veterans 
Affairs consult with the Secretary of the Navy to select the site for 
the ambulatory care center, in order to ensure a role for the Secretary 
of Veterans Affairs in negotiations with the Secretary of the Navy on 
site selection.
  I appreciate the efforts of the bill managers to work with us on this 
amendment and to include it in the managers' package.
  The PRESIDING OFFICER. Is there further debate? If not, the question 
is on agreeing to the amendment.
  The amendment (No. 2176) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 2177 To Amendment No. 2150

  Mr. BOND. Mr. President, I send another amendment to the desk on 
behalf of Senator Murkowski relating to rural teacher housing, amending 
the Denali Commission Act to provide the ability of the Commission to 
make grants and loans to public school districts serving remote 
incorporated cities and unincorporated communities in Alaska.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond], for Ms. Murkowski, 
     proposes an amendment numbered 2177 to amendment No. 2150.

  Mr. BOND. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To provide housing for teachers, administrators, and other 
  school staff in remote areas of Alaska since such housing is often 
extremely substandard, if it is even available at all, and rural school 
districts in Alaska are facing increased challenges, including meeting 
  the mandates of the No Child Left Behind Act, and in recruiting and 
          retaining employees due to a lack of housing units)

       At the appropriate place, insert the following:

     SEC. __. RURAL TEACHER HOUSING.

       Section 307 of the Denali Commission Act of 1998 (42 U.S.C. 
     3121 note) is amended by adding at the end the following:
       ``(e) Rural Teacher Housing.--The Commission may make 
     grants and loans to public school districts serving remote 
     incorporated cities and unincorporated communities in Alaska 
     (including Alaska Native Villages) with a population of 6,500 
     or fewer persons for expenses associated with the 
     construction, purchase, lease, and rehabilitation of housing 
     units in such cities and communities. Unless otherwise 
     authorized by the Commission, such units may be occupied only 
     by teachers, school administrators, and other school staff 
     (including members of their households).''.

  Mr. BOND. This is carrying on our efforts to provide the best 
possible services to people in underserved areas of Alaska. I urge its 
adoption.
  The PRESIDING OFFICER. Is there further debate?
  Ms. MIKULSKI. I concur with the amendment.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 2177) was agreed to.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Ms. MIKULSKI. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 2178 To Amendment No. 2150

  Ms. MIKULSKI. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Maryland [Ms. Mikulski] proposes an 
     amendment numbered 2178 to amendment No. 2150.

  Ms. MIKULSKI. I ask unanimous consent the reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

        (Purpose: To provide for certain capitalization grants)

       On page 104, between lines 14 and 15, insert the following:
       For an additional amount for capitalization grants for 
     State revolving funds, $3,000,000,000, to remain available 
     until expended, of which $1,850,000,000 shall be for 
     capitalization grants from State water pollution control 
     revolving funds established under title VI of the Federal 
     Water Pollution Control Act (33 U.S.C. 1381 et seq.) and 
     $1,150,000,000 shall be for capitalization grants from State 
     drinking water treatment revolving loan funds under section 
     1452 of the Safe Drinking Water Act (42 U.S.C. 300j-12): 
     Provided, That the entire amount made available under this 
     paragraph is designated by Congress as an emergency 
     requirement under section 502(c) of H. Con. Res. 95 (108th 
     Cong.).

  Ms. MIKULSKI. Mr. President, I rise to offer an amendment to increase 
funding for our communities for our Nation's waste system. My amendment 
is simple and straightforward. It adds $3 billion to the VA-HUD bill 
for a total of $5.2 billion for water and sewer infrastructure. My 
amendment increases funding in the EPA clean water State revolving loan 
fund to $3 billion, over $1.3 billion. My amendment also increases 
funding in the EPA drinking water revolving fund from $850 million to 
$2 billion.
  When I offer this amendment, I want to be very clear. I am in no way 
critical of the effort the committee has made. I have been part of the 
effort. I congratulate Senator Bond for his robust funding for water 
and sewer systems. I thank him for his hard work on this issue. But we 
simply did not have enough money in our allocation. The budget cut $500 
million from the President's budget from the clean water State 
revolving loan fund. Senator Bond and I worked together to restore that 
$500 million, and we are very grateful for that. But the Nation calls 
out for more.
  Our Nation's communities are facing enormous needs in their effort to 
provide clean water and safe water and to

[[Page 28586]]

comply with Federal environmental mandates. The need for better water 
and sewer systems is much greater than the amount that we now have in 
the Federal checkbook.
  There have been studies, and studies after that, and the needs have 
been real and valid and have been validated by independent research.
  The Federal Government must do more to help meet these needs. Failure 
to do so places a great burden on the local taxpayers because it shifts 
the responsibility to them. We have created an unfunded Federal 
mandate. At the same time, the lack of proper water and sewer threatens 
public health and environmental safety. Our State and local governments 
are also revenue-starved to meet these mandates.
  Let me tell you about some of the studies.
  In fiscal year 2000, the Water Infrastructure Network said our water 
and sewer systems will face a funding gap of $12 billion over the next 
20 years. GAO said the cost to really do our water and sewer systems 
the way they need to meet not only environmental but public health 
concerns will be $300 billion over 20 years. There is study after study 
after study that validates this.
  In my own State of Maryland, there is $4 billion in unmet needs. This 
isn't Senator Barbara Mikulski talking; this is the State of Maryland 
speaking. Our Eastern Shore and rural communities are trying hard to 
reduce harmful nutrients that pollute the Chesapeake Bay. Every time 
they increase their bonding authority to pay for unfunded mandates, it 
means one less school or one less highway. But the needs of Maryland 
are a cameo of the needs of the Nation. We are simply not putting 
enough money in the Federal checkbook for water and sewer systems.
  In my own hometown of Baltimore, our sewer system was built over 100 
years ago. We are under a court order instituted by the EPA to rebuild 
it. It will cost $1 billion to do this. In order to be able to do this, 
ratepayers will pay the bill.
  This is an issue where growing green also generates jobs.
  The second reason this amendment is necessary is that it creates 
jobs. It is estimated for every $1 billion we spend on water 
infrastructure, 40,000 jobs are created, from the civil engineers and 
architect who design on it, to construction contractors, to heavy 
equipment manufacturers, and even those who run the lunch wagons at the 
job site. This creates jobs, but it has value for the taxpayer. It will 
give the State a much needed breather as they themselves are trying to 
meet this need.
  My amendment is temporary and it is targeted. It is a one-time $3 
billion increase. This isn't $3 billion every year; it is $3 billion 
this year. The State loan funds have widespread support and would go a 
long way in helping this.
  The President requested $3.7 billion for water and sewer projects in 
Iraq. The President requested this funding as an emergency.
  I respect what the President said, but we have an emergency here. We 
have crumbling water systems that threaten public health. We need 
billions of dollars. We have rising rates for our citizens, and at the 
same time the local ratepayer is going to shoulder the responsibility. 
If there is an emergency in Iraq, there is surely a water and sewer 
emergency in this country.
  My amendment has widespread support--from the Water Infrastructure 
Network, a coalition of 47 nationally organized recognized 
organizations, to local officials, water and sewer service providers, 
engineers, construction contractors, labor unions, and 
environmentalists. This is the place where it all comes together--
mayors, Governors, workers, private sector.
  These will not be government jobs. These will be jobs in the private 
sector, in the local community, meeting local needs. Groups such as the 
League of Cities and the Association of Counties and others do that.
  I ask unanimous consent that two letters of support for my amendment 
be printed in the Record. They are from the Water Infrastructure 
Network, the Coalition of the American Rivers and Ocean Conservatory, 
and others.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 Water Infrastructure Network,

                                 Washington, DC, October 24, 2003.

     Hon. Barbara Mikulski,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
     Re support for $5.2 billion for Clean & Safe Water SRFs.
       Dear Senator Mikulski: The Water Infrastructure Network 
     (WIN) strongly supports your $5.2 billion amendment for the 
     Clean Water and Safe Drinking Water State Revolving Funds 
     (SRFs) in the Fiscal Year (FY) 2004 Veterans, Housing and 
     Independent Agencies Appropriations bill. WIN is a broad-
     based coalition of 47 nationally-recognized organizations 
     that represent local elected officials, drinking water and 
     wastewater service providers, environmental and health 
     administrators, engineers, labor unions, construction 
     contractors, and environmentalists. WIN is dedicated to 
     preserving and protecting the health, environmental, and 
     economic gains that America's drinking water and wastewater 
     infrastructure provides.
       The SRFs help local communities meet water quality 
     standards, repair and replace old and decaying pipelines and 
     plants, protect public health, and ensure continued progress 
     in restoring the health and safety of America's water bodies. 
     This investment is a much-needed down payment to improve our 
     nation's water and wastewater treatment plants. Your support 
     for additional funding for the SRFs would help stimulate the 
     economy, create jobs and provide funds for securing our water 
     infrastructure for generations to come. WIN supports your 
     proposed increase in federal funding in FY 2004 for the Clean 
     Water SRF from its current level of $1.35 billion to $3.2 
     billion and for the Drinking Water SRF from $850 million to 
     $2 billion. WIN believes this is an important first step 
     toward developing a long-term, sustainable solution to close 
     our country's infrastructure funding gap.
       Safeguarding clean and safe water must remain one of our 
     nation's highest priorities even though funding its continued 
     improvement is one of our greatest challenges. Thank you for 
     supporting clean and safe water in America.
           Sincerely,
       American Concrete Pipe Association (ACPA); American 
     Concrete Pressure Pipe Association (ACPPA); American Council 
     of Engineering Companies (ACEC); American Public Works 
     Association (APWA); American Society of Civil Engineers 
     (ASCE); American Water Works Association (AWWA); Associated 
     Equipment Distributors, Inc. (AED); Association of Equipment 
     Manufacturers (AEM).
       Associated General Contractors of America (AGC); 
     Association of California Water Agencies (ACWA); Association 
     of Metropolitan Sewerage Agencies (AMSA); Association of 
     Metropolitan Water Agencies (AMWA); California Rebuild 
     America Coalition (CalRAC); Construction Management 
     Association of America (CMAA); Chesapeake Bay Foundation 
     (CBF); Design-Build Institute of America (DBIA).
       Environmental and Energy Study Institute (EESI); 
     International Association of Bridge, Structural, Ornamental 
     and Reinforcing Iron Workers; International Brotherhood of 
     Teamsters; International Union of Bricklayers and Allied 
     Craftworkers (BAC); International Union of Operating 
     Engineers, AFL-CIO (IUOE); Laborers' International Union of 
     North America (LIUNA); National Association of Counties 
     (NACo).
       National Association of Flood and Stormwater Management 
     Agencies (NAFSMA); National Association of Regional Councils 
     (NARC); National Association of Sewer Service Companies 
     (NAASCO); National Association of Towns and Townships 
     (NATaT); National Heavy & Highway Alliance; National League 
     of Cities (NLC); National Precast Concrete Association 
     (NPCA); National Ready Mixed Concrete Association (NRMCA).
       National Rural Water Association (NRWA); National Society 
     of Professional Engineers (NSPE); National Urban Agriculture 
     Council (NUAC); Operative Plasters' and Cement Masons' 
     International Association; Pipe Rehabilitation Council (PRC); 
     Plastics Pipe Institute, Inc. (PPI); Portland Cement 
     Association (PCA); Rural Community Assistance Program, Inc. 
     (RCAP).
       SAVE International (SAVE); Uni-Bell PVC Pipe Association 
     (Uni-Bell); The Vinyl Institute; Underground Contractors 
     Association of Illinois (UCA); United Brotherhood of 
     Carpenters and Joiners of America (UBC); Water Environment 
     Federation (WEF); WaterReuse Association (WasteReuse); 
     Western Coalition of Arid States (WESTCAS).
                                  ____

                                                 October 27, 2003.
     Support Mikulski amendment to fight water pollution on VA/HUD 
         2004 appropriation bill.

       Dear Senator: We ask you to vote in favor of Senator 
     Mikulski's floor amendment to the VA-HUD appropriations bill 
     appropriating $3 billion this year to fund critical drinking 
     water and wastewater infrastructure needs. Our nation's 
     perpetual failure to

[[Page 28587]]

     invest in maintaining our drinking water and sewer systems is 
     endangering public heath and safety. The gap between our 
     needs and our spending is on the order of $15 billion each 
     year according to EPA.
       The current funding is grossly insufficient to meet our 
     nation's water quality needs, including addressing drinking 
     water security issues, removing arsenic and other toxins from 
     our tap water, rehabilitating aging sewer plants, controlling 
     raw sewer overflows, decontaminating stormwater discharges, 
     and minimizing polluted runoff. The cumulative impact of our 
     society's failure to invest in clean water year after year 
     has begun to cause very serious harm to public health, to the 
     environment, and to our economy.
       Experts estimate 7.1 million cases of mild to moderate and 
     560,000 cases of moderate to sever infectious waterborne 
     disease in the United States each year, costing untold 
     billions of dollars in health care and other expenses.
       The CDC found that in 1999-2000 there were 39 disease 
     outbreaks associated with drinking water and 59 associated 
     with recreational water. Experts say approximately 1 in 10 
     waterborne disease outbreaks are detected.
       There are over 200,000 water main breaks/yr. in the U.S.
       The loss of swimming opportunities (beach closings) due to 
     pathogen contamination is valued at $1-2 billion annually in 
     the U.S. (EPA, 1995).
       Economic losses due to swimming-related illnesses estimated 
     at $28 billion annually (EPA, 1995).
        There are estimated to be at least 40,000 discharges of 
     raw sewage each year from ``sanitary'' sewer systems into 
     streets, playgrounds, and waterways and 400,000 basement 
     backups (U.S. EPA 2001).
       Raw sewage discharges from combined sewer systems dump 1.2 
     trillion gallons of raw sewage into waterways each year in 
     more than 700 U.S. cities.
       Over 90% of U.S. city water supplies continue to use pre-
     WWI era technology to treat drinking water.
       Earlier this year the Senate in its Budget Resolution 
     approved a $3 billion increase in funding for the SRFs above 
     last year's level, but unfortunately this proposal did not 
     survive conference with the House. The Mikulski amendment 
     would make this critical funding available through an 
     emergency designation. Since inadequate drinking water and 
     wastewater treatment results in raw sewage discharges, 
     contaminated drinking water, beach closings, and waterborne 
     disease outbreaks, this national problem clearly qualifies as 
     a public health emergency.
       We strongly urge you to support investing now in a clean 
     water future for our nation. We also ask you to support any 
     other amendments that improve environmental protection and to 
     keep the bill free of anti-environmental riders.
           Sincerely,
         S. Elizabeth Birnbaum, Director of Government Affairs, 
           American Rivers, Bob Perciasepe, Chief Operating 
           Officer, National Audubon Society; Paul Schwartz, 
           National Campaigns Director, Clean Water Action; Dawn 
           Hamilton, Executive Director, Coast Alliance; Diana 
           Neidle, Public Policy Advocate, Consumer Federation of 
           America; Michele Merkel, Counsel, Environmental 
           Integrity Project; Sara Zdeb, Legislative Director, 
           Friends of the Earth.
         Lisa Ragain, GWU Medical Center, Center for Risk Science 
           and Public Health, National Association of People with 
           AIDS; Olivia B. Wein, Staff Attorney, National Consumer 
           Law Center; Nancy Stoner, Senior Attorney, Natural 
           Resources Defense Council; Catherine Hazlewood, Clean 
           Oceans Programs Manager, The Ocean Conservancy; Kyle 
           Kinner, Legislative Director, Physicians for Social 
           Responsibility; Anna Aurilio, Legislative Director, 
           U.S. Public Interest Research Group; Michele Boyd, 
           Legislative Representative, Public Citizen; Debbie 
           Boger, Deputy Legislative Director, Sierra Club.

  Ms. MIKULSKI. Mr. President, in conclusion, my amendment helps our 
communities by providing more funding to meet immediate water and sewer 
needs so our communities can have clean and safe water. Water and sewer 
funding provides dual value for the taxpayers. It helps public health, 
it helps the environment. We will have clean water and safe water, and 
it creates jobs.
  I urge my colleagues to support my amendment to provide $3 billion 
more for our communities because I know every single State could use at 
least $1 billion more and I wish we could do it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I rise to speak on the underlying bill 
as well as to make some general comments about the Defense 
authorization bill we just passed and a few comments about the veterans 
provisions generally.
  I thank the Chair and the ranking member for their good work on the 
underlying bill. I understand we hope to pass this very important 
appropriations bill before 6 o'clock this evening.
  I was unable to be here earlier today. I want to make a couple of 
comments regarding veterans generally.
  There are 400,000 veterans in Louisiana, and 12,000 of them are 
directly affected in a very positive way by the underlying bill.
  Before I speak about that, I wish to say that the chairman of the 
Armed Services Committee, Senator Warner from Virginia, and our ranking 
member, Senator Levin, should be commended for crafting a very good 
Defense authorization bill at a very difficult time.
  I was formerly a member of the Armed Services Committee and worked 
for many years to fashion a bill, and I know how difficult it is even 
in times that are not stressful, much less in a time when we are in a 
war against terror in Iraq, here at home and other places around the 
world. It seems to me, as a former member of the committee, that the 
conference could have imploded many different times. But to Senator 
Warner's and Senator Levin's credit and very good bipartisan working 
relationship, that bill was passed earlier today.
  While I don't agree with all the provisions of it, there are a couple 
which are very important to our troops in Louisiana: No. 1, the 4.1 
percent pay raise for all of our troops. And, No. 2, we moved closer to 
completely eliminating the disability tax on veterans in Louisiana with 
20 years of service; that is, 12,000 men and women who now, when they 
retire, do not get their full retirement and disability benefits but 
basically have to give up 50 percent of that benefit. This bill we 
passed earlier today corrects that. For those families and their loved 
ones, that will mean immediate help.
  In addition, the TRICARE eligibility expansion for guardsmen and 
reservists, if they are unemployed or cannot acquire health insurance 
from their employers, is a tremendous gesture to the Guard and Reserve 
who we are counting on and depending on to help defend us at this time. 
We literally could not win this war or even begin this endeavor without 
their commitment.
  We must remain committed to the quality of life of our veterans and 
to letting our Guard and Reserve men and women know how much we 
appreciate them. We must keep ever vigilant, particularly when it comes 
to the Guard and Reserve. We are getting ready to send another 43,000.
  I wish to make a couple of comments about the tax treatment of our 
Guard and Reserve and speak about some disappointment in that area.
  Yesterday, with some fanfare, the Military Family Tax Relief Act was 
passed. It is a help, but in my mind it is an insufficient gesture. It 
is too modest for what our men and women in uniform deserve. The bill 
provided $1.1 billion in tax relief, which was asked for and which is 
most certainly deserved. It doubles the amount of payments to survivors 
of soldiers killed in action from $6,000 to $12,000--not a lot of 
money, but it helps the families better than the $6,000 that was in the 
previous law. It allows guards and reservists to deduct travel 
expenses, it allows troops to deduct the cost of equipment they buy 
themselves, and it reduces the residency requirement so our troops can 
take full benefit of the capital gains provision in the law as do other 
Americans who are not in the service.
  But this bill did not go far enough. I wish to speak for a minute 
about this and my strong objection to moving forward with it without 
additional help and support.
  The bill that was signed, Tax Relief for Families in the Military, 
represented .006 percent of the $1.75 trillion in tax relief that has 
been passed by this Congress at the urging of this administration. Let 
me repeat. The bill that was signed on Tuesday for the military only 
represented .006 percent of the tax cuts that have been provided by 
this administration to Americans generally. Yet the military, the men

[[Page 28588]]

and women in uniform today, the over 1 million men and women in 
uniform, are providing 100 percent of our security, one could argue. 
That is not to diminish the role of our men and women in uniform, 
police and fire on the home front, but protecting our borders, fighting 
the battles overseas, they are providing 100 percent of the protection. 
Yet they only receive in this bill .006 percent of the tax cut.
  We asked, Republicans and Democrats alike, to please include a 
provision that would have allowed the Guard and Reserve who are leaving 
their jobs and leaving their businesses to go fight in Iraq, to please 
have the Federal Government recognize that many of these families are 
losing income, sometimes as much as 60, 70, or 80 percent. We are 
asking them not just to go and put their life on the line, but we are 
asking them to put their livelihood on the line.
  When some Members petitioned this administration, and particularly 
the House Republican leadership, to give some relief, to provide some 
tax relief to these businesses to encourage them to maintain those 
salaries for our Guard and Reserve, we were told: We do not have enough 
money.
  We had 1.75 trillion to give tax cuts generally to people not in the 
military, but we could not find a few pennies to help our businesses in 
this country, to help their employees meet their salaries for the 
benefit of their families. I know the Senator wants to get back to the 
HUD bill, and I will in a minute, but I want to make this point and 
then get to the underlying bill, VA-HUD.
  What we have to do in every way we can, whether it is this veterans 
bill we are debating now, whether it is in Defense authorization, or 
whether it is in our tax bills, to recognize our first priority should 
be to our men and women in uniform, overseas and here on our home 
front. When we design tax packages and tax benefits, they should be the 
first, not the last, to receive the help. They should be getting the 
lion's share or the essence or the core, not the crumbs that fall from 
the table.
  Unfortunately, still, despite the lives that are being given, despite 
the effort that is being made, they still are receiving crumbs when 
they deserve the whole loaf of bread.
  I will submit for the Record an article about a reservist reward for 
MSG Rodriguez: His reward was bankruptcy. When MSG Rodriquez and his 
company were activated for 1 year, they were given an 8-hour notice. He 
had to leave behind his wife to run the couple's construction company. 
He comes home and his daughter, of course, is crying and in tears, his 
wife is upset because they lost their business. Their income was cut by 
80 percent. I ask unanimous consent to have this article printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From CBS Evening News, Nov. 11, 2003]

                    A Reservist's Reward--Bankruptcy

       On a sun soaked street in northern California, Air Force 
     reservist Oscar Rodriguez is finally back home from active 
     duty, where, as CBS News Correspondent Byron Pitts reports, 
     the high and unexpected cost of war has taken a toll.
       ``They ain't giving us a loan cause I got bad credit,'' 
     says Rodriguez.
       ``It was hard seeing my mom,'' says his daughter Desiree. 
     ``I mean seeing her stressed and seeing her cry--it hurts a 
     lot.''
       When Master Sgt. Rodriguez and his company were activated 
     for one year--on eight hours notice--he left behind his wife 
     to run the couple's construction company.
       ``My dad was away and so she's pretty much was doing this 
     on her own cause he can't do anything about it when he's 
     gone, and I can't really do anything about it, but I try,'' 
     says Desiree.
       They all tried, but with Rodriguez at war, repairing Air 
     Force cargo planes, the family income was cut by 80 percent.
       ``I lost the bids for my construction projects,'' says 
     Rodriguez. ``I lost my savings. I lost my credit. My credit 
     history--it's in shambles.''
       Despite federal laws protecting active duty reservists from 
     creditors during wartime, the creditors kept calling. Their 
     home is now in foreclosure.
       ``You do everything that you're supposed to do without 
     asking for help,'' says his wife Kathy. ``All you want is for 
     everyone to do the right thing.''
       The Rodriguez family aren't the only ones who've 
     sacrificed. Of the nearly 200,000 reservists on active duty 
     in Afghanistan, Iraq and around the world, one-third have 
     taken a pay cut in order to serve their country.
       Rodriguez is now trying to rebuild his business one step at 
     a time. He's gone from building hotels to kitchen counters. 
     He's suing his creditors as much for the principle as the 
     money.
       ``It's about every soldier, sailor, airman or marine,'' 
     says Rodriguez. ``Anybody who's serving our country has a 
     right to at least not be concerned about the wolves knocking 
     at the door.''
       Asked if they're going to recover, Rodriguez and his wife 
     say they aren't sure.
       ``We're separated,'' said Kathy Rodriguez, as her husband 
     sat silently beside her.
       The strain of duty and debt may have cost this couple their 
     marriage. Yet, Rodriguez has re-enlisted.
       He's a member of an Air Force Honor Guard.
       For him, sacrifice isn't a slogan. In war there are 
     casualties, both overseas and at home.

  Ms. LANDRIEU. The efforts some Members made to get this issue dealt 
with were rejected because we did not have enough money to help this 
reservist or the thousands and hundreds of thousands who are fighting 
for us, taking the cut in pay and losing their companies in the 
process.
  Also I ask unanimous consent to have printed in the Record an article 
printed regarding 120,000 Federal employees who serve in the National 
Guard and Reserve. Nearly 14,000 have been called to active duty to 
help fight the war in Iraq. Senator Durbin and I wanted to get in the 
tax bill that was passed a provision that would allow them to maintain 
their salaries, their Federal salaries, so as not to fall down, 
basically, to receive the lower salary they receive in the Guard and 
Reserve. The sad thing is it would not have cost the Government 
anything because we had already budgeted to pay them their full 
salaries. This was rejected.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From Government Executive Magazine, Apr. 2, 2003]

             Bill Would Close Pay Gap for Active Duty Feds

                         (By Tanya N. Ballard)

       Three Senate lawmakers introduced a bill Wednesday that 
     would require the government to pay the difference between 
     civilian and military wages for federal employees called to 
     active duty.
       More than 120,000 federal employees serve in the National 
     Guard and Reserves, and nearly 14,000 of them have been 
     called to active duty to help fight the war in Iraq. But most 
     of those employees earn less as active duty reservists than 
     as civilian workers, according to Sen. Richard Durbin, D-Ill. 
     Durbin joined with Sens. Mary Landrieu, D-La., and Barbara 
     Mikulski, D-Md. to introduce legislation that would close the 
     gap between military and civilian pay for those workers.
       ``We cannot simultaneously encourage Americans to serve 
     their country in the National Guard and Reserves and then 
     punish those who enlist by taking away a large portion of 
     their income,'' Durbin said.
       The Illinois senator described the case of one Air Force 
     reservist who took a $45,000 cut in pay when he was called to 
     duty and left his job as an air traffic controller in 
     Chicago.
       ``This was a severe blow to his family,'' Durbin said.
       According to Landrieu, several local and state governments, 
     as well as private companies, have a pay gap plan in place to 
     address this issue and the federal government needs to do the 
     same.
       ``Reserve and guard employees--whether working in the 
     public or private sector--should not have to take a pay cut 
     when called to active duty, and that's exactly what's 
     happening now,'' Landrieu said. ``These men and women are not 
     getting a tax cut, they are taking a pay cut to serve. It 
     does not make sense.''
       According to Durbin, the gap in salary can range from 2 
     percent to 48 percent.
       ``We must provide our reservist employees with financial 
     support so they can leave their civilian lives to serve our 
     country without the added burden of worrying whether their 
     loved ones back home can make the monthly mortgage payment or 
     provide new shoes for their kids.'' Durbin said. ``They are 
     doing so much for us, we should do no less for them.''

  Ms. LANDRIEU. I say for the benefit of the people in Louisiana, we do 
not understand how we can give our tax credits to everybody but the 
Guard and Reserve. We can give out help to everybody except those 
Federal employees who take off one uniform and put on another, leave 
their homes for 6 months to a year, sometimes longer,

[[Page 28589]]

and we expect them to take a cut in pay when we are giving tax credits 
to people who are not fighting.
  If I could conclude on this one issue which really pours salt into 
the wound, when people say, Senator, we could not afford it, we 
actually found a way to pay for it. We said we should pay for it by 
making people who are right now evading U.S. taxes because they have 
made so much money in America because our troops have put their life on 
the line to protect the way of life which allows business people to 
make a lot of money in America, these business people who have made a 
lot of money because of what these men and women are doing in the Armed 
Forces, these business people are now deciding they are paying too much 
in tax, so they go to another country. They do not want to pay their 
taxes.
  So we said let's make those folks pay their taxes and use those 
proceeds to pay for tax relief for the men and women in the military. 
We were told we cannot do that. We cannot possibly make people who owe 
taxes to America pay their taxes so that we can pay the men and women 
in uniform and give them a tax cut. I hope we will change our policy 
because it is wrong. We have missed an opportunity to help these 
families.
  I conclude by thanking Senator Mikulski and Senator Bond for their 
hard work on behalf of veterans. They have restored a lot of the cuts 
that were proposed by this administration. I am proud to be part of 
helping to pass a veterans bill. But let's not forget it is not just 
about appropriations bills where we can help our men and women in 
uniform. Tax bills can help them. Other direct spending bills can help 
them. No one deserves our help more than people who put on a uniform 
every day and actually put their life on the line.
  This Senator does not think we are doing enough and can afford to do 
more when we found an offset to make regular people pay the taxes they 
owe. If they do not want to put on a uniform and fight, that is fine, 
but at least give the benefits to the people who are protecting their 
ability to make a living.
  I yield the floor.
  Mr. JEFFORDS. Mr. President, I am a cosponsor of the Lautenberg-
Mikulski amendment increasing funding for the enforcement activities of 
the Environmental Protection Agency, EPA. I would like to voice my 
strong support for this amendment. Without effective enforcement, our 
environmental laws will never succeed in reducing pollution and 
improving environmental quality. Simply put, the best environmental 
laws in the world mean nothing without vigorous enforcement.
  Unfortunately, this administration does not share this sentiment. 
Just last week, the administration directed the EPA to abandon ongoing 
investigations of some 50 different facilities for violations of the 
Clean Air Act's New Source Review provisions. Apparently, gutting the 
rule itself was not enough. Pardons for big polluters--many of them 
large political contributors--seem to be the administration's preferred 
approach to environmental enforcement.
  Lack of enforcement is hardly confined to the Clean Air Act. Indeed, 
a recent report from the EPA inspector general reveals an Agency 
failing to keep up with its enforcement duties across a number of 
different programs. According to the report, a majority of special 
agents-in-charge of environmental crimes states that they will not open 
a new case if they lack the resources necessary to pursue the case. In 
addition, formal enforcement actions under several key Clean Water Act 
programs have declined dramatically over the last 3 years. 
Specifically, the number of formal enforcement actions brought under 
the National Pollution Discharge Elimination System declined by 45 
percent between 1999 and 2001. Clear Water Act enforcement actions 
against large concentrated animal feeding operations declined by more 
than 90 percent between 2000 and 2002.
  I ask my colleagues: What kind of message does this send to the 
Nation's polluters? What kind of message does it send to the American 
people?
  On one hand, we have an administration that is openly hostile to 
environmental enforcement. On the other hand, we have an EPA that is 
unable to initiate new environmental crimes cases and is dramatically 
scaling back on several major civil enforcement programs because the 
agency lacks adequate resources. I hope that Administrator Leavitt will 
work to remedy this situation, but I fear that much of the problem may 
ultimately lie with the White House.
  Mr. President, the additional appropriation contained in this 
amendment represents a modest increase in the Agency's enforcement 
budget. But it is crucial one given the Agency's inability to keep up 
with its obligations to enforce this country's environmental laws. This 
amendment also sends a signal to the EPA and to the administration that 
the Senate takes environmental enforcement seriously. At the end of the 
day, the answer is not, as the administration would have it, to abandon 
existing enforcement actions.
  Rather, the answer is to provide adequate resources and to demand 
more oversight to ensure that our environmental laws will not be empty 
words in the statute books.
  Mr. JEFFORDS. Mr. President, I rise before you today to join my 
colleague, Senator Mikulski, in offering this amendment to increase the 
funds available for water infrastructure spending.
  Since assuming the chairmanship of the Environment and Public Works 
Committee in 2001, I have spent many hours in the committee and here on 
the Senate floor discussing the pressing need for investment in our 
Nation's water infrastructure.
  In the 107th Congress, the committee passed S. 1961, the Water 
Investment Act, which I introduced with Senators Graham, Crapo, and 
Smith of New Hampshire, which would have increased water infrastructure 
spending by $35 billion, providing $3.2 billion for clean water in the 
first year, and $2 billion for drinking water in the first year
  The Bush administration opposed the bill, stating, ``. . . the 
administration does not support the funding levels contained in S. 
1961.''
  In December 2002, Senators Sarbanes and Voinovich and I, along with 
38 Members of the Senate from both sides of the aisle, sent a letter to 
the President asking him to provide $3.2 billion for clean water 
spending, and $2 billion for drinking water spending.
  Instead, President Bush responded by proposing a 40 percent cut in 
water infrastructure spending to Congress in his fiscal year 2004 
budget.
  In March 2003, I cosponsored an amendment with Senators Mikulski, 
Sarbanes, Graham and Crapo to increase the allocation for water 
infrastructure spending in the budget resolution to $3.2 billion for 
clean water, and $2 billion for drinking water.
  It was accepted by the Senate and dropped in conference with the 
House.
  I do appreciate the work that the Senate VA-HUD Subcommittee did to 
restore clean water infrastructure spending to $1.35 billion, up from 
the President's request of $800 million--a significant step in the 
right direction.
  The ironic thing about this issue, the actions we have taken over the 
last 2 years, and the lack of major progress is that there appears to 
be bipartisan consensus that water infrastructure spending has 
significant need, is critical to our Nation's water quality, leads to 
job growth, and enjoys broad support among the American people.
  First--the needs are substantial. The EPA's own estimates show a $535 
billion gap between current spending and projected needs for water and 
wastewater infrastructure over the next 20 years if additional 
investments are not made.
  According to the Congressional Budget Office, the spending gap for 
clean water needs is estimated to be between $132 billion and $388 
billion over 20 years, and the spending gap for drinking water needs at 
between $70 billion and $362 billion over 20 years.
  It is not solely the Federal Government's responsibility to fill this 
gap. However, it is the Federal Government's responsibility to provide 
a reasonable investment in water infrastructure, given the size of the 
anticipated needs.
  Second--repair of a quickly deteriorating water infrastructure is 
critical to our Nation's water quality.

[[Page 28590]]

  Our towns and cities, along with the Federal Government, have 
invested billions of dollars over the last 30 years to build the 
infrastructure to treat our wastewater and drinking water. It is with 
this infrastructure that the country has been able to return about 60 
percent of our waters to swimming and fishing standards.
  Even with those investments, we continue to fail to fully protect our 
waters from pollution, with over 40 percent of our Nation's waters 
still impaired.
  Now, the progress we have made over the last 30 years stands on the 
brink of evaporation as the extensive water and wastewater 
infrastructure we have built nears the end of its useful life, and we 
are failing to reinvest
  Third, estimates show that for every billion dollars invested in 
water infrastructure spending, approximately 40,000 jobs would be 
created. We must take action to prevent our economy from faltering. We 
are proposing to invest $5.2 billion in the State revolving funds.
  The States will provide a 20-percent match of just over $1 billion. 
This could create over 200,000 jobs.
  Yet despite the apparent consensus that there are significant needs, 
that healthy water infrastructure is in need of repair, that investment 
will increase job growth, and that Americans support investing in water 
infrastructure, we fail to act. Why? I cannot answer that question.
  Just last month, the President recognized the importance of water 
infrastructure needs in Iraq with his request for an $87 billion 
supplemental spending package that provided about $4 billion for water 
infrastructure improvements.
  It is appalling to me that the President is willing to support water 
infrastructure investment overseas while failing to recognize that 
Americans have the same needs here at home.
  However, the fact that the President failed to recognize our water 
infrastructure needs, requested a 40-percent drop in water 
infrastructure spending, and sought emergency spending for water 
infrastructure in Iraq that was four times the amount he requested for 
domestic water infrastructure spending, does not justify the same 
failure by this Senate.
  The amendment that I offer today with Senator Milkulski provides a 
downpayment on our water infrastructure needs. It provides an 
additional $3 billion for domestic water infrastructure improvements. 
This increase is $1.3 billion less than the amount this Senate approved 
for Iraq less than 2 weeks ago.
  By voting aye on the amendment offered by the Senator from Maryland, 
each of you can take direct action to improve both the state of our 
Nation's waters and the state of our Nation's economy.
  Today could be the day that the Senate finally changes the course of 
water infrastructure spending and votes decisively to live up to our 
responsibility and improve the quality of our Nation's waters.
  The outcome is up to us. I urge you to support the amendment proposed 
by the Senator from Maryland.
  Mr. SARBANES. Mr. President, I rise in strong support of this 
amendment, by my colleague Senator Mikulski to boost federal funding 
for the clean water and safe drinking water state revolving funds (SRF) 
by an additional $3 billion. I spoke earlier this year on a similar 
amendment which I offered to the Senate budget resolution and I just 
want to underscore some of the key reasons this amendment is needed.
  The President's Fiscal 2004 budget severely short changes the funds 
needed by State and local governments to upgrade their aging wastewater 
and drinking water infrastructure. The President's budget provided only 
$1.7 billion for both State Revolving Funds, split equally. The 
Committee-approved bill provided an additional $500 million, restoring 
the President's budget cut to the Fiscal 2003 enacted level of funding 
of $2.2 million--but is still short of what is needed.
  Despite important progress over the last three decades, EPA reports 
that more than 40 percent of our nation's lakes, rivers and streams are 
still too impaired for fishing or swimming. Discharges from aging and 
failing seweage systems, urban storm water and other sources, continue 
to pose serious threats to our nation's waters, endangering not only 
public health, but fishing and recreation industries. Population growth 
and development are placing additional stress on the nation's water 
infrastructure and its ability to sustain hard-won water quality gains.
  Combined sewer systems or so-called CSOs can be found in more than 
750 communities in 32 States and the District of Columbia. EPA 
estimates that annual combined sewer systems discharge nearly 1,300 
billion gallons of untreated or under-treated wastewater. To eliminate 
sewer overflows, the City of Baltimore alone must invest more than $900 
million to upgrade its sewer system and comply with a consent decree 
with the Department of Justice and the Environmental Protection Agency. 
Many other cities across the nation face similar challenges. In fact, 
three years ago, in 2000, Congress amended the Clean Water Act to 
authorize a $1.5 billion grant program to help cities reduce these wet 
weather flows, but funds have not been available to implement the 
program.
  Nearly 20,000 municipalities have separate sewer systems or SSOs, 
serving a population of 150 million. Unlike CSOs, these separate 
sanitary collection systems are not intended to carry significant 
volumes of extraneous water, such as storm water runoff, but frequently 
do because of infiltration and inflow, aging systems, and other 
factors. EPA acknowledges that sanitary sewer overflows pose a severe 
problem to the environment and public health.
  Across the nation, our wastewater and drinking water systems are 
aging. In some cases, systems currently in use were built more than a 
century ago and have outlived their useful life. For many communities, 
current treatment is not sufficient to meet water quality goals. Recent 
modeling of the EPA's Bay Program has found that the 304 major 
municipal wastewater treatment facilities in the watershed will have to 
reduce nitrogen discharges by nearly 75 percent to restore the 
Chesapeake Bay and its major tributaries to health. Achieving this goal 
is estimated to cost $4.4 billion.
  In April 2000, the Water Infrastructure Network (WIN), a broad 
coalition of local elected officials, drinking water and wastewater 
service providers, state environmental and health administrators, 
engineers and environmentalists released a report, Clean & Safe Water 
for the 21st Century. The report documented a $23 billion a year 
shortfall in funding needed to meet national environmental and public 
health priorities in the Clean Water Act and Safe Drinking Water Act 
and to replace aging and failing infrastructure.
  In May 2002, the Congressional Budget Office released a report that 
estimated the spending gap for Clean Water needs between $132 billion 
and $388 billion over 20 years and the spending gap for drinking water 
needs at between $70 billion and $362 billion over 20 years.
  In September 2002, the EPA released a Clean Water and Drinking Water 
Infrastructure Gap Analysis which found that there will be a $535 
billion gap between current spending and projected needs for water and 
wastewater infrastructure over the next 20 years if additional 
investments are not made. This figure does not even account for 
investments necessary to meet water quality goals in nutrient impaired 
waters, like Chesapeake Bay.
  The need for additional investment in wastewater and drinking water 
infrastructure is clearly documented.
  But, States, localities and private sources can't meet the funding 
gap alone.
  Local communities already pay almost 90 percent of the total cost or 
about $60 billion a year to build, operate, and maintain their water 
and wastewater systems. But as former Administrator Whitman pointed 
out, ``(t)he magnitude of the challenge America faces is clearly beyond 
the ability of any one entity to address.''
  Water pollution is an interstate problem. The Congress understood the 
interstate dynamic of pollution in 1972

[[Page 28591]]

when a bi-partisan majority passed the Clean Water Act and began 
funding waste treatment infrastructure. In 1979 and 1980, the Congress 
provided $5 billion in Clean Water construction grants alone to assist 
states and municipalities with wastewater infrastructure needs. Over 
the years, budgetary pressures and other factors have reduced that 
funding level, and in Fiscal 2003, we provided only $1.34 billion in 
Clean Water State Revolving loan funds.
  It is vital that the Federal government maintain a strong partnership 
with states and local governments in averting the massive projected 
funding gap and share in the burden of maintaining and improving the 
nation's water infrastructure. Municipalities need significant 
resources to comply with Federal clean water and drinking water 
standards. In the 107th Congress, House and Senate committees approved 
bills to authorize $20 billion over 5 years for the Clean Water Act 
SRF, underscoring the recognition that something must be done to 
address this funding gap.
  An increase in funding for the Clean Water SRF to $3.2 billion and 
for the Drinking Water SRF to $2 billion in fiscal 2004 is the first 
step necessary to meet the Federal government's longstanding commitment 
in this regard.
  This isn't a make-work public works project. It is an investment in 
the health of Americans and in a clean environment. It is an investment 
that will pay substantial dividends.
  Wastewater treatment plants not only prevent billions of tons of 
pollutants each year from reaching our rivers, lakes, streams, and 
coasts they also help prevent water-borne diseases and make waters safe 
for swimming and fishing.
  According to the Water Infrastructure Network, ``Clean water supports 
a $50 billion a year water-based recreation industry, at least $300 
billion a year in coastal tourism, a $45 billion annual commercial 
fishing and shell fishing industry, and hundreds of billions of dollars 
a year in basic manufacturing that relies on clean water. Clean rivers, 
lakes, and coastlines attract investment in local communities and 
increase land values on or near the water, which in turn, create jobs, 
add incremental tax base, and increase income and property tax revenue 
to local, state, and federal government. Some 54,000 community drinking 
water systems provide drinking water to more than 250 million 
Americans. By keeping water supplies free of contaminants that cause 
disease, these systems reduce sickness and related health care costs 
and absenteeism in the workforce.''
  They also create jobs--indeed tens of thousands of jobs and provide 
stimulus to the economy.
  Each $1 billion in sewer and water improvements creates an estimated 
40,000 jobs. With more than $5 billion in water infrastructure projects 
ready for construction, these jobs would be created immediately with 
Federal assistance. According to OMB, every federal dollar invested in 
water infrastructure generates up to $4 for project loans, so the 
potential for job creation from this amendment is tremendous.
  The case for this amendment is compelling. Today, maintaining clear, 
safe water remains one of our greatest national and global challenges.
  I urge my colleagues to support this amendment and help address the 
massive funding gap that looms on the horizon. Failure to act now risks 
undermining thirty years of progress in cleaning up our nation's 
waters.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, we are on the amendment, the emergency 
designation by my friend and colleague from Maryland. She seeks to add 
$3 billion to the vitally important State revolving funds that are so 
important to cleaning up our environment. I could not agree with her 
from my heart more strongly because this is an area of need. We have 
fought very hard to get our funding up to where it is. That is not 
enough. We have not been able to fund the National Science Foundation 
as we should. We had a major effort by the leadership of the full 
committee to get us the money that we need to get an additional $1.3 
billion for veterans health care.
  Having said that, this, unfortunately, is far beyond the budget 
allocated to the committee. It is in conflict with the stated position 
of the OMB with respect to emergency designations. Therefore, it is 
with regret that out of necessity I note that section 502, House 
Concurrent Resolution 95, the fiscal year 2004 concurrent resolution on 
the budget, created a point of order against an emergency designation 
on nondefense spending.
  The amendment contains nondefense spending with an emergency 
designation; therefore, pursuant to section 502 of H. Con. Res. 95, the 
fiscal year 2004 concurrent resolution on the budget, I make a point of 
order against the emergency designation contained in the amendment.
  Ms. MIKULSKI. Mr. President, pursuant to section 502(c)(6) of H. Con. 
Res. 95, the concurrent resolution on the budget for fiscal year 2004, 
I move to waive the 502(c) of that concurrent resolution for purposes 
of the pending amendment.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from New Mexico (Mr. 
Domenici), the Senator from Georgia (Mr. Chambliss), and the Senator 
from Montana (Mr. Burns) are necessarily absent.
  Mr. REID. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from South Dakota (Mr. Daschle), the Senator from North 
Carolina (Mr. Edwards), and the Senator from Massachusetts (Mr. Kerry) 
are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``yea.''
  The PRESIDING OFFICER (Ms. Collins). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 44, nays 49, as follows:
  The result was announced--yeas 44, nays 49, as follows:

                      [Rollcall Vote No. 449 Leg.]

                                YEAS--44

     Akaka
     Baucus
     Bayh
     Biden
     Boxer
     Breaux
     Byrd
     Campbell
     Cantwell
     Carper
     Corzine
     Dayton
     Dodd
     Dorgan
     Durbin
     Ensign
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Smith
     Stabenow
     Wyden

                                NAYS--49

     Alexander
     Allard
     Allen
     Bennett
     Bingaman
     Bond
     Brownback
     Bunning
     Chafee
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Enzi
     Feingold
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                             NOT VOTING--7

     Burns
     Chambliss
     Clinton
     Daschle
     Domenici
     Edwards
     Kerry
  The PRESIDING OFFICER. On this vote, the yeas are 44, the nays are 
49. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected. The point of order is 
sustained, and the emergency designation is stricken.
  Mr. BOND. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Parliamentary inquiry: Does the amendment fall without the 
emergency designation?
  The PRESIDING OFFICER. The Senator needs to make a point of order.

[[Page 28592]]


  Mr. BOND. I make a point of order that this exceeds the budget 
allocation and, therefore, must fall.
  The PRESIDING OFFICER. The point of order is well taken, and the 
amendment falls.
  The Senator from Missouri.
  Mr. BOND. Madam President, I have six amendments to offer.
  Mr. REID. Without the Senator losing his right to the floor, I direct 
a question through the Chair to the distinguished Senator from 
Missouri. We are wondering, how much longer do the managers believe it 
would take to finish this bill?
  Mr. BOND. Madam President, I have now heard from about five Members 
on the other side who have amendments on which we would have to have 
votes. If that is 20 minutes a vote, that would be 100 minutes at 
least.
  Ms. MIKULSKI. I say to the distinguished Democratic whip, I think we 
can do this in 2 hours. I think there are amendments that require more 
conversation and modification, that might not require votes.
  Mr. REID. If the Senator will continue yielding, I believe with five 
Democratic amendments the Senator has spoken about and the persuasive 
nature of the Democratic manager of this bill, some of them would not 
require votes, and I believe we could finish this in 2 hours.
  I suggest to the leadership on the other side--I know everyone is 
chomping at the bit to go to 6 o'clock, but if we could have another 
couple hours, we could finish this bill. On this side, that would cut 
the marathon down to 28 hours. Although I have no authority to do this 
and this is not in the form of a unanimous consent request, I think we 
would be willing to give up part of our time in those 2 hours to finish 
this bill.
  Mr. BOND. Madam President, I am truly overwhelmed by the generosity 
of my good friend from Nevada, but regrettably I am not driving this 
bus. I believe there is a unanimous consent order that cannot be 
altered without talking to the leadership. I apologize to my friends. I 
would love to finish the bill, but now that I have the floor, I do have 
a number of amendments that have been cleared on both sides.


                Amendment No. 2180 to Amendment No. 2150

  Mr. BOND. Madam President, I send an amendment to the desk on behalf 
of myself to direct the Secretary of Housing and Urban Development to 
conduct and negotiate a rulemaking for purposes of changes to the 
formula governing the public housing operating fund. I ask for its 
immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond] proposes an amendment 
     numbered 2180 to amendment No. 2150.

  Mr. BOND. Madam President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To require HUD to make any changes to the operating fund 
                   formula by negotiated rulemaking)

       On page 86, after line 11, insert the following new 
     section:
       Sec. 226. The Secretary of Housing and Urban Development 
     shall conduct negotiated rulemaking with representatives from 
     interested parties for purposes of any changes to the formula 
     governing the Public Housing Operating Fund. A final rule 
     shall be issued no later than July 31, 2004.

  Mr. BYRD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri has the floor.
  Mr. BOND. Madam President, there are no objections on the other side.
  Ms. MIKULSKI. No, I do not have an objection.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. BYRD. Madam President, may I be recognized? May I be recognized 
for debate?
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. I thank the Chair.
  Madam President, I have sought the floor at this moment to urge the 
leadership to extend the time on this bill for 2 hours. I have heard 
the distinguished Democratic whip say it, I believe I have heard the 
Senator from Maryland, the manager of the bill, and the ranking member 
on this side, Senator Mikulski, say it, and I believe I have heard the 
manager indicate we might be able to finish this bill with an 
additional 2 hours.
  We have completed 10 appropriations bills for floor action. There are 
only 13. That means there are three more. If we could finish this bill 
in 2 hours, that would leave only two appropriations bills that have 
not had floor action: CJS and District of Columbia.
  So I urge, Madam President, that the leadership extend the time on 
this measure that is before the Senate just 2 hours.
  Let us finish this bill before going to other matters.
  Mr. REID. Will the Senator yield for a question?
  Mr. BYRD. Yes, I yield.
  Mr. REID. I say to the Senator, who is the most experienced person in 
the Senate as far as moving matters on the floor, I mentioned to the 
two managers that we have momentum on this bill now. If we come back 
some other time with 2 hours, it just is not the same. All of us who 
are in the Senate, we know these measures develop momentum and that is 
what we have now.
  As I indicated to the two managers earlier and through the Chair to 
my distinguished friend, the Senator from West Virginia, we could 
finish this bill in 2 hours. It would not be easy, but if we made a 
commitment to do that, we would, and I think we should. It will not 
take anything away from the 6 show. It would just put it over for a 
couple of hours. Would the Senator agree with that?
  Mr. BYRD. Yes, I do.
  Mr. DURBIN. Will the Senator from West Virginia yield for a question?
  Mr. BYRD. Yes, I yield for a question without losing my right to the 
floor.
  Mr. DURBIN. I thank the Senator from West Virginia. Through the 
Chair, I ask the Senator, who is more familiar with the rules than 
anyone, if the Senator from West Virginia made a unanimous consent 
request now that we went until 8 p.m., for example, and finish this 
bill for the veterans, the Veterans' Administration, would that be in 
order?
  Mr. BYRD. It certainly would be in order.
  Mr. DURBIN. In order to bring us to closure on this important 
legislation before we begin the long debate?
  Mr. BYRD. It certainly would.
  Mr. DURBIN. Through the Chair, I would ask the Senator from West 
Virginia to seriously consider that.
  Mr. BYRD. Well, I will not only consider it, I will make the request. 
I would like for the leadership to be here and let the leadership 
consider making the request. I am talking about the majority leader. I 
do not want to try to impose myself in his stead in a matter of this 
nature, but I do think the Senate ought to go for a couple more hours, 
if that would do it, and let us finish this bill.
  We have finished 10 appropriations bills. I am the ranking member on 
the Appropriations Committee. It certainly is in order for me to 
attempt to try to get this bill acted on. We are so close. This is a 
veterans bill, the VA-HUD bill, that is so important. We have soldiers, 
men and women, dying in Iraq. Why not pass this bill within 2 hours? We 
are within 2 hours, and if we work hard we might complete it before 
that 2 hours. Maybe some of the amendments could be peeled off so we 
could cut the time.
  I ask, Is there anyone who would get the majority leader to come to 
the floor and let us consider this?
  Mr. BOND. Madam President----
  Mr. BYRD. I have the floor.
  Mr. BOND. I was going to respond.
  Mr. BYRD. Yes. Let me protect myself, though. I ask unanimous consent 
that I may yield to the distinguished Senator from Missouri so that he 
can propound a question to the Chair and that I retain my right to the 
floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Madam President, we are coming up on a 6 p.m. deadline, I 
say to my friend from West Virginia, that has been long announced and 
been planned for. I say to the distinguished Senator that unless and 
until we are able to get

[[Page 28593]]

concurrence from the leadership, the work on this bill tonight will 
stop. I further ask the Senator from West Virginia if he would permit 
us to continue with the cleared amendment that is at the desk. There 
are five more cleared amendments, four of them by Members from his side 
of the aisle, that we would like to be able to clear if he would allow 
me to do so.
  Also, I announce to my colleagues there are visiting dignitaries from 
the European Parliament. My colleagues may wish to greet them.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I am going to propound a request. That 
request will include--did the Senator from Missouri say there were four 
amendments that were cleared?
  Mr. BOND. Madam President, there is one measure pending at the desk, 
and there are five more amendments that have been cleared on both 
sides. Excuse me. Coming in over the transom, there are now two more. 
So that makes a grand total of seven amendments, five of them from 
Members on the other side of the aisle.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, before I make a request, let me 
congratulate the Senator from Missouri. He is a good member of the 
Appropriations Committee. He works hard. He is a productive member. I 
have a great deal of admiration for him and for the work he does. I say 
the same about my friend, the Senator from Maryland. She has done 
tremendous work on this bill. It is the VA-HUD bill. She always applies 
her total energies and talents to working on this measure. With her 
good work and cooperation, the manager of the bill, Mr. Bond, has been 
able to bring the bill to the floor. He has done great work. I do not 
want to take away from his work. I want to add to it, and so I 
compliment him.
  As I understand it, there are seven amendments at the desk that have 
been cleared on both sides?
  Mr. BOND. Madam President, these are not at the desk, only submitted.
  Mr. BYRD. I yield only if I may retain my right to the floor.
  I yield to the Senator that he may make that statement, and ask that 
I may retain my right to the floor.
  Mr. BOND. Madam President, as I said, there are seven amendments that 
are to be offered. There is one at the desk and there are seven more 
now that have been cleared on both sides.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. May I say again, we have finished 10 of the 13 
appropriations bills on this floor. We lack three: CJS, District of 
Columbia, and VA-HUD. VA-HUD is before the Senate. We are within reach 
of completing floor action on that bill. We ought to do that. If we 
fail, having come this close, what is the Senate going to look like? We 
have to complete action on appropriations bills one way or another 
before we can adjourn sine die. I hope we could finish floor action on 
this bill.
  Think of all the time that has gone into the consideration of this 
bill in the committee. The chairman and ranking member have held 
hearings. They have had a markup of this bill. They have worked hard 
over a period of many months. They have heard witnesses. All of this 
ought not to be for naught.
  I hope Senators will agree. I had hoped the distinguished majority 
leader would be on the Senate floor so that I could urge him to 
propound this request. We are only 11 minutes away from 6. Now, a 
unanimous consent request entered into at this point will prevail over 
any previous unanimous consent request dealing with that same matter. 
So I have the floor. I know what my rights are, and I know what my 
duties are, also, as the ranking member of the Appropriations 
Committee.
  May I ask the Chair, am I wrong in anything I have said? Am I 
correct?
  The PRESIDING OFFICER. The Senator has the floor.
  Mr. BYRD. Yes. And am I correct that a unanimous consent request 
agreed to at this moment to extend the hour of 6, which was in a 
previous request, would be the prevailing motion?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. BYRD. I thank the Chair.
  Mr. DURBIN. Will the Senator yield for another question?
  Mr. BYRD. Madam President, I yield for a question without giving up 
the floor.
  Mr. DURBIN. Through the Presiding Officer, I would like to ask the 
Senator from West Virginia, could you not make part of your unanimous 
consent request an agreement that the pending amendments will be 
considered in a timely fashion?
  Mr. BYRD. That would be part.
  Mr. DURBIN. So there is no effort to extend this beyond a reasonable 
period, but an effort to complete this bill for our veterans, for the 
Veterans Administration, before we begin the 30-hour debate. Could you 
not include that in your unanimous consent request?
  Mr. BYRD. Yes, indeed.
  So, Madam President, I really hesitate to make this request. I had 
hoped the majority leader would be in the Chamber because he is the 
person to be recognized at 6 o'clock, under the previous order. I don't 
want to appear to be discourteous. That is not my intention.
  Why do you think I am doing this? I am the ranking member of the 
Senate Appropriations Committee. In the 7 years, I believe it was, that 
I was chairman of the Appropriations Committee, we never had--I don't 
think we ever had--I think we finished all 13 appropriations bills 
every year. We could finish another one. I know Senator Stevens has 
worked hard. I asked Senator Stevens during the last rollcall if he was 
agreeable to extending this time, since we are so close. He indicated 
he would work to do that.
  Madam President, I ask unanimous consent that----
  The PRESIDING OFFICER. The Presiding Officer apologizes to the 
Senator from West Virginia for being temporarily distracted.
  Mr. BYRD. I didn't understand the Chair.
  The PRESIDING OFFICER. The Presiding Officer apologizes to the 
Senator from West Virginia for being temporarily distracted.
  Mr. BYRD. I thank the distinguished Presiding Officer.
  I am trying to avoid appearing to intrude on the majority leader's 
previous request and his time. I don't want to appear to be 
discourteous. I want to make the request when the majority leader is 
here.
  The PRESIDENT pro tempore. The Senator from West Virginia.
  Mr. BYRD. I ask unanimous consent that I be permitted to make a 
unanimous consent request and that, if it is agreed to--or whether or 
not it is agreed to, that I be recognized for another unanimous consent 
request, with the understanding that in any event I will be recognized 
1 minute before 6 p.m. today to make such request.
  Mr. BOND. I object on behalf of the leadership, Mr. President, and I 
seek recognition.
  Mr. BYRD. Mr. President, I don't lose the floor by virtue of having 
made a unanimous consent request, even though it is objected to. I 
don't lose the floor.
  The PRESIDENT pro tempore. The Senator does not lose the floor by 
making a unanimous consent request.
  Mr. SARBANES. Will the Senator from West Virginia yield for a 
question, reserving his right to the floor?
  Mr. BYRD. I yield to the distinguished Senator from Maryland with the 
understanding I do not lose my right to the floor, and I yield for a 
question only.
  Mr. SARBANES. If I could have the attention of the Senator from 
Missouri as I pose this question? Would the Senator entertain a 
unanimous consent request that allowed the amendments that are lined up 
here to be offered and to be accepted? I understand they are all going 
to be taken by voice.
  Mr. BYRD. Mr. President, I don't yield the floor for that purpose.
  Mr. SARBANES. I am not asking. I am just inquiring of the Senator's 
view of that.
  Mr. BYRD. Mr. President, I ask unanimous consent that the seven 
amendments at the desk, to which the distinguished Senator from 
Missouri alluded,

[[Page 28594]]

be considered agreed to, the motion to reconsider be laid on the table, 
and that the Senate immediately proceed to the further consideration of 
the VA-HUD appropriations bill with the understanding that time on that 
bill would end no later than 8 o'clock--or would end at 8 o'clock this 
evening, and that there would be a vote on the VA-HUD bill.
  The PRESIDENT pro tempore. Is there objection to the request?
  Mr. BOND. On behalf of the leadership, I object.
  Mr. BYRD. Senators will understand I used to propound these requests 
without their being in writing. I am carefully trying to approach this, 
so I will start over.
  Mr. President, I ask unanimous consent that the seven amendments that 
have been referred to by the distinguished Senator from Missouri, Mr. 
Bond, and are at the desk, that have been cleared, be considered agreed 
to and adopted to the bill. I further ask that the time originally set 
for recognition of the majority leader, at 1 minute until 6, be delayed 
2 hours, that in the meantime the Senate consider action and complete 
action on the VA-HUD appropriations bill, and that the motions to 
reconsider be laid on the table.
  The PRESIDENT pro tempore. Is there objection?
  Mr. BOND. On behalf of the leadership, I object.
  The PRESIDENT pro tempore. Objection is heard.
  The Senator from Missouri.


   Amendments Nos. 2151, 2180, 2181, 2182, 2183, 2184, 2185, 2186 to 
                           Amendment No. 2150

  Mr. BOND. Mr. President, we do have these six measures--seven--eight 
measures, now, at the desk, that I propounded? We have one from Senator 
Murkowski on pioneer homes in the State of Alaska; we have one from 
Senators Dorgan, Rockefeller, and Landrieu on access to primary health 
care for veterans in rural areas; we have one from Senator Snowe--
Senator Sarbanes, Senators Collins, Byrd, Santorum, and others, a sense 
of the Senate with respect to section 8 vouchers; an amendment by 
Senator Clinton and others relating to the Corporation for National 
Service volunteers; another from Senator Landrieu with respect to the 
States' deduction for administrative expenses in the Housing and 
Community Development Act; an amendment by Senator Levin and others 
relating to Federal water pollution control; a sense-of-the-Senate 
amendment by Senator Boxer about human dosing studies of pesticides.
  I ask unanimous consent that the aforementioned amendments be sent to 
the desk, the titles read, that they be approved, and that a motion to 
reconsider be laid upon the table.
  The PRESIDENT pro tempore. Is there objection?
  Ms. MIKULSKI. Mr. President, I have no objection except I am sorry we 
can't finish this bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments were agreed to, as follows:


                amendment no. 2151 to amendment no. 2150

 (Purpose: To increase the amount of funds that may be used by States 
 for technical assistance and administrative costs under the community 
                    development block grant program)

       On page 125, between lines 7 and 8, insert the following:
       Sec. 418. Section 106(d) of the Housing and Community 
     Development Act of 1974 (42 U.S.C. 5306(d)) is amended--
       (1) in paragraph (3)(A), by striking ``shall not exceed 2 
     percent'' and inserting ``shall not, subject to paragraph 
     (6), exceed 3 percent'';
       (2) in paragraph (5), by striking ``not to exceed 1 
     percent'' and inserting ``subject to paragraph (6), not to 
     exceed 3 percent'';
       (3) by redesignating the second paragraph (5) and paragraph 
     (6) as paragraphs (7) and (8), respectively; and
       (4) by inserting after paragraph (5) the following:
       ``(6) Of the amounts received under paragraph (1), the 
     State may deduct not more than an aggregate total of 3 
     percent of such amounts for--
       ``(A) administrative expenses under paragraph (3)(A); and
       ``(B) technical assistance under paragraph (5).''.


                AMENDMENT NO. 2180 to Amendment No. 2150

   (Purpose: To require HUD to make any changes to the operating fund 
                   formula by negotiated rulemaking)

        On page 86, after line 11, insert the following new 
     section:
        Sec. 226. The Secretary of Housing and Urban Development 
     shall conduct negotiated rulemaking with representatives from 
     interested parties for purposes of any changes to the formula 
     governing the Public Housing Operating Fund. A final rule 
     shall be issued no later than July 31, 2004.


                Amendment No. 2181 to Amendment No. 2150

 (Purpose: To provide for the treatment of the Pioneer Homes in Alaska 
                     as a State home for veterans)

       At the end of title I, add the following:
       Sec.  116. (a) Treatment of Pioneer Homes in Alaska as 
     State Home for Veterans.--The Secretary of Veterans Affairs 
     may--
       (1) treat the Pioneer Homes in the State of Alaska 
     collectively as a single State home for veterans for purposes 
     of section 1741 of title 38, United States Code; and
       (2) make per diem payments to the State of Alaska for care 
     provided to veterans in the Pioneer Homes in accordance with 
     the provisions of that section.
       (b) Treatment Notwithstanding Non-Veteran Residency.--The 
     Secretary shall treat the Pioneer Homes as a State home under 
     subsection (a) notwithstanding the residency of non-veterans 
     in one or more of the Pioneer Homes.
       (c) Pioneer Homes Defined.--In this section, the term 
     ``Pioneer Homes'' means the six regional homes in the State 
     of Alaska known as Pioneer Homes, which are located in the 
     following:
       (1) Anchorage, Alaska.
       (2) Fairbanks, Alaska.
       (3) Juneau, Alaska.
       (4) Ketchikan, Alaska.
       (5) Palmer, Alaska.
       (6) Sitka, Alaska.


                Amendment No. 2182 to Amendment No. 2150

 (Purpose: To express the sense of the Senate on the access to primary 
    health care of veterans living in rural and highly rural areas)

       At the end of title I, add the following:
       Sec. 116. (a) Findings on Access to Primary Health Care of 
     Veterans in Rural Areas.--The Senate makes the following 
     findings:
       (1) The Secretary of Veterans Affairs has appointed a 
     commission, called the Capital Asset Realignment for Enhanced 
     Services (CARES) Commission, and directed it to make specific 
     recommendations regarding the realignment and allocation of 
     capital assets necessary to meet the demand for veterans 
     health care services over the next 20 years.
       (2) The Department of Veterans Affairs accessibility 
     standard for primary health care provides that at least 70 
     percent of the veterans enrolled in each of the regional 
     ``markets'' of the Department should live within a specified 
     driving time of a Department primary care facility. That 
     driving time is 30 minutes for veterans living in urban and 
     rural areas and 60 minutes for veterans living in highly 
     rural areas.
       (3) The Draft National CARES Plan issued by the Under 
     Secretary for Health would place veterans in 18 rural and 
     highly rural regional markets outside the Department 
     accessibility standard for primary health care until at least 
     fiscal year 2022, which means that thousands of veterans will 
     have to continuing traveling up to 3-4 hours each way to 
     visit a Department primary care facility.
       (4) The 18 rural and highly rural markets that will remain 
     outside the Department accessibility standard for primary 
     health care comprise all or parts of Arkansas, Idaho, 
     Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, 
     Minnesota, Mississippi, Missouri, Montana, Nebraska, North 
     Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, 
     Tennessee, Texas, Virginia, Washington, and West Virginia.
       (5) Health care facilities for veterans are 
     disproportionately needed in rural and highly rural areas 
     because the residents of such areas are generally older, 
     poorer, and sicker than their urban counterparts.
       (b) Sense of Senate.--It is the sense of the Senate that--
       (1) the CARES Commission should give as much attention to 
     solving the special needs of veterans who live in rural areas 
     as it does to providing for the health care needs of veterans 
     living in more highly populated areas;
       (2) the CARES Commission should reject the portions of the 
     Draft National CARES Plan that would prevent any regional 
     market of the Department from complying with the Department 
     accessibility standard for primary health care, which 
     provides that at least 70 percent of the veterans residing in 
     each market be within specified driving times of a Department 
     primary care facility; and
       (3) the CARES Commission should recommend to the Secretary 
     the investments and initiatives that are necessary to achieve 
     the Department accessibility standard for primary health care 
     in each of the rural and highly rural health care markets of 
     the Department.

[[Page 28595]]




                Amendment No. 2183 to Amendment No. 2150

(Purpose: To express the sense of the Senate that housing vouchers are 
   a critical resource and that the Department of Housing and Urban 
 Development should ensure that all vouchers can be used by low-income 
                               families)

       On page 125, between lines 7 and 8, insert the following:

     SEC. 4__. SENSE OF THE SENATE.

       (a) Findings.--The Senate finds that--
       (1) 30 percent of American families have housing 
     affordability problems, with 14,300,000 families paying more 
     than half of their income for housing costs, and 17,300,000 
     families paying 30 to 50 percent of their income towards 
     housing costs;
       (2) 9,300,000 American families live in housing that is 
     overcrowded or distressed;
       (3) 3,500,000 households in the United States will 
     experience homelessness at some point this year, including 
     1,350,000 children;
       (4) the number of working families who are unable to afford 
     adequate housing is increasing, as the gap between wages and 
     housing costs grows;
       (5) there is no county or metropolitan area in the country 
     where a minimum wage earner can afford to rent a modest 2-
     bedroom apartment, and on average, a family must earn over 
     $15 an hour to afford modest rental housing, which is almost 
     3 times the minimum wage;
       (6) section 8 housing vouchers help approximately 2,000,000 
     families with children, senior citizens, and disabled 
     individuals afford a safe and decent place to live;
       (7) utilization of vouchers is at a high of 96 percent, and 
     is on course to rise to 97 percent in fiscal year 2004, 
     according to data provided by the Department of Housing and 
     Urban Development;
       (8) the average cost per voucher has also steadily 
     increased from just over $6400 in August of 2002, to $6,756 
     in April, 2003, due largely to rising rents in the private 
     market, and the Congressional Budget Office estimates that 
     the cost per voucher in fiscal year 2004 will be $7,028, $560 
     more per voucher than the estimate contained in the fiscal 
     year 2004 budget request; and
       (9) the congressionally appointed, bipartisan Millennial 
     Housing Commission found that housing vouchers are ``the 
     linchpin of a national housing policy providing very low-
     income renters access to privately-owned housing stock''.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that--
       (1) housing vouchers are a critical resource in ensuring 
     that families in America can afford safe, decent, and 
     adequate housing;
       (2) public housing agencies must retain the ability to use 
     100 percent of their authorized vouchers to help house low-
     income families; and
       (3) the Senate expects the Department of Housing and Urban 
     Development to take all necessary actions to encourage full 
     utilization of vouchers, and to use all legally available 
     resources as needed to support full funding for housing 
     vouchers in fiscal year 2004, so that every voucher can be 
     used by a family in need.


                Amendment No. 2184 to Amendment No. 2150

    (Purpose: To provide VISTA volunteers the option of receiving a 
                  national service educational award)

       On page 92, line 22, insert ``: Provided further, That the 
     Corporation shall offer any individual selected after October 
     31, 2002, for initial enrollment or reenrollment as a VISTA 
     volunteer under title I of the Domestic Volunteer Service Act 
     of 1973 (42 U.S.C. 4951 et seq.) the option of receiving a 
     national service educational award under subtitle D of title 
     I of the National and Community Service Act of 1990 (42 
     U.S.C. 12601 et seq.)'' after ``programs''.


                Amendment No. 2185 to Amendment No. 2150

   (Purpose: To authorize appropriations for sewer overflow control 
                                grants.

       On page 125, between lines 7 and 8, insert the following:

     SEC. 4__. SEWER OVERFLOW CONTROL GRANTS.

       Section 221 of the Federal Water Pollution Control Act (33 
     U.S.C. 1301) is amended--
       (1) in subsection (f), by striking ``2002 and 2003'' and 
     inserting ``2005 and 2006'';
       (2) in subsection (g)(1)--
       (A) in the paragraph heading, by striking ``2002'' and 
     inserting ``2005''; and
       (B) by striking ``2002'' and inserting ``2005'';
       (3) in subsection (g)(2)--
       (A) in the paragraph heading, by striking ``2003'' and 
     inserting ``2006''; and
       (B) by striking ``2003'' and inserting ``2006''; and
       (4) in subsection (i), by striking ``2003'' and inserting 
     ``2006''.


                Amendment No. 2186 to Amendment No. 2150

       It is the sense of the Senate that human dosing studies a 
     pesticides raises ethical and health questions.


                           Amendment No. 2183

  Ms. COLLINS. Mr. President, I rise today to speak on behalf of a 
Sense of the Senate amendment that Senator Sarbanes and I are offering 
with respect to the section 8 housing voucher program. This amendment 
states that section 8 housing vouchers are a critical housing resource, 
that public housing authorities must be able to use all of their 
authorized vouchers, and that the Senate expects the Department of 
Housing and Urban Development to take all necessary steps to encourage 
full voucher utilization.
  Our Nation is facing a critical shortage of affordable housing. A 
recent study by the Joint Center on Housing Studies at Harvard 
University indicates that approximately 30 percent of American families 
have housing affordability problems, with as many as 14.3 million 
families paying more than half of their income for housing costs and 
17.3 million families paying 30 to 50 percent of their income toward 
housing costs. The same study indicates that 9.3 million families live 
in housing that is overcrowded or distressed, and 3.5 million 
households in the United States will experience homelessness at some 
point this year. That last number includes more than 1.3 million 
children.
  As the gap between wages and housing costs grows, the number of 
working families who are unable to afford adequate housing continues to 
increase. On average, a family must earn over $15 per hour to afford 
modest rental housing, and in many cases, rising costs have led to 
families simply being priced out of the housing market. In my home 
state of Maine, the City of Portland offers a prime example of this 
phenomenon. The National Housing Conference reports that, in 1999, the 
median home price in Portland was $12,500. By 2001, that median price 
had increased to $158,000. During this period, Fair Market Rent for a 
two-bedroom apartment jumped from $641 to $817 per month, and this 
trend of increasing disparity between wages and housing costs shows 
little sign of abating.
  Section 8 housing vouchers help approximately 2 million families with 
children, senior citizens, and disabled individuals afford a safe and 
decent place to live. The congressionally appointed, bipartisan 
Millennial Housing Commission found that housing vouchers are ``the 
linchpin of a national housing policy providing very low-income renters 
access to privately owned housing stock. Currently, utilization of 
vouchers is at a high of 96 percent, and is on course to rise to 97 
percent in fiscal year 2004, according to data provided by HUD. The 
average cost per voucher has also steadily increased from just over 
$6,400 in August of 2002, to $6,756 in April, 2003, and the 
Congressional Budget Office estimates that the cost per voucher in FY 
2004 will be $7,028.
  Our amendment states that it is the sense of the Senate that: 1. 
housing voucher are a critical resource in ensuring that families in 
America can afford safe, decent, and adequate housing; 2. public 
housing agencies must retain the ability to use 100 percent of their 
authorized vouchers to help house low-income families; and 3. the 
Senate expects the Department of Housing and Urban Development to take 
all necessary actions to encourage full utilization of vouchers, and to 
use all legally available resources as needed to support full funding 
for housing vouchers in fiscal year 2004, so that every voucher can be 
used by a family in need.
  To many families, older, and disabled individuals, section 8 housing 
vouchers are the difference between having a safe, decent place to live 
and homelessness. it should be the sense of the Senate that HUD use all 
legally available funds to support every authorized voucher, and I 
encourage my colleagues to support this amendment.
  Mrs. CLINTON. Mr. President, today I rise in support of Senator 
Sarbane's resolution, which expressed the sense of the Senate that 
Section 8 housing vouchers are a critical resource and that the 
Department of Housing and Urban Development should ensure that all 
vouchers can be used by low-income families. I have joined many of my 
colleagues as an original cosponsor of this amendment and would like to 
thank both Senator Bond and Senator Mikulski for including it in the 
pending VA/HUD Appropriations bill. I would like to commend the 
Senators for their commitment to balancing the competing housing 
priorities we face given

[[Page 28596]]

the constraints they were working under. The Senate provisions are a 
big improvement over the House bill and would greatly reduce the 
chances of cuts to this program.
  Earlier this year, I joined my colleagues in sending a letter to 
Secretary Martinez expressing our reservations and concerns about the 
President's proposal to block grant this critical program. Experience 
with block grants tells us that this plan could have actually 
undermined the program and reduced the number of families being served, 
so I was pleased that both the House and the Senate Committee rejected 
it.
  The fact is the gap between wages and housing costs is growing and is 
pushing affordable housing beyond the reach of an increasing number of 
working families. On average, a family in this country must earn $15.21 
an hour to afford a modest two-bedroom apartment, which is almost three 
times the minimum wage. In my home State of New York, a minimum wage 
worker would have to work 147 hours a week to afford a two-bedroom 
apartment at fair market rent. Section 8 vouchers make housing 
affordable and are making a real difference in the lives of 
approximately 2 million elderly and disabled individuals as well as 
families with children across the Nation. We should expand the program 
so that more families can receive assistance they so desperately need, 
but if we cannot expand it we should preserve it to ensure that 
families receiving vouchers can continue to depend on the support they 
have been promised.
  New York's housing crisis is particularly alarming. In my State more 
than 500,000 renter households, roughly one-fourth of all renters, 
continue to pay more than half of their income in rent. These rents 
impose enormous pressures on them and add on to the financial burdens 
they already face. Many severely disadvantaged households find 
themselves unable to pay rent and meet their other basic needs. Some 
are forced to live on the street or in shelters. More than 38,000 
homeless people sleep in New York City's shelter system each night, 
almost double the number of just 5 years ago and the largest annual 
increase since the Great Depression. The largest and fastest-growing 
segment of this homeless population is families with children. Section 
8 housing vouchers provide a lifeline that helps these individuals make 
ends meet. We must help America afford safe and decent housing so that 
parents are not forced to choose between finding the money to pay for 
rent and putting food on the table.
  The Housing Choice Voucher program is more than just a housing 
program. We know that affordable housing helps families increase their 
employability, earnings, educational outcomes, and children's well 
being.
  In New York, Section 8 housing vouchers are assisting approximately 
200,000 seniors, people with disabilities, and families with children. 
Under the House VA-HUD appropriations bill, New York could lose 6,020 
vouchers, of which approximately 1,840 would go to working families, 
1,020 to elderly households, 1,320 to disabled households, and 1,840 to 
other households. If the final VA-HUD conference report retains the 
Senate provisions referenced in the Sense of the Senate--directing HUD 
to fund these vouchers--then none of these vouchers would be lost and 
all of these families would be helped.
  As this bill moves forward during conference, I urge my colleagues to 
support this language. It sends a message to HUD that America is 
depending on housing vouchers to ensure that all of our families can 
afford a safe, decent and adequate place to live.


                           Amendment No. 2184

  Mr. REED. Mr. President, I rise as a cosponsor of Senator Clinton's 
amendment relating to VISTA.
  Since its creation in 1965, as part of the War on Poverty, over 
120,000 Americans have performed national service as VISTA volunteers.
  VISTA, Volunteers In Service To America, members serve in hundreds of 
nonprofit organizations and public agencies across the country, helping 
to find solutions to the problems caused by urban and rural poverty. 
VISTA volunteers fight illiteracy, improve health services, increase 
housing opportunities, bridge the digital divide, create businesses, 
and so much more.
  Unfortunately, VISTA volunteers have been shortchanged for more than 
a year.
  Since the creation of education awards in 1994, VISTA volunteers, 
upon completion of their service, have been eligible to receive either 
a $4,725 education award or end-of-service stipend of $1,200. Education 
awards can be used to pay education costs at qualified institutions of 
higher education or to repay qualified student loans.
  However, the Corporation for National and Community Service has 
refused to offer education awards to last year's and this year's 
volunteers.
  This summer, I was alerted to this unfortunate change in policy by 
several Rhode Islanders.
  Section 129(b) of the National and Community Service Trust Act of 
1993 contains the following language:

       Reservation of Approved Positions--The Corporation shall 
     ensure that each individual selected during a fiscal year for 
     assignment as a VISTA Volunteer under title I of the Domestic 
     Volunteer Service Act of 1973 . . . shall receive the 
     national service educational award described in subtitle D if 
     the individual satisfies the eligibility requirements for the 
     award. Funds for approved national service positions required 
     by this paragraph for a fiscal year shall be deducted from 
     the total funding for approved national service positions to 
     be available for distribution under subsectons (a) and (d) 
     for that fiscal year.

  Given this clear language in the statute, I wrote to the Corporation 
seeking its rationale for denying the opportunity for VISTA volunteers 
to elect education awards. In his response, the General Counsel for the 
Corporation argued that the Corporation, not this language, determines 
whether a VISTA volunteer is in an ``approved national service 
position'', and only if that is the case, is the volunteer entitled to 
the opportunity to elect to receive an education award. The General 
Counsel has ruled that all VISTA slots are not ``approved national 
service positions.'' Moreover, the General Counsel states that the 
Corporation has the authority to modify program rules based on funding 
levels.
  As a result, 3,200 volunteers in fiscal year 2003 have been denied 
the option of an education award that has been of great benefit to 
countless volunteers. In Rhode Island, this has affected nearly 20 
VISTA volunteers at City Arts, AS220, Providence Public Library, Family 
Life Center, RI Training School, RI Free Clinic, Southside Community 
Land Trust, New Urban Arts, and RI Coalition for Domestic Violence.
  In order to continue to attract high quality and talented individuals 
willing to serve as VISTA volunteers, the Clinton amendment requires 
the Corporation to offer individuals, selected after October 31, 2002, 
for initial enrollment or reenrollment as a VISTA volunteer the option 
of receiving a national service education award.
  This is an important amendment as we look to revitalize service in 
our country after months of mishaps at the Corporation for National and 
Community Service, and I urge its passage.


                           AMENDMENT NO. 2183

   Mr. SARBANES. Mr. President, I come to the floor today to offer an 
amendment to the VA/HUD appropriations bill to ensure that the U.S. 
Department of Housing and Urban Development does all it can to make 
sure that the section 8 housing voucher program is fully funded and 
fully operational. I want to thank the cosponsors of this amendment, 
including Senators Reed, Kennedy, Allen, Santorum, and Byrd. In 
addition, I want to thank Senator Collins, who is a cosponsor, and was 
instrumental in drafting and gaining support for the amendment.
   This amendment expresses the sense of the Senate that housing 
vouchers, which now assist almost 2 million low-income families around 
the country, are a critical housing resource and should receive full 
funding. This amendment reaffirms our commitment to the voucher program 
by reiterating that public housing agencies can lease all of their 
authorized vouchers, and that HUD must use all available funds to 
support these needed vouchers.

[[Page 28597]]

   Unfortunately, too many families in America find it difficult to 
afford decent and safe places to call home. In fact, the number of 
working families who are paying over half of their income in rent is 
steadily rising, as the gap between wages and housing costs continues 
to widen.
   According to a recent study conducted by the National Low Income 
Housing Coalition, on average, a family in the United States must earn 
over $15 an hour to afford a modest apartment without forgoing other 
necessities. This is almost 3 times the minimum wage. In my home State 
of Maryland, this number is almost $19 an hour.
   These numbers make clear that there is a pressing need for housing 
assistance. The section 8 housing voucher program is a market-based 
housing program that has had strong bipartisan support since the 
program's inception. The housing voucher program has long been regarded 
as a successful way to help families in need find and afford rental 
housing.
   Housing vouchers enable low-income families to go out into the 
private rental market and rent housing of their choice subject to a cap 
on the rental amount. Housing vouchers help families move closer to 
employment and educational opportunities, while providing stability so 
that families can better retain employment and children can succeed in 
school. Every study that has looked at the impact of vouchers has found 
a positive effect on employment and earnings, in addition to finding 
that housing vouchers help make the transition from welfare to work a 
successful one.
  It is evident that the voucher program is one that works, and this 
has been recognized by past administrations and by Members of Congress 
on both sides of the aisle. Unfortunately, this administration simply 
did not ask for adequate funding for this program. According to recent 
HUD data, the budget request submitted this year by the administration 
underfunds this critical program by nearly $1.25 billion.
  This $1.25 billion shortfall could have easily been avoided had the 
Department used updated data for its budget estimate, and I thank 
Senators Bond and Mikulski for calling on HUD to do just that. Recent 
HUD data show that a greater percentage of vouchers are being used now 
than ever before. According to this data, utilization is at a high of 
96 percent, and is expected to rise to 97 percent in fiscal year 2004. 
In addition, due to rising rents, the actual cost per voucher is much 
higher than estimated by the administration. As rents rise, HUD must 
seek adequate funding to meet the needs in ever-changing housing 
markets.
  While the bill before us today does not contain enough newly 
appropriated funds for the voucher program, we have reason to believe 
that HUD has enough available funding to meet the needs in the program 
in fiscal year 2004. I appreciate the efforts of Senators Bond and 
Mikulski to address this issue in the bill by directing HUD to ensure 
that public housing agencies can continue to issue turnover vouchers, 
and by calling on HUD to request supplemental funds if necessary.
  The amendment I am offering today, along with Senator Collins and 
others, is a companion to this important language. It expresses the 
sense of the Senate that we expect HUD to do all it can to ensure that 
housing agencies can lease up to their authorized level of vouchers. 
The ability to lease 100 percent of authorized vouchers is critical and 
we fought hard last year to make sure that this right was retained. 
This bill reiterates this right and directs HUD to make sure all 
vouchers, including turnover vouchers, can be used by low-income 
families. In addition, this amendment calls on HUD to live up to its 
obligations by using all legally available funds to renew housing 
vouchers. Without using this additional funding, the $1.25 billion 
shortfall could translate into over 100,000 families losing their 
voucher assistance and their homes.
  The amendment we are offering sends a message to HUD that this would 
be unacceptable, and that we expect it to do everything possible to 
ensure that families with vouchers do not lose their housing assistance 
and that low-income families on waiting lists can gain access to 
vouchers. These vouchers are being used in every community across the 
country, providing not only housing, but economic opportunities to low-
income families. I urge my colleagues to support this amendment which 
reaffirms our commitment to housing low-income people in this Nation.


                           amendment no. 2184

  Mrs. CLINTON. Mr. President, I rise to offer an amendment that would 
provide education awards to all volunteers who are part of the VISTA--
Volunteers in Service to America--program, which is administered by the 
Corporation for National and Community Service.
  Before I begin, I want to thank Senator Bond and Senator Mikulski for 
all the hard work they have done to support national and community 
service. They have been real champions of this program. I would also 
like to thank Senators Snowe, Kennedy, Chafee, Harkin, Reed, Murray, 
and Dodd for co-sponsoring this amendment. This amendment that I rise 
to offer today is not a partisan amendment--I know that I have support 
on both sides of the aisle because the VISTA program has such deep, 
strong roots among many political leaders on both sides of the aisle.
  The VISTA program was first envisioned by President Kennedy soon 
after the Peace Corps was created. And in 1965, as part of President 
Johnson's War on Poverty, President Kennedy's dream was realized.
  VISTA, like Head Start and so many other lasting anti-poverty 
programs, was created to serve the needs of the poorest Americans. On 
December 12, 1964, just four months after the legislation was enacted, 
President and Lady Bird Johnson welcomed the first group of twenty 
VISTA volunteers with these remarks:

       Your pay will be low; the conditions of your labor often 
     will be difficult. But you will have the satisfaction of 
     leading a great national effort and you will have the 
     ultimate reward which comes to those who serve their fellow 
     man.

  When my husband championed the effort to dramatically expand national 
service and create AmeriCorps, he wanted to preserve this important 
part of President Kennedy and President Johnson's legacy. The VISTA 
program was authorized within the National and Community Service Trust 
Act and today it is administered by the Corporation for National and 
Community Service.
  A staple of the program since its inclusion within the National and 
Community Service Trust Act is that every member who signs up shall 
receive a choice--a scholarship toward their education or a cash 
stipend. In recent years, more than two-thirds of the individuals 
participating in the VISTA program have opted for the education 
scholarship instead of the cash stipend.
  In November of 2002, the Corporation for National and Community 
Service began denying new volunteers the option of receiving education 
awards. They were provided cash stipends, regardless of their 
preference.
  I began hearing from New Yorkers who were frustrated by the decision. 
They felt like they had been duped--given a bait and switch. Their 
morale dropped dramatically and some have resigned as a result. Many 
saw a fundamental problem of equity. Members were passed over for 
education and awards while those who enrolled just two months later 
received them. I'm sure we all agree that this is unfair.
  New Yorkers described to me the difference that VISTA has made in 
their life and in the lives of people they serve and expressed their 
frustration about what has happened to the program. Two New York VISTA 
members serving in West Seneca, New York developed a pilot program for 
ex-offenders, and I want to tell you a little bit about the first 
graduate: ``he got his driver's license and was getting things in order 
for this first apartment ever--he had been incarcerated for 28 years, 
since his youth. The joy on the guy's face was unbelievable and I was 
proud to know that two VISTA members had made it possible,'' said one 
of them.
  Across the country, at least 1,766 volunteers who were affected by 
this decision, according to the Corporation for

[[Page 28598]]

National and Community Service. The organization established to support 
the VISTA program--called Friends of Vista--estimates the impact at 
3,200.
  I do not want to haggle over the numbers or argue about who's to 
blame. I simply want the problem addressed.
  This amendment is straightforward and simple. It says that VISTA 
volunteers shall be provided the option of receiving an education award 
or a cash stipend, consistent with the law and current practice. It 
does not have a cost associated with it, and I urge my colleagues to 
support this amendment and rectify this injustice.
  Mr. SARBANES. Mr. President, have the amendments been adopted?
  Ms. MIKULSKI. Mr. President, what time----
  Mr. SARBANES. Have the amendments been adopted?
  The PRESIDENT pro tempore. The amendments were adopted by unanimous 
consent, as requested.
  Ms. MIKULSKI. I move to reconsider and lay the motion on the table.
  The motion to lay on the table was agreed to.


                           nsf epscor program

  Mr. BURNS. Mr. President, I rise to speak on the National Science 
Foundation's (NSF) Experimental Program to Stimulate Competitive 
Research program or EPSCoR. First, I would like to thank the 
distinguished chair of the subcommittee for including $100 million in 
the EPSCoR program. This is a very important program in my State of 
Montana--and very important for the other 22 EPSCoR states that are 
trying to develop a competitive research program.
  I would also like to mention that I have talked with the EPSCoR 
project director and other participants in the program from Montana and 
that they have told me that the infrastructure improvement components 
of the program is critical to all other efforts to develop research 
capacity and to compete successfully for other NSF funding. I would 
like it to be clear that the research infrastructure component is 
central to the program and that we have provided funds to ensure that 
states can be fully funded.
  Mr. BOND. I, too, have heard about the importance of the research 
infrastructure program and I want to assure the Senator that we have 
sought to provide sufficient funding to cover existing commitments and 
states that are currently under review.
  Mr. BURNS. That is very important. Finally, I would just add that I 
hope NSF will make every effort to include the EPSCoR states in its new 
cyberinfrastructure activities. NSF did a very fine job a few years ago 
in helping secure high-speed connections for research institutions in 
EPSCoR states. The new NSF cyberinfrastructure program is evolving and 
I hope that they will include states like Montana in these efforts 
since networking and advanced computing are essential to keeping our 
research universities connected to cutting-edge research and allow them 
to collaborate and use equipment at remote locations.
  Mr. BOND. I understand the Senator's interest.


                            cares initiative

  Mr. SCHUMER. It is my understanding that the managers of this 
legislation have agreed to work to address the concerns shared by Sen. 
Clinton, Sen. Enzi, myself and others through the inclusion of language 
in the conference report on the FY04 VA-HUD Appropriations Act. It is 
my further understanding that this language will specifically address 
our concerns regarding the CARES Initiative's impact on long-term care, 
domiciliary care and mental health care as well as the ability of 
veterans to attend and participate in hearings regarding facility 
closings and the special needs of rural veterans in the process. I also 
understand that the managers have agreed to send a letter to Secretary 
Principi on these matters. In addition I understand that I will join my 
colleagues and the managers in submitting a longer colloquy for the 
record with the specific language to be included.
  Mr. BOND. That understanding is correct and I look forward to working 
with my colleagues on this issue.
  Ms. MIKULSKI. I share that understanding as well and thank my 
colleagues.


               NON-ELDERLY DISABLED INCREMENTAL VOUCHERS

  Mr. DOMENICI. Mr. President, I rise to join my friend and colleague, 
Senator Bond, in a colloquy on the Department of Housing and Urban 
Development's (HUD) Section 8 program. Senator Bond, it is my 
understanding that the section of the bill allocating funding for the 
Section 8 Housing Certificate Fund includes language that allows HUD to 
target up to $36 million for incremental vouchers to non-elderly people 
with disabilities that are adversely affected by the designation of 
public and assisted housing as ``elderly only.'' Is this correct?
  Mr. BOND. The Senator is correct. The bill includes more than $461 
million for the HUD Secretary to support a range of activities related 
to the Section 8 program including contract amendments and other 
measures to ensure that housing authorities are able to lease up to 
their authorized unit levels. In addition, the bill allows HUD to 
allocate up to $36 million for new vouchers tied to the designation and 
occupancy restrictions imposed in public and assisted housing 
developments for the elderly. This continues a policy established by 
Congress in 1996 to ensure alternative resources for non-elderly people 
with disabilities who are being excluded from certain public and 
assisted housing properties.
  It is important to note that the bill requires the HUD Secretary to 
ensure that there are adequate funds to renew all existing rental 
vouchers before allocating additional funds for disability vouchers for 
Fiscal Year 2004. It is the expectation of both Senator Mikulski and 
myself that HUD will be able to make a mid-year assessment in Fiscal 
Year 2004 to determine if the amounts appropriated for voucher renewals 
and contract amendments exceed the expected requests from housing 
authorities for authorized voucher renewals. In our view, such an 
assessment can be made as part of the periodic measurements HUD 
routinely makes regarding the pace of voucher renewals. It should also 
be part of the requirement set forth in S. Rpt. 108-143 by the 
Appropriations Committee for development of a real-time data model to 
identify the actual use of vouchers.
  Further, it is our view that every effort should be made to ensure 
that public housing designation plans for elderly-only housing are 
linked to the vouchers, should they become available in Fiscal Year 
2004. I do not believe that HUD should be prevented from including 
these disability vouchers in its annual consolidated Notice of Funding 
Availability or SuperNOFA. This would allow the agency to allocate 
expeditiously these vouchers before the end of Fiscal Year 2004 to 
housing authorities that are able to target them effectively to non-
elderly people with disabilities who have been adversely affected by 
the designation of public and assisted housing as elderly only.
  Mr. DOMENICI. I thank the Senator from Missouri for his support on 
this important issue.


                       NSF ASTRONOMICAL RESEARCH

  Mr. INOUYE. Mr. President, I rise to speak on the issue of funding 
for astronomy within the National Science Foundation. I would like to 
engage in a colloquy with Senators Bond and Mikulski, the distinguished 
chairman and ranking member of the Subcommittee on VA, HUD and 
Independent Agencies.
  Mr. BOND. I would be happy to engage in such a discussion with the 
Senator from Hawaii, a member of the Committee and the ranking member 
on the Subcommittee on Defense.
  Mr. INOUYE. The committee's bill recognizes that the budget request 
provided inadequate funding for NSF's astronomical facilities. In 
response, the committee bill provided additional funding for radio 
astronomy facilities, but the funding level in other areas remains 
inadequate. For example, the National Optical Astronomy Observatory 
would be reduced below last year's level.
  Ms. MIKULSKI. The Senator is correct. We were unable to provide 
additional funds for the NOAO due to our tight 302(b) allocation.
  Mr. INOUYE. One specific high priority area for investment in optical 
astronomy that will be needed to develop

[[Page 28599]]

the next generation of ground-based telescopes is in the area of 
adaptive optics. This will enable a major advance in astronomy that 
will have far-reaching effects in other areas, including national 
security. The National Academy of Sciences Decadal Survey in Astronomy 
has identified this as the enabling breakthrough that will be needed 
for the Giant Segmented Mirror Telescope, the top priority for optical 
astronomy.
  For fiscal year 2004, about $5 million in additional funding for 
adaptive optics development is needed in order to develop the future 
generation of ground based telescopes, particularly for the GSMT. Would 
the chairman and ranking member be willing to join me in examining this 
possibility during conference on this bill?
  Mr. BOND. We face a very tough conference with the House with our 
tight allocation and other competing funding priority areas such as 
veterans' health care, affordable housing, and other science and space 
programs. Nevertheless, I will look at this issue in conference.
  Mr. MIKULSKI. I would be happy to support the Senator.
  Mr. INOUYE. I would like to raise another issue. The Advanced 
Technology Solar Telescope was identified as the highest priority solar 
astronomy initiative for the coming decade. Presently, the National 
Solar Observatory is leading a national effort to identify a site for 
this future telescope and to make the overall project a success by 
addressing the long lead technologies. Progress on these is essential 
in order for the Advanced Technology Solar Telescope to achieve 
operations by 2007-2008 when NASA's complimentary space mission, the 
Solar Dynamics Observer, is launched. The combination of these two 
observatories will provide an unprecedented synergy between space- and 
ground-based solar observations that we believe will be of great 
scientific benefit. Unfortunately, the budget request does not provide 
the necessary funding to accommodate these needs.
  One specific area that has emerged as critical is to begin the 
preparatory work on the mirror for this telescope and to develop fully 
the fabrication and polishing techniques that will be necessary. Would 
the chairman and ranking member join me in helping to identify $2 
million in additional funding during conference to address this issue?
  Mr. BOND. Speaking for Senator Mikulski and myself, we would be happy 
to look at this issue in conference.
  Mr. INOUYE. I thank both Senators for their leadership in helping the 
U.S. remain scientifically and technologically competitive by providing 
critical investments in research.
  Mr. BYRD. Mr. President, I am very interested in the need to provide 
funding through the Environmental Protection Agency (EPA) for the 
National Research Council to study whether the use of coal combustion 
wastes, otherwise known as coal fly ash, poses health and/or safety 
threats to the public or to the environment when used for reclamation 
purposes in both active and abandoned coal mines.
  For more than twenty years, the EPA has been grappling with the issue 
of whether and how the use of these power plant combustion wastes 
should be regulated and the manner in which they should be regulated, 
if at all, under the Resources Conservation and Recovery Act or the 
Surface Mining Control and Reclamation Act. With this amendment, the 
National Research Council will be able to provide much-needed research 
assistance to the EPA as the agency continues to consider the 
development of national regulations in this area.
  This study serves an important purpose and will help answer important 
questions about the impact of disposing coal combustion wastes in coal 
mines. Further, this study would offer timely information to EPA policy 
makers as these experts continue to assess the need for regulations 
governing this practice.
  In summary, there is a great need for this study. It could be funded 
within existing resources and under existing authorizations. I hope 
that my colleagues will be able to consider this important request 
during the VA/HUD conference. I thank them for their consideration of 
this issue.
  Mr. BOND. I thank the Senator from West Virginia for his remarks, and 
I will be working to ensure that this important study will be included 
in the conference report.
  Ms. MIKULSKI. I also thank the senior Senator from West Virginia, and 
I, too, will support his request for such a study during the conference 
negotiations. This is an important matter for the State of West 
Virginia and other coal-producing States.


                                  nasa

  Mr. COCHRAN. Mr. President, I commend the chairman and the 
subcommittee staff for their outstanding work in bringing this 
legislation to the Senate for consideration.
  Mr. BOND. I thank the Senator for his kind comments.
  Mr. COCHRAN. As the chairman knows, I have had a longstanding 
interest in NASA's research partnerships with universities and 
industry, particularly in the area of developing commercial 
applications in remote sensing. I am pleased that the committee report 
includes the following language, which directs NASA to continue these 
partnerships:

       The Committee also expects NASA to continue its work on 
     long-term plans to partner with U.S. universities and 
     industry in a variety of NASA-related science research, 
     including research related to nanotechnology, information 
     technology and remote sensing. These are all areas of 
     investment that have a commercial application that will have 
     an increasing impact on society, the economy, and quality of 
     life.

  Mr. BOND. I share and strongly support the Senator's view that NASA 
should continue to work with universities and industry on NASA-related 
scientific research.
  Mr. COCHRAN. I appreciate the Senator's response and would make the 
point that, while the Committee is supportive of these partnerships, 
the committee report proposes to decrease funding for the Earth Science 
Applications by $15,000,000 below the President's Budget request. I am 
concerned that this reduction will not only limit NASA's ability to 
partner with universities in the future, but may put at risk several 
current and on-going NASA contracts with universities for remote 
sensing research.
  I am particularly concerned that NASA has sufficient funds in fiscal 
year 2004 to continue, at the fiscal year 2003 contracted amounts, 
three important NASA-university partnerships--the Enterprise for 
Innovative Geospatial Solutions, the Institute for Advanced Education 
in Geospatial Sciences, and the GeoResources Institute. I would inquire 
whether the Chairman would agree that it is not the Committee's 
intention that this Bill's proposed reduction in the Earth Sciences 
account will be applied by NASA to reduce the fiscal year 2004 funding 
for these three partnerships.
  Mr. BOND. I appreciate the Senator bringing his concerns to my 
attention. He has my assurance that the Committee's proposed reduction 
in the Earth Sciences account is not intended to reduce the funding for 
the three university partnership programs he has described. I also 
share your concerns that this reduction could curtail some of the 
valuable research which we expect and which needs to be accomplished, 
and therefore intend to work in conference to increase the funding for 
Earth Science Applications to prevent any unintended shortfalls to 
existing programs as well as to needed new investments. As NASA 
continues to implement full cost accounting, we will confront a number 
of funding issues which will need additional scrutiny as we seek to 
understand NASA's new requirements with regard to what costs apply to 
programs under full cost accounting.
  Mr. COCHRAN. I appreciate the Senator's assurance and look forward to 
working with him to ensure Earth Science Applications and these 
important NASA-university partnerships will be fully funded in fiscal 
year 2004.
  Mr. SANTORUM. Mr. President, today I rise to speak to an amendment to 
the VA-HUD, and Independent Agencies appropriations bill which 
increases the bill's funding for AmeriCorps up to the funding level 
requested by President Bush in this year's budget. The

[[Page 28600]]

bill currently includes $340 million in a combined account for 
AmeriCorps grants, national and state grants, and education awards. My 
amendment would add $93 million to increase the total to $433 million, 
the President's budget request. The amendment is paid for by the 
necessary across-the-board reduction in the bill as a whole. As a part 
of the USA Freedom Corps initiative, President Bush is committed to 
providing resources for 75,000 AmeriCorps participants this coming 
year. Earlier this year, in July, the Senate supported an increase of 
$100 million in Fiscal Year 2003 funding. Unfortunately, the funding 
was not ultimately included in the supplemental spending bill to the 
detriment of many committed community service programs around the 
country and in Pennsylvania.
  Major community service and volunteer programs funded by the Federal 
Government are authorized under two laws: the National and Community 
Service Act of 1990, NCSA, and the Domestic Volunteer Service Act of 
1973, DVSA. The Corporation for National and Community Service, CNCS, 
an independent Federal agency, generally administers the programs 
authorized under these laws.
  The NCSA and DVSA have not been reauthorized since 1993, with the 
passage of the National and Community Service Trust Act of 1993, P.L. 
103-82). This measure established: No. 1, the AmeriCorps program; No. 
2, CNCS to administer NCSA and DVSA programs; No. 3, a National Service 
Trust to fund educational awards to AmeriCorps and other community 
service participants; and No. 4, State commissions on national and 
community service to receive funding under NCSA. Although authorization 
for the appropriation of funds for NCSA and DVSA programs expired at 
the end of fiscal year 1996, funding for the programs has been 
maintained through annual appropriations legislation. Specifically, 
NCSA programs are funded through the Veterans Affairs, VA, and Housing 
and Urban Development, HUD, appropriations bill, while DVSA programs 
are funded through the Labor, Health and Human Services, HHS, and 
Education appropriations bill.
  AmeriCorps funds are distributed through the following channels: 
State formula programs, State competitive programs, national grants, 
and set-asides for Indian tribes. One of the benefits eligible 
AmeriCorps participants receive is an education award of $4,725 at the 
end of their service term. As a result of accounting and management 
complications and reduced funding, the AmeriCorps program expects to 
fall short of funding the 50,000 available volunteer slots for 2003.
  Significant progress continues to be made to improve and reform the 
AmeriCorps program. Under the leadership of former Senator Harris 
Wofford and some States, significant steps were taken to improve the 
management of the AmeriCorps program of the Corporation for National 
Service, CNS. Les Lenkowsky had a vision to continue that progress and 
a commitment to community service. I recognize the dedication and 
contributions of AmeriCorps participants. I also believe that more can 
be done to improve the effectiveness of AmeriCorps by expanding the 
opportunities for service and I have previously introduced legislation 
intended to further that effort. In August 2001, I introduced S. 1352, 
the AmeriCorps Reform and Charitable Expansion Act. The goal of this 
legislation was to expand service opportunities through the AmeriCorps 
program and better equip AmeriCorps volunteers to reach out and serve 
Americans in low-income communities. We must continue to focus our 
efforts on serving Americans in our society who are most in need of a 
helping hand. My bill would have enabled participants to focus their 
efforts on helping Americans who are often overlooked in our society 
and help bring about renewal in our low-income communities. The bill 
would have dramatically increased service opportunities in low-income 
communities through a voucher system, which would have encouraged 
AmeriCorps volunteers to choose locations predominantly serving low-
income individuals. In addition to increasing the funding, I believe it 
is important to reauthorize the Corporation for National Service this 
Congress.
  As a significant additional step, on June 18, 2003, Senator Kit Bond 
of Missouri introduced S. 1276, the Strengthen AmeriCorps Program Act. 
I cosponsored this bipartisan legislation, which allowed the CNCS to 
fund education award grants using ``conservative estimates'' of 
AmeriCorps volunteer awards. CNCS is expected to enroll nearly 50,000 
volunteers in 2003. The bill also provides safeguards for the program 
by establishing a central reserve fund to guard the Corporation against 
overenrollment; requiring the Chief Executive Officer to certify that 
the National Service Trust Fund contains sufficient resources to meet 
education award liabilities; and requiring an independent audit of the 
corporation's funding formula. S. 1276 was passed unanimously by the 
Senate, with my strong support, and was subsequently passed by the 
House of Representatives the following day. Passage of this legislation 
was a positive step towards addressing the needs of the AmeriCorps 
program.
  I am disappointed that additional AmeriCorps funds were not 
ultimately included in the supplemental this year. However, I am 
pleased that increased funding has been included in both the Senate and 
House fiscal year 2004 VA-HUD, and Independent Agencies appropriations 
bill. The House passed this legislation on July 21, and it contains 
$244 million for the aforementioned grants and education awards. 
President Bush requested $313.2 million for fiscal year 2004; the 
amount provided in fiscal year 2003 was $173.9 million.
  Mr. President, I urge my colleagues to support this amendment to 
expand the number of AmeriCorps participants and fully fund the 
President's request. I also believe that Congress should refocus the 
program on poverty alleviation efforts, expanded service location 
options for participants, and placing a greater emphasis on serving 
charities and the needy communities they serve to enable an even more 
strategic contribution from this federally supported program for 
Americans in need.
  Mr. BOND. Mr. President, I would like to thank the Senator from 
Pennsylvania, Mr. Santorum, for agreeing to withdraw his amendment to 
further increase funds for the AmeriCorps program. I look forward to 
working with the Senator from Pennsylvania in the effort in conference 
to fully fund the President's request for AmeriCorps.
  Mr. NICKLES. Mr. President, today the Senate is considering H.R. 
2861, the Veterans Affairs, Housing and Urban Development and 
Independent Agencies Appropriations bill for Fiscal Year 2004, as 
reported by the Senate Committee on Appropriations.
  The pending bill provides $91.334 billion in total budget authority 
and $96.549 billion in total outlays for Fiscal Year 2004 and within 
the Subcommittee's 302(b) allocation. For discretionary spending the 
Senate bill is at the Subcommittee's 302(b) allocation for budget 
authority and below the allocation by $.018 billion or .02 percent in 
outlays. The Senate bill is $1.699 billion or 1.8 percent in BA and 
$.708 billion or .7 percent in outlays above the President's budget 
request.
  The pending bill funds the programs of the Department of Veterans 
Affairs, the Department of Housing and Urban Development, the 
Environmental Protection Agency, Corporation for National and Community 
Service, National Aeronautics and Space Administration, National 
Science Foundation and several other agencies.
  Mr. President, I ask unanimous consent that a table displaying the 
Budget Committee scoring of the bill be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  S. 1584, VA-HUD APPROPRIATIONS, 2004.--SPENDING COMPARISONS--SENATE-
                              REPORTED BILL
                     [Fiscal Year 2004, $ millions]
------------------------------------------------------------------------
                                     General
                                    purpose\1\   Mandatory      Total
------------------------------------------------------------------------
Senate-reported bill:\2\
    Budget authority.............       91,334       32,911      124,245
    Outlays......................       96,549       32,685      129,234
Senate Committee allocation:
    Budget authority.............       91,334       32,911      124,245

[[Page 28601]]

 
    Outlays......................       96,567       32,685      129,252
2003 enacted:
    Budget authority.............       86,817       30,318      117,135
    Outlays......................       93,061       29,859      122,920
President's request:
    Budget authority.............       89,635       32,911      122,546
    Outlays......................       95,841       32,685      128,526
House-passed bill:
    Budget authority.............       90,033       32,482      122,515
    Outlays......................       95,478       32,266      127,744
 
                    Senate-Reported Bill Compared To
 
Senate 302(b) allocation:
    Budget authority.............            0            0            0
    Outlays......................          -18            0          -18
2003 enacted:
    Budget authority.............        4,517        2,593        7,110
    Outlays......................        3,488        2,826        6,314
President's request
    Budget authority.............        1,699            0        1,699
    Outlays......................          708            0          708
House-passed bill:
    Budget authority.............        1,301          429        1,730
    Outlays......................        1,071          419        1,490
------------------------------------------------------------------------
\1\Adjusted for floor amendment striking contingent emergency
  designation.
\2\This bill contains $25 million in lost revenue in FY 2004 due to a
  provision that blocks pesticide fees.
Note.--Details may not add to totals due to rounding. Totals adjusted
  for consistency with scorekeeping conventions.

   Mr. SARBANES. Mr. President, I come to the floor today to voice my 
support for the HUD/VA fiscal year 2004 appropriations bill currently 
before us. This bill is a great improvement over the administration's 
budget which sought to terminate a number of important housing 
programs. Under the leadership of Senators Bond and Mikulski, the 
Appropriations Committee was able to restore cuts contained in the 
administration's budget.
   I first want to underscore the importance of the housing programs 
funded under this bill. These programs meet a critical need in 
communities around this country. Thirty percent of American families 
have housing affordability problems, with over 14 million families 
paying more than half of their income for rent. Many working families 
are unable to afford housing costs and this problem is growing as 
housing costs rise.
   The importance of housing programs is clear. Unfortunately, each 
year we must fight to ensure that these programs are adequately funded. 
While I support the overall bill that we are considering, it does not 
contain adequate funding to meet the needs of low-income people around 
this country. What this bill does, however, is improve upon the 
administration's budget request.
   I thank Senators Bond and Mikulski for including language in this 
bill which will help to ensure that thousands of families do not lose 
their homes. Under the administration's budget, the section 8 housing 
voucher program, which assists almost 2 million families across the 
country, would be underfunded by over $1 billion.
   Fortunately, we have reason to believe that HUD has funds from prior 
years to use on voucher renewals, and the bill before us directs HUD to 
use all legally available funds for this purpose. The bill contains 
important provisions that preserve a housing agency's right to lease up 
to its authorized level of vouchers, and to overlease in a given month 
where necessary to achieve full utilization. It is my hope that these 
provisions avert any problems that could be caused by the low level of 
appropriations for this program. However, I fully support language in 
the report directing HUD to seek additional funding through a 
supplemental if necessary.
   The bill before us restores funding for a number of small, but 
important programs that the President's budget sought to terminate. 
This bill continues the Rural Housing and Economic Development program, 
a $25 million program to help address the unique housing needs in rural 
communities, and provides $25 million for brownfields development.
   Fortunately, homeless programs in this bill are provided with $108 
million more than in fiscal year 2003. Over 1 million children will 
experience homelessness at some point this year, and each extra dollar 
for homeless programs is clearly needed to ensure that no child has to 
live on the street.
   While there are many positive aspects to this appropriations bill, 
the public housing program, which houses approximately 1.5 million 
families, is underfunded yet again. each year, the administration has 
cut the Public Housing Capital Fund, which is used for maintenance and 
repairs. There is already a backlog of over $20 billion in needed 
capital repairs, yet, the administration's budget, as well as this 
bill, cuts the Capital Fund by $69 million. Without adequate funding, 
this backlog will continue to grow, threatening the homes of 1.5 
million American families and the Federal Government's substantial 
investment in this housing.
  The Public Housing Operating Fund is level funded; however, even that 
level is not adequate. Under last year's appropriations, HUD was unable 
to provide housing authorities with 100 percent of their needed 
subsidies. In addition to these cuts, in the past few years, housing 
authorities have lost the ability to run youth programs and provide for 
safety patrols as a result of the termination of the Public Housing 
Drug Elimination Program.
  Despite these cuts, public housing agencies, in general, provide 
decent and safe housing for millions of low-income Americans. However, 
there are some public housing developments that do not provide adequate 
housing and contribute to neighborhood blight and deterioration. These 
developments are being transformed through the HOPE VI program, which 
provides grants to demolish and rebuild the deteriorated housing, 
helping to revitalize communities. I can tell you that in Baltimore 
City, the HOPE VI program has been an integral part of our 
revitalization efforts and its effects are felt throughout the city. I 
commend Senators Bond and Mikulski for continuing to fund this 
important program in the face of the administration's efforts to 
terminate HOPE VI.
  The appropriations bill before us also contains a number of changes 
to existing programs. I want to raise a concern about the adoption in 
this bill of language authorizing HUD to move forward with a proposal 
to allow for subprime FHA lending. I do not believe that HUD is 
prepared for such a program. FHA has been an important tool for 
creating first time homebuyers, particularly new minority homebuyers. 
However, in some areas, as the committee report recognizes, FHA has 
been misused so as to lead to neighborhood disinvestment. The potential 
for abuse is too large to allow HUD to move forward with this new 
product. I urge members of the committee to ask HUD to provide a 
detailed plan on how it would implement a subprime FHA product prior to 
empowering HUD to do so.
  I also thank Senator Bond and Senator Mikulski for their strong and 
ongoing support of the Asset Control Area, ACA, program. This program 
was established by the appropriators with the goal of turning 
distressed neighborhoods with high foreclosure rates, low homeownership 
rates, and disinvestment into areas of hope and growth. HUD has not 
administered this program effectively, as the Senate report points out. 
The Congress gave HUD considerable flexibility to run this program and 
I strongly agree with the views expressed in the report that HUD has 
not used this flexibility to effectively work with the local 
governments and nonprofits to make this program useful. I agree with my 
colleagues that HUD ought to work with these groups to ensure that they 
possess the necessary tools to invest in and rehabilitate these 
communities.
  Restoring neighborhoods that have fallen victim to disinvestment is 
important; however, it is more cost effective to prevent the 
disinvestment from happening in the first place. That is why we must do 
more to prevent FHA foreclosures in troubled neighborhoods. I applaud 
Senator Mikulski and Senator Bond for their continued efforts to find 
ways to stop the foreclosure and flipping problems that plague many 
neighborhoods. I support the requirement contained in the committee 
report that HUD explore ways to protect both these communities and FHA 
homebuyers from bad loans that lead to foreclosures. The idea that FHA 
homebuyers in these specific areas would have someone who is 
responsible for watching out for their interests could help reduce 
flipping, predatory lending, and other abusive practices that undermine 
a community's stability and I thank my colleagues for including this in 
the bill before us.

[[Page 28602]]

  Again, I thank Senators Bond and Mikulski for ensuring that low-
income families continue to have access to decent and safe housing and 
for helping to address some of the tough issues that affect many 
neighborhoods around the country--vacant homes, predatory lending, and 
revitalization efforts.
  Ms. MIKULSKI. Mr. President, what time is it?
  The PRESIDENT pro tempore. It is 5:58.
  Ms. MIKULSKI. Mr. President, in the 2 minutes that are left I just 
want to thank my colleague for the spirited way he has tried to move 
this bill. We worked with energy. We had momentum. We had bipartisan 
support. With the 2 minutes left on this bill, I really must express my 
very keen disappointment that we were not allowed at least another hour 
or two to finish. I know the other side has the issues they want to 
raise on Federal judgeships, but this bill stands up for what America 
stands for--veterans, empowerment of communities, and housing. And for 
2 hours, in a show of respect to them, we could finish this bill.
  The PRESIDENT pro tempore. The hour of 6 o'clock having arrived, the 
majority leader is recognized.

                          ____________________




                          JUDICIAL NOMINATIONS

  The PRESIDENT pro tempore. The hour of 6 o'clock having arrived, the 
majority leader is recognized.
  Mr. FRIST. Mr. President, tonight we embark upon an extraordinary 
session for the next 30 hours. Republicans and Democrats will debate 
the merits of three judicial nominees. We will be considering the 
meaning of our constitutional responsibility to advise and consent on 
nominations. We will discuss whether there is a need to enact 
filibuster reform so that nominations taken to the floor can get a 
vote.
  At the end of this time, the Senate will either vote on the nominees 
or we will try to break the minority's filibusters through cloture 
votes. Our goal is very simple: It is an up-or-down vote on these 
nominees. People can vote them up or they can vote them down. Just give 
us a vote.
  We hold this extraordinary session for truly extraordinary reasons. 
In the history of this Senate, through 107 Congresses, the filibuster 
was never used to block confirmation of judicial nominees enjoying 
majority support. When the Senate has refused to confirm a nominee 
brought to the floor, it has done so on an up-or-down vote. Permitting 
a vote was fair to the nominees and fair to the President who sent them 
to us. In theory, the filibuster has always been available as a tool to 
derail a nomination, but until this Congress it has not been 
successfully used.
  On rare occasions, confirmation filibusters were attempted, but the 
Senate always thwarted them. Up until now, no judicial nominee has ever 
failed on a filibuster. For the past 200 years, no judicial nominee has 
ever failed on a filibuster.
  This year, in this Congress, those norms have been shattered. A 
partisan filibuster destroyed the nomination of Miguel Estrada, an 
immigrant from Honduras. Mr. Estrada is a superb lawyer, a great 
American success story. He served with distinction in both the Clinton 
administration and the Bush administration. The American Bar 
Association gave him its highest rating. Senate confirmation by an 
ample majority was assured. But a filibuster blocked action and the 
Senate was denied the opportunity for an up-or-down vote.
  The remedy for the filibuster is a cloture vote. Before filing a 
cloture motion on the Estrada nomination, we waited several weeks. 
During that time, the nomination was debated on the floor for many 
hours. On more than 20 occasions we asked unanimous consent for a time 
certain to vote. Every time we did, the minority objected. They 
obstructed a simple up-or-down vote. From their standpoint, Mr. Estrada 
would never get a vote, not in a week, not in a month, not in a month 
or two, and not even for the whole Congress.
  When it became clear that consent was impossible and the filibuster 
would not voluntarily end, cloture was the only resource left. Until 
this Congress, the record number of cloture votes on a single judicial 
nomination was two. On the few occasions a filibuster had gotten that 
far, bipartisan majorities in both invoked cloture, shut it down, and 
immediately thereafter those nominees were confirmed. Not so for Miguel 
Estrada. Seven times--not two, seven times--we initiated cloture; seven 
times cloture failed. Each time more than a majority in this body voted 
to end the filibuster but never did we get 60 votes. The minority 
obstruction did prevail, but Mr. Estrada would never get an up-or-down 
vote. This body never gave Miguel Estrada an up-or-down vote.
  Finally, Mr. Estrada asked the President to withdraw his nomination. 
Who could blame him? He left the field with dignity. Meanwhile, the 
Federal courts--indeed, I would argue, therefore, the American people--
were denied the service of a brilliant intellect, and the Senate's 
confirmation process was tarnished with unfairness.
  Sad to say, Miguel Estrada was not an isolated case. Filibusters have 
also been mounted against Priscilla Owen, William Pryor, and Charles 
Pickering. In each of these instances, a majority of the Senate will 
confirm, a majority will confirm, but we cannot get 60 votes for 
cloture to allow the vote. Under Senate rules, the Presiding Officer 
cannot put the question to a vote if any Senator holds the floor or 
seeks to speak. If debate does not end, we cannot vote. To conclude 
debate, we must secure cloture, but cloture requires 60 votes. If a 
minority determines to obstruct, they never permit the Chair to put the 
question, and they withhold the votes for cloture to stop the 
filibuster.
  On Miguel Estrada, on Priscilla Owen, on William Pryor, and on 
Charles Pickering, the full Senate has been denied the right to vote on 
confirmation. And no amount of debate and no amount of time is 
sufficient so the opponents' obstruction thus far has prevailed.
  This week, I fear yet two more nominees may fall victim to the 
filibuster. Carolyn Kuhl and Janice Rogers Brown are able and talented 
candidates for the Federal bench. Either could be confirmed if they 
were ever given a vote. Will Senators be able to take those votes or 
will disciplined obstruction prevail yet again? I would like to be 
proven wrong, but I am not optimistic.
  We will hear in this debate over the next several hours that the 
Senate has confirmed over 168 Bush nominees, and only 4 have thus far 
been blocked. Some Senators will argue these numbers demonstrate 
fairness to the nominees overall and to the President. We hear again 
and again the Senate is not a rubber stamp.
  I am unimpressed with that argument. It uses a scorecard of a sort to 
mask the real issues. Can Senators vote up or down on a nominee? Or 
will obstruction by filibuster deny them that right to vote? Will 
Senators be held accountable for their vote? Will all nominees brought 
to the floor be treated fairly and get a vote? Will we be denied our 
right to give advice and consent? If Senators wish to oppose a nominee, 
that is their right. They may vote against him or her if they wish. If 
they can command a majority, the nominee simply will not be confirmed. 
That is how things should be. But that simple logic seems no longer to 
apply. Because of the filibuster, the majority is allowed to vote only 
if the minority consents.
  Filibustering judicial nominations breaks dangerous new ground. It is 
unprecedented. These filibusters are not business as usual. 
Obstructionists have eroded two centuries of Senate tradition. Those 
who obstruct have changed the ground rules by which the Senate votes on 
confirmations. Some contend the minority has no choice. These left-wing 
activists and special interests claim the minority must use every 
available tool to oppose even if it changes forever how the Senate does 
business. Only then, they say, can the separation of powers be 
vindicated.
  But let's look to history because history shows us a very different 
and a better path. For 70 percent of the 20th century the same party 
controlled the

[[Page 28603]]

 White House and the Senate. Franklin Roosevelt sent liberal nominees 
to a Senate dominated by Democrats. So did John Kennedy, Lyndon 
Johnson, and Jimmy Carter. Ronald Reagan sent conservative nominees to 
a Senate controlled by Republicans. The Senate confirmed most of those 
nominees and rejected some others. But nominations brought to the floor 
got a vote and never died due to a filibuster.
  All during those times the Senate had vigorous debate, effective 
debate. They had vigorous and effective minorities who sometimes 
filibustered legislation but never filibustered judges. Was Senator 
Dirksen's minority derelict in some way in not using the filibuster 
against Kennedy's and Johnson's nominees? What about the minority that 
served with Senator Baker but did not filibuster Carter judges, the 
minority that served with Senator Byrd but did not filibuster Reagan 
judges, or the minority that served with Senator Dole but did not 
obstruct Clinton judges? Because they did not filibuster judges, did 
those minorities abdicate their confirmation responsibilities? I think 
not.
  But now a different tradition has been launched. It is the 
obstruction of judges by a minority. This obstruction sets a novel 
threshold for confirmation: Nominees who are singled out because they 
fail someone's ideological test or because they showed general promise 
must have 60 votes to break a filibuster. The Constitution says that a 
simple majority is enough to confirm, but somehow that majority is no 
longer sufficient. Confronted with a filibuster and disciplined 
obstruction, the majority cannot vote at all. They are being denied a 
simple up-or-down vote on those nominees.
  Under the Constitution, the Senate has a confirmation veto; a 
majority can vote a nominee down but obstruction by filibuster is veto 
by a minority. Never did the framers envision that anti-democratic 
outcome.
  The American people are going to learn a lot about cloture over the 
next 30 hours. Cloture has applied to nominations since 1949 when the 
rule was expanded to address every debatable question except for 
motions to proceed to rules changes. The inclusion of cloture was 
merely incidental to a broader reform. In 1949, the change was 
controversial. It was well debated but not a word in all of that debate 
in 1949 was about nominations. The omission is not surprising because 
nominations simply were not filibustered then.
  For three decades thereafter many proposals surfaced to change the 
cloture rule, and in 1959, 1975, and 1979 major amendments were, in 
fact, adopted. In all those debates not a word was said about 
nominations.
  Mr. GREGG. Will the majority yield for a parliamentary inquiry? Isn't 
the sign across the aisle in violation of rule XVII?
  The PRESIDENT pro tempore. The Parliamentarian will make a report to 
the Chair.
  The majority leader is recognized.
  Mr. FRIST. Many proposals surfaced to change the cloture rule. Major 
amendments were adopted. In all those debates, not a word was mentioned 
about nominations. Why should the debate have focused there? 
Nominations were not filibustered.
  What is happening now breaks sharply with Senate tradition in ways 
that are corrosive for this institution. To restore those traditions, I 
have proposed filibuster reform. Along with Senators Zell Miller and 
nine additional cosponsors, I introduced S. Res. 138 in May. Our 
proposal was heard, reported by the Rules Committee in June, and now 
awaits Senate action.
  The Frist-Miller proposal will alter the way the Senate concludes 
debate on nominations. By progressively declining cloture requirements 
of 60 votes, then 57 votes, then 54 votes, then 51, and finally, with a 
simple majority of Senators present and voting, we can end the practice 
of filibustering nominations if the Senate has the will to do so.
  Every effort to reform the cloture rule, whether successful or not, 
has been debated in its entirety. Frist-Miller is different. It reforms 
the cloture process only for nominations and leaves cloture for the 
remainder of Senate debate alone. We fix only what is broken.
  Mr. GREGG. Mr. President, I am sorry to interfere, but that sign is 
clearly in violation of rule XVII and should be removed.
  The PRESIDENT pro tempore. The Chair has asked for a review of that, 
and the Chair will report to the Senate when we get that report.
  The majority leader is recognized.
  Mr. FRIST. Mr. President, a nomination filibuster by a minority 
whenever it may coalesce is different from legislative filibusters. On 
legislation, there is a potential safety valve that a troubled measure 
may be offered elsewhere as a nongermane amendment or somehow be 
addressed by the House or in conference. No such possibility exists on 
a nomination. There is no safety valve on a nomination. Filibustering 
nominations is obstruction in its most potent and virulent form. Even 
if a majority of Senators stand ready to confirm, nomination 
filibusters are fatal.
  Frist-Miller is a narrow remedy that addresses a real problem. It 
permits substantial debate but allows the full Senate to work its will. 
The Senate must halt the emerging and unwelcome practice of obstructing 
nominations. No change in the rules is needed if those who have 
filibustered will relent and permit the nominations to have a vote. If 
they do not, then amending the rules is imperative. We have sought 
consent for a time certain to vote on each of the nominees. Met with 
objection, we filed for cloture. Without either consent or cloture, the 
obstruction will continue and incessant demands for reform will grow 
louder.
  These demands will include the exercise of the Senate's 
constitutional rulemaking power to amend rules or precedents to end 
filibusters on nominees.
  Various proposals go far beyond the Frist-Miller filibuster reform. I 
would not support these efforts now but I reserve the right to support 
them later.
  During these recent days, the majority has come under vocal criticism 
from our colleagues on the other side for scheduling this executive 
session tonight and these cloture votes. The debate is a waste of time, 
they contend, because the Senate has many urgent matters to address, 
and we are short on time to address them. Indeed, our agenda is 
crowded. But the question of how this Senate discharges its 
constitutional responsibility on nominations is among the most 
important issues we can discuss. It affects how we relate to two 
coordinate branches of government. It concerns whether Senate 
traditions will be upheld or discarded. It involves the meaning and 
future of the confirmation process. Such deliberations are plainly 
worth the Senate's time and the close attention of the American people.
  In closing, by unanimous consent, time during these 30 hours has been 
equally divided between the two parties. This will allow for balanced 
arguments, good debate, a chance to focus on these issues without 
distraction. We have entered this consent agreement in good faith to 
foster a serious dialog on a serious subject. This means sticking to 
the subject and not undermining or trivializing this session by wasting 
time through meaningless quorum calls and other obstructionist tactics. 
The debate we launch tonight is fundamental to restoring fairness to 
our confirmation process and reaffirming two centuries of Senate 
tradition.
  The majority is here, prepared to do business. We want to meet our 
constitutional responsibility to advise and consent. Whenever the 
opposition ceases to obstruct, we are ready to vote. What we ask for is 
to be able to vote, up or down. Just give us a vote.
  The PRESIDENT pro tempore. The Chair will make a report on the 
suggestion of the Senator from New Hampshire. Rule XVII of the Rules 
for Regulation of the Senate wing of The United States Capitol and 
Senate Office Buildings provides that:

       Graphic displays in the Senate Chamber are limited to the 
     following:
       Charts, photographs, or renderings:
       Size--No larger than 36 inches by 48 inches.
       Where--On an easel stand next to the Senator's desk or at 
     the rear of the Chamber.
       When--Only at the time the Senator is engaged in debate.
       Number--No more than two may be displayed at a time.

[[Page 28604]]

  This sign was on display prior to the time the Senator has been 
recognized. I would ask that the Senator be prepared to use his sign 
when he is recognized and the signs not be displayed until the Senator 
is recognized.
  Several Senators addressed the Chair.
  The PRESIDENT pro tempore. The majority leader still has the floor.
  Mr. FRIST. Mr. President, once I run through these unanimous consent 
requests, I will yield the floor.


            Unanimous Consent Agreement--Executive Calendar

  Mr. President, I now ask unanimous consent that the Senate proceed to 
executive session for the consideration of Calendar No. 86, the 
nomination of Priscilla Richman Owen to be a United States Circuit 
Judge for the Fifth Circuit.
  The PRESIDENT pro tempore. Is there objection?
  Mr. BYRD. Mr. President, reserving the right to object.
  The PRESIDENT pro tempore. The Senator reserves the right to object.
  Mr. BYRD. I shall not object, but I ask for this recognition for the 
purpose of asking the distinguished majority leader a question.
  Before I do that, may I say to the distinguished majority leader that 
I have no intention to become involved in this game back and forth. And 
I do not say it is a game just indulged in by one side. I have nothing 
to do with it. I have had nothing to say in it thus far. And at the 
moment, I do not anticipate having anything to say.
  My interest is this: I am the ranking member of the Appropriations 
Committee of the Senate. I have been on that Appropriations Committee 
longer than any Senator in history. I have been on it 45 years. I would 
like to see us get one more appropriations bill passed.
  When I was chairman of the Appropriations Committee for 7 years, I do 
not believe there was a year in which we did not get all 13 regular 
appropriations bills passed. We have passed 10 appropriations bills 
already this year.
  The distinguished chairman of the Appropriations Committee, Mr. 
Stevens, who is the President pro tempore of the Senate, and who now 
presides, has worked hard and has worked with me, but he has done most 
of the work in getting those 10 appropriations bills passed. I 
discussed this matter with him during the vote just preceding the hour 
of 6 o'clock, and I indicated to him I would like to see us try to 
finish this appropriations bill, the VA-HUD appropriations bill. And he 
indicated to me--he is in the chair--he indicated to me he would be 
glad to work toward that.
  So here we are. We have finished floor action on 10 of the 13 regular 
appropriations bills. Only three are left. Those three are VA-HUD; DC 
appropriations; and CJS, Commerce-Justice-State--three appropriations 
bills. We are almost finished on VA-HUD.
  When I came to the floor, my interest was in trying to get that bill 
finished, making it 11 appropriations bills. So I came to the floor, 
and I asked the manager on this side, Senator Mikulski, if we could 
finish it, and how long it would take, in her judgment. She thought it 
would take perhaps 2 more hours. And I believe, in discussions with 
Senator Bond, it was also indicated that we might finish that bill in 2 
hours.
  Now, I hoped the majority leader would be in the Chamber prior to the 
hour of 6 o'clock. I was made aware of his request that he be 
recognized 2 minutes before 6--5:58 or some such. I was hoping that--
and it was with considerable trepidation, certainly reluctance, that I 
sought to impose a unanimous consent request that would, for 2 hours, 
have delayed action on the then-pending unanimous consent--Senate 
request--the unanimous consent request. I get my tongue a little 
twisted at age 86. That is my problem.
  But I waited, hoping the majority leader would come to the floor. I 
know the demands on him, and I understand that. But I hoped he would be 
here so that I could make this request prior to this, what I call a 
game that is going on.
  Please forgive me if--I am interested in getting the appropriations 
bills passed. I am not interested in participating in this other matter 
at all--right now. I have some ideas. I do not thoroughly agree--I do 
not completely agree with the distinguished majority leader on his 
interpretation of the Constitution with respect to nominees, but that 
is for another time.
  But I have taken the floor now in the hope that we might, on this one 
day after Veterans Day--and my mother died on Armistice Day, 1918. I 
was 1 year old back then, lacking a week or something.
  We have men and women dying in Iraq now. We have veterans by the 
scores coming back to this country who are injured and who will carry 
for life the signs of their service in Iraq.
  I wanted to ask the distinguished majority leader--and I did not want 
to interrupt his speech, but I want to ask him, with great respect, if 
he would be willing to let the Senate go, let's say, until 8 o'clock, 
and then renew the previous order, with the understanding that we 
finish action on the VA-HUD bill by 8 o'clock, that the time 
intervening be equally divided between Mr. Bond and Senator Mikulski, 
and that we enter the order to complete that bill at 8 o'clock.
  That is all I am asking, that we go another hour and a half, complete 
that bill, which would make us have 11 bills finished as far as floor 
action is concerned, with only 2 remaining. Let's get that bill passed. 
That is important.
  I was a participant in the filibuster against Abe Fortas. I know 
something about filibusters. And I just am not willing to enter into 
one personally right now. But I would like to get this appropriations 
bill finished.
  Mr. FRIST. Mr. President, responding, through the Chair, there is 
nobody on the floor of the Senate now--and I do appreciate this many 
people being here to debate the issue of our judicial nominations and 
the process, the process that the distinguished Senator from West 
Virginia probably understands better than anybody; that is cloture and 
the history of cloture--nobody understands better the challenges to me 
as majority leader than the distinguished Senator from West Virginia on 
the scheduling of this body.
  I know there are people questioning why we are working tonight, and 
even through the night. We tried to spend a full day this Monday on the 
floor of the Senate, which was not a Federal holiday--never has been a 
Federal holiday--but when I made it clear we were here to do 
appropriations, a specific appropriations bill, and then, yes, on 
Veterans Day had us here--and I know the distinguished Senator had 
wished we were not here on that day, but being here on Veterans Day, 
and talking about the Department of Defense authorization and military 
construction and preparing for the bill that we addressed today, we 
made it very clear we would be using this time from 6 o'clock tonight, 
a long time ago, weeks ago, to your side and my side--not weeks ago, 
probably last week--after we try to finish up our business.
  I put a huge priority on appropriations, a huge priority. We are 
going to kill ourselves to finish all these bills. I pledge to you by 
the end of next week is my goal to fully address all of the 
appropriations bills because I respect the process, and I have tried to 
bring every bill out. And as of today, we have brought every single 
bill to the floor. And for various reasons--not pointing fingers too 
much to either side--we have not been able to finish several of them.
  Thus, I am going to respectfully say that no, I am going to stick 
with the schedule because we have people here to talk about an issue 
that many believe equally important, some more important; that is, our 
responsibility to handle these judicial nominations responsibly, 
respectfully, and that is what people are here to debate.
  Then I would be happy to discuss how we complete this appropriations 
process with you and with the distinguished Presiding Officer because I 
am going to need your help to finish these in an orderly way.
  But for now, I think we need to progress with addressing another 
important issue that is the schedule I set out. I would ask your 
consideration for setting that schedule out and that we

[[Page 28605]]

can figure out how to do these appropriations bills.
  Mr. REID. Mr. President, reserving the right to object.
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Mr. President, I say, through the Chair to the 
distinguished majority leader, we started at 6 o'clock, and he spoke 
for 22 minutes or something. We have not gone into executive session 
yet. I would ask consent that your time be counted in the first hour so 
that we do not get behind in the 30 hours.
  Does the leader understand my request?
  Mr. FRIST. I do. And then we are going to subtract the time from the 
questions.
  Mr. REID. Yes, I understand.
  Mr. FRIST. That is fine, my 22 minutes apply, or whatever the time 
was I was actually speaking, to our first-hour agreement.
  I still have some unanimous consent requests.
  Mr. REID. I certainly understand.
  Mr. FRIST. But for the length of my speech, it would be fine to apply 
that time to the first hour since we will be splitting the hours.
  The PRESIDENT pro tempore. Is there objection to the request?
  Mr. BYRD. Mr. President, further reserving the right to object.
  The PRESIDENT pro tempore. The Senator is recognized for a question.
  Mr. BYRD. And I do not intend to object, Mr. President.
  May I say to the distinguished majority leader, 4 million veterans 
receive health care through the veterans health care system funded by 
the VA-HUD bill. How should we explain to these veterans that the bill 
is being set aside?
  Mr. FRIST. Mr. President, through the Chair, I have had the wonderful 
opportunity of working in veterans hospitals myself for the last--until 
I got to this body--for 15 years, every day operating, giving care to 
veterans in medicine. So I appreciate veterans hospitals. I worked in 
veterans hospitals. I have probably spent more time than anybody in 
this Chamber in veterans hospitals--from early in the morning through 
many nights, just as we are going tonight. I care about hospitals. We 
are going to address them.
  What I would ask, in response, is if the Senator from West Virginia 
would agree to a 2-hour unanimous consent to finish this bill, VA-HUD, 
on Friday--on Friday--so we can answer your question. If we can do 
that, we will be able to do exactly what you want to accomplish, to 
finish that bill, and it allows me to keep a commitment to a packed 
Chamber right now where we can debate the issues that people are here 
to debate. And then, within 48 hours, we have accomplished my objective 
and your objective. Two hours, we will do it Friday, as soon as we 
finish the cloture votes?
  Mr. BYRD. Will the Senator yield for me to respond?
  Mr. FRIST. Yes, sir.
  Mr. BYRD. Mr. President, I have long admired the distinguished 
Senator from Tennessee.
  [Disturbance in the Galleries.]
  Mr. FRIST. Thank you, sir.
  Mr. BYRD. I do not say that facetiously.
  The PRESIDENT pro tempore. The Gallery will be warned, no response 
from the Gallery is permitted in the Senate.
  Mr. BYRD. Some people are serious when they say things. But I have 
admired the Senator as a great physician. He speaks of his long service 
to veterans. I speak of a long service to veterans--more than 51 years 
in this Congress. I was here when the Veterans Administration was 
created. About Friday--Friday----
  Mr. FRIST. Yes, sir.
  Mr. BYRD. I am the recipient of the Franklin Delano and Eleanor 
Roosevelt Award for Freedom from Fear. I will receive that award on 
Saturday. I am not in a position to drive up on Saturday morning and 
receive that award. My wife is invited also with me. She cannot go. So 
I have to go on Friday, and the train leaves at 1 o'clock. As far as I 
am personally concerned, I would be happy to come in and finish those 2 
hours and get the--I believe there are four votes that are going to be 
scheduled on clotures that morning.
  Well, I have cast more rollcall votes than any living Senator, any 
deceased Senator, any Senator in the history of this Republic, any 
other Senator. I have 16,627 or 8 or 9--somewhere along there.
  I say all that to say this: I do not want to miss any rollcall votes 
on Saturday. I take great pride in my rollcall record extending over 45 
years in the Senate. It is 98.7 percent. So I missed less than 2 
percent of the votes.
  Could we agree then--I do not want to put myself in the position of 
my own leaders, as I did not want to put myself in the position of the 
distinguished majority leader on the other side. I would like to be 
able to make the four votes on Friday, catch my train at 1 o'clock, and 
go up and receive this very prestigious award.
  Could we work something out to that effect?
  Mr. FRIST. Mr. President, what I would like to do, because it is 
going to affect everybody's schedule, is to address this. If we can go 
through the remainder of the unanimous consent request, then try to 
address it.
  I just want to restate I would love to finish this bill, the 
appropriations bill on VA-HUD, and I would love to be able to work it 
out if we can on Friday.
  The PRESIDENT pro tempore. Is there objection to the request?
  The regular order is to report the nomination at this time. The 
clerk----
  Mr. BYRD. No. I reserved the right to object. May I have another 
minute? I am not participating in this whatever you call it--marathon, 
talkathon, blame-athon, or whatever it is. That is not of my interest 
right now. I am interested in the appropriations bill. It can be passed 
in 2 hours or less. As far as I am concerned, we could pass it now, 
just have a rollcall vote on it, the VA-HUD, but that would depend upon 
the two managers.
  I am not going to impose on the time of the Senate and the majority 
leader, but I ask the majority leader, would he please put the request 
in some form to finish this bill within the next hour, have a vote up 
or down within the next hour?
  Mr. FRIST. Responding, once again through the Chair, I will not be 
making that request tonight. Tonight we are going to stay on the 
judicial nominees. But I would like to discuss with you and the 
managers of the bill, and the Presiding Officer, the chairman of the 
Appropriations Committee, how we can best resolve that as quickly as we 
possibly can.
  Mr. BYRD. Thank you, Mr. President. I remove my reservation and thank 
the majority leader.
  The PRESIDENT pro tempore. Did the majority leader submit a unanimous 
consent request?
  Mr. REID. Yes, he did. He did.
  The PRESIDENT pro tempore. Without objection, it is so ordered. The 
request is granted.

                          ____________________




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF PRISCILLA RICHMAN OWEN, OF TEXAS, TO BE UNITED STATES 
                  CIRCUIT JUDGE FOR THE FIFTH CIRCUIT

  The PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read the nomination of Priscilla 
Richman Owen, of Texas, to be a United States Circuit Judge for the 
Fifth Circuit.
  The PRESIDENT pro tempore. The majority leader.
  Mr. FRIST. Mr. President, I would inquire of the Democratic side if 
they would be prepared to grant a time limitation on this nomination of 
2 hours?
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Thank you very much, Mr. President.
  Through you to the distinguished majority leader, first of all, let 
me really say we could finish this bill quickly tonight. The decision 
has been made not to do that. We will be happy to come back Friday and 
cooperate with the majority. We could not agree to a time, but I think 
as to how we worked before, if we go to that bill Friday, within a very 
reasonable period of

[[Page 28606]]

time we could finish it on Friday. But as far as a specific time 
agreement is concerned, it would be very difficult to do that. But I 
stand ready and willing to come back to this bill on Friday and finish 
it on Friday; that is, VA-HUD. It is too bad we could not do it 
tonight.
  In direct response to the majority leader, we would not be in a 
position to grant a time on Priscilla Owen. We have already voted on 
this matter on at least two or three separate occasions, as I recall. 
So in response to the distinguished majority leader's request, we would 
not agree to a time agreement on Priscilla Owen of any duration.


                             Cloture Motion

  Mr. FRIST. Given the objection, I send a cloture motion to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 86, the nomination of Priscilla Richman Owen, of 
     Texas, to be United States Circuit Judge for the Fifth 
     Circuit:
         Bill Frist, Orrin Hatch, Lindsey Graham, Mike Crapo, Jeff 
           Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

NOMINATION OF CAROLYN B. KUHL TO BE UNITED STATES CIRCUIT JUDGE FOR THE 
                             NINTH CIRCUIT

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of Calendar No. 169, the nomination of 
Carolyn B. Kuhl, to be a United States Circuit Judge for the Ninth 
Circuit.
  The PRESIDENT pro tempore. The nomination will be stated.
  The assistant legislative clerk read the nomination of Carolyn B. 
Kuhl, of California, to be United States Circuit Judge for the Ninth 
Circuit.
  Mr. FRIST. Mr. President, again I ask the other side if they would be 
prepared to set a time certain for an up-or-down vote on this nominee 
after whatever debate they may need.
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Mr. President, in an effort to understand what is going on 
here, everyone should understand, these requests require a simple 
majority vote, and it would be senseless to take a vote on this. That 
is why we did not object.
  I would say with this nominee, Carolyn Kuhl, we have reviewed this in 
very deep detail and would not be in agreement at this time to set any 
time limit on the debate. I ask the distinguished majority leader to 
advise us when we finish this woman and the following nominee, if you 
would be good enough to tell us when you anticipate voting. We are 
waiving the request for the requirement of a quorum. So if the majority 
leader can give us some indication when he desires to vote on this, 
whether it is 12:01 on Friday morning or later in the day.
  Mr. FRIST. Mr. President, in response, we plan on voting Friday 
morning at a reasonable hour to be defined. That means sometime after 
8:30 Friday morning. I will be more specific.
  Mr. REID. I appreciate that very much. I object.
  The PRESIDENT pro tempore. Objection is heard.


                             Cloture Motion

  Mr. FRIST. I send a cloture motion to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 169, the nomination of Carolyn B. Kuhl, of 
     California, to be United States Circuit Judge for the Ninth 
     Circuit.
         Bill Frist, Orrin Hatch, Lindsey Graham, Mike Crapo, Jeff 
           Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

                          ____________________




   NOMINATION OF JANICE R. BROWN, OF CALIFORNIA, TO BE UNITED STATES 
           CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of Calendar No. 455, the nomination of 
Janice R. Brown, of California, to be a United States Circuit Judge for 
the District of Columbia Circuit.
  The PRESIDENT pro tempore. Without objection, it is so ordered. The 
clerk will report.
  The assistant legislative clerk read the nomination of Janice R. 
Brown, of California, to be United States Circuit Judge for the 
District of Columbia Circuit.
  Mr. FRIST. Mr. President, once again, I ask if we would be able to 
limit the time for debate on this nominee to 8 hours or 10 hours.
  Mr. REID. We object, Mr. President.
  The PRESIDENT pro tempore. Objection is heard.


                             Cloture Motion

  Mr. FRIST. With that answer, Mr. President, I send a cloture motion 
to the desk.
  The PRESIDENT pro tempore. The cloture motion having been presented 
under rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 455, the nomination of Janice R. Brown, of 
     California, to be United States Circuit Judge for the 
     District of Columbia Circuit.
         Bill Frist, Orrin Hatch, Lindsey Graham, Mike Crapo, Jeff 
           Sessions, Conrad Burns, Larry E. Craig, Saxby 
           Chambliss, Mitch McConnell, Jim Bunning, Judd Gregg, 
           John Cornyn, Jon Kyl, Trent Lott, Mike DeWine, Craig 
           Thomas, Kay Bailey Hutchison.

  Mr. FRIST. Mr. President, I now ask unanimous consent that the three 
live quorums required under rule XXII be waived en bloc.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, parliamentary inquiry: In terms of the time 
we used on our side, how much time, in terms of my initial speech, was 
used by this side?
  The PRESIDENT pro tempore. The majority has 4 minutes 47 seconds. The 
minority has 11 minutes 22 seconds.
  Mr. REID. If I can make an inquiry through the Chair, Mr. President, 
the unanimous consent request, as I have heard the ruling of the Chair, 
is not counted against anybody; is that the way it is?
  The PRESIDENT pro tempore. The time to object or reserving the right 
to object has been charged to the side making such a reservation.
  Mr. FRIST. Mr. President, I suggest the general agreement is to spend 
an hour, 30 minutes to a side, and if they are not using the time, it 
will be yielded back to the other side. I ask unanimous consent that I 
use 15 minutes, 15 minutes for Senator Hatch, and we go to the other 
side.
  Mr. REID. And we would have an hour?
  Mr. FRIST. You would have 30 minutes.
  Mr. REID. I say to the distinguished majority leader, we have had no 
time agreement the first hour other than listening to me object.
  The PRESIDENT pro tempore. Reserving the right to object and 
statements made under such objection or reservation has been charged 
against the side making that reservation.
  Mr. REID. I understand. So the Chair has ruled that the statement by 
Senator Byrd ran against us; is that true?
  The PRESIDENT pro tempore. That is correct.
  Mr. REID. So the next half hour will be used by Senators Frist and 
Hatch, and then we will use our half hour.
  Mr. FRIST. Again, I think it is time for us to move forward. 
Conceptually,

[[Page 28607]]

we are going to have an hour, 30 minutes either side. Say I used 15 
minutes--it may be more--Senator Hatch will speak about 15 minutes, and 
30 minutes will be to your side, and we will be going back and forth.
  Mr. REID. Fine. My only concern is we have had Senators we have 
scheduled to speak to use our half hour. Some of them have been 
champing at the bit here. If they don't speak now, they lose their 
time, their day in the sun.
  Mr. FRIST. I thought I had a pretty good 20-minute speech. I was 
ready to start, but because of questions directed to me, again, about 
scheduling--we get things well set and then because of questions--if we 
can just start now and do as I requested, have 15 minutes and you take 
30 minutes, we will be able to get started.
  Mr. REID. I am wondering, I ask if we could use the next 15 minutes 
so my people who have been here, Senators waiting could take the time. 
I would divide whatever by 3 until the time until 7 o'clock.
  Mr. FRIST. Would you please repeat that?
  Mr. REID. Then we can start fresh at 7 o'clock with you and Senator 
Hatch giving us your statements, and we will take the next half hour.
  Mr. FRIST. Mr. President, you mean I have Senator Hatch speak?
  Mr. REID. We would take approximately 4 minutes each until 7.
  Mr. FRIST. No, Mr. President, Senator Hatch is going to follow me, 
and then we will go into going back and forth. Senator Hatch has also 
been waiting 30 minutes. If it hadn't been for these questions, we 
would have been done 15 or 20 minutes ago.
  Mr. REID. I say through the Chair, I am trying to be peaceful and 
calm here. The Chair ruled we have 4 minutes left.
  Mr. FRIST. Would the Chair clarify how much time we have available on 
either side?
  The PRESIDENT pro tempore. The majority has 4 minutes 37 seconds. The 
minority has 10 minutes 47 seconds.
  Mr. HATCH. I ask unanimous consent that immediately after the half 
hour taken by the Democrats, I be given an additional 11 minutes. I 
will take 4 right now.
  Mr. SCHUMER. I could not hear the Senator from Utah.
  Mr. REID. The Senator from Utah said we would go until 7 o'clock and 
then they would do the next half hour; is that right? Is that what you 
said?
  The PRESIDENT pro tempore. Is there objection?
  Mr. HATCH. No, I said I would take the 4 minutes now and then take 
the 11 minutes after you had half an hour. How is that?
  Mr. REID. Out of their time, that is absolutely fine.
  The PRESIDENT pro tempore. The Senator is recognized for 4 minutes.
  Mr. HATCH. Mr. President, I think it is appropriate to have the 
chairman of the Judiciary Committee who has had to go through all this 
rigmarole to say a few words before we get into this debate. I know the 
distinguished majority leader wanted me to do so.
  To be honest with you, Mr. President, just think about it. All we 
want to do is what the Senate has always done. Once a nominee comes to 
the calendar, that nominee deserves a vote up or down under the advise 
and consent clause which is clearly a majority vote.
  Never in the history of this Congress have we had what has been 
happening over the last number of years caused by the Democrats on the 
other side.
  We should be voting on judges tonight, not debating judges. Frankly, 
there is a vocal minority of Senators preventing us from doing our 
constitutional duty to vote on judicial nominees. The American people 
need to know this, and although some of these folks have been moaning 
and groaning on the other side that we are taking this time, I suggest 
to them that there is hardly anything more important in a President's 
life, whoever that President may be, than getting his or her judicial 
nominations through.
  Frankly, it is extremely important because this involves one-third of 
the coequal branches of Government. We found a continual filibuster on 
a number of these nominees.
  Let me say this. Democrats seem to be very fond of saying: We passed 
168 and we only filibustered 4. The fact is, that raw number of 168 we 
have had to fight pretty hard to get as well. But we have. Never in the 
history of this country have we had four stopped. That is only part of 
it.
  I can name at least 15 that I have had various Democrats tell me they 
are going to filibuster. Most of them are circuit court of appeals 
nominees for the very important circuit courts in this country, people 
who have the ABA imprimatur, people such as Miguel Estrada; Priscilla 
Owen, who broke through the glass ceiling for women; Bill Pryor--even 
though he is conservative, he has always upheld the law even when he 
disagreed with the law; Charles Pickering, unanimously confirmed to the 
district court in 1990 and treated like dirt in the Senate--a racial 
reconciling. Yet he has been treated just like dirt. Carolyn Kuhl--we 
are going to have her first cloture vote on Friday because they are 
going to filibuster. Janice Brown--they are filibustering her; Claude 
Allen, I am told they are going to filibuster Claude Allen. How about 
Terrence Boyle of the Fourth Circuit? It looks as if they are going to 
filibuster him. James Deavers is being held up. Bob Conrad is being 
held up.
  Four Circuit Court of Appeals judges for the Sixth Circuit out of 
Michigan are being held up by our colleagues on the other side; two 
district court nominees, and I could name some others.
  The fact is, for the first time in history, they are treating a 
President of the United States in a ridiculous, unconstitutional 
fashion and not allowing him to have an up-or-down vote on his 
nominees. If they can defeat these nominees, that is their right, but 
they should not be dragging their feet and making it very difficult for 
these nominees to come up.
  I heard some of the comments about how important the appropriations 
process is. It is important, but I can tell you we have had foot 
dragging almost all year by our colleagues on the other side, and it is 
important, but there is nothing more important than making sure that 
our courts are well staffed with competent judges who are going to 
enforce the law for the benefit of the American citizens.
  There is nothing more important than that. Frankly, it is the one 
legacy that any President can leave. When Bill Clinton was President, 
we helped him put through 377 judges, the second all-time record. I 
might add Ronald Reagan was the all-time record holder at 382, 5 more 
than President Clinton. President Reagan had 6 years of a Republican 
Senate to help him and President Clinton had only 2 years of a 
Democratic Senate, and he was treated abundantly fair.
  There were 47 holdovers at the end. Contrast that to when Democrats 
controlled the committee and Bush 1 was President. There were 54 
holdovers.
  Mr. President, this is really wrong what they are doing. It has the 
potential of exploding this body. Frankly, we can't allow it to 
continue. It is time for the American people to understand this. I 
understand my time is up.
  Mr. REID. Mr. President, I yield 2\1/2\ minutes to the Senator from 
New York, Mr. Schumer; 2\1/2\ minutes to the Senator from California, 
Mrs. Feinstein; and 2\1/2\ minutes to the Senator from Wisconsin, Mr. 
Feingold; in that order.
  The PRESIDENT pro tempore. The Senator from New York.
  Mr. SCHUMER. Mr. President, they say one picture says a thousand 
words; one sign will equal 30 hours of palaver. The bottom line is very 
simple, we have supported and confirmed 168 judges whom President Bush 
has sent us. We have blocked 4.
  All the rhetoric, all the splitting of hairs, all the talking about 
angels on the head of a pin don't equal that. This debate will 
boomerang on my colleagues from the other side of the aisle because all 
the American people have to do is look at that sign and they say: Gee, 
you're right.
  The bottom line is the President, the majority leader, and the 
chairman of the Judiciary Committee will not be content unless every 
single judge the President nominates is rubberstamped

[[Page 28608]]

by this body. That is what they want. We all know it. We have been very 
careful and very judicious in whom we have opposed.
  People who are getting life appointments should not be extremists, 
should not be out of the mainstream, should not be asked to roll back 
30 or 60 years of jurisprudence, and the four we have blocked fall in 
that category.
  The bottom line is very simple: If you want agreement, then read the 
Constitution and tell the President, in all due respect, to read the 
Constitution. It says advise and consent. Advise means consult. We get 
no consultation. Consent means the Senate does its own independent 
review. That is what we have done.
  So I understand why early on this sign vexed my colleagues from the 
other side. The bottom line is simple: We have been reasonable; we have 
been careful; we have been moderate; we have been judicious. The other 
side and the President simply say my way or the highway. That will not 
stand.
  The PRESIDENT pro tempore. The Senator's time has expired. The 
Senator from California is recognized 2\1/2\ minutes.
  Mrs. FEINSTEIN. I thank the Chair.
  Mr. President, I have served as a member of the Judiciary Committee 
since I came to the Senate. I take the job very seriously. I try to do 
my homework in looking at these judges. I very deeply believe that this 
election provided no mandate to skew the courts to the right. I deeply 
believe that judges should be in the mainstream of American legal 
thinking, that they should have the temperament and the wisdom and the 
intellect to represent us well on the highest courts of our land.
  What I wanted to use my time for--and the 2\1/2\ minutes will not be 
enough to do it--is to indicate that during the time I have been on the 
Judiciary Committee how I have seen the rules and the procedures of the 
committee change. Those changes have not been good. They have served to 
divide the committee more. They begin with changing the American Bar 
Association's 50-year tradition of rating the qualifications of 
potential nominees before the President nominates them, to after the 
President nominates them. I would like to say why I think that is 
important.
  There have been changes made in the so-called blue slip policy so 
that concerns Senators from a nominee's home State are no longer given 
any consideration whatsoever. There has been a reinterpretation of a 
longstanding committee rule, rule 4, prohibiting the majority from 
prematurely cutting off debate over a nominee in committee. There has 
been the elimination of the tradition of holding a hearing on only one 
controversial nominee for appellate vacancies at one time. There have 
been changes to committee practice----
  The PRESIDENT pro tempore. The Senator's time has expired.
  Mrs. FEINSTEIN. I hope in the next hour perhaps I might have more 
time. I yield the floor.
  The PRESIDENT pro tempore. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I think we ought to be spending 30 hours 
on the manufacturing crisis in our country. Since January 31, we have 
lost 2.5 million manufacturing jobs and over 70,000 of them are from 
Wisconsin alone.
  These jobs are more than numbers on a page. They are all too real. 
The thousands of Wisconsin residents who have petitioned their 
Government know this firsthand.
  In their letters to me--and, Mr. President, I have with me over 2,000 
letters that were sent recently to my home by manufacturers, not labor 
union members but manufacturers from the State of Wisconsin that are 
desperate about this problem. Thousands of people from all around 
Wisconsin, from places such as Sparta and Trempeleau and West Bend and 
Muskego, write that the first and foremost reason behind these lost 
jobs is our trade policy.
  These letters say: Our elected officials say workers will benefit 
from this free trade policy and the free trade agreements that come 
with it, but the opposite has occurred. Our trade deficit is increasing 
at a pace of $1.5 billion per day. That is how many more products we 
are importing than we are making. As you can see, these trade 
agreements are not working to the benefit of U.S. workers.
  These letters go on to talk about how manufacturing in America is 
dying a slow death. That is a much higher priority than spending 30 
hours talking about four judicial nominations, and we should respond to 
the desperate situation that the American people are facing with 
manufacturing job loss.
  I yield the floor.
  The PRESIDENT pro tempore. Under the previous order, the next hour is 
equally divided between the two parties, 30 minutes to each side. Who 
yields time? The Senator from Utah.
  Mr. HATCH. As I understand it, I have 11 minutes left; is that 
correct?
  The PRESIDENT pro tempore. The Senator has a half hour.
  Mr. HATCH. Mr. President, we should be voting on judges tonight. 
Instead we are debating judges tonight because a vocal minority of 
Senators is preventing us from doing our constitutional duty to vote on 
judicial nominees.
  The American people need to know that. That is why we are here. If 
you stop and think about this sudden new set of arguments or at least 
arguments they have used for a long time, the Democratic leadership has 
been blocking all kinds of passage of bills that are America's 
priorities for the whole year.
  Now they are complaining because we want to let the American people 
know how bad they have been about Federal judges, which, after all, is 
one of the most important things we do around here. Just think about 
it. The long overdue fiscal year 2003 appropriations bills were finally 
enacted on February 20, 2003. For the first time in history, there were 
filibusters to defeat the President's circuit court nominees, now up to 
six who are actually filibustered, and at least another nine whom, I 
have been told, they will filibuster. The sign they have is an absolute 
outright falsehood.
  We needed legal reforms to stop lawsuit abuse against doctors, 
businesses, and industries that have been virtually banned by the 
tactics of the minority. Medical liability, class action reform, gun 
liability, and asbestos reform: they have all been subject to delays or 
filibuster by the minority.
  Similar delays led to a record number of days spent on the budget 
resolution and the near record number of rollcall votes on amendments, 
many of which were virtually identical. The distinguished Senator from 
Alaska understands that as chairman of the Appropriations Committee.
  The most innovative waste of time came on the Energy bill. After 
spending 22 days on the Energy bill last year, we spent 18 days on the 
Energy bill this year, only to pass the same version of the Energy bill 
that passed the Senate last year.
  Bioshield legislation necessary to ensure proper vaccines in medicine 
to counter bioterrorism attacks has still not cleared.
  The State Department reauthorization has been stalled by Democrats 
insisting upon unrelated poison pill amendments be voted on prior to 
passage. I could go on and on.
  The fact is, there has been a steady slowdown, steady slow walk 
around here, ever since we became the majority.
  Now, the issues we are highlighting tonight could not be more 
fundamental to our country, to democracy, to the rule of law: 
separation of powers. All are at stake in this ongoing debate. Among 
the constitutional Framers' conceptual breakthroughs was that the 
judicial branch would receive equal status to that of the executive and 
legislative branches. An independent judiciary is the thread that binds 
the country together and ensures law and order. It is important. It is 
indispensable to the survival of a civilized society.
  If it had not been for the restraining force of an independent 
judicial branch, either the executive or the legislative branches would 
have usurped incredible power and destroyed the checks and balances 
that are at the

[[Page 28609]]

very foundation of our constitutional form of government. So we all 
have a stake in this debate tonight, and it is my hope that our 
opponents across the aisle will act to restore the constitutionally 
required up-or-down vote for judicial nominees. Ultimately, through the 
ballot box, the people in my home State of Utah and across America will 
decide who nominates and who confirms judges.
  Let me repeat that our Nation's founding document requires that every 
judicial nominee who reaches the Senate floor receive an up-or-down 
vote. It is a simple, clear, and fair fact that lies at the heart of 
this debate. Once they hit the floor, they have always gotten a vote.
  Every one of President Clinton's judges who hit the floor got a vote 
up or down, and only 1 out of 377 was defeated. But a minority of the 
Senate is rigging the system by engaging in an unfair set of 
unprecedented filibusters which are the culmination of an outright 
assault on the independence of the Federal judiciary.
  When our colleagues across the aisle controlled the Senate, we saw 
nominees with the full support of their home State Senators denied 
hearings and votes for months and months. We saw nominees stalled by 
demands for unpublished opinions and volumes of written questions. We 
saw this become more and more serious since the beginning of this year.
  We have continued to see ideology used to threaten the independence 
of our Federal judiciary by essentially requiring nominees to announce 
their views on issues that may come before them as Federal judges, 
something that has not happened in the past. But that is what they are 
requiring of President Bush's nominees, at least some of them.
  They treated Miguel Estrada like dirt, while they allowed John 
Roberts to go through. Roberts was also in the Solicitor General's 
office. They did not ask for the highly privileged confidential matters 
for Roberts, but they did for Miguel Estrada.
  By the way, most all of these people have high ratings from their 
gold standard, the American Bar Association.
  We have seen for the first time in American history true filibusters 
of judicial nominees which are preventing the Senate from exercising 
its constitutional right and duty of advice and consent. This is 
harmful to the Nation, it is harmful to the judiciary, and it is 
certainly harmful to our institution. It is harmful to the President. 
It is harmful to these people who are willing to put their names up and 
to do this.
  Article II of the Constitution of the United States invests in the 
President alone the power to nominate judges. There is no room for 
interpretation. The words are explicit. Yet we have seen efforts to 
usurp the President's constitutional authority not by constitutional 
amendment but through various proposals on how nominations should be 
made and demands on who should be nominated that exceed any reasonable 
interpretation of consultation.
  We have also seen the filibusters of judicial nominees that brought 
us here tonight and prevent us from exercising our constitutional 
obligation of an up-or-down vote.
  This assault on the judiciary is not without victims. There is no 
question that it is harmful to the Federal judiciary. More than half of 
its existing vacancies are considered judicial emergencies. So it is 
harmful to the President. He is not being treated fairly compared to 
all Presidents before him. And it is harmful to the Senate, whose 
constitutional roles are turned on their heads. It is perhaps most 
harmful to the individual lives of the nominees who have been denied a 
simple up-or-down vote, which they have always gotten before when they 
have been brought to the floor on the Executive Calendar.
  Now let me talk about some of these nominees because I think it is 
important to remember that they are very real people who want to get on 
with their very real lives instead of hanging in the limbo of what has 
become the Senate's confirmation stall.
  Let me turn to this particular picture. Former DC Circuit nominee 
Miguel Estrada, who is an American success story, unanimously gets the 
highest rating from the American Bar Association, the Democrats' gold 
standard. He was stopped for over 2 years--actually 3 years. Priscilla 
Owen broke through the glass ceiling for women and made it so women 
could become partners in major law firms, one of the most brilliant 
people in our society. She was an excellent witness, but they just do 
not want her.
  William Pryor, of course, in my opinion, the outside groups tried to 
smear Pryor, and they did so with regard to his strongly held personal 
beliefs on abortion.
  I might add that Charles Pickering, who I mentioned before, was 
passed by this body unanimously in 1990. Yet all of a sudden in the 
next 13 years he is unworthy to be on the circuit court of appeals?
  No. It all comes down to abortion. We can go further. We can go 
further than just these nominees. I have mentioned a whole raft of 
others. I could name at least 15 colleagues on the other side who have 
indicated they are going to filibuster. Now that is abominable. All 
four of those nominees have been waiting years, and in some cases many 
years, for confirmation. All of them have been denied up-or-down votes.
  On Friday, the Senate will consider the nomination of two more 
outstanding jurists, and let me just put up this second chart. Carolyn 
Kuhl served in the Reagan administration. She was only 28 years old at 
the time and they have tried to act like she had all kinds of authority 
to do things with which they disagree. She has virtually unanimous 
support from her fellow judges in California, many of whom are 
Democrats, who say she will make a terrific addition to the Ninth 
Circuit Court of Appeals.
  Take Janice Rogers Brown, this African American woman who was the 
daughter of sharecroppers. She put herself through college and law 
school as a single mother--just think about that--and yet she is being 
treated in a very improper fashion.
  I might add that nearly 100 of her fellow judges on the Los Angeles 
County Superior Court are in support of Carolyn Kuhl. She is a terrific 
nominee, but they suspect that she is probably pro-life. I do not know 
what she is. I do not know what Janice Rogers Brown is. They may be 
right on that, but so what?
  I think if a person is otherwise qualified, no single issue should 
stop them from being able to serve their country on the Federal bench, 
and if we had taken the attitude they are taking, my gosh, President 
Clinton would have got very few judges. Instead he got 377, the second 
all-time record for confirmations.
  DC Circuit Court nominee Janice Brown has spent nearly a quarter 
century in public service, including nearly a decade as a judge in the 
California State courts. This daughter of a sharecropper became the 
first African American woman to sit on the California Supreme Court in 
1996. Why are they against her? Because they know she is conservative, 
and they want just one way of thinking among African Americans. She 
does not qualify because she happens to be conservative. No matter that 
she won 76 percent of the vote in the last election, more than any 
other nominee for the California Supreme Court, and wrote most of the 
majority opinions in the last year.
  On Friday, we will have the opportunity to give these two nominees 
the up-or-down vote they deserve, but it is apparent the minority whip 
has said they are going to filibuster them.
  I am proud to say in my 27 years in the Senate, some of my Democratic 
colleagues expressed similar views when a different President was in 
the White House. For example, the distinguished minority leader stated:

       As Chief Justice Rehnquist has recognized: The Senate is 
     surely under no obligation to confirm any particular nominee, 
     but after the necessary time for inquiry it should vote him 
     up or vote him down. An up-or-down vote, that is all we ask.

  That was their philosophy when they had the Presidency and they had 
the Senate Judiciary Committee and were the leaders in the Senate.

[[Page 28610]]

  On this point, I agree with Senator Daschle. All we ask for is an up-
or-down vote. If they want to vote against these people, that is their 
right, but they need to have an up-or-down vote. Why are they afraid of 
allowing simple up-or-down votes in the cases of these excellent 
nominees? Well, because we think--I think--there is more than adequate 
evidence that on a bipartisan set of votes these nominees would be 
confirmed by the Senate. If not, let the chips fall where they may. But 
these nominees deserve a vote. Vote them up or vote them down, but just 
vote.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, my Democratic colleagues try to justify 
their unprecedented filibusters of President Bush's nominees by arguing 
that they want mainstream judges and that President Bush's nominees do 
not fit that criteria. Mainstream judges--I am a little puzzled by that 
assertion. I would think, for example, that Priscilla Owen is in the 
mainstream. She was rated unanimously well qualified by the ABA. She 
was endorsed by the past 16 Texas Bar Association presidents, both 
Democrats and Republicans. She has been twice elected to statewide 
judicial office in Texas, one of the States where they elect judges, 
and the last time, interestingly enough, she got 84 percent of the 
vote--unanimously well qualified by the ABA; supported by 16 presidents 
of the State bar of Texas, Democrats and Republicans, and gets 84 
percent of the vote. Sounds like mainstream to me. Yet Democrats 
filibustered her nomination because of her interpretation of a Texas 
law saying minor girls could not have an abortion without their parents 
being notified--not consent but merely notified.
  After all, school nurses need a parent's consent to dispense an 
aspirin to a child. Should not a parent be entitled to a simple 
notification when their child seeks an abortion? Over 80 percent of 
Americans think they should. That is a very mainstream notion.
  So I was astonished that Democrats would say she was not ``in the 
mainstream,'' and, frankly, I think the American public would be 
astonished by such a conclusion that a person so ruling would not be in 
the mainstream. But ``mainstream,'' of course, is a relative term.
  To help the American people understand the Democrats' view, we should 
look at some of the Clinton judges my Democratic colleagues have 
supported. Upon doing so, it should be pretty clear that the Democrats' 
view of mainstream is colored by the fact that they are sitting on the 
far left bank.
  Clinton class of 1994, Judge Shira Scheindlin, a get-out-of-jail-free 
card for terrorist sympathizers. In the days after 9/11, Federal agents 
did their job by detaining a material witness to the 9/11 attacks, a 
Jordanian named Osama Awadallah. Osama knew two of the 9/11 hijackers 
and met with one at least 40 times. His name was found in the car 
parked at the Dulles Airport by one of the hijackers of American 
Airlines Flight 77, and photos of his better known name's sake, Osama 
bin Laden, were found in Osama Awadallah's apartment.
  Under the law, a material witness may be detained if he or she has 
relevant information and is a flight risk. The Justice Department 
thought Osama met both of those tests. While detained, he was indicted 
for perjury. But Judge Shira Scheindlin, a 1994 Clinton nominee, 
dismissed the perjury charges and released this man on the street. Her 
reason? She ruled that the convening of a Federal grand jury 
investigating a crime was not a criminal proceeding, and therefore it 
was unconstitutional to detain this Mr. Awadallah.
  This was quite a surprise to Federal prosecutors who, for decades, 
had used the material witness law in the context of grand jury 
proceedings for everyone from mobsters to mass murderer Timothy 
McVeigh. So much for following well-settled law.
  If anyone wants to read a good article about this case, I recommend 
the Wall Street Journal editorial from last year entitled ``Osama's 
Favorite Judge.'' It notes that thanks to Judge Scheindlin, this fellow 
is out on bail. We wonder how he is spending his time.
  Just last Friday, the Second Circuit reversed Judge Scheindlin. The 
appellate court seemed quite puzzled that she would release this man 
given his obvious connection to terrorists. The Second Circuit held 
that his detention as a material witness was a scrupulous and 
constitutional use of the Federal material witness statute.
  It is too bad Judge Scheindlin did not act in a similarly scrupulous 
fashion. Nevertheless, to Democrats she is probably ``in the 
mainstream.''
  Let us take a look at the Clinton class of 1995, Judge Jed Rakoff. 
One of Judge Scheindlin's colleagues, a 1995 Clinton nominee, has ruled 
that the Federal death penalty is unconstitutional in all instances.
  Now, some of my colleagues may share this position, but their views 
differ from the majority of Americans. When Judge Rakoff acts on his 
personal views, it is a very clear failure to follow Supreme Court 
precedent. Indeed, Judge Rakoff's rulings so brazenly violated 
precedent that even the Washington Post, which is against the death 
penalty as a policy matter, came out against his decision as gross 
judicial activism.
  In an editorial entitled ``Right Answer, Wrong Branch,'' the Post 
noted that the fifth amendment specifically contemplates capital 
punishment three separate times. The Post noted:

       [T]he Supreme Court has been clear that it regards the 
     death penalty as constitutional. . . . The High Court has, in 
     fact, rejected far stronger arguments against capital 
     punishment. . . . Individual district judges may not like 
     this jurisprudence, but it is not their place to find ways 
     around it. The arguments Judge Rakoff makes should, rather, 
     be embraced and acted upon in the legislative arena. The 
     death penalty must be abolished, but not because judges beat 
     a false confession out of the Fifth Amendment.

  Another editorial, this one from the Wall Street Journal entitled 
``Run for Office, Judge,'' said as follows:

       It hardly advances th[e] highly-charged debate [on capital 
     punishment] to have a Federal judge allude to Members of 
     Congress who support capital punishment as murderers. If 
     Judge Rakoff wants to vote against the death penalty, he 
     ought to resign from the bench and run for Congress or the 
     state legislature, where the Founders thought such debates 
     belonged.

  Judge Rakoff's ruling would prevent the application of the death 
penalty against mass murderers like Timothy McVeigh or Osama bin Laden. 
I guess Judge Rakoff is the kind of mainstream judge the Democrats 
would like to see on the bench.
  There have also been some interesting rulings from the Ninth Circuit, 
finding the right to long distance procreation for prisoners. My 
friends on the other side believe very strongly in a living and 
breathing constitution. They also believe that the rule of law should 
not be confined to the mere words of the document and the Framers' 
intent. To them, those are anachronistic concepts. I was truly 
surprised, however, to read what a panel of the Ninth Circuit had tried 
to breath into the Constitution.
  Three-time felon William Geber is serving a life sentence for, among 
other things, making terroristic threats. Unhappy with how prison life 
was interfering with his social life, Mr. Gerber alleged he had a 
constitutional right to procreate via artificial insemination.
  A California district court rejected Mr. Gerber's claim. A split-
decision of the Ninth circuit, though, reversed. Infamous Carter-
appointee Stephen Rhinehardt joined President Johnson's appointee, 
Myron Bright, to conclude that yes, the farmers had indeed intended for 
``the right to procreate to survive incarceration.''
  In his dissent, Judge Barry Silverman--a Clinton appointee who was 
recommended by Senator Kyl--wrote that ``This is a seminal case in more 
ways in one'' because ``the majority simply does not accept the fact 
that there are certain downsides to being confined in prison.'' One of 
them is ``the interference with a normal family life.''
  Judge Silverman noted that while the Constitution protects against 
forced sterilization, that hardly establishes ``a constitutional right 
to procreate from prison via FedEx.'' The Ninth Circuit, en banc, 
reversed this decision, but only barely. And it did so

[[Page 28611]]

against the wishes of Clinton appointees Tashima, Hawkins, Paez and 
Berzon, who dissented from the en banc ruling.
  If anyone wants to read more about this case, I'd recommend George 
Will's piece entitled, ``Inmates and Proud Parents.'' If there ever was 
a circuit in need of some moderation, balance, and ideological 
diversity, it is the Ninth Circuit. It is made up of 17 Democrat 
appointees, but only 10 Republican appointees.
  It is the Nation's largest circuit, covering nine states and 51 
million people. It is also reversed far and away more than any other 
circuit. Indeed, it is reversed so often--from 1996-2000, the Supreme 
court reversed it 77 out of 90 times--it is known as a ``rogue'' 
circuit. This has forced its representatives to introduce legislation 
to allow their States to secede from the Ninth Circuit.
  But my Democrat colleagues probably won't give Ninth Circuit nominee 
Carolyn Kuhl the simple dignity of an up or down vote. Evidently she is 
not as ``mainstream'' as all these Democrat judges.
  If these Democrat judges represent the ``mainstream,'' then quite 
frankly, I am glad the Democrats think that Priscilla Owen, Carolyn 
Kuhl, and Janis Rogers Brown aren't in it. Unlike these Democrat 
judges, I am confident these women will follow precedent and act with 
commonsense.
  The Senate should, as it did with Judge Paez, Judge Berzon, and other 
controversial Democrat nominees, give these women the simple dignity of 
an up or down vote.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Nevada.
  Mr. REID. Thank you very much, Mr. President.
  I talked quite a bit on Monday about this matter dealing with jobs. 
We should be talking about jobs. We should be talking about 
unemployment, not four people who have jobs.
  What I am talking about, what we are talking about on this side is 
absolutely valid. One needs only to go to the Web site of the majority 
leader, Senator Frist, prior to his pulling from his Web site the 
information to the following question: Should the President's nominees 
to the Federal bench be allowed an up-or-down vote on confirmation as 
specified in the Constitution? Sixty percent, no.
  Even the majority leader's Web site indicates that what is going on 
here is absolutely wrong. The majority of the people who responded, 
almost 10,000 people, said this is the wrong approach. This is from the 
majority leader's own Web site.
  I also say that this has been referred to as a carnival--I don't know 
if that is an exact term. But as an indication that it is circus-like, 
one need only get an e-mail that was sent to various Senators on the 
majority side saying:

       It is important to double your efforts to get your boss to 
     S-230 on time. Fox News channel is really excited about the 
     marathon. Britt Hume at 6 would love to open the door to all 
     our 51 Senators walking on to the floor. The producer wants 
     to know, will we walk in exactly at 6:02 when the show starts 
     so we can get it live to open Britt Hume's show? Or, if not, 
     can we give them an exact time for the walk-in start?

  Mr. President, we have said this should be about jobs, about 
unemployment. Even Senator Frist's people who respond to him on his Web 
site say yes. Is it a circus? Absolutely. You can see from this it is a 
circus.
  Mr. DURBIN. Will the Senator yield?
  Mr. REID. I am happy to yield.
  Mr. DURBIN. Is it possible for us to get an update during the course 
of the evening on what Fox News is going to be looking for during this 
marathon? This opening about the march into the Chamber clearly was 
priority for the ``fair and balanced'' network. Will we get updates 
from time to time how Fox News would like to orchestrate the rest of 
this?
  Mr. REID. I say to my friend, perhaps so. If not, maybe we could 
check with the Federalist Society, which, coincidentally, is starting 
their convention tomorrow.
  The PRESIDENT pro tempore. The Senator is warned to speak through the 
Chair and not risk the probability of being interrupted and losing the 
floor.
  Mr. REID. Mr. President, I don't understand. I was speaking through 
the Chair, answering the Senator's question.
  The PRESIDENT pro tempore. The Senator from North Dakota must address 
the Chair and ask for permission.
  Mr. DURBIN. There is no Senator from North Dakota.
  Mr. REID. I respond through the Chair to the distinguished Senator 
from Illinois.
  The PRESIDENT pro tempore. It protects the Senator's right to the 
floor.
  Mr. REID. I say to my friend that the Federalist Society, as we know, 
is not mainstream dealing with judicial issues, but extreme, and 
indicate that may be the case. One of the lead speakers, of course, is 
Mr. Bork. To even compound the political nature of the operation, 
Attorney General William Pryor of Alabama is speaking there.
  For everyone within the sound of my voice, it sounds to me rather 
unusual that someone who has the nomination and is trying to get 
confirmed to be a member of a very high Federal court--I cannot imagine 
it would be appropriate for that person to appear at an organization 
that is not in the mainstream, but extreme.
  So what we have here, even by Senator Frist's standards, looking at 
his Web site, we have the facts as I have indicated previously.
  Mr. SESSIONS. Will the Senator yield?
  Mr. REID. Not right now. I will not.
  We have here from Senator Frist's own Web site the fact that 60 
percent of the people--about 10,000 responded before it was pulled from 
the Web site--say that the procedure being sought here is wrong.
  I also say it is very clear this is a carnival-type atmosphere as 
indicated by the e-mail setting up the various presentations to satisfy 
Fox News.
  Finally, the Federalist Society, coincidentally, is the typeset for 
this matter.
  I yield 12 minutes to the Senator from California, Mrs. Feinstein.
  The PRESIDENT pro tempore. The Senator from California is recognized 
for 12 minutes.
  Mrs. FEINSTEIN. Mr. President, what I was trying to do was 
essentially trace changes in committee procedure with the difficulties 
the Judiciary Committee seems to be countenancing in present days. A 
good deal of it has to do with blue slip policy because it was the 
second tradition to fall by the wayside when President Bush took 
office.
  Under the Clinton administration, nominees were often blocked not 
only by home State Senators but by any single Republican Senator. At 
the very least throughout the years preceding the Bush administration, 
a home State Senator's objection to a nominee would effectively stop 
that nominee from moving forward.
  Let me show a copy of a blue slip used during the Clinton 
administration, starting in January of 1999, and sent to each home 
State Senator. The document itself specifically states that no 
proceedings on this nominee will be scheduled until both blue slips 
have been returned by the nominee's home State Senators.
  That policy was followed without fail and without question. Even 
before 1999, during the Clinton Presidency, the blue slip said ``unless 
a reply is received from you within a week from this date, it will be 
assumed that you have no objection to this nomination.''
  But still, if there was an objection from a home State Senator, that 
nominee simply did not move, did not get a hearing, did not get a vote, 
did not get confirmed. It was, in fact, a filibuster of one.
  Today, there is a new blue slip policy, one in which the objections 
of one or even both of the home State Senators is no longer 
dispositive. That is part of the problem. This keeps changing, 
dependent on who is President. This latest policy puts Democrats on the 
committee and in the Senate in a difficult position.
  In the past, if a home State Senator objected to a nominee, that 
nominee did not proceed; there would be no committee vote and no 
filibuster on the floor. Fifty-five Clinton nominees did not receive a 
hearing. This well could have been a filibuster of one. The blue slip 
is secret; nobody knows.

[[Page 28612]]

  Let me name some of the Clinton nominees who were filibustered by one 
or two members of the Judiciary Committee. Elena Kagen, nominated to 
the District of Columbia Circuit, nominated by Clinton, June 17, 1999. 
The nomination was returned December 15, 2000. She waited 547 days 
without getting a hearing or a vote in the Judiciary Committee. She is 
currently the dean of Harvard Law School.
  Lynette Norton, nominated for the District Court for the Western 
District of Pennsylvania. Nominated by President Clinton on April 28, 
1998, in the 105th Congress. Her nomination, which was submitted to the 
105th and 106th Congresses, was returned both times without a hearing. 
She waited 961 days without a hearing or a vote in the Judiciary 
Committee. Again, a successful filibuster by one or two Senators, in 
secret.
  Barry Goode, nominated for the Ninth Circuit. Goode was nominated by 
President Clinton on June 24, 1998. After 3 years of inaction, 
President Bush withdrew his nomination, on March 19, 2001. Mr. Goode 
waited 998 days without ever getting either a hearing or a vote in the 
Judiciary Committee. A filibuster of one or two, in secret--no hearing, 
no opportunity to read a transcript, no opportunity to go back and read 
writings, speeches, or look into a nominee's background. Just because 
of one or two Senators, a hearing is denied; the filibuster is 
complete.
  H. Alston Johnson, nominated for the Fifth Circuit, a Louisiana slot. 
President Clinton nominated Johnson on April 22, 1999. His nomination 
was returned December 15, 2000. He waited almost 697 days without 
getting a hearing or a vote in the Judiciary Committee.
  This goes on and on and on.
  Now, the nominees before us today had hearings. There was debate. 
There was a markup. There was a debate. There was a vote. We did read 
their background. And based on knowledge, the minority of this body 
made a decision that we do not wish to proceed to affirm them. We have 
over 40 votes to do so. This is not the vote of one person in secret 
preventing a hearing from taking place. Now that is as much a 
filibuster as this is.
  You are looking at me strangely, Mr. President?
  The PRESIDING OFFICER (Mr. Talent). There is no reason for that. I am 
just inquiring of the Parliamentarian about the time remaining.
  Mrs. FEINSTEIN. And I don't want to use the time because I know 
Senator Durbin--how much time do we have remaining?
  The PRESIDING OFFICER. The minority has 18 minutes, of which 5\1/2\ 
minutes, approximately, still remain for the Senator from California.
  Mrs. FEINSTEIN. Thank you.
  So my point is that much of what has been happening in the Judiciary 
Committee has been to make it more confrontational. The blue slips are 
an excellent case in point. Changing when the American Bar Association 
ratings are known is a good point.
  I remember during the Clinton administration when the ratings were 
done earlier and I had to call a nominee and tell them that because 
they had been out of the practice of law for a period of time, they 
were deemed unqualified by the American Bar Association and the 
President was not going to move their nomination. So without 
embarrassment to the individual, that nomination was withdrawn.
  Today, you do not get the American Bar Association's qualified or 
partially qualified or unqualified rating until after the nominee is on 
the Hill.
  Now there are those who do not think the American Bar Association's 
evaluation is worth anything. There are those on the committee who 
believe it is. So there is a difference in point of view. But at least 
have the qualification or nonqualification done early enough so that it 
can save the individual humiliation and also play a major role.
  Let me talk for a minute about rule IV because I think rule IV again 
divided our committee in a way that it did not have to be. Rule IV has 
been a Senate tradition. It is a rule. It is a hard and fast rule. It 
prevents closing off debate on a nominee unless at least one member of 
the minority agrees to do so. Twice this rule has been reinterpreted, 
really violated, and votes have been forced on nominees well before 
debate has ended. The committee's rule in question contains the 
following language:

       The chairman shall entertain a nondebatable motion to bring 
     a matter before the committee to a vote. If there is 
     objection to bringing the matter to a vote without further 
     debate, a rollcall of the committee shall be taken and debate 
     shall be terminated if the motion to bring the matter to a 
     vote without further debate passes with 10 votes in the 
     affirmative, 1 of which must be cast by the minority.

  That enables the minority to delay a matter. It is in the rules of 
the committee to give it more time. This rule is not being followed.
  This is one of the only protections the minority party has in the 
Judiciary Committee. Without it, there might never be debate at all. A 
chairman could convene a markup, demand a vote, and the entire process 
would take 2 minutes. This is not how a deliberative body should 
function. More importantly, it is contrary to our rules. That is one of 
the reasons we are where we are today.
  This rule was first instituted in 1979 when Senator Kennedy was 
chairman of the Judiciary Committee. It has been followed to the letter 
until very recently.
  This is a nation of laws. We expect these laws to be obeyed even if 
they are just Judiciary Committee rules.
  Let me give another situation, and that is ignoring traditional State 
vacancies. There is also a willingness by this administration to simply 
change the playing field if they do not like a result. Fourth Circuit 
nominee Claude Allen is one such instance. He is from Virginia. He has 
been nominated for a position that has traditionally been filled from 
Maryland. Why? Because President Bush became frustrated that Maryland's 
two Democratic Senators would not sign off on the nominees he wanted 
for that position. So he decided to simply go where he could find more 
friendly company--Virginia's two Republican Senators.
  This stark determination to simply fill the bench with conservative 
jurists at all costs is what gives the minority in the Senate pause 
when considering whether to simply approve every Bush judge who comes 
our way or make a stand on some. We have chosen to make a stand on 
some. There are other attempts to ignore the minority. There are little 
things as well, things that add up over time to give the clear 
impression that the majority does not care about the needs or the will 
of the minority. That simply serves to create, increasingly, a bunker 
mentality among Democrats in today's Senate.
  For instance, earlier this session, the Judiciary Committee scheduled 
a hearing with three very controversial circuit court nominees on a 
single panel for an appellate court.
  The PRESIDING OFFICER. The Chair needs to inform the Senator from 
California she has used her 12 minutes.
  Mrs. FEINSTEIN. May I finish my statement?
  Mr. REID. I yield the Senator 2 more minutes.
  Mrs. FEINSTEIN. The point is, these were all controversial nominees. 
A controversial nominee's hearing can run 8 hours. If you schedule 
three, you truncate the hearing for each, and you do not allow the 
minority to do their due diligence in terms of their homework.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I yield the remainder of our time to the 
distinguished Senator from Illinois, Mr. Durbin.
  The PRESIDING OFFICER. The Senator from Illinois is recognized, and 
he has 11 minutes 45 seconds.
  Mr. DURBIN. Thank you, Mr. President, and I thank the minority whip.
  First, for those who are following this debate, if it can be 
characterized as such, you should understand we had an opportunity to 
finish the appropriations bill for the Veterans' Administration, a $62 
billion bill to fund veterans hospitals, clinics, and health care 
across the United States. We tried.

[[Page 28613]]

  Senator Byrd of West Virginia came to the floor and said: Can we 
postpone what we are doing tonight here to finish this important 
appropriations bill so we can go to conference and get ready to adjourn 
this session in a timely fashion? Sadly, the Republican side objected 
to finishing the appropriations bill for the Veterans' Administration. 
It is their belief what we are doing now took precedence, is more 
important. It will be up to the voters and the public to make a 
judgment as to whether they were right.
  I would also say that instead of addressing some issues families 
across America might tune in to follow, such as the unemployment in 
this country, and what we are doing about it, we are here debating a 
situation where 4 judges have been held out of 172 submitted by 
President Bush.
  I would think, frankly, we ought to spend a little time really 
addressing the problem of unemployment in this country. This President 
has witnessed, in his administration, a loss of more than 3 million 
private-sector jobs. That is a record. Unless something changes 
dramatically, this President will be the first President since Herbert 
Hoover to have lost jobs during the course of his administration. Over 
3 million Americans unemployed. Sadly, we have 9 million unemployed 
across the country today and their unemployment benefits are running 
out.


                   Unanimous Consent Request--S. 1853

  In the interest of at least trying to do something constructive and 
legislative this evening, rather than just exchanging our comments back 
and forth, I am about to make a unanimous consent request that the 
Senate proceed to legislative session, and the Finance Committee be 
discharged from further consideration of S. 1853, a bill to extend 
unemployment insurance benefits for displaced workers, that the Senate 
proceed to its immediate consideration, and that this bill be read a 
third time and passed, and the motion to reconsider be laid upon the 
table.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DURBIN. I am not surprised because what we are about tonight is 
not the issues families care about. We are about a political script. 
Senator Reid of Nevada read to us this all-points bulletin that was 
sent out to the Senators saying: Be sure and get over here exactly at 6 
o'clock. It said: The Fox News channel is really excited about this 
marathon. Britt Hume at 6 would love to open with all of our 51 
Senators walking on to the floor. The producer wants to know, will we 
walk in exactly at 6:02 when the show starts so they can get it live to 
open Britt Hume's show, or, if not, can we give them an exact time for 
the walk-in?
  That is what this is about: It is about theater. The theater we are 
witnessing tonight is one where, frankly, the curtain should come down. 
We ought to start talking about things people really care about across 
America. I can tell you, it is not about 4 judges out of 172. We have 
approved for this President 168 of his nominees. I think it is a new 
record. I do not think any President in that brief a period of time has 
had 168 nominees approved. Lest you believe the Democrats dragged their 
feet, we approved 100 of these judges during the 17 months Pat Leahy 
was chairman of the Senate Judiciary Committee. The remaining 68 came 
through under Republican Chairman Hatch. I think there has been a 
concerted and conscientious effort to give the President his nominees. 
Then, of course, there were 4 who were not approved--168 to 4. So 98 
percent of this President's nominees have been approved. By any 
reasonable standard, this President is doing very well. Most people 
would agree, except for the 51 Senators on the other side of the aisle. 
They believe unless the President gets every nominee, this is a 
miscarriage of justice.
  Sadly, though, they are ignoring the obvious. The obvious is the 
Constitution of the United States gives this Senate the authority to 
say yes or no, to advise and consent. Article II, section 2: Advice and 
consent of the Senate. Some of these Republican Senators would like to 
see this phrase go away and make their argument at least a little 
plausible, but it is a fact. We have the authority under the 
Constitution we swear to uphold to make these decisions; and we have 
made them.
  Of course, not only is the Constitution on our side, but the rules of 
the Senate are on our side. It reminds me in law school, they told you 
early in a trial advocacy course--and this a cliche, I know--they used 
to say: If you have the law on your side in your trial, beat on the 
law. If you have the facts on your side, beat on the facts. But if you 
do not have the law or the facts on your side, beat on the table. That 
is what is happening in this 30-hour marathon. Our Republican 
colleagues are beating on the table. The law is not on their side.
  The Constitution says we have the authority to say no. We have said 
no 4 times out of 172 opportunities. It is constitutional to do so. Are 
the facts on our side? Are we being unfair to stop 4 judges, approving 
168 and stopping 4? I do not think so.
  Frankly, if you look at the record of the Republicans in control of 
this same committee with a Democratic President, you will find some 63 
nominees were never given the decency of a hearing. They never had a 
chance to even appear and introduce themselves to the committee. The 
decision was made by the Republican leadership, with a Democratic 
President, not to even let them in the building.
  I have been through this. Three of my nominees that happened to. Do 
you know what it consisted of? If any one Republican Senator objected 
to any nominee, end of story. They effectively had a filibuster by one 
Senator. They stopped these nominees in their tracks.
  I can recall going to Senator John Ashcroft, our Attorney General, 
with one extraordinarily talented nominee, and pleading with him, after 
the man had waited for a year for a hearing, pleading with him to at 
least meet the man. Let him come before the committee. No way. The 
answer was no. End of story. End of nomination.
  That was the treatment accorded to three judges from my State during 
the short period of time when I was here and President Clinton was 
President, as the Republicans ruled the Senate Judiciary Committee.
  I lost 3 nominees. Did I rally my Democratic colleagues: ``Let's all 
get together and hold our breath and turn blue for 30 hours because I 
have lost 3 nominees''? No. Maybe I could have. Maybe I should have. 
But I did not. I understood it. I thought it was fundamentally unfair, 
and I still do.
  What we have done to these four nominees is not unfair. Each and 
every single one of them has had a hearing. Each and every one of them 
has been able to come to the committee and present their credentials. 
That never happened to 63 nominees offered by President Clinton.
  This President has a pretty good batting average when it comes to the 
Senate: 98 percent of his nominees have gotten through. But for the 2 
percent, we are meeting this evening.
  I might add here, if you take a look at the issues at hand, the 
Senator from Nevada raised an interesting one. Almost without fail, the 
majority of the 168 nominees were all members of this Federalist 
Society. It sounds like a secret handshake society. It is something 
else. I am not sure exactly what it is. I will tell you why I am not 
sure.
  I do know this. If you are an aspiring law student who one day wants 
to be a Republican nominee for a judgeship, my recommendation to you is 
to join the Federalist Society today and do not miss a meeting because, 
frankly, that is a requirement if you are going to make it into the 
ranks of judges in the future.
  What is it about this society? I don't know. But if you scratch the 
DNA of all these Republican nominees, you are going to find that 
Federalist Society chromosome. It is in every one of them. Time and 
again, I have said to these nominees: What is the Federalist Society? 
What does it mean to you? Some people say it is a rather extreme 
organization that views the law and the Constitution in a manner that 
most Americans do not. But when I ask these nominees--I can remember a 
Professor Viet Dinh of Georgetown Law

[[Page 28614]]

School where I went to school many years ago. I said: You belong to the 
Federalist Society. Why? He said: Because I get a free lunch in 
Chinatown once a month.
  Well, I think it is more than that. If you go to their Web site and 
ask the Federalist Society what they believe, what they put on their 
Web site is they talk about how we have lost control of the law and the 
liberals are taking over--all the stuff you expect. Then when you ask 
each of these nominees: Well, do you agree with that? ``Oh, no,''--with 
one exception: Mr. Pryor. William Pryor of Alabama says, yes, he does 
agree with it. If you got to know Mr. Pryor, you would understand he is 
rather unabashed in his political beliefs.
  The fact of the matter is, the nominees we are receiving from the 
White House are not mainstream nominees. Sadly, of the 168 we have 
approved, many could be challenged as outside the mainstream, and that 
is not what America is looking for.
  President Clinton knew if he sent up a real liberal, someone who, 
frankly, had the credentials of the left, he did not stand a chance 
before Senator Orrin Hatch's Judiciary Committee. We would strive to 
find people with extraordinary legal credentials, people who really 
have made a difference in terms of their practice of law and what they 
have done; and they, too, suffered before that same committee.
  This President has no qualms. The people he sends to us, whether it 
is Miguel Estrada or whether it is William Pryor or Priscilla Owen, 
each and every one of them have come back--Charles Pickering--with 
credentials that just do not pass the middle-of-the-road test.
  Why are we doing this for 30 hours? Let's lay it on the line. This 
memo from Fox News tells you why we are here. We are here to grind raw 
meat for the Republican rightwing, so television networks like the fair 
and balanced Fox News network can rail on for days and weeks about this 
30-hour tribute to the Republican point of view, so the radio talk show 
hosts, who blather on every single day from the right, will have much 
more to talk about. And instead of dealing with real issues, paying for 
the Veterans' Administration, so we can get that done, and meet our 
obligations, taking care of the unemployed across America, so they can 
feed their families and avoid bankruptcy, we do not have time for that. 
Our time has to be focused and dedicated to this debate.
  I will say to my colleagues in the Senate, I think my friends on the 
Republican side will have to agree with this: Though they do not like 
the outcome of the four judges we have talked about here, we have given 
the nominees, even when Senator Leahy was chairman, ample opportunity 
to explain who they are and what they stand for. I think what we have 
asked for is reasonable.
  What we ask of every judicial nominee, from a Democrat or Republican 
President, is really basic. They have to be people who are honest, of 
high integrity. They have to understand the law. They should be people 
who do not come to this job with an ax to grind. That is not too much 
to ask. Four have failed that test; 168 have been approved.
  The PRESIDING OFFICER. The time of the minority has expired.
  The Senator from Alabama.
  Mr. SESSIONS. Mr. President, how much time is left in the first 
section for the majority?
  The PRESIDING OFFICER. Five minutes 45 seconds.
  Mr. SESSIONS. Mr. President, in response to a number of things that 
have been said, first of all, I want to correct Senator Durbin. I think 
he misspoke when he said the Senate has said no to these nominees. What 
the Senate has said no to is an up-or-down vote. They have denied these 
nominees a vote. In each case, these nominees have proven they have a 
majority of the Senators in this body ready and willing to confirm 
them, if they are given the up-and-down vote. The systematic use of the 
filibuster that is occurring now has never before occurred in the 
history of this Senate.
  As to the Constitution, I will just point out article II, section 2, 
quoted by the Senator--this is what it says--the President ``shall have 
Power, by and with the Advice and Consent of the Senate, to make 
Treaties, provided two-thirds of the Senators present concur; and he 
shall nominate, and by and with the Advice and Consent of the Senate, 
shall appoint Ambassadors [and] judges. . . .''
  Historically, this body has felt that constitutional language meant 
treaties required a supermajority, two-thirds vote, and judges would be 
confirmed by a majority vote, and that is what we have done.
  I would just like to ask--I was going to ask Senator Reid early, the 
distinguished assistant Democratic leader--name one position taken by 
the Federalist Society that is extreme. He will not be able to give you 
one of those, and neither would Senator Durbin. This is a society of 
people who meet and discuss ideas. For example, they have had, in 
recent weeks, Senator Schumer's chief counsel speaking to the 
Federalist Society, as has Cass Sunstein, Marcia Greenberger, Laurence 
Tribe--three of the architects of the Democratic strategy for changing 
the ground rules of nominating judges.
  This is really odd for me. I know Senator Durbin said he has some 
legislation he would like to offer. Maybe he should have offered it 
Monday when the assistant majority leader was talking 10 hours down 
here about rabbits and cactus in Nevada and his book. That was all very 
interesting, but why weren't we doing any work then? I did not hear any 
complaints then when we were not passing legislation. That would have 
been an outstanding opportunity, I submit, to move forward.
  Let me just say one thing about where we are on nominations. 
President Clinton had 377 judges confirmed. One judge was voted down on 
an up-or-down vote on this floor, a majority voted no--only one. When 
he left office, there were 41 judges pending and unconfirmed--only 41. 
President Clinton personally withdrew the nominations of 18. That is 
how they get 60.
  When former President Bush left office, under Democrat control of the 
Senate, as Republicans were under Clinton, he had 54 nominees left 
unconfirmed. The record of the Republican Senate under President 
Clinton was superior under any standard of confirmations to that of the 
Democrats.
  I believe we need to remember those numbers. We need to remember the 
Republicans rejected consistently the use of the filibuster. It was 
discussed by people. They said: Why don't we filibuster? Senator Hatch 
and others would say: We do not filibuster judges. This is why you do 
not filibuster judges. We never filibustered judges. In fact, one 
nominee I felt strongly about, whom I voted against, I voted for 
cloture to bring that nominee up for a vote to overcome a hold that was 
on the nominee.
  My colleagues complain about the Federalist Society. They say they 
are extreme. They take no extreme positions whatsoever. They are a 
society that believes in the rule of law and they discuss those issues 
in free and open debate. But they have moved forward here such as 
Marsha Berzon and Ruth Bader Ginsburg on the Supreme Court.
  ACLU members, American Civil Liberties Union members--do you want to 
know what their stated positions are on a lot of issues? They oppose 
steadfastly the death penalty. They openly support partial-birth 
abortion. They are consistently hostile to law enforcement. They oppose 
pornography laws, all pornography laws, in fact, even child pornography 
laws. They favor legalization of drugs.
  We have confirmed a lot of ACLU members, as the Senator knows. They 
have stated positions that are contrary to the mainstream of American 
thought--no doubt whatsoever.
  Somebody such as Attorney General Bill Pryor, who has a record of 
following the law to the letter, whether he agrees with it or not, is 
castigated because he makes a talk to the Federalist Society. It is 
suggested that is an extreme thing for him to do and it is not correct.
  Mr. President, I yield back the time.

[[Page 28615]]

  The PRESIDING OFFICER. The Senator from Alabama has 15 seconds.
  Mr. SESSIONS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, parliamentary inquiry: Are we now 
starting 30 minutes of time on this side of the aisle?
  The PRESIDING OFFICER. That is correct.
  Mr. SPECTER. I thank the Chair.
  Tonight the Senate is engaging in a proceeding to call the attention 
of the American people to a very serious matter which exists on the 
confirmation of Federal judges. It is not a matter which occurs just 
when there has been a Republican President, but it has occurred also 
when there has been a President of the Democratic party, when the 
Republicans controlled the Senate. It has gone back at least to 1987, 
during the second 2 years of President Reagan's administration.
  When the Senator from Illinois calls this theater, he may be right, 
but it is factual theater, and it is worth the time of the Senate for 
the American people to focus on this important issue.
  It is now a little after 8 o'clock Eastern standard time. Frequently, 
the Senate Chamber is dark at this time. It is true we could be 
conducting other business, but there are many days when the Senate has 
tarried. For example, on Monday, the day before yesterday, when there 
had been a longstanding expectation that the Senate would not be in 
session because Veterans Day is traditionally not a day in session, but 
we came back specially to try to finish our work by the projected date 
of November 21, unexpectedly we were greeted with a 10-hour filibuster 
by Senator Reid on the other side of the aisle. He has a right to do 
that--he is a Senator--under our rules.
  It doesn't lie in the mouth of somebody to say we are spending time 
where we could have been working very hard on the appropriations 
process. I do hope we finish that process. I have been an appropriator 
for my 23 years in the Senate, and we should move to complete that work 
as promptly as possible.
  But the subject matter tonight is the confirmation process, and it is 
a very serious subject. When President Reagan was in office, during the 
first 6 years where the Republican Party controlled the Senate, 
President Reagan secured confirmation of 82 percent of his district and 
circuit court nominees. In 1987 and 1988, when the Democrats were in 
control, that percentage dropped from 82 percent to slightly above 63 
percent. When President George H.W. Bush was in office, all 4 years had 
the Senate in the control of the Democrats. The Senate confirmed 
slightly more than 62 percent of President Bush's nominees, and 54 
percent of his nominees to both circuit and district courts were still 
pending in the Senate when his term ended.
  President Clinton had about the same experience. In 1993 and 1994, 
there was an average of 79 percent of his district and circuit court 
nominees confirmed when his party controlled the Senate. For President 
Clinton's remaining 6 years, the percentage dropped to 54\1/2\ percent. 
So that the business of having the President of one party stymied or 
reduced in effectiveness on confirmation when the Senate is controlled 
by the other party has been really an apportionment of blame pretty 
much equally between Democrats and Republicans during the course of the 
Reagan, first Bush, and Clinton administrations.
  The matter has come to a substantial decline, when, for the first 
time in the history of the Republic, some 216 years, there has been a 
filibuster of circuit court nominees.
  I think it is important to note that we are not seeking tonight to 
break a filibuster. That would occur when we would seek to have those 
who were objecting to the judges continue to talk and talk until they 
ran out of energy or effort and stopped talking so that we could come 
to a vote. That was what happened in the filibusters on civil rights 
legislation in the 1960s.
  The last time there was a filibuster in the Senate was 1987 when the 
subject was campaign finance reform. Senator Byrd was the leader of the 
Democrats. Senator Dole, the leader of the Republicans, called all of 
us into the cloakroom behind us in the Senate Chamber at about 2 
o'clock one morning and said: I would like all Republican Senators to 
stay off the floor. The reason Senator Dole asked everyone to stay off 
the floor was to compel the party in power, the Democrats, to maintain 
a quorum of 51 Senators because if there are not 51 Senators present, 
then any Senator may suggest the absence of a quorum, and the Senate 
conducts no further business.
  When Republican Senators, including Arlen Specter, absented ourselves 
from the floor at Senator Dole's request, Senator Byrd, the leader of 
the Democrats, countered with a motion to arrest absent Senators. 
Sergeant at Arms Henry Giugni was then armed with warrants of arrest 
and started to patrol the halls, and the first Senator he found was 
Senator Lowell Weicker.
  Sergeant at Arms Henry Giugni was a little fellow, about 5 foot 6 
inches, 150 pounds. Senator Weicker was a big guy--still is--about 6 
foot 4 inches, 240 pounds. This was at about 3:30 in the morning. 
Sergeant at Arms Giugni decided not to arrest Senator Weicker. I think 
he made a good judgment. Then he started to go around and knock on 
Senators' doors.
  Senator Packwood foolishly answered his door. Senator Packwood was 
then carried feet first into the Senate Chamber. This is a true story. 
You don't get many out of Washington, but this is a true story. That 
incident attracted a great deal of attention. C-SPAN became the channel 
of choice instead of Jay Leno.
  In having this proceeding, it is more accurately called a marathon 
than a filibuster because it is not a filibuster. Republicans are doing 
most of the talking. We seek to attract the attention of the American 
people to what is going on in the judicial system.
  We have at the present time judicial emergencies in four of the 
circuit courts of appeals in the United States: the Fourth Circuit, the 
Fifth Circuit, the Sixth Circuit, and the Ninth Circuit. When these 
judicial emergencies occur, people are denied their day in court, cases 
languish, the matters are not decided, and the fact of life is that 
justice delayed is justice denied.
  Without burdening the record unduly, it is worth noting that in the 
Sixth Circuit where there is a judicial emergency, a 50-percent vacancy 
rate on that court, a death penalty case has been pending for more than 
8 years. A plaintiff in a civil case on a job discrimination suit 
trying to get a job had to wait some 15 months before the case came up. 
That individual died before the case was ever heard.
  The ultimate answer, I suggest, is that cooler heads are going to 
have to prevail, and we are going to have to establish a principle 
where it applies regardless of what party controls the White House or 
what party controls the Senate.
  Three years ago, I proposed a judicial protocol to establish a 
timetable that 60 days after the President submitted a nomination to 
the Judiciary Committee, there had to be a hearing; 30 days thereafter, 
there had to be action by the Judiciary Committee on the nomination; 30 
days later, the matter had to be brought to the floor of the Senate. 
Those times could be extended on cause shown by the chairman of the 
committee with notice to the ranking member or by the majority leader 
with notice to the minority leader. But those time parameters should be 
established.
  If there were to be a strictly party-line vote in the Judiciary 
Committee, then that matter ought to be advanced to the Senate floor 
even without having the customary majority vote to bring it to the 
floor.
  One of the grave problems which may confront the Senate is what is 
going to happen next when there is a Supreme Court vacancy. The 
filibusters conducted up until the present time constitute an effort to 
elevate the confirmation process which under the Senate rules calls for 
51 votes, or a majority, to 60 votes which it takes to end a 
filibuster.
  For those who may not know what a filibuster is, that is when one 
party

[[Page 28616]]

keeps talking and talking and talking endlessly. But that may be 
brought to a close under the rules of the Senate with 60 Senators 
voting to cut off debate. That then leaves 100 more hours to debate, 
plenty of time even after cloture, even after debate is ended or 
limited, before the matter comes to a vote.
  It does not require a Nostradamus to predict or to understand that 
the current approach on imposing an ideological test is a precursor for 
the Supreme Court of the United States. When the Senate is constituted 
as it is at the present time, it is easy to project that we will find a 
Supreme Court nominee, who does not satisfy the standards of the other 
party, subjected to a filibuster and to have a vacancy on the Court. 
What we are moving toward is deadlock.
  Right now, there still remains an aura of some civility in this 
Chamber, notwithstanding our disagreements on the tactics that one side 
or the other may use in the Senate. We know that the next vote is the 
most important vote. Notwithstanding the rancor of the arguments, we do 
understand that we are here to conduct the business of the people of 
the United States. The judicial system is limping along--still in 
motion but limping along.
  We face a grave potential problem. If the current course of conduct 
continues so that when we have a nominee for the Supreme Court of the 
United States, we have this deadlock, and then with so many 5-to-4 
decisions by the Supreme Court deciding the cutting-edge questions in 
our society, we may look to 4-to-4 decisions, and that means no ruling 
by the Supreme Court of the United States.
  One additional thought. Senator Santorum and I use in Pennsylvania a 
judicial nominating panel under an arrangement where the President has 
three nominees and the Democrats have one nominee. During the 24-year 
period from the time President Nixon was elected until the time 
President Reagan was elected, Republicans controlled the White House 
for 20 of those 24 years. It seemed to me it was an undue balance of 
judicial nominees without having the Democrats with any nominees in the 
district courts, so an arrangement was made when Senator Heinz and I 
were the Senators, carried on by Senator Santorum and myself, to allow 
the party out of power, the Democrats, to have one nominee out of three 
for the President--one for the party out of power. That has had a very 
salutary effect in bringing a little bipartisanship into the process.
  I do not suggest that for the Supreme Court. I do not press it for 
the court of appeals. But I think it is an idea worth considering for 
the U.S. district courts.
  In conclusion--the two most popular words of any speech--it is my 
hope that something constructive will come out of this marathon. It is 
my hope that there will be some attention attracted to it. When the 
Senator from Illinois characterizes this as theater, I don't think that 
is especially derogatory because it is fact theater. The American 
people would be well advised to watch this theater than some of that 
which is on the national networks tonight. This is real. Those sitcoms 
go on and on and are repetitious. More important than the factual 
theater is that we are on a vital issue.
  I hope the Senators hear from the American people. I hope the 
American people tell us what they would like to have done: Whether you 
would like to have this kind of projected stalemate where nominees wait 
endlessly and where it takes 60 votes, a supermajority, to cut off 
debate and bring it to a vote, or whether you would like us to follow 
the constitutional mandate of 51 votes in confirmation so that these 
judges may be confirmed, may take their places to see that justice is 
done in an equitable way within a reasonable time period.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I want to focus on a chart that was 
displayed earlier by the Senator from New York where he proudly 
displayed the numbers 168 to 4. I think it is important we ask the 
question: what is that chart designed to prove?
  On one hand, our colleagues on the other side of the aisle in the 
Judiciary Committee and here in the Chamber rail against the 
President's judicial nominees, calling them out of the mainstream and, 
even worse, mean-spirited, right wing. But if, in fact, our colleagues 
on the other side of the aisle have voted to confirm 168 of President 
Bush's nominees, it refutes that allegation because they have to agree 
that at least 168 of those nominees met their definition of mainstream.
  I would like to associate myself with the outstanding comments of the 
Senator from Kentucky, the assistant majority leader, Mr. McConnell. I 
wonder what their definition of mainstream truly is.
  The second number of 4 is a number they want to be congratulated for 
blocking. I submit that just because you observe a stop sign 168 times 
and comply with the law, you are not to be rewarded for running that 
stop sign four times. It is still a violation of law, and you are still 
likely to get a ticket from the police officer.
  This is more than just about breaking the law. This is about 
violating our Constitution, the fundamental law of this Nation.
  We know really, rather than 168 to 4, the true number we ought to be 
focusing on is 0 to 4, and let me explain.
  From 1789 to 2002--that is, for all of our Nation's history up until 
this year--the number of filibusters against judicial nominees of a 
President was--you guessed it--zero. But this year alone, because of 
this tactic that our colleagues have devised, to deny a bipartisan 
majority of this body its right under the Constitution to vote up or 
down on a judicial nominee, this number is 4.
  So rather than 168 to 4--and as I explained, I think that repudiates 
and flies in the face of some of their arguments about President Bush's 
judicial nominees, and I deny that they are to be congratulated for 
unconstitutionally obstructing only 4. The real number we ought to be 
focusing on, and I hope the American people are focusing on, is zero to 
four because never, ever, in the history of this Republic has a 
minority in the Senate denied the right of the majority the vote up or 
down on judicial nominees. It is just not right. It is not fair. It has 
resulted in a degradation and a downward spiral in the judicial 
confirmation process of which no one should be proud.
  I submit that four unconstitutional filibusters of these 
distinguished nominees is four filibusters too many. If we want to look 
at maybe a little bit of a history lesson, as this chart demonstrates, 
when Franklin Delano Roosevelt was President of the United States, 
4,473 laws were enacted, 4 civil rights laws were filibustered--hardly 
something to be proud of. But I guess if our colleagues across the 
aisle are proud of their four, the argument would be that the people 
who filibustered these civil rights laws during FDR's term ought to be 
proud of that number.
  When President Truman was in office, 3,414 laws were passed, 3 civil 
rights laws were filibustered. Is that something to be proud of? What 
our colleagues across the aisle say, because 3,414 laws were passed and 
only 3 were filibustered, that these folks who filibustered those three 
civil rights laws ought to be congratulated. I think not.
  Then when President Lyndon Baines Johnson was in office, 1,931 laws 
were enacted, 3 civil rights laws were filibustered. To this hall of 
shame, I would add the 168 to 4, which is nothing to be proud of; it is 
something to be ashamed of.
  Unfortunately, some people have lost their sense of shame in this 
process, which has become so degraded and so destructive. Indeed, I 
submit that the filibusters we have of the President's nominees are an 
abuse of the process. How can they justly claim that a 60-vote 
requirement to close off debate can somehow trump the Constitution?
  As we have heard before on this floor, everyone knows, who has 
studied the Constitution, that there are supermajority requirements for 
certain things, and they are stated in the Constitution: To ratify a 
treaty or to pass a constitutional amendment, the Constitution is very 
clear that it requires

[[Page 28617]]

a supermajority. Everything else requires majority rule.
  Indeed, majority rule is fundamental to the democratic form of 
government. Majority rules: We fight our best fight; we make our best 
argument. Then we have a vote up or down. If we lose, well, we come 
back to fight another day. We try to persuade others that we were right 
and the majority was wrong. That is what our form of government is all 
about; not denying a majority their right, as stated in the 
Constitution, to let majority rule.
  Believe it or not, that is what is happening and that is the reason 
we are standing here tonight trying to let the American people know 
that a terrible abuse of this process is occurring and an abuse of the 
Constitution, indeed a violation of the Constitution, is occurring. It 
is a disgrace. It is nothing to be proud of.
  The other thing I would point out in the few minutes I have 
remaining, before I turn the floor over to the senior Senator from 
Texas, is this process is not only abusing the Constitution and 
creating a downward spiral in the judicial confirmation process that is 
very destructive of relationships in this institution, of our ability 
to get things done, it has made it too partisan, too bitter, too angry, 
and it is destructive.
  I would also point out that the tactics that are being used against 
some of these nominees are despicable. Unless we stand up and repudiate 
the tactics of some of those who are opposing the fine nominees of 
President Bush, such as Janice Rogers Brown, I believe those who have 
joined cause with them in opposing this fine nominee ought to examine 
their conscience. I think they ought to reconsider their tactics. I 
think they ought to reconsider whom they associate with, whom they are 
joining cause with to tear down some of the fine nominees of this 
President, such as Janice Rogers Brown.
  This is a cartoon that was posted on The Black Commentator on 
September 4, 2003, with President Bush, a racist caricature of Janice 
Rogers Brown with Justice Clarence Thomas, Colin Powell, Secretary of 
State, and Condoleezza Rice standing there. The caption says: ``Welcome 
to the Federal bench, Ms. Clarence--I mean, Ms. Rogers Brown. You'll 
fit right in.''
  It is easy to see why this process has gone downhill and needs a 
wake-up call from all of us, because we need a fresh start. We need to 
disavow tactics such as this. Those who are opposing Justice Brown and 
other nominees should not be proud of that association any more than 
they claim to be proud of an unconstitutional filibuster of four of 
these nominees, including Justice Brown, because if, in fact, we do not 
get a fresh start, we do not have a clean break with this destructive 
process, if we do not quit tearing down people who want nothing more 
than to offer themselves to the American people by serving in positions 
of honor, such as Federal judges, who will answer the call? If they 
know that answering the call of public service means that they are 
going to have their reputation destroyed, they are going to be 
besmirched, they are going to be painted into a caricature that bears 
no resemblance to who they really are, who will answer the call? We 
will all be poorer for it.
  I yield the floor.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Texas is recognized. The Chair informs the Senator 
from Texas that there are 2 minutes 20 seconds remaining on the 
Republican side.
  Mrs. HUTCHISON. Mr. President, just to get an understanding, after 
that 2 minutes 20 seconds, then it goes to the Democratic side for 30 
minutes and then back to the Republican side? Is that the way it is?
  The PRESIDING OFFICER. The Senator is correct.
  Mrs. HUTCHISON. Mr. President, in the 2 minutes that I have, I say I 
think the junior Senator from Texas made a very important point and 
that is the importance of the delicate balance of powers that was put 
in our Constitution. I think it is important that we do not say, well, 
98 percent of the time we adhere to the Constitution. We need to adhere 
to the Constitution 100 percent of the time.
  The Constitution has always said, from its beginning, that we would 
have a majority required to confirm the judicial nominees of the 
President. Now, this is by implication, because when the Constitution 
meant to have a supermajority, it so stated. We have always had a 
majority, and that is what, by its silence, the advise and consent part 
of the Constitution has required for judicial nominees, until last 
year.
  In fact, I think the President is losing his constitutional right to 
appoint Federal judges. I think this whole situation is going to deter 
good people from offering themselves for the bench, and the judiciary 
must have good people if we are going to keep that very strong 
separation of powers with three separate but equal branches of 
Government.
  In his first 2 years of office, President Bush was able to get 53 
percent of his circuit court judges confirmed. The previous three 
Presidents each had 91 percent in the first 2 years of their office in 
the very important circuit court judge appointments.
  Now, the circuit court, of course, is the next step below the Supreme 
Court. So a 53 percent record in the first 2 years is something that I 
think should not be accepted. It is very important that we try to get 
votes on these judges.
  The PRESIDING OFFICER. The time of the Senator has expired.
  The Senator from Nevada.
  Mr. REID. Mr. President, I yield 15 minutes to the Senator from 
Indiana and 15 minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Indiana.


                   Unanimous Consent Request--S. 1853

  Mr. BAYH. Mr. President, I ask unanimous consent that the Senate 
proceed to legislative session and the Finance Committee be discharged 
from further consideration of S. 1853, a bill to extend unemployment 
insurance benefits for displaced workers; that the Senate proceed to 
its immediate consideration; the bill be read a third time and passed, 
and the motion to reconsider be laid upon the table.
  Mrs. HUTCHISON. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator is recognized.
  Mr. BAYH. Mr. President, this is an unfortunate debate, and I regret 
that all of us are here this evening. This debate will do nothing to 
speed the confirmation of judges about which this session has been 
called to consider. It will do nothing for the economy, for health 
care, for education, to protect the environment, or to advance the 
interests of our Nation's security.
  It will, however, at least in small part, bring this august body, 
about which we care so much, to additional disrepute with the American 
people, making us look ineffectual and irrelevant.
  In some respects, the Senate is being reduced to something close to a 
farce. It is becoming rapidly not the world's greatest deliberative 
body but instead the world's greatest Kabuki theater, a place where 
speeches are given to which very few people listen, no minds are 
changed, and votes are then held with complete predictability of 
results.
  The search for principled compromise, which has always been a long 
and honorable part, distinguishing this body from other legislative 
bodies, has been abandoned in favor of sterile, ideological warfare, 
satisfying to only the most fervent of partisans. After this debate, I 
suspect that the far right will be satisfied, I suspect that the far 
left will be satisfied, and that the rest of the American people will 
be left scratching their heads, wondering, what on Earth are they 
doing?
  I am reminded of nothing quite so much as some lines from Shakespeare 
when he characterized another instance as: Great sound and fury that 
signifyeth nothing.
  That is tonight's debate: Sterile, empty, barren of results.
  This debate, unfortunately, is a microcosm of everything the American 
people have come to not like about both the Congress and Washington, 
DC, something that is all too often all process and partisanship, with 
no progress

[[Page 28618]]

on matters of substance and importance to the American people.
  Too often the American people view Washington as totally self-
absorbed, indifferent to their real concerns, and ineffectual in 
accomplishing much of value on the things that do matter in their daily 
lives: Health care, jobs, education for our children and grandchildren.
  We must stop this cycle of constant recrimination, a process in which 
the minority obstructs to gain power and then turns around and 
complains about obstruction once power has been obtained. It makes us 
all look bad.
  If hypocrisy had a monetary value, we could easily erase the Federal 
deficit because of debates such as the one we are engaged in tonight.
  What is this all about? What are the facts that the American people 
deserve to know? Is it true that judges are being obstructed solely 
because of their partisan affiliation? That obviously cannot be the 
case. One hundred and sixty-eight of President Bush's judicial nominees 
have been confirmed. I assume that all of them, if not almost all of 
them, are good card-carrying Republicans or he would not have nominated 
them. Obviously, there cannot be some stonewall to object to 
Republicans being appointed to the Federal judiciary. This simply is 
not the case.
  Are judges being rejected up to a point based solely upon ideological 
concerns? This also cannot possibly be the case. Of these 168 judges 
who have been confirmed, I assume that all, if not almost all, are in 
fact fairly conservative jurists, or hold out the prospect of being 
fairly conservative jurists. Otherwise, they would not have been 
nominated by this President.
  So up to a point, it is obvious that conservatives are not being 
denied their place upon the Federal judiciary. This is all about power, 
the balance of power between the executive and legislative branches and 
whether the advise and consent function should be abolished whenever 
the Senate is controlled by the party of the President. It is all about 
the balance of power between the minority and the majority caucuses in 
this Senate and whether the right to debate should be limited in the 
case of judicial nominees, unlike any other business taken up by this 
body.
  It is also about tipping the balance of power within the Federal 
judiciary and setting the stage for a Supreme Court vacancy to be 
filled by someone of even the most extreme ideological conviction and 
views.
  Is that possibly what the Constitution had in mind when it 
established the right of advise and consent in this Senate? Is that 
something for which we should abrogate the right to unlimited debate in 
this Senate, selecting judicial nominees in exclusion to all other 
topics in this regard? Of course it is not.
  We are ignoring the issues this evening that are of most importance 
to the balance of the American people. When I go home, I hear great 
talk about the economy and job losses. In the last 3 years, we in the 
State of Indiana have lost approximately one out of every six of our 
manufacturing jobs. One hundred fifty-nine thousand jobs, nonfarm jobs, 
have been lost during this period of time. That is what I hear people 
talking about. Small business men wonder how they are going to compete 
in the global economy today. Large business men and women wonder how 
they are going to make ends meet, particularly with the skyrocketing 
cost of health care. Many people ask how we are going to compete with 
China, India, and other countries that all too often seek to abuse the 
rules of international trade to seek unfair economic advantage. Those 
are the subjects we should be debating tonight.
  Those are the topics that are on the minds of Hoosiers to whom I 
talk. Very rarely am I asked about vacancies in the Federal judiciary.
  When I was returning from Indiana just last evening, one of the 
security guards, a gentleman who looked somewhat advanced in his years, 
called out to me as I was going through security, saying: Senator, what 
about the Medicare drug benefit? Is something going to get passed?
  I said: I hope so.
  He said: Well, it probably will not be structured the way it ought to 
be anyway.
  I said: Well, I hope not. We are going to go back and see if we 
cannot hammer out a reasonable compromise.
  I see some of my colleagues, including Senator Grassley, who are 
laboring mightily toward that very end, and I salute him for that. That 
is what we should be debating tonight, how to reconcile our differences 
on providing drug coverage to senior citizens who are asking about it; 
how to make health care available to the American people in a way that 
is accessible and affordable. That is what is on the minds of Hoosiers 
to whom I talk. That is what we should be debating this evening in this 
body.
  What about our education standards and what about providing our 
children and grandchildren with access to quality affordable education? 
When I think about the economy of the future, more than anything else 
it is going to require advanced levels of education, skill, and know-
how. We are going to prepare my young sons and the rest of our children 
and grandchildren to have a better standard of living in a prosperous 
economy. It is going to be based not upon how strong they are but upon 
how knowledgeable they are, how well trained they are, how skilled they 
are. That is going to enable us to build a better economy. We are not 
debating that tonight.
  At no point, in my recollection, have we set aside 30 hours to debate 
quality health care. At no point, in my recollection, have we set aside 
30 hours to debate the economy or what we are going to do to create 
quality jobs. At no point, in my experience in the Senate, have we set 
aside 30 hours to talk about what we can do to debate quality education 
in the way we are setting aside these 30 uninterrupted hours in the wee 
hours of the morning. This is a clear example of misplaced priorities.
  I hope this Senate will extricate itself from the morass into which 
we have sunk and begin to rehabilitate ourselves in the eyes of our 
countrymen and women. I hope we can once again begin to address the 
great issues that are of concern to the American people, that press all 
around us--what our country can do to be more prosperous, more just and 
more free. Above all, I hope that we as Senators can remember why we 
are here, and that is not to wage war upon one another but instead to 
once again renew the struggle against the ancient enemies of man: 
Ignorance, poverty, disease. That is why we are here, not sterile 
ideological debates.
  I hope we can learn from this experience so that we will not have to 
repeat it. I hope we can focus on making progress, not dividing this 
body over the country. This aisle that separates the chairs, 
Republicans on one side and Democrats upon the other, gives us the 
opportunity to build bridges of reconciliation and understanding, 
forging principled compromise which has always been the hallmark of 
this institution. We have strayed from this heritage for too long. It 
is a tradition to which we must return if we are to once again 
recapture the confidence of the American people.
  The final thing I will say is that we had an election in Indiana for 
our mayors this last Tuesday, a week ago yesterday. Something on the 
order of 20 percent of the people of my State turned out to vote for 
our mayors. When I had the privilege of being elected to this body in 
1998, about 36 percent of the eligible voters in my State took the time 
to go to the polls. That is barely one out of three. In the closest 
Presidential election in the history of our country 2 years ago, 
decided finally by the Supreme Court, barely half of the American 
people felt connected enough to their institutions of self-governance 
to take even the most elementary step of citizenship--going to the 
polls to register their preference.
  What has happened to our democracy? What has happened when 20 percent 
or 36 percent or a bare majority feel invested enough in the cause of 
shaping their own destiny to take the time to participate in our 
elections? If we are going to renew our democracy, if we are going to 
lead this country to meet the great challenges of our time,

[[Page 28619]]

if there is one thing I am absolutely certain, it is that it will take 
all of us, each and every one of us from every ethnic group, racial 
group, gender, and walk of life.
  Too many people have become disillusioned. Too many cynical, too many 
skeptical whether this body and their government can make a difference 
anymore. Events such as this debate tonight do not help.
  We need to get back to the business at hand, putting before the 
American people an agenda of hope and opportunity so we can once again 
reenlist them in the cause of making this the greatest democracy known 
to man. That, at the end of the day, is what has brought us here. I 
suggest that is the business to which we must once again return.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized. There 
are 16 minutes 54 seconds remaining.
  Mr. DURBIN. I begin by commending my colleague from Indiana. That was 
an extraordinary speech. I hope that for a moment Senators on both 
sides of the aisle will stop and reflect on what he just said. I think 
it was a challenge to everyone, as strongly as we feel about what we 
are debating tonight, the appointment of Federal judges; the Senator 
from Indiana is right. The people across America wonder why we are 
wasting the time of the Senate on issues that have no importance or 
relevance to their lives, and because they cannot understand us, they 
are estranged from us. They do not feel invested in this process, they 
do not feel a responsibility to vote; they, frankly, think we spend too 
much time in partisan posturing. The 30 hours of this debate are a 
classic example of that kind of partisan posture. That is unfortunate.
  What the Senator hears in Indiana and I hear in Illinois and I 
daresay every Senator hears in their State--I have been going back to 
Illinois for 4 straight years in the month of August trying to tour the 
State, meeting with business and labor leaders and community leaders, 
to ask what is going on. For 4 straight years they told me the same 
thing: Senator, can you do anything about the cost of health insurance? 
It is killing us. It is killing my small business. It is killing my 
large business. My family is worried about coverage. What are you going 
to do in Washington about the cost of health insurance? I have to 
basically shrug my shoulder and say: I am sorry, that is not on our 
agenda. We have other things we debate in Washington, not the things 
you and your family worry about, that keep you up at night. This is a 
good example.
  Would it not have been inspiring if we came together as Democrats and 
Republicans on the floor to talk for 30 hours about the future of 
health care in America, to speak to it in honest, nonpartisan fashion, 
to try to address some of the most controversial parts of it in a 
responsible, gentlemanly way?
  That is what we are expected to do. That is not what this is about. 
This is about alerting FOX News to grind out their cameras at the 
entrance of the Senate to watch a parade of Senators come in--Senators 
who have now disappeared. This is about charts being made, night and 
day by Democrats and Republicans, to argue their case.
  My people living back home in Springfield, IL, and Chicago, IL, I am 
sure, turned off C-SPAN a long, long time ago, if this is the best we 
can offer them. Sadly, that is all we are offering them.
  We left the Veterans Administration appropriations bill--we could 
have finished it--for veterans hospitals and the millions of veterans 
across America because we did not have time; we had to start this 
never-ending 30-hour debate. We cannot entertain a motion made by the 
Senator from Indiana, a motion I made, as well, to try to do something 
about the 9 million unemployed Americans whose benefits are running 
out. We do not have time for that. We have time for this political 
debate.
  That is unfortunate. It is distressing. I have given 21 years of my 
adult life to public service. I have never regretted a moment of it. I 
walked away from a law practice and never looked back. This is the most 
exciting and interesting thing I can think of to do with your life, to 
be involved in public service. I encourage everyone, regardless of your 
political stripe, to get involved. You will love the opportunity it 
gives you to help people. But, frankly, we are not seizing that 
opportunity or we would not be here tonight. We would not be here 
discussing a question about whether 168 or 172 judges is the right 
number.
  Is this the best we can do? I think not. I think we can rise to a 
greater challenge but we have to put aside the partisanship.
  I readily concede I have struck a few partisan blows and a few have 
been thrown my way. That is part of life in the Senate, I am sure, and 
life in the big leagues. But at the end of the day when it is all over, 
at the end of the year or end of the session, each of us would like to 
point back to something we did to improve the lives of the people we 
represent. What have we done to make the schools better? What have we 
done to deal with the economic uncertainty of middle-income families? 
What have we done to deal with the trade laws that are killing us in 
the Midwest and across the Nation?
  I have been a proponent of free trade. It is almost impossible to 
defend at this moment in time. We are not enforcing our trade 
agreements. We have lost five or six manufacturers in Indiana and the 
same is true in Illinois. We lost 3 million jobs across America. 
Frankly, many of those jobs will never come back. When we read 
headlines that say there are 120,000 new jobs in America, that is good 
news. But ask the hard question, are the jobs we created paying as much 
as the jobs we lost? If they were manufacturing jobs, the answer is 
pretty obvious. The answer is no, they are not. We are losing more and 
more good jobs. Instead of focusing on that as we should, on the things 
that people care about, we are spending our time in 30 hours of debate 
over four judges.
  The senior Senator from Texas said earlier that the President has a 
constitutional right to appoint judges. I don't want to correct the 
Senator from Texas, but she is wrong. The President does not have a 
constitutional right to appoint judges. The President has a 
constitutional right to nominate judges. The judges are appointed 
through the advice and consent of the Senate. Therein lies the 
difference in our points of view. From the Republican side of the 
aisle, the President has a constitutional right to name the judges he 
wants. End of story. But the Constitution says otherwise. And it always 
has.
  Even the most powerful and beloved President has to be held 
accountable to the people of America through the Senate, through the 
House, and that is why we are here tonight. At one moment in history 
when President Roosevelt had been reelected with the largest majority 
in the history of the United States, Franklin Roosevelt, he decided he 
had had his fill with the U.S. Supreme Court across the street and they 
were not treating him well and he came up with a scheme to pack the 
court, to add more Supreme Court Justices because they just were not 
ruling on his laws the way he wanted them to. He proposed that to an 
overwhelmingly Democratic Congress in the House and the Senate and ran 
into a firestorm of opposition from his own party.
  President Franklin Roosevelt, as popular as he was, with the mandate 
he brought to office--and I will not reflect on this President's 
mandate in this discussion, but President FDR's mandate was 
substantial. He felt that he had a moment in history when he could 
change the Supreme Court. And this Senate, the Democrats in the Senate, 
said: No, we have to draw the line; this executive branch cannot 
control the judicial branch and we will stand in the path of a popular 
and beloved President. And they did. They stopped him.
  That, to me, was an important moment in history--when Senators of the 
same political party said to a President, this Constitution created 
three branches of Government for good reason.
  So tonight we are in a position where many are arguing that this 
Senate

[[Page 28620]]

should step back and not assert its constitutional right to speak to 
the qualifications of judges. It will be a sad day if we allow that to 
occur.
  Let me try to synthesize this into what it is about. It is not about 
the four judges or two more who might be added on Friday. It is about 
the next appointment to the Supreme Court across the street. That is 
the real story. There are a lot of good reasons we are here tonight but 
the real reason is the next Supreme Court vacancy and the belief on the 
Republican side of the aisle that if we can hold fast with our approach 
in stopping people unqualified, unfit, to serve on a Federal court, 
they will have a difficult time passing through a controversial nominee 
to the U.S. Supreme Court.
  I think, in my heart of hearts, that is why we are here this evening. 
They are trying to smooth the road, prepare the way for that Supreme 
Court nominee from this President.
  Now, let me give advice to my friends--and they are not likely to 
take it--on the Republican side. There is a way to avoid all that. Pick 
a man or a woman who is of such impeccable legal background, great 
credentials, the kind of person with the integrity that they will be 
above this kind of political debate. It can happen and it has happened.
  In my State of Illinois, a State with two Senators from opposite 
political parties, we have not had one problem in filling the Federal 
judicial vacancies. We have done so, Democrat and Republican, with good 
men and women whom I am certain will serve this country well. I just 
gave the green light to a nominee who sits on our calendar, and I hope 
we will move quickly, Mark Philip, who was a clerk to Justice Antonin 
Scalia. I am a Democrat, approving a former clerk to Justice Scalia. I 
met him and trust him and I think he will be a great Federal district 
court judge.
  That can happen again. But we have to move away from those who are 
ideological extremes. We have to move away from those who are lightning 
rods. We have to move to a center path, which most Americans expect of 
us.
  Sadly, tonight, we are being told this Senate should not even ask 
questions of these nominees. That is wrong. We have a constitutional 
responsibility, a responsibility that must be met.
  Some have said, incidentally, that ours are the first to ever 
filibuster nominees. In fact, the Senator from Pennsylvania said it is 
the first time in the history of the United States anyone has ever 
filibustered a judicial nominee. Well, this chart shows that is not 
correct. Abe Fortas of the Supreme Court, subject to cloture motion, 
filibuster; Stephen Breyer, First Circuit--I am going through the 
list--Rosemary Barkett, Eleventh Circuit; Lee Sarokin, Third Circuit; 
Marsha Berzon, Ninth Circuit; and Richard Paez, Ninth Circuit.
  The fact is, there have been judges brought to the Senate floor who 
have been filibustered in the past. The fact is, most of those 
filibusters failed. The motion for cloture prevailed but the filibuster 
was on. On the four who are under contention this evening, the 
filibuster has succeeded. The motion for cloture has not been filed 
successfully. That is the difference. To say it has never happened 
before in our history is to defy the obvious. It certainly has happened 
before.
  The point we are trying to make is it is not unreasonable to have 4 
nominees out of 172 questioned, to be found lacking.
  Let me close by saying, again I commend my colleague from Indiana 
because I think he put it in perspective. We all know it is true. We 
could be spending our time doing a lot more important things for 
America and a lot more important things for the people we represent 
than squabbling over four judges.
  Mr. REID. Will the Senator yield?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. I ask the Senator, through the Chair, there have been 
statements made by the majority, for weeks, months, that never ever in 
the history of the country has there been a filibuster conducted 
regarding a Federal judge. Would the Senator again state whether or not 
those statements regarding filibusters of Federal judges having never 
been held is true or false?
  Mr. DURBIN. It is false. It is clearly false. Justice Abe Fortas, 
1968; Judge Stephen Breyer, 1990; Judge Rosemary Barkett, 1994; Judge 
Marsha Berzon, 2000; Judge Paez, 2000. And many others.
  The fact is, for those who say there have never been filibusters by 
nominees, that is clearly not right.
  Mr. REID. Another question I ask my friend from Illinois, through the 
Chair, what I have heard the Senator state tonight is that on numerous 
occasions--in fact, the chart that is behind you indicates this--that 
there would be numerous occasions going back to at least 1968, there 
have been filibuster after filibuster, and sometimes they have tried to 
invoke cloture on more than one occasion; is that true?
  Mr. DURBIN. That is accurate. As noted here, for Judge Breyer, twice. 
That is a clear example. On some of the others, there could have been 
more than one time, as well.
  The point I would like to make to my friend from Nevada, we also know 
that under President Clinton, 63 of his nominees never got a hearing. 
They were never given a chance to come to the floor for this vote 
because the Republican-controlled Senate Judiciary Committee would not 
even give them a hearing.
  Mr. REID. Will the Senator yield for a question that I ask through 
the Chair?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. The Senator from Illinois is a member of the Judiciary 
Committee. Would you explain to the people watching this--whatever it 
is--would you explain to the people how a person gets to the Senate 
floor to be nominated for a judge? How do they get here? What is the 
process? Explain to the people of the country what you mean when you 
say someone never had a hearing.
  Mr. DURBIN. It is customary for a Senator of a State, depending on 
the President's party, to be able to suggest to the White House a 
nominee to fill a vacancy on the Federal district judge and the Federal 
circuit court. That nominee is then given to the White House for 
approval and investigation, FBI background checks, the normal things. 
If the White House then clears that nominee, the name is sent to the 
Senate Judiciary Committee. A hearing is scheduled in the normal course 
where the person is brought before the committee. After the committee 
has done its investigation, questions are asked and then the person is 
brought for a vote and eventually finds their way to the floor.
  Under the Clinton administration, after the nominee came out of the 
White House, 63 times, 20 percent of the President's nominees were 
stopped at that point and never brought to a hearing before the Senate 
Judiciary Committee. So the argument that we have stopped four belies 
the reality that when we looked at the numbers from the Clinton 
administration, 20 percent, not 2 percent but 20 percent, of the judges 
never got their chance before the Judiciary Committee to even present 
their credentials and argue for their nomination.
  I say to the Senator from Nevada, that is a sad reality. Frankly, 
this President is being treated far better than President Clinton. This 
Senate Judiciary Committee, under the leadership of Senator Patrick 
Leahy, a Democrat, approved 100 of President Bush's nominees, gave them 
hearings and moved them forward.
  We tried in a bipartisan fashion to meet our constitutional 
responsibility. Only 4 times out of 172 have we said no. Only four. It 
is reasonable for us to stop and ask hard questions of nominees who are 
asking for lifetime appointments to some of the highest courts of the 
land.
  Mr. REID. Will the Senator yield?
  The PRESIDING OFFICER. The time of the Senator from Illinois has 
expired. However, there is a minute and a half left on the Democratic 
side.
  Mr. REID. Will the Senator answer this question?
  The PRESIDING OFFICER. The Senator from Nevada is recognized.

[[Page 28621]]


  Mr. REID. I direct the question through the Chair to my friend from 
Illinois. The number 168 on the chart behind you, does that represent 
168 people who have been nominated by President Bush who are now 
serving in the Federal judiciary who have lifetime appointments? ca
  Mr. DURBIN. That is correct. I say to the Senator from Nevada that 
there are some among those 168 about whom I have had misgivings. Many 
of them I voted for anyway, understanding this is the President's 
prerogative to nominate people for the Federal courts.
  Going back to the point I made earlier, the President does not have a 
constitutional right to appoint Federal judges. He has the right to 
nominate them. Only with the advice and consent can they be appointed 
to the Federal judicial vacancies. Therein lies the real difference in 
the argument we brought forward this evening.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada has the floor with 27 
seconds.
  Mr. REID. When the majority uses their time, the half hour will be 
divided in whichever way the Senator from Michigan, Mr. Levin, and the 
Senator on the other side wishes to divide 30 minutes.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, Senator Hatch will be on the floor 
shortly. Before he gets here, I want to talk about one of the nominees 
who we will be voting on, once again, with cloture votes on Friday. 
That is Justice Priscilla Owen. Justice Priscilla Owen has had a vote 
in the Senate. She has had four or five votes in the Senate.
  If we were adhering to the Constitution of the United States, she 
would be sitting on the Fifth Circuit today. There are three vacancies 
on the Fifth Circuit. They need to fill their bench. She should be 
sitting there because she has gotten more than 51 votes. But Priscilla 
Owen is not sitting on the Federal bench today because we have a new 
standard that has been put in place for the first time since 1789. Last 
year, we started having a 60-vote standard for Federal judges.
  So Priscilla Owen, although she has repeatedly and every time, gotten 
over the required 51 percent, is not sitting on the Federal bench 
today. No. Instead, this very qualified supreme court justice of the 
State of Texas is doing her job, doing it very well, serving as a 
supreme court justice in the State of Texas, even though she has gotten 
the requisite number of votes on repeated occasions to be confirmed as 
a Federal judge by the standards of this Congress from 1789 until 2002, 
until the rules were changed because we are now filibustering Federal 
judge nominees.
  Priscilla Owen was endorsed by every newspaper in Texas when she ran 
for reelection. Priscilla Owen made the highest grade--the highest 
grade--on the bar exam when she took it. She graduated at the top of 
her class from Baylor Law School. She has had an exemplary record both 
as a supreme court justice for the State of Texas and as a practicing 
lawyer. She is experienced. She is qualified. She was rendered 
qualified by the ABA system, the committee, and she has been endorsed 
by Democrats and Republicans throughout Texas. She has been endorsed by 
Democratic supreme court justices with whom she served on the Supreme 
Court of Texas.
  The former chief justice of the supreme court, a Democrat, named John 
R. Hill, who also was a Democrat attorney general in the State of 
Texas--a very fine one, a very respected lawyer in Texas; supreme court 
chief justice and attorney general of our State--said Priscilla Owen is 
unqualifiedly the best we could have for this court. She is a person 
who ought to be on the Federal court.
  In fact, he came up here and tried to meet with Democratic Senators 
to talk about how qualified she is. That Priscilla Owen is not sitting 
on the Fifth Circuit today is a tragedy, and it is not right.
  She is not the only one who has been asked to meet this higher 
standard. Look at Miguel Estrada, who came to our country as a boy and 
did not even speak English, who studied so hard that he was able to go 
to Columbia and become a Phi Beta Kappa, and then to Harvard Law 
School, where he graduated, again in the top of his class.
  Miguel Estrada, the American dream; Miguel Estrada, who sat here 
since May of 2001, who got the requisite number of votes to be 
confirmed for the DC Circuit--well over 51--time and time and time 
again, but he is not sitting on the DC Circuit. He finally said: I 
can't take this anymore. I have to get on with my life. In September, 
he said: Take my name off the list.
  Why? Why have we set a higher bar for Priscilla Owen and Miguel 
Estrada--these two perfectly qualified people, with great academic 
standing, with great records, with experience, everything you would 
want on the Federal bench?
  What are we going to do to the people who would ask for Federal 
benches in the future? I am very concerned that after watching this 
process so many of them are going to say: Please, don't throw me in 
that briar patch.
  So, Mr. President, I do not think we should change the Constitution 
of the United States without going through the process of a 
constitutional amendment. Have we had a vote on the floor that got a 
two-thirds majority saying that we will have a 60-vote requirement for 
confirming Federal judges? Have we done that? That is the process for 
amending the Constitution of the United States.
  But I do not think that since I have been here I have seen a vote 
that would say: No, it is not a 51-vote margin; it is 60. No, Mr. 
President, we have not had that vote. But, in fact, the amendment to 
the Constitution is being put forward without going through the 
process. Because we now have six people nominated to the circuit court 
bench who are having to meet a higher standard than 51. And that is not 
right.
  To date, our President, President Bush, has had 63 percent of his 
nominees to the circuit court confirmed. The previous three Presidents 
have had 91 percent of their circuit court judges confirmed by this 
time in their terms.
  So I am going to turn the floor over to the distinguished chairman of 
the Judiciary Committee who has done a wonderful job trying to get 
these nominations through the process. He has done a magnificent job in 
trying to bring these great nominees to the floor.
  But we are standing here tonight because this is a constitutional 
issue, and it is important. It is important that these good people, who 
have submitted themselves for this process to be confirmed as Federal 
circuit judges, be able to, with dignity, have a vote up or down with 
the same standard that we have had since 1789; and that is a 51-vote 
margin.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Utah.
  Mr. HATCH. Mr. President, I have been listening to this debate and 
the populist arguments being made by Democrats who seem to think that 
having Federal judgeship nominees treated fairly, as they always have 
been in the past, once they have been brought to the floor, seems to be 
not right because they think we ought to do something about jobs.
  Well, why haven't they? This recession began in the last year of the 
Clinton administration. I went through just some of the things that 
show they have had a pattern of obstruction from day 1 around here 
since we have taken over control of the Senate.
  The pattern of obstruction was set on the first day of the 108th 
Congress when the motion to adjourn was forced to a rollcall vote, 
something that is usually never done. The long overdue 2003 
appropriations bills were finally enacted after we became the majority 
in 2003, on February 20.
  For the first time in history, filibusters were used to defeat the 
President's circuit court nominees. I have mentioned upwards of 15 that 
some Democrats have told me they are going to filibuster. They are not 
going to filibuster all of them, but they are certainly filibustering 
already more than four. There are six right now by the time you get 
through with Friday.
  I can tell you, there are a whole raft of others they are planning on 
filibustering. First time in history, treating a

[[Page 28622]]

President like dirt, and these nominees, which is even more important 
in this sense, because these nominees--we are going to find that we 
cannot get the top people in the country to take these positions, 
especially if they are very liberal or very conservative, even though 
they are in the mainstream. And that is a big phony shibboleth. Every 
time they say: Well, they are outside the mainstream of American 
jurisprudence. They were saying that about Bill Pryor, criticizing the 
cases that he won as the Alabama attorney general before the Supreme 
Court. So who is out of the mainstream? It certainly is not Bill Pryor, 
nor is it any of these other nominees.
  Like I say, Priscilla Owen, who has been held up for 3 years now--
better than 3 years--Priscilla Owen is on the Texas Supreme Court. She 
was one of the first women partners in this country. She broke through 
the ``glass ceiling'' for women. They ought to be giving her a medal 
instead of treating her in this despicable fashion, and they are only 
doing it because these inside-the-beltway groups control, in many 
respects, what they do. It all comes down to abortion.
  Now, there are sincere people on both sides of that issue. That is 
why I did not allow the issue of abortion to stop otherwise qualified 
candidates from getting a vote up or down on the floor, even though I 
am personally pro-life and cannot imagine why anybody would want to go 
for a regime of abortion on demand. There were 1.6 million abortions a 
year at one time. Forty million abortions in this country--the barbaric 
practice of partial-birth abortion, which many of my colleagues voted 
for, even some on this side.
  Let me go down a few further here: Needed legal reforms, I mentioned, 
to stop lawsuit abuse against doctors, businesses, and industries have 
been virtually banned by the tactics of the minority.
  Jobs have been lost right and left because of their refusal to allow 
decent laws to be passed. Medical liability, class action reform, gun 
liability, and asbestos lawsuit reforms have all been subject to delays 
or filibusters by our colleagues on the other side.
  As I said, we spent 22 days on an Energy bill last year, and then we 
had to spend 18 days on an Energy bill this year, when we basically 
enacted the same bill we did last year.
  Bioshield legislation is very important for those of us who work 
heavily in the area of health care and antiterrorism. Bioshield 
legislation is necessary to ensure proper vaccines and medicines to 
counter bioterrorism attacks has still not cleared objections.
  The State Department reauthorization was stalled by Democrats 
insisting upon unrelated poison-pill amendments being voted on prior to 
passage.
  The District of Columbia appropriations bill is subject to a rolling 
filibuster threat over a provision giving low-income students school 
choice, where we spend over $11,000 per student and have the lousiest 
school system in the country.
  Last year Senate Democrats failed to pass a budget resolution for the 
first time since the Budget Act was written in 1974, and they have the 
gall to come in here and say: Well, we ought to be taking care of jobs.
  We are going to take care of jobs if we can get some cooperation from 
them. But all the taking care of jobs in the world may not amount to 
much if we do not have a good Federal judiciary to make this system 
work, to make sure our constitutional way of life continues.
  They passed no welfare reform. They took no action to ban cloning. 
They passed no Medicare prescription drug plan. They confirmed a record 
low number of judges. They enacted only 2 of the 13 appropriations 
bills and delayed enactment of a Homeland Security Department for 
months. It is this dismal record of inaction that Democrats hope to 
repeat.
  Now, we are committed to delivering the Healthy Forests bill and the 
CARE Act to the President's desk. The Democrats are refusing to name 
conferees to the bill that passed with strong bipartisan support. I 
could go on and on.
  But my friend from Nevada--it is kind of interesting to me that he 
would take 10 hours out of the Senate's time on Monday to filibuster, 
when we all came here prepared to vote on appropriations bills.
  I think it is pretty bad to come in here and say that we should not 
do what we should for judges, when they themselves have been 
filibustering not just judges but virtually everything else with a slow 
walk.
  Mr. McCONNELL. Will the Senator yield for a question?
  Mr. HATCH. I am glad to yield, without losing my right to the floor.
  Mr. McCONNELL. I notice my friend's voice from Utah is cracking a 
bit, and I thought I might give him a moment's relief by asking him a 
question or two.
  Mr. HATCH. Sure.
  Mr. McCONNELL. I would ask the chairman of the Judiciary Committee, 
was it not the case that the current DC Circuit Judge John Roberts and 
nominee Miguel Estrada were nominated on the same day in May of 2001?
  Mr. HATCH. That is correct.
  Mr. McCONNELL. I would ask my friend from Utah, is it not true that 
the rationale for defeating Miguel Estrada given by the other side was 
that either he or the Justice Department or both of them refused to 
turn over the working papers that he had produced during his period as 
a lawyer in the Solicitor's Office of the Justice Department?
  Mr. HATCH. That is correct. These are the most confidential private 
papers of the Solicitor General's Office, the lawyer who represents all 
of the public.
  Mr. McCONNELL. Right. Was it also not the case, I ask my friend from 
Utah, that every single living Solicitor, who are either current or 
former Solicitors, the majority of which are Democrats, concurred with 
the Justice Department's position that these working papers should not 
be turned over?
  Mr. HATCH. That is correct. Four of the seven former Solicitors 
General were leading Democrats, who said that what the Democrats are 
doing is wrong.
  Mr. McCONNELL. People such as Seth Waxman and Archibald Cox?
  Mr. HATCH. Right.
  Mr. McCONNELL. All concurred?
  Mr. HATCH. Right.
  Mr. McCONNELL. All concurred that these types of working papers 
should not be turned over?
  Mr. HATCH. That is right.
  Mr. McCONNELL. Is it not the case, I ask my friend from Utah, that 
both John Roberts and Miguel Estrada worked in the Solicitor's Office?
  Mr. HATCH. They both worked there. They both were excellent appellate 
lawyers. By the way, Estrada worked not only with the Bush 
administration but with the Clinton administration. And he had high 
marks.
  Mr. McCONNELL. The same two gentlemen we just discussed, who were 
nominated on the same day back in May of 2001, by President Bush, for 
the very same court?
  Mr. HATCH. Right.
  Mr. McCONNELL. Nominated to the same court, the same experience in 
the Solicitor's Office. And is it not the case, I say to my friend from 
Utah, that John Roberts was passed out of committee and subsequently 
confirmed on a voice vote in the Senate?
  Mr. HATCH. A unanimous voice vote on the floor, but only after 
waiting 12 years through three nominations by two different Presidents.
  Mr. McCONNELL. He certainly had to wait a while, did he not?
  Mr. HATCH. Right.
  Mr. McCONNELL. Is it not the case that you had two nominees nominated 
on the same day, to the same court, having had the same experience in 
the Solicitor's Office, and one nominee was rejected because internal 
papers in the Solicitor's Office were requested and not turned over, 
and no such request for the same kind of office papers were made of now 
Judge Roberts?
  Mr. HATCH. John Roberts, who was one of the finest appellate lawyers 
in the country, as was Miguel Estrada, was treated completely 
differently once the Judiciary Committee considered him. And I had to 
force them to consider him. Yet he passed this body by unanimous 
consent.
  Mr. McCONNELL. So the request was made for certain papers of one 
nominee

[[Page 28623]]

and the precise same papers of the other nominee were not requested?
  Mr. HATCH. That is exactly right. They treated Miguel Estrada 
differently from John Roberts.
  Mr. McCONNELL. Let me ask my friend from Utah, is there any 
conceivable basis for such disparate treatment for the same two people, 
nominated for the very same court on the very same day, going through 
the very same Judiciary Committee? Can the Senator from Utah think of 
any rational reason for this kind of disparate treatment?
  Mr. HATCH. Not a legitimate reason. The only reason was they believed 
him to be pro-life. I don't know whether he is to this day because we 
do not ask those questions.
  Mr. McCONNELL. But the stated reason, I would say to my friend from 
Utah, you just confirmed a moment ago. The stated reason for not 
confirming Miguel Estrada was that he would not turn over these papers 
or the administration would not turn over these papers.
  Mr. HATCH. The phony reason.
  Mr. McCONNELL. That was the stated reason.
  Mr. HATCH. The phony reason they hid behind.
  But let me make this point. Miguel Estrada, as great an attorney as 
he is, having argued 15 cases before the Supreme Court, having the 
highest recommendation of the American Bar Association, their gold 
standard, they did not want him to come through this process because 
they knew, or at least they perceived, that he was on the fast track to 
become the first Hispanic on the Supreme Court and they just cannot 
tolerate having a conservative Hispanic on the Circuit Court of Appeals 
for the District of Columbia, let alone on the Supreme Court.
  Mr. McCONNELL. So I say to my friend from Utah, what we have is a 
situation where a white male nominee, to the very same court, with the 
very same experience, was treated one way and a Hispanic-American 
nominee, nominated to the very same court, on the very same day, was 
treated differently?
  Mr. HATCH. That is absolutely right. But even Roberts had to go 
through a lot of pain to get there--12 years waiting, nominated three 
times by two different Presidents.
  We put him out of the committee after a 12-hour hearing. You hardly 
have that much for Supreme Court nominees. There were two others on 
that list. They complained because there were three on one day's 
hearing. They ignored the fact that Ted Kennedy, when he was chairman, 
had seven circuit nominees one day, and another four. We had at least 
10 other times when we had three.
  Then once we put him out of the committee, I had to bring him back in 
the committee so they could have another crack at him. They could not 
touch him. He was that good. So he had to go through an inordinate 
process to get there. But they knew they did not have anything on him. 
They know they didn't have anything on Miguel Estrada.
  Mr. McCONNELL. It sounds to this Senator, I wonder if the chairman 
concurs, that there was a sort of rule created and applied to Miguel 
Estrada----
  Mr. HATCH. It was a double standard.
  Mr. McCONNELL. That was not applied to John Roberts, two nominees 
considered for the same court at the same time.
  Mr. HATCH. Absolutely right. Roberts was treated like all other 
nominees during the Reagan years, Bush 1 years, and the Clinton years. 
He was not asked to give his opinions on future issues that might come 
before the Circuit Court for the District of Columbia.
  Because Miguel Estrada answered the same way basically as all the 
other people who had passed in prior years, they held that against him. 
The big phony issue was knowing that the Solicitor General's Office did 
not give the most privileged, private documents in that department 
without making that department unworkable.
  Mr. McCONNELL. Which is why, I say to my friend, they didn't ask for 
those papers on John Roberts.
  Mr. HATCH. That is right. They did treat Roberts differently, no 
question about it. They gave him a rough time, too. Miguel Estrada is 
in a league of his own in the way he was mistreated, but Roberts was 
mistreated, too. Roberts sits on the Circuit Court of Appeals for the 
District of Columbia after having been unanimously approved here.
  Let's talk about how important that is. We have had 40 rollcall votes 
on the floor. You talk about delays. You talk about fouling up this 
body. We have had 40 rollcall votes on people who got unanimously 
confirmed. Can you imagine what it takes to go through 40 rollcall 
votes? It slows down the Senate like you can't believe, and muscles up 
the Senate like you can't believe. It is all a big game to try and make 
this President not successful. But Miguel Estrada had to go through 
that as well.
  Mr. McCONNELL. So I say to my friend from Utah, and I will conclude 
with this, the practical result of that is this immigrant who came to 
the United States as a teenager, speaking broken English, realized the 
American dream, went to undergraduate and law school, was a star 
student, argued 15 cases before the Supreme Court, was denied an 
opportunity to get an up-or-down vote on the Senate floor by the 
creation of a standard that was not applied at the very same time to 
another nominee who was not a minority.
  Mr. HATCH. And, by the way, was never applied to any nominee, to my 
knowledge, in the past. Miguel Estrada was singled out with a double 
standard for the sole purpose of defeating his nomination and getting 
him to withdraw.
  Mr. McCONNELL. They were having a hard time, I say to the chairman, 
trying to find some basis upon which to defeat this guy. He was 
unanimously well qualified by the ABA, right?
  Mr. HATCH. Their gold standard.
  Mr. McCONNELL. He argued 15 cases before the Supreme Court.
  Mr. HATCH. Very few people even argue one case.
  Mr. McCONNELL. He received outstanding recommendations from everyone 
with whom he worked. They were having a real struggle, weren't they, I 
say to my friend, the chairman, trying to find some basis upon which to 
reject this truly outstanding nominee.
  Mr. HATCH. It shows the lengths they would go to on that side--at 
least the leaders on that side--to screw up a nomination of a very good 
person.
  Take Janice Rogers Brown. She is a terrific African-American justice 
on the California Supreme Court. She wrote the majority of the majority 
opinions on that court last year, and yet they come here and say she is 
outside the mainstream. They are outside the mainstream when they make 
arguments such as that.
  There is only one reason they are against Janice Rogers Brown and 
filibuster her: because she is an African-American woman who is 
conservative and pro-life. For these inside-the-beltway groups, that is 
their single issue.
  I had friends on the other side tell me, when I asked, ``Why are you 
doing this,'' say, ``Well, the groups will score this as a vote, and 
then they will come against whoever votes that way in the next 
election.'' These guys don't have the guts to take on the groups.
  Mr. McCONNELL. Isn't it true, I ask my friend from Utah, in 
California where the justice to whom you just referred serves on the 
supreme court, you have to stand periodically for continuation?
  Mr. HATCH. That is right.
  Mr. McCONNELL. You can be rejected. Is it not true she got three-
fourths of the votes?
  Mr. HATCH. Better than that. She got 76 percent of the vote. She was 
the top vote-getter among four supreme court nominees.
  Mr. McCONNELL. This is in that bastion of conservatism, California.
  Mr. HATCH. I think the Senator makes a very good point.
  Mr. McCONNELL. This nominee who was called outside the mainstream--
outside the mainstream--gets about three-fourths of the vote in that 
bastion of conservatism--California--and the other side suggests she is 
somehow unacceptably conservative? That is absurd on its face, I argue 
to my friend.
  Mr. HATCH. It certainly is. I went to one of my friends on the other 
side--

[[Page 28624]]

and I won't mention the name because I don't think that would be 
proper--and I said: What did you think of Janice Rogers Brown? His 
answer was: She's terrific--which she was in front of the committee. 
Yet every Democrat went against her in committee and I think cited 
horrendously bad arguments to do it.
  They can point to 8 or 10 cases with which they didn't agree, but 
with which a lot of people do agree, and then they say she is outside 
the mainstream when she has tried hundreds of cases and decided, as a 
majority opinion writer, the most majority opinions in that court last 
year and I think in prior years as well.
  It is really unseemly, and that is why we are so upset here. Let me 
tell you, if we continue down this course, we are going to severely 
harm the Federal judiciary and get only people who really are not only 
outside the mainstream, but are Milquetoast, who can't make a decision 
to save their lives. Once you get to the Federal bench, you have to be 
able to make tough decisions.
  Mr. McCONNELL. Isn't it also true, I say to my friend, the chairman, 
that one of the arguments used on some of the nominees is because they 
have certain personal beliefs, that they won't uphold the law? Has that 
been an argument frequently made?
  Mr. HATCH. That is a frequent argument. I think the best illustration 
of that happens to be Bill Pryor.
  Mr. McCONNELL. Which is what I was going to ask my friend, the 
chairman.
  Mr. HATCH. They criticized him for cases he won before the Supreme 
Court, saying he is outside the mainstream because they disagreed with 
the cases. In fact, they think Rehnquist is out of the mainstream. They 
think Scalia is out of the mainstream. They certainly think Clarence 
Thomas is out of the mainstream because they want a single approach, a 
minority approach to everything that has to be liberal, and if you are 
not liberal, you are outside the mainstream, even though some of the 
greatest judges ever to sit on the Federal courts and Supreme Court 
were conservatives. Some of the great ones were liberals, too, but 
understood the role of judges.
  Mr. McCONNELL. This is the same Bill Pryor who is currently standing 
up against the Alabama chief justice.
  Mr. HATCH. Right.
  Mr. McCONNELL. Who has been defying a court order by refusing to 
remove the Ten Commandments from a public building. It is very 
unpopular in Alabama to be against that guy.
  Mr. HATCH. Bill Pryor is getting savaged by the rightwing because he 
basically sued to have the chief justice removed for not following the 
rule of law.
  Mr. McCONNELL. A classic example of following the law and not his own 
personal beliefs; is that not correct?
  Mr. HATCH. That is absolutely correct. Just fast forward to this 
week. As the Atlanta Journal Constitution reported this week, Bill 
Pryor filed a pretrial brief asking the Alabama Court of the Judiciary 
to remove Judge Moore from the Alabama Supreme Court because of Moore's 
defiance of the Federal court order to remove the Ten Commandments 
display. Bill Pryor's brief stated, quoting from the Atlanta Journal 
Constitution article: Moore should be removed because ``he 
intentionally engaged in misconduct and because he remains unrepentant 
for his behavior.''
  I could go on about Bill Pryor. During his hearing--a lengthy 
hearing--he was asked over and over by virtually every Democrat who 
showed up about his deeply held personal beliefs. He answered every 
question the way a judicial nominee should. Even though he had deeply 
held beliefs, he would obey the law.
  The PRESIDING OFFICER. The time controlled by the majority has 
expired.
  Mr. HATCH. I thank the Senator for his excellent questions.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I ask the time of the half hour allotted to 
this side be divided between myself and Senator Dodd and that I may 
proceed for 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, what I wish the majority would be allowing 
tonight is consideration of legislation that addresses the loss of over 
3 million jobs in this country during the last few years, most of them 
manufacturing jobs.
  What I wish the majority would be allowing us to do tonight is to 
consider legislation to extend the unemployment benefits to those 
Americans who have lost their jobs in this recession, the way we have 
extended unemployment benefits in previous downturns.
  Those needs of the American people and a dozen other needs are what 
we ought to be spending our time on tonight and every day until those 
issues, and many other critical issues, are addressed.
  Instead, those on the other side of the aisle decided to spend 30 
hours rehashing the reasons that 4 out of the 172 of President Bush's 
judicial nominees have not been confirmed by the Senate. That is their 
right, but it is wrong.
  In my home State of Michigan, the unemployment rate is 7.4 percent. 
In fact, Michigan has lost and continues to lose more manufacturing 
jobs than almost any other State in the Nation. Mr. President, 2.5 
million of the 3.3 million jobs which the U.S. economy has lost since 
January 1, 2001, were in manufacturing. We lost over 160,000 of those 
jobs in Michigan alone. Other States face large job losses, but what we 
should be doing is helping people who lost jobs, acting to stop the 
currency manipulation by China, Japan, and other countries, and the 
one-way street in trade which has been such a large part of the loss of 
jobs in this country.
  The first act of this Congress last January was to extend 
unemployment benefits through the end of this year because Congress did 
not act last year. That made the 2002 holiday season mighty grim for 
those workers whose benefits had expired. Current law provides 13 weeks 
of additional Federal aid to laid-off workers who have exhausted their 
26 weeks of regular State benefits. However, this administration has 
shown no interest in either extending the deadline for the program or 
authorizing new benefits. The trust fund that is to be used for 
unemployment benefits currently has over $20 billion in it. Why this 
administration balks at extending unemployment benefits is beyond me 
since that is what the money in that fund is for.
  I, along with a number of our colleagues, propose we extend the 
December 31 deadline for another 6 months so newly unemployed workers 
can receive Federal assistance, but also making available an additional 
13 weeks of Federal unemployment benefits for a total of 26 weeks. That 
is what we have done in prior recessions. We responded during the 1974 
recession. Federal benefits were extended to 29 weeks.
  In the 1981 recession, Congress extended benefits to 26 weeks. In the 
1990 recession, 26 weeks were provided, 33 weeks to States with high 
unemployment.
  While the unemployment numbers released last week were somewhat of an 
improvement, in terms of manufacturing jobs, that loss continues, and 
the long-term economic forecast continues to be pessimistic.
  On this track, this administration will be the first administration 
to lose private sector jobs since Herbert Hoover.
  In one moment I am going to propound a unanimous consent request that 
I know my Republican colleagues will want to hear, and I want to alert 
them of the fact I will be propounding that request in a moment. I hope 
our Republican colleagues will give us consent to take up unemployment 
insurance extension legislation this evening. Perhaps then this 30-hour 
exercise will be fruitful.
  I think I have alerted the Republicans that we would be making this 
unanimous consent request.


                   Unanimous Consent Request--S. 1853

  I ask unanimous consent that the Senate proceed to legislative 
session; that the Finance Committee be discharged from further 
consideration of

[[Page 28625]]

S. 1853, which is a bill to extend unemployment insurance benefits for 
displaced workers; that the Senate proceed to its immediate 
consideration; that the bill be read a third time and passed; and that 
the motion to reconsider be laid on the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. LEVIN. Mr. President, since the majority has now determined we 
will spend 30 hours of the time of the Senate rehashing 4 of the 172 
judicial nominations that haven't been confirmed, I want to address 
what is an even deeper issue than the majority's effort to weaken and 
water down the role of the Senate in exercising its advice-and-consent 
responsibility.
  That even more fundamental issue is our Nation's historic and 
constitutional system of checks and balances. Those checks and balances 
are an integral part of the unique design of our founding document in 
restraining the potential excesses and extremes of the executive 
branch. We share the obligation and responsibility with the judicial 
branch.
  Our rules in the Senate are aimed at restraining the potential abuse 
of the rights of the minority by the majority within the legislative 
branch itself.
  In June of this year, Robert Caro, the eminent Pulitzer Prize winning 
historian and author of ``Master of the Senate,'' his great biography 
of former President and Senate majority leader Lyndon Johnson, wrote to 
our Senate Rules Committee addressing this subject and quoting from his 
book. Here is what he said:

       . . . in creating this new nation, its Founding Fathers, 
     the Framers of its Constitution, gave its legislature . . . 
     not only its own powers, specified and sweeping . . . but 
     also the powers designed to make the Congress independent of 
     the President and to restrain and act as a check on his 
     authority, [including the] power to approve his appointments, 
     even the appointments he made within his own Administration . 
     . . and . . . the power to approve Presidential appointments 
     was given to the Senate alone; a President could nominate and 
     appoint ambassadors, Supreme Court Justices, and other 
     officers of the United States, but only ``with the advice and 
     consent of the Senate.''

  Robert Caro goes on to say:

       The Framers wanted to check and restrain not only the 
     people's rulers, but also the possibility that the majority 
     will be used in Madison's words ``to oppress the minority.'' 
     The Framers, he [Madison] said, established the Senate as the 
     body ``first to protect the people against their rulers; 
     secondly to protect the people against the transient 
     impressions into which they themselves might be led . . . The 
     use of the Senate is to consist in its proceeding with more 
     coolness, with more system. . . .

  One of the historical tools for the protection of the minority which 
is developed in the Senate from its earliest days is the principle of 
extended debate. The exercise of this right of Senators, particularly 
when it is used to block actions which the majority fervently wishes to 
take, is embodied in our Senate rule that you must have a supermajority 
of 60 percent of the Senate on matters where there is strong 
opposition.
  Filibusters have played an important role in moderating action in the 
Senate. It is widely recognized the Senate is a less partisan place--
you may not be able to discern that tonight, but generally this is a 
less partisan place than the other body in our Congress or virtually 
any other democratically elected legislative body anywhere in the 
world.
  As Senator Byrd said in his series of scholarly addresses on the 
floor of the Senate about Senate history:

       Arguments against filibusters have largely centered around 
     the principle that the majority should rule in a democratic 
     society. The very existence of the Senate, however, embodies 
     an equally valid tenet in American democracy: the principle 
     that minorities have rights.

  Senator Byrd goes on to say in his study:

       The most important argument supporting extended debate in 
     the Senate, and even the right to filibuster, is the system 
     of checks and balances. The Senate operates as the balance 
     wheel in that system, because it provides the greatest check 
     against an all powerful executive through the privilege that 
     Senators have to discuss without hindrance what they please 
     for as long as they please . . . Without the potential for 
     filibusters, that power to check a Senate majority or an 
     imperial presidency would be destroyed. It is a power too 
     sacred to be trifled with.

  Lyndon Baines Johnson said in 1949:

       . . . If I should have the opportunity to send into the 
     countries behind the iron curtain one freedom and only one, I 
     know what my choice would be . . . I would send those nations 
     the right of unlimited debate in their legislative chambers.
       If we now, in haste and irritation, shut off this freedom, 
     we shall be cutting off the most vital safeguard which 
     minorities possess against the tyranny of momentary 
     majorities.

  In May of 1994, when the Republican minority blocked President 
Clinton's nomination of Sam Brown to be ambassador, one of our 
Republican colleagues said the following:

       In considering the nomination of Mr. Samuel W. Brown to be 
     the Ambassador to CSCE, I have reflected on the latitude 
     which ought to be accorded the President in making this 
     decision for the ambassadorship, reflecting as well on the 
     constitutional responsibility of the Senate for advice and 
     consent as a check. . . . I am troubled by a situation where 
     the only pressure point Republicans have in the U.S. 
     Government is on cloture. Once cloture is obtained, there are 
     more than enough votes on the other side of the aisle to 
     cover the day. While the House is not involved in this 
     matter, the House is overwhelmingly Democratic; there is a 
     Democrat in the White House. The only place Republicans can 
     assert any effective, decisive action is by stopping somebody 
     from coming up. We have 44 votes, and we have more than 
     enough, if there is unity among the Republicans, to do that. 
     I think Mr. Brown's nomination and the responsibilities at 
     the Conference on Security and Cooperation in Europe are 
     sufficiently important to preclude his nomination.

  The filibuster succeeded in blocking this nomination.
  There are many reasons to at least consider modification to the 
Senate rules regarding the procedures for ending debate, the process we 
call cloture. Those rules have been modified a number of times before, 
but one of the reasons to consider modifying our rules is not the 
reason which is motivating our current majority in the Senate: 
irritation with the fact that only 98 percent of President Bush's 
judicial nominees have been confirmed by the Senate. That irritation 
that a substantial minority of Senators would stand in the way of 
getting their way 100 percent of the time has led to this 30-hour 
talkathon and their apparent desire to amend the Senate rules to let 
them get their way 100 percent of the time.
  We find ourselves tonight debating not whether unemployment insurance 
should be extended for Americans who have lost their jobs, not how to 
create more jobs in our economy, not how to better provide for the 
education of our children, or to strengthen our homeland security, or 
reduce the cost and increase the availability of prescription drugs, 
but, rather, listening to the re-argument of the case for the 4 
nominees out of 172 nominees the Senate has not confirmed.
  They want a 100 percent confirmation success record, and they appear 
to be willing to throw over the very essence of the Senate and its 
check-and-balance role to accomplish it. The Constitution says the 
President shall nominate, and, by and with the consent of the Senate, 
shall appoint ambassadors and judges.
  William Maclay, one of the first two Senators from Pennsylvania, 
wrote the following:

       Whoever attends strictly to the Constitution of the United 
     States will readily observe that the part assigned to the 
     Senate was an important one, no less than that of being the 
     great check, the regulator and corrector, or, if I may so 
     speak, the balance of this Government. . . . The approbation 
     of the Senate was certainly meant to guard against the 
     mistakes of the President in his appointments to office [and] 
     the depriving power should be the same as the appointing 
     power.

  I thank the Chair, and I yield the floor to my friend from 
Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, I begin by thanking my colleague from 
Michigan for his comments. I intend to share some similar thoughts this 
evening.
  First of all, let me begin by stating my own views about this process 
this evening and note--some have chosen to use the word anger--but I 
rise more in sadness.

[[Page 28626]]

  We are gathered to engage in this--I do not know what it is properly 
called--I guess a filibuster. It is unique in that the majority is 
conducting a filibuster. Normally, a filibuster, for those who are 
interested in how this works, is conducted by a minority within a 
minority, but we find ourselves this evening a few short days away from 
the end of this particular session with a tremendous amount of 
unfinished business, and we are spending the next 30 hours--or 26 
hours, whatever is left--on this particular debate and discussion, 
which I suppose has some value in the mind of some. As far as this 
Member is concerned, I regret in some ways even addressing the matters 
before us this evening. The better approach might have been to protect 
the rights of the minority but not to engage in this debate.
  There may be four votes that will occur on Friday. Three of them 
involve individuals who are seeking appointment to the Federal 
judiciary. With all due respect to these particular nominees, putting 
aside one's views or whether they are for or against them, history will 
probably little note nor record for any great length of time who they 
were. That is not in any way to suggest they are not worthy 
individuals, but in the passage of time, these nominations will not 
register terribly significantly in the history of the debates of this 
great Chamber.
  I arrived as an employee of the Senate about the age of 17 when I sat 
on these steps. Lyndon Johnson was the majority leader of the Senate. 
There was Everett Dirksen and Senator McClellan. It was a sea of giants 
who served in this body. I tried to imagine this evening whether or not 
they might proceed in a debate like we are having, but I cannot imagine 
them doing so, quite candidly.
  I am afraid we are diminishing dramatically the incredible historic 
role of this institution by this process. When I think of all the 
matters that deserve our attention, when I think of all of the 
Herculean debates that have occurred in this Chamber throughout the 
217-year history of our country, some of the great debates deciding who 
we were as a society--I sat on that step over there and listened to the 
all-night debates on civil rights in the early 1960s. I listened to 
southerners argue vehemently on behalf of their position regarding 
States rights. They were incredible debates. Never once in all of that 
process that I watched as a child sitting out there did I ever hear 
anyone suggest we ought to change the rules of the Senate.
  Even among those who were outraged that there were those who were 
arguing about denying a substantial minority of citizens of this 
country the right to participate freely in the democratic institutions 
of America, never once did anyone suggest we ought to somehow curtail 
the right of a minority to be heard in debate, extended debate. Never 
once. Yet here we are tonight, having an extended debate over three or 
four judicial nominations. We may be asked on Friday to cast a ballot 
about amending the rules of the Senate to fundamentally change what has 
been a central ingredient of why this institution has been as 
celebrated and honored throughout the 217-year history of this country. 
That I find rather appalling, that we would gather at this hour with 
all of the other issues in front of us.
  I spent 2 hours yesterday at Walter Reed Hospital. I took my 2-year-
old daughter out to visit with the young men there, many of whom are 
missing limbs. I saw several of my colleagues out there, by the way. 
Sam Brownback was out there. I went to spend a quiet couple of hours to 
express to these young men my great admiration for what they had done 
for their country.
  I would like to think they might think something larger of this 
institution other than that we would engage in a discussion and debate 
tonight about three or four judicial nominations. Other of my 
colleagues have made comments about the numbers that have been approved 
and not approved. I am not a member of the Judiciary Committee. I have 
heard my colleagues extol the virtues of these nominees. I have heard 
others excoriate them. I will leave that debate for others. The vote I 
am most worried about is the possible fourth vote that may occur on 
Friday, and that is whether we are going to change the nature of this 
institution because some of us are disappointed about some outcomes of 
votes. I would hope whatever else ensues or passes over these next 30 
or 40 hours that when it comes to that vote, maybe there will be those 
who will get up and defend this institution.
  It is inappropriate for me to do so, but I will note the fact that 
there are those watching this debate this evening in this Chamber who 
are of a younger generation. They are students, I suspect, in some way 
wanting to participate or witness what some have tried to describe as 
an historic event. I would hope they take note of the arguments in 
debate about what is important, why the Founders created this 
institution, why we are not a unicameral body, as some State 
legislatures--why we are a bicameral body, why it is there is down this 
corridor a House of Representatives at that end of the building and a 
Senate at this end. What are the fundamental distinctions between these 
two branches of one House? Why are we different? Why do we exist? What 
did the Framers have in mind when they created this institution? It is 
this very debate that gives justice, gives rationale to the existence 
of the Senate.
  One needs only to go back to the Federalist papers, and as I look 
around this Chamber there are the forebears of those who sit in these 
seats who made the most eloquent arguments on behalf of the notion, of 
the idea, of having extended debate and the right and power to amend. 
Those are the two central ingredients which make this institution so 
unique.
  When we begin to erode those very powers, then the very justification 
for this institution begins to diminish. We end up creating nothing 
more, potentially, than a mere image of the body that is at the other 
end of this hall.
  I gave some remarks going back a number of weeks ago in front of the 
Rules Committee. I am the ranking Democrat of the Rules Committee. As 
such, I bear a responsibility, along with my colleague from 
Mississippi, who is the chairman of the committee, to consider such 
matters. I have great respect for the majority leader, but I would hope 
as we discuss the idea of amending rule XXII, that we would keep in 
mind what the Framers had in mind when it came to nominations, 
particularly nominations of a life tenure.
  It is one thing to be talking about nominations during the duration 
of a given administration, but with judicial nominations it is for 
life. Depending on how young that person may be, an Federal judicial 
appointment can go on for decades. And so the Framers, given the 
experience they had come through, with the tyranny of a king, desired 
to create a system whereby the third coequal branch of government would 
have powers delineated between the executive branch to appoint and the 
legislative branch to approve, to provide its advice and consent.
  If the ability of this institution to thoroughly exercise that right 
of advice and consent is destroyed, then we run the risk of creating a 
judicial branch, a coequal, that becomes nothing more than the hand 
servant of the executive. That is what the Founders worried about. It 
is what Senator Rutledge of South Carolina argued for when he spoke 
eloquently about the importance of keeping an independent judiciary.
  In fact, for many weeks, during the constitutional convention, they 
argued the President ought to have no rights when it came to judicial 
nominations, that that right ought to be exclusively contained in the 
Senate of the United States. As a result of compromise, it was 
ultimately decided that the power to nominate individuals should reside 
in the executive, and the power to approve should remain here, thus 
guaranteeing, to the extent possible, an independent judiciary.
  What is being suggested by the fourth vote we may be asked to cast on 
Friday is that we undermine that very principle which has survived for 
217 years. I would hope with a resounding vote, both Democrats and 
Republicans,

[[Page 28627]]

whatever strong feelings there may be about these three or four 
nominees, or whatever the number is, that we would not allow this 
institution to be diminished, caught up in the passions of these 
nominations.
  History will not record nor remember who these people are, but if we 
undermine this institution's ability to do what our Founders asked us 
to do, then history will record forever our shortsightedness.
  I regret in a sense having to engage in this debate. I was stunned to 
learn that in addition to this 30 hours of ``circusry'' going on here, 
and the three votes that will occur on Friday, there may be a serious 
effort to vote on whether this institution should give up its right to 
be able to have extended debate on judicial nominations.
  This institution and its history deserve more. The fact that the 
Senator from Michigan and I have to arise at 10 at night to argue about 
something as fundamental as a rule change in the Senate and to be asked 
to vote on it with maybe 5 minutes of deliberation before that ballot 
is cast on Friday is incredible to this Member. It is incredible we 
would have to do this.
  Does not anyone care about being here? We are only temporary 
stewards. My colleagues and I are just guaranteed a short amount of 
time to be a part of this institution. We do not own this. We bear an 
historical responsibility to those who came before, but an even greater 
one to those who come afterward, to see to it we maintain the order and 
the ideals embodied in the creation of this institution. That we would 
relegate a fundamental change in the rules of the Senate to a debate 
occurring between 10 and 2 and 3 and 4 and 5 a.m. in the morning, with 
a vote to that may be cast on Friday without further deliberation, I 
find stunning in its dimensions.
  This is a matter that deserves far more deliberation and thought, 
whatever one's views may be on these nominations. To find ourselves, 
with all of these other issues that are in front of us, to have to 
defend the Senate in the wee hours of the morning about a rule that has 
sustained us as an institution, is something I regret deeply.
  I hope my colleagues, whatever their passions may be about Miguel 
Estrada, Priscilla Owen, William Pryor, and Charles Pickering--I do not 
know these individuals. I presume they are good people, whatever 
differences we may have, as I am sure there have been people who have 
been nominated in previous administrations who are also good people who 
were rejected because the majority today disagreed with them. I am 
sorry that happens to people, but unfortunately, that is one of the 
aspects of a process such as we have, as imperfect as it is.
  The idea that our passions are so wrapped up in these individuals 
that we are willing to squander the rules of the Senate is disturbing. 
We should always know that it may only be a short time before roles may 
be reversed. This party in the minority may be the party of the 
majority in the future. And in the future, the party of the President 
may, of course, be different. I would hope we would never suggest 
changing the rules of the Senate because we are momentarily 
disappointed that certain individuals, whatever contributions they may 
have made in their lives and to their communities, are so deserving 
that they warrant changing the rules of the Senate because they are not 
getting a position they seek. I hope we have not come to that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I enjoyed the stirring remarks of my 
colleague. However, I think he completely ignores the fact that the 
filibuster rule did not even begin until 1917, and it did not come into 
fruition until the 1940s. Nevertheless, we have changed the rules in 
this body many times. But we are not asking for a change of the rules. 
We are asking for a recognition. There is a difference between the 
Executive Calendar, where the precise meaning of the Constitution is 
advise and consent under section 2, clause 2 of the Constitution, and 
the legislative calendar where we do have a right to filibuster. So 
that distinction needs to be made.
  I yield 5 minutes to the distinguished Senator from Pennsylvania, and 
then I will be happy to take questions on this side.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I want to respond directly to the 
comments made by the Senator from Connecticut. I too sit on the Rules 
Committee and I take a responsibility here, being a steward, as the 
Senator from Connecticut said, a temporary steward of this place. One 
would think, if they listened to the comments of the Senator from 
Connecticut, that what the Republicans are trying to do is change the 
rules.
  I have a chart of the last 11 Presidents since the ``filibuster 
rule'' has been around: 2,372 judicial nominations confirmed, zero 
filibustered.
  Who is changing the rules? This is a wonderful world we have: That 
left is right, right is left, up is down, in is out.
  The rules have been changed by practice. They hold up a chart 168 to 
4. This states 2,372 to nothing. Never been done. Walk through these 
Halls. Stand in this Chamber. If the walls could speak of the great 
debates, the intense, partisan, vicious debates that occurred in this 
Chamber, fights that have occurred on the floor of the Senate because 
of the passions of the moment, so firmly believing that what you were 
fighting for was right.
  But not once, not one time did they put that passion for that short-
term partisan or political or policy game in front of the sacred 
constitutional process that governs this country.
  What does that constitutional process dictate in the case of judicial 
nominations? Look at the precedent my friends. Look at the precedent. 
No filibusters. Because the Constitution says that it is a majority 
vote. In spite of the rancor, in spite of the partisanship and the 
stakes so high so many times in our country's history, they always had 
the perspective because, yes, I say to the Senator from Connecticut, 
they knew they were temporary stewards. They took that responsibility 
seriously so they did not corrupt the rules.
  Why are we changing the rules? We are not trying to change the rules. 
We are trying to bring back the rules that have been in this country 
for 214 years. We are trying to change the rules? We are not being good 
temporary stewards? Me thinks thou doest protest too much. We are 
simply trying to set this Senate back to the days the Senator from 
Connecticut recalls as a boy, when giants did stroll this Senate, where 
big matters were at stake, but they put the integrity of the process, 
the integrity of the Senate because we are a country of laws and rules 
and constitutions. We do not twist them and corrupt them to meet the 
short-term political needs that some interest group off the Hill was 
pleading for you to do.
  That is what is happening here. That is what occurs here, and will 
occur, unfortunately, if we do not have a change of heart by a number 
of people on the other side of the aisle again on Friday so the 98-
percent button that I see and the 168 to 4 will now be 168 to 6 and 
then 168 to 7 and then to 8 and then to who knows? Because once we 
corrupt the system, once we twist the rules to meet our partisan end, 
there is no end other than a complete debasement of what this Senate 
has stood for 2,372 times before.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. I yield without losing my right to the floor a question of 
the Senator from----
  Mr. REID. We cannot hear you.
  Mr. HATCH. I yield to the Senator from Colorado without losing my 
right to the floor.
  Mr. ALLARD. I thank the fine Senator from Utah.
  Mr. HATCH. I have laryngitis. What a time to have laryngitis. But 
that is the way it is. I apologize for my voice.
  Mr. ALLARD. I thank the fine Senator from Utah for yielding.
  Many papers in the State of Colorado have expressed a concern that we 
are not voting on judicial nominees, along with many papers throughout 
the country. I have three papers that expressed a view. I would like to 
have the

[[Page 28628]]

chairman respond to the comments made in these three papers.
  Many people throughout Colorado wonder what the impact might be on 
having a filibuster and how that will affect the Federal judiciary. 
Many of them live in the great city of Pueblo. In fact, the Pueblo 
Chieftain observed, ``some liberals are trying to create a second 
legislative body,'' referring to the judiciary, ``that will pass 
measures which they cannot get passed because they're often opposed by 
a majority of Americans.'' The paper fears this will lead to ``a 
serious erosion of the separation of powers.''
  Does the Senator from Utah share those concerns?
  Mr. HATCH. I sure do. The paper got it just right. I have seen three 
major editorials from the Chieftain and from the Rocky Mountain News 
calling the Democratic filibuster an irresponsible escalation of the 
judicial nominating war.
  I agree with both. The Denver Post said ``a change in Senate 
procedure is long overdue.'' ``[T]here is no good reason to oppose a 
supermajority of the Senate that was not contemplated in the 
Constitution.''
  They got it just right.
  Mr. ALLARD. That is correct. I thank the chairman for responding to 
those comments made in those three major papers in the State of 
Colorado.
  We do need to move on for a vote. They express the view of many in 
Colorado. I thank the chairman for giving me an opportunity to ask the 
question.
  Mr. HATCH. I yield to the distinguished Senator from Virginia without 
losing my right to the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. I wish the Senator from Michigan, Mr. Levin, were still on 
the floor. In his arguments, he cited a quote from Lyndon Baines 
Johnson as to what would be the best gift that could be given, I 
believe he said, to the Soviet Union or those behind the Iron Curtain. 
He thought the best gift would be unlimited debate.
  I could think of a lot of other things you would want to give people 
who are repressed than unlimited debate. Maybe freedom of speech, 
freedom of expression, freedom of religious beliefs, private property 
rights, due process, equal protection of the law, maybe even the right 
to bear arms so they can overthrow the dictatorship.
  Unlimited debate--that does not strike me as what is needed in a 
democracy. What one wants is adherence to the Constitution, 
accountability and responsible action by those who are elected by the 
people. And we want fairness, which is being denied here, without 
potential for filibustering.
  This is what Senator Levin said that President Johnson said: ``If I 
should have the opportunity to send into countries behind the iron 
curtain one freedom, and only one, my choice would be to send those 
nations the right of unlimited debate in their legislative chambers.''
  I expect they could have had all sorts of unlimited debate but what 
one wants is adherence to our U.S. Constitution.
  Let me share with our distinguished chairman of the Judiciary 
Committee, Senator Hatch, some words that have been said recently: 
Judgeships are currently vacant, causing undue delays in justice for 
citizens served by the court. The candidates for these vacancies 
deserve to have an up-or-down vote on their nominations. The Senate 
should not be playing politics with the Federal judiciary.
  Guess who said that? Senator Carl Levin in a press release on May 24, 
2000.
  Then Senator Levin said, on October 3, 2000, in the Congressional 
Record: I believe the Nation as a whole deserves to have these nominees 
and other nominees awaiting hearings and votes acted on by this Senate, 
as well. I believe it is also unfair. Perhaps this is the most 
important of all to the people who await justice in their courts.
  Senator Levin said that on October 3, 2000.
  Then Senator Levin also said that leadership had a responsibility to 
advise and at least vote on judicial nominees.
  And parallel to the debates we are having on several of the judges 
this evening that will go on through tomorrow and into the morning on 
Friday, he said: Two of the women who we are focusing on today are from 
Michigan. They are nominees for the court of appeals. The truth of the 
matter is that the leadership of the Senate has the responsibility to 
do what the Constitution says we should do which is to advise and at 
least vote on whether or not to consent to the nomination of nominees 
for these courts.
  That was September 14, 2000, 3 years ago. I wish that Senator Levin 
were still on the floor so I could ask him whether he was right in 
2000, saying the Constitution demanded and required Senators to act and 
vote on nominees. Or does he really believe that the most important 
responsibility is for endless debate?
  I say to the Senator from Utah, Mr. Hatch, what we have seen is 
stalling and more stalling and more stalling. They can debate 
endlessly, but at the end of every debate, at the end of every 
examination, of everyone's qualifications and capabilities, and whether 
Miguel Estrada, Priscilla Owen, or any other of the nominees, 
ultimately the responsibility is, as Senator Levin said 3 years ago, it 
is our responsibility to act, to vote. The Constitution demands it. 
Accountability to our constituents and our respective States demands 
it. And fairness should not continue to be denied to these many 
nominees because of the obstruction and also the very inconsistent 
statements that have been made this year compared to past years.
  I ask the chairman of the Judiciary Committee, would you find these 
statements to be prior inconsistent statements which call into question 
the desirability of having endless debates in the Senate or in the 
committee, especially after the committee has decided on a majority 
vote to report out, favorably, a judicial nominee?
  Mr. HATCH. That is a good question because it seems as if our friends 
on the other side forget when they were in the majority and they had 
the Presidency and they all wanted votes up and down and all of a 
sudden they do not.
  The Senator is right in pointing out these disparities. All of a 
sudden when the worm is turned, they do not want to live up to their 
own words. I am not sure that Senator Levin does not want to live up to 
his own words, but if he does want to live up to his own words, then he 
should not be voting with the Democrats. He should be voting for 
cloture.
  Mr. ALLEN. I have a followup question. In view of our friend from the 
Commonwealth of Pennsylvania and his articulate, passionate statement, 
Senator Santorum, out of the thousands and thousands of nominations, 
how many have been filibustered? Zero, is that not correct?
  Mr. HATCH. Zero. Until this.
  Mr. SCHUMER. Will the Senator yield?
  Mr. HATCH. I will yield to the distinguished Senator from Virginia 
for a question and then I will yield to the distinguished Senator from 
Minnesota without losing my right to the floor.
  Mr. WARNER. Mr. President, first, may I thank the distinguished 
chairman of the Judiciary Committee.
  Mr. SCHUMER. Will the Senator yield?
  The PRESIDING OFFICER. The Senator from Utah has yielded to the 
Senator from Virginia for the purposes of asking a question.
  Mr. HATCH. The Senator will have his half hour in about 15 or 20 
minutes.
  Mr. WARNER. I thank the Presiding Officer and I thank the 
distinguished chairman of our Judiciary Committee.
  I say to my colleague from Virginia how proud we are to be from the 
Commonwealth of Virginia from whence so many Framers of the 
Constitution came. I compliment you on your remarks tonight. I am 
privileged to serve with you because you represent, in my judgment, all 
the fine things about the Commonwealth. I try, in my humble way these 
25 years, to do the same.
  The Senator referred to this Constitution. The question I have to our 
distinguished chairman is very simple. I want to go back to the hot 
summer of 1787, when 55 individuals had gathered from the Colonies to 
work from May 25

[[Page 28629]]

to September 17 to frame this precious document. It was a long, hot 
summer. Tireless trips from their homes to Philadelphia. As a 
consequence, today, our form of government is the oldest continuously 
functioning government on Earth today. I have been challenged on it. 
But almost every other government in existence at the time this 
Constitution was written have fallen into the dustbin of history. 
Someone challenged me about Switzerland. Yes, Napoleon crossed the Alps 
and ceased that government for a period of time. This is a government 
that has continued to function.
  As the delegates emerged on the final day, September 17, Ben Franklin 
walked down the steps and was met by a reporter. I thought of that 
little history tonight when a reporter asked me, what is it that you 
are doing tonight in the Senate? Mr. Franklin answered that question on 
September 17, 1787. He said to that reporter: We have given you a 
Republic, if you can keep it.
  This Constitution explicitly gives to the President of the United 
States the power to appoint the judges. In Section 2, it explicitly 
gives to the Senate, not the Congress, but to the Senate, the 
responsibility of advice and consent.
  Three coequal branches of the Government and the judiciary perform 
that critical function of keeping the power of each of the other two, 
executive and legislative, in balance. That is what we are doing 
tonight. I ask the distinguished chairman, are we not, in the immortal 
words of Ben Franklin, here tonight for one sole purpose, to keep our 
Republic?
  Mr. HATCH. That is the way I view it. I have to say this is a very 
dangerous thing the Democrats are doing for the first time in history. 
It has caused a tremendous amount of angst on everyone's part and awful 
partisanship because it has never been done before. It is time to move 
on.
  I yield to the distinguished Senator from Minnesota.
  Mr. COLEMAN. Mr. President, I thank the distinguished chair of the 
Judiciary Committee, the Senator from Utah, for yielding. I have a 
question that reflects upon the implications, changing the 
constitutional standard. The Senator from the Commonwealth of 
Pennsylvania noted that of the past 11 Presidents' judicial nominees, 
2,372 were confirmed, zero filibuster. The President was elected and he 
has served his responsibilities on the part of his office; we have our 
responsibility. I take it that the Senator from Utah would say part of 
those responsibilities in the Constitution give us the opportunity to 
vote, a majority vote to confirm or deny the confirmation of judges.
  The question I have concerns a comment that appeared in a Minnesota 
paper. Like the Senator from Colorado, Minnesota papers have commented 
on this problem. There was a column by George Will, a nationally 
syndicated columnist, that appeared in the Duluth News Tribune. He said 
the following, and I ask the Senator from Utah whether he would agree 
with this statement: If the Senate rules, exploited by an 
anticonstitutional minority, are allowed to trump the Constitution's 
test and two centuries of practice, the Senate's power to consent to 
judicial nominations will have become a Senate right to require a 60-
vote supermajority for confirmations by thus nullifying the President's 
power to shape the judiciary, the Democratic Party will yield a 
Presidential power without having won a Presidential election. Would 
the Senator from Utah agree with this statement?
  Mr. HATCH. I certainly do. That is what is behind this. I think the 
Senator points it out very well. So did George Will.
  Mr. SCHUMER. Would my colleague from Utah yield for a question?
  Mr. HATCH. Not on my time.
  Mr. SCHUMER. We have had some misstatements on the floor about how 
many filibusters we have had.
  Mr. HATCH. About what? I did not hear the Senator.
  Mr. SCHUMER. I said, we have had some misstatements repeatedly by the 
Senator from Virginia and the Senator from Minnesota about how many 
have been filibustered. There have been a bunch who have been 
filibustered, it is just that we happened to succeed. Isn't that 
correct?
  Mr. HATCH. I am not going to yield at this time to the distinguished 
Senator. I will yield to the distinguished Senator from Tennessee.
  Mr. COLEMAN. Will the Senator, if I could just follow up--so the 
record is clear----
  Mr. HATCH. Yes.
  Mr. COLEMAN. It is clear, in the history of this great Republic, the 
Senate has not denied a confirmation of a circuit court nominee by 
filibuster?
  Mr. HATCH. That is right, in the history of the Senate. Absolutely, 
Will was right, because that same commentary was pointed out by 
Alexander Hamilton. He wrote in Federalist Paper 76 the Senate's role 
is to refuse nominations only for ``special and strong reasons'' having 
to do with ``unfit characters.'' That is not what our Democratic 
colleagues are doing. What they are doing here is denying up-and-down 
votes to very qualified people, who by their own gold standard, the 
American Bar Association, are proven to be qualified.
  I believe it is abysmal that has happened. I think Senators have 
pointed out here this evening this is a very important debate that has 
to occur.
  The American people need to know a militant minority, 45 Democrats, 
basically, is thwarting the will of the majority and taking away the 
dignity of an up-and-down vote to qualified judicial nominees by this 
President, which has never happened, once they hit the floor, which has 
never happened before.
  In the Clinton years, all 377 judges were confirmed--only one was 
rejected, but he got an up-and-down vote, which is more than our people 
are getting.
  Mr. COLEMAN. I thank the Senator.
  Mr. HATCH. I yield to the distinguished Senator from Tennessee, 
without losing my right to the floor.
  Mr. ALEXANDER. Mr. President, if I could ask the Senator a question. 
Maybe he could help me understand something I am having a difficult 
time understanding.
  I had the privilege of serving as a law clerk in the 1960s to the 
Honorable John Minor Wisdom on the Fifth Circuit Court of Appeals. 
Judge Wisdom was among the four Republican-appointed judges who 
presided over the peaceful desegregation of the South. I have lived in 
the South and grown up in the South and know something about what those 
years were like.
  I have been mystified, since I am not a member of the Judiciary 
Committee, by the treatment of Judge Pickering of Mississippi and 
Attorney General Bill Pryor of Alabama. I do not know Judge Pickering. 
I have met him briefly only twice. My staff and I studied his record. I 
have heard insinuations and words that were carefully chosen by the 
other side to suggest he was guilty of not being sensitive on racial 
issues. Yet when I looked into his record, I discovered, quite to the 
contrary. He had been living in Laurel, MS. In 1967, just to cite one 
example, he had testified in public against the leader of the White 
Knights of the Ku Klux Klan, which were the closest thing we had to 
terrorists in the United States of America in the last half century--an 
act of courage.
  So here is a man who throughout his whole life was far out front on 
issues of race relations. He was living in an area where it was hard to 
do, and he had not been quiet, he had not been backward, he had been 
far out front of his neighbors on issues of race relations.
  Then I learn about Mr. Pryor, the Attorney General of Alabama, and I 
realize in hearing Senator Sessions talk that he, too, was a law clerk 
to Judge Wisdom, the great civil rights judge in the South. I hear it 
said Mr. Pryor is somehow insensitive to racial and other matters.
  Yet looking into his record, I learned he is at the moment seeking to 
oust the chief judge of Alabama in the case involving the chief judge's 
failure to obey a Federal court order to remove the Ten Commandments 
from the State Supreme Court, that the State Attorney General of 
Alabama wrote all the football players and coaches in Alabama to say 
they could not pray before football games because the law did not allow 
it, that he wrote to the district

[[Page 28630]]

attorneys telling them they could not enforce a law against abortion, 
that he took a case all the way to the United States Supreme Court that 
was against the Republican party to which he belonged. It seemed to me 
here is a man who I recall Judge Wisdom talking about as a wonderfully 
talented young man. The judge was very proud of him. Here he has this 
record of upholding the law when it would be enormously unpopular in 
Alabama and certainly must be against his own views.
  What is it about these two southerners, the latter one, the editor in 
chief of the Tulane Law Review, a law clerk to Judge Wisdom, this 
distinguished person; and then Judge Pickering, who was a leader for 
civil rights, endorsed by former Governor William Winter, the Democrat, 
endorsed by Frank Hunger, Al Gore's brother-in-law. What is it about 
the other side that will not allow us to have an up-or-down vote on 
those two southerners who have been nominated by the President to be a 
judge?
  Mr. HATCH. Well, to be honest with you, it all comes down to 
abortion, according to some of my top Democrat friends. That has become 
a litmus test issue for Democrats because the inside-the-beltway groups 
the Democrats talk about do not want people on the courts who are pro-
life, even though they are committed to upholding Roe v. Wade because 
that is the law of the land.
  In the case of Judge Pickering, Judge Pickering was unanimously 
confirmed as a Federal district court judge in 1990. He has served 
well. He is one of the people who brought about racial conciliation in 
the State of Mississippi and was treated in a despicable fashion here.
  In the case of Bill Pryor, I do not think anybody who looks at his 
record can say he will not uphold the law, no matter how much he 
disagrees with it, because that is what a judge will have to do.
  Mr. ALEXANDER. May I ask the chairman, did he not, as Attorney 
General of Alabama, advise the local district attorneys they could not 
enforce a law passed by the Alabama State legislature----
  Mr. HATCH. That is correct.
  Mr. ALEXANDER. Because it would be in violation of a Supreme Court 
decision?
  Mr. HATCH. That is right. If I recall it correctly, it had to do with 
partial-birth abortion, even though he hates partial-birth abortion, as 
anybody who looks at it carefully. It is a barbaric practice, at the 
very least. He upheld the law.
  I do not know you can ask anything more of anybody than that. Plus, 
this is a fellow who graduated No. 1 in his class from Tulane 
University School of Law, who is very bright and was very candid and 
open with the committee, and yet being filibustered for no good reason. 
It really is unseemly.
  Mr. ALEXANDER. I wonder if the chairman remembers--I have heard a lot 
of talk tonight about what a great protection of minority rights the 
filibuster is.
  Mr. HATCH. Yes.
  Mr. ALEXANDER. I am trying to think back to the 1950s and the 1960s. 
How many rights of African Americans in the South were protected by the 
filibuster in the 1950s?
  Mr. HATCH. That is right.
  Mr. ALEXANDER. In the 1960s? How long was civil rights legislation 
held up in this very body by the filibuster? What was it that caused 
the cloture rules to be changed so now it takes 60 to override instead 
of 67? It was the Nation's anger about the filibuster, denying equal 
rights for African Americans in the South in the United States.
  What is so great about the filibuster in terms of protecting the 
rights of minorities and individuals if it delayed progress on civil 
rights for so long in this country?
  Mr. HATCH. The distinguished Senator raises some good points. There 
is no question the filibuster rule was despicably used during that 
time. But I still believe most of us would agree that rule XXII, the 
filibuster rule, can and should apply to the legislative calendar. We 
have a right to set our own rules through the legislative calendar. But 
the Executive Calendar is a calendar that is subject to our right to 
advise and consent, which under article II, section 2 is a majority 
vote, and it is being distorted by our friends on the other side.
  The PRESIDING OFFICER. The time controlled by the majority has 
expired.
  The Senator from Nevada.
  Mr. REID. Mr. President, first of all, I want to lay it on the record 
that Carl Levin, the senior Senator from Michigan, is not inconsistent 
in any way. We all know what happened to Carl Levin and the Michigan 
delegation is the fact that there were no hearings on the judges he 
wanted--no hearings.
  That is the reason some 20 percent of the Clinton nominees never made 
it. They refused to hold hearings. Carl Levin would have welcomed the 
procedure we are going through because if it had gotten here, and there 
had been an attempt to filibuster, cloture would have been invoked.
  Carl Levin, I say to my friend, the junior Senator from Virginia, is 
not and has not been inconsistent in any way.
  I want to refer to this. We have to understand what we are talking 
about here. Mr. President, 168 judges have been approved; 4 have been 
disapproved. For people to continually come on this floor, as if 
history facts have no bearing on what they are talking about--they 
believe, on the other side, if they keep saying it long enough, that 
there have never been filibusters before--that people will believe it.
  I show everyone this New York Times headline of September 25, 1968. 
Headline: ``Critics of Fortas Begin Filibuster, Citing `Property'.'' 
``Griffin Attack Lasts 3 Hours. . . .''
  Of course, we know that was a filibuster. Senator Byrd participated 
in it, as we recall. I say to my friends on the other side of the 
aisle, please do not say this is the first time there has been a 
filibuster, because it is not true. It is not true.
  I also want to refer to the next chart, something that is important 
to the American people. What do I think we should be dealing with? 
During the time President Bush has been President, we have lost more 
than 3 million jobs in the private sector. I think that is fairly 
significant.
  Also what we should be talking about is my next chart to show what 
the President of the United States and his administration have done to 
create jobs in America.
  Here is what the President has done to create jobs. Can everyone see 
this chart? In fact, we can turn it around. It is the same on the other 
side, isn't it? Let's see what is on the other side. Yes, the same 
thing. This is what the President has done to create jobs: nothing.
  He has lost 3 million jobs. That is what we should be talking about 
here tonight, not the fact this is the first filibuster we have ever 
had in the history of the country. You can say it once, twice, 1,000 
times--it is not true. Other judges have been filibustered and we have 
had attempts to invoke cloture. It has been successful sometimes; 
sometimes it has not been successful.
  Let's look at this next chart. It is interesting we are spending 30 
hours talking about things we should not be talking about. We are 
talking about judicial vacancies, which are at the lowest rate in 
almost 15 years. What we should be talking about are those things that 
are going up, not the thing that is going down. We should be talking 
about the 44 million Americans who tonight will go to bed with no 
health insurance. That is what we should be talking about. We should 
also be concerned about the millions of Americans who are underinsured.
  Mr. President, 44 million people have no health insurance, and we are 
here spending our time lamenting about the 4 people who want job 
increases; that is, they want to get better jobs. Miguel Estrada, let's 
not shed too many tears for him. He makes a half a million dollars a 
year. I think we should be talking about the people who have no health 
insurance, about the people who have lost jobs in this administration--
the 9-plus million people who are unemployed, as we speak. Why can't we 
spend that time, that is, 30 hours dealing with issues that are 
important to the American people?

[[Page 28631]]

  We also know, in addition to having 44 million people uninsured, that 
during the last 3 years those people who are poor in America have 
increased in numbers. The numbers have ballooned. We have the poor 
getting poorer and the rich getting richer, and we are squeezing the 
middle class so it is getting smaller and smaller. Wouldn't it be nice 
if we talk about poor people? I recognize they do not have lobbyists. 
Maybe they do not have Gucci shoes and these big limousines, but they 
still deserve our time.
  The poor are getting poorer and the rich are getting richer. 
Shouldn't we spend part of this 30 hours talking about them? The 
unemployed: We have talked about that issue. I have talked about it 
tonight on more than one occasion. But the American people have to 
recognize that during the administration of George Bush the 
unemployment rolls have gone up.
  The national debt: What has happened to the national debt during the 
last 3 years? It has gone up, way up. It is interesting to note that 
during the last 3 years of the Clinton administration, we were spending 
less money than we were taking in. We were actually paying down the 
national debt. We were being criticized for paying it down too fast: Be 
careful; you can't do that.
  Well, whoever heard that term really took it in spades because the 
fact of the matter is, we are now increasing the national debt. This 
year's budget deficit will be the highest in the history of our great 
country.
  Everything that is going up we are not talking about. We are talking 
about people who have jobs, and they lost an opportunity to get a 
promotion.
  I ask unanimous consent that the Senate now return to legislative 
session and proceed to the consideration of Calendar No. 3, S. 224, the 
bill to increase the minimum wage, that the bill be read a third time, 
passed, and the motion to reconsider be laid on the table.
  The PRESIDING OFFICER. Is there objection?
  Mr. CORNYN. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. I am not surprised. I am not surprised. We have the 
audacity on this side of the aisle to ask that the minimum wage be 
increased from $5.15 to something more. Why, these people who draw 
minimum wage, think about it, if they work 40 hours a week, 52 weeks a 
year, and don't get any time off for vacation, they can make the grand 
sum, working a whole year, of $10,700. What pigs. They want to get that 
much money?
  I say we should recognize the people drawing minimum wage are not a 
bunch of high school kids working in a fast food chain. The fact of the 
matter is 60 percent of the people drawing minimum wage are women. For 
the majority of those women, that is the only money they get for them 
and their families. I cannot imagine that we have had such a difficult 
time bringing up something so important to the American people, the 
minimum wage, to increase it from $5.15 an hour, maybe increasing it 
$1, maybe increasing it $1.50.
  I know that is pushing the envelope a lot to think this body would 
take up something as unimportant as people getting an increase in the 
minimum wage. No. What we should do is worry about four people, four 
people, one of whom makes a half a million dollars a year downtown. 
Then we can also worry about other people, those other three who, 
between them, make about a half a million dollars.
  I have no understanding in my heart how the majority can continually 
deny us the opportunity to do something about the minimum wage.
  Remember, the judicial vacancies are at their lowest level in almost 
15 years. While we are here talking all night about judges, 44 million 
people, as I have indicated earlier, will go to sleep tonight with no 
health insurance, none, and millions of others have insurance that is 
not very good.
  Nine million, almost 10 million people will go to bed tonight 
wondering if tomorrow they will finally be able to find a job--
recognizing that the average person who loses a job in America today is 
out of work for 5 months. That is the average, 5 months. And it does 
not matter. It does not matter what strata we are talking about. People 
in America have trouble finding jobs. The average is 5 months.
  We have tried earlier today, through a unanimous consent request, to 
spend some of these 30 hours talking about having an extension of 
unemployment benefits. No.
  We have asked tonight to increase the minimum wage, to debate that. 
No.
  I think it pretty well describes what is going on here today.
  This is an issue that people think if they talk about how unfair we 
are, that, yes, what we have done here is so bad--we have approved only 
98 percent of the President's requests to become judges. Only 98 
percent. If we had it up to 99 percent, would we only be here for 15 
hours?
  I think this is a travesty. I say that without any question. Others 
have referred to it as a carnival and a circus. Whatever it is, the 
unemployed, those people who are poor, those people who have no health 
insurance are not getting their time in the Senate.
  Who is getting time? Four people: Estrada, Owen, Pickering, and 
Pryor. That is not fair.
  I yield to the Senator from New York.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. I thank the Chair.
  Mr. President, I listened to the debate, and I would say basically, 
kindly, it is just a repetition of arguments we have heard over and 
over again. A little less kindly, sound and fury signifying nothing.
  I tried to ask some questions of the other side a few minutes ago and 
was rebuffed. It is no wonder because we are not having a coming 
together here. We are not having an elucidation. What we are having is 
a rehash of arguments we have heard over and over again.
  It is not going to change anything, I say to my colleagues. It is not 
going to change a thing. There is only one way to change things, and 
that is for the President and the other side to follow the Constitution 
and take the words ``advise and consent'' seriously. If they think we 
can be bludgeoned, if they think more talk radio makes a difference, it 
is not going to make a difference. In fact, I would argue to my 
colleagues, this debate is helping us because the hard-right media, the 
talk radio, and the others don't mention this fact.
  This chart is worth 30 hours of palaver, of gibberish. The Wall 
Street Journal today has an editorial with the pictures of the six. Do 
they mention how many have been approved? They don't dare. They have 
had editorial after editorial and some of them criticize me. I write 
letters, and they don't publish them. You would think if they are going 
to do a whole editorial being critical of someone, they would give them 
the courtesy of publishing a letter. They are not interested in the 
debate of facts. No.
  At least we are getting a chance to show this. One picture is worth a 
thousand words; one chart is equal to all the talk we have heard. 
Nothing will change that.
  This is actually going to help our side. It is backfiring. I know 
many of you on the other side didn't really want to do this, but I 
guess I have to say to those of you who argued for it, thanks.
  I heard from a constituent earlier tonight. They were watching the 
debate. I said: Did you know about 168 to 4? No. Most people don't 
because the big storm on this has come from a small narrow band on the 
hard right. We know the other side has to pay attention to them. They 
accuse us of being subject to beltway liberal groups. There are groups 
on both sides. They both feel as passionately.
  I don't know why one group is any better than the other, but the 
group on that side has made this an issue. They just can't stand the 
fact that four have been rejected--four.
  I begin by saying, better be careful about what you wish for because 
this at least is an even airing of the facts. What I would like this to 
be is a real debate. I would like us to ask each other questions. I 
would like us to

[[Page 28632]]

challenge each other's assumptions and misstatements. But it is 
obviously not happening. Obviously not at all.
  Mr. CORNYN. Will the Senator yield for a question?
  Mr. SCHUMER. I will be happy to yield for a question. I give the 
Senator from Texas the courtesy I was not given.
  Mr. CORNYN. I would like to ask the Senator from New York, of the 
individuals he has listed on his chart, isn't it true that all but 
Judge Fortas were ultimately confirmed to the positions to which the 
President appointed them?
  Mr. SCHUMER. Yes, reclaiming my time, that is exactly the point. I 
haven't gotten up to this chart, but I will go to it now.
  Mr. CORNYN. If I may----
  Mr. SCHUMER. Let me please answer my colleague's question. The bottom 
line is the other side has said--and in the chart of the Senator from 
Pennsylvania, he was careful. He said ``successfully filibustered, 
none.'' Then when it was repeated by many of the other colleagues, they 
said there has never been a filibuster.
  As my good colleague from Nevada pointed out, there have been 
filibusters. Here are some of the judges who have been filibustered.
  Don't claim there has never been a filibuster. In fact, I would ask 
anyone on the other side, when you filibustered just 3 years ago, did 
anybody object and say the Constitution is being defiled? Judge Berzon 
was filibustered in 2000. Judge Paez was filibustered in 2000. Judge 
Sarokin was filibustered in 1994.
  I didn't hear the outcries from the Senator from Pennsylvania or 
others that filibuster is constitutionally wrong. Oh, no. Oh, no. So 
the one difference----
  Mr. CORNYN. Will the Senator yield?
  Mr. SCHUMER. Let me finish--the one difference--and then I will be 
happy to yield for a question--is this. We succeeded. Do you know why 
we succeeded? I will tell you why. Because President Clinton made an 
effort to nominate moderate judges, by and large; because President 
Clinton did far more of the advise-and-consent process than President 
Bush, and President Clinton was able to persuade 15 or 20 Members from 
the other side to finally vote for these judges.
  We have had no advice, meaning consultation. I am consulted in New 
York, and we have filled every vacancy. On the main court of appeals 
nominees, there is no advise, and that means there isn't consent.
  I would argue this to my good friend from Texas: No President has 
chosen judges through an ideological prism more than President Bush. He 
said it when he ran, to his credit. He was going to appoint judges in 
the mold of Scalia and Thomas, two of the most conservative judges we 
have. Some of them are to the right of Scalia and Thomas. Clearly, 
Justice Brown is. I believe Miguel Estrada was. He has appointed judges 
ideologically. Then we are supposed to not challenge that ideology? It 
is two-faced. It is hypocritical.
  Most of President Clinton's nominees--not all, but most--were not 
legal aid lawyers or ACLU attorneys. They were partners in law firms; 
they were prosecutors. Anyone who has followed this knows President 
Clinton decided to nominate, by and large, decidedly moderate judges. 
That is why the filibusters were not successful.
  Our filibusters are successful, frankly, not because of any of us. It 
is because President Bush has decided to nominate people from the hard 
right so that he gives us no choice. Nothing would please me more--and 
I am one of the leaders in this--nothing would please me more than for 
Counsel Gonzales to call some of us in and say: How do we come to some 
kind of comity? Guess what, the same thing that happened in New York 
and a few other States will happen nationally.
  Will most of the judges be far more conservative than me? Yes. Will 
many of the judges disagree with my view on choice or affirmative 
action or anything else? Yes. But at least we will feel they will 
interpret the law, not make law.
  As my good friends know on the other side, the Constitution requires 
interpretation of the law, and ideologues, far left or far right--I 
don't like far-left judges, either--want to make law because they feel 
they are so right and the country is so wrong, and so they try to make 
law.
  Mr. CORNYN. Will the Senator yield----
  Mr. SCHUMER. The Founding Fathers in their wisdom--I will yield in a 
minute, and maybe the Senator would ask the others on their time to 
yield to us as well. Then we can get some debate here and maybe make a 
little progress instead of just talking past one another.
  The bottom line is this: We are defending the Constitution. We are 
saying there should be some balance. President Bush didn't win by a 
landslide. This Senate is not 62 to 38 or 70 to 30. This country is 
narrowly divided, and that means when laws are made, they tend to move 
to the middle. The prescription drug law is an example right now. But 
judges don't have to move to the middle. Once they are appointed, they 
are there for life, and they have virtually absolute power over cases. 
All we have is the constraints within their own heads.
  My good, learned friend from Texas knows that in the ``Federalist 
Papers,'' Alexander Hamilton said ideology should play a role. My good 
friend from Texas--he is a student of history--knows one of the first 
nominees of George Washington, John Rutledge, was rejected because of 
his views on the Jay Treaty. My good friend knows in that Senate that 
rejected John Rutledge were a good number of the Founding Fathers. So 
this is not new. This is not made up. In fact, what is new is the view 
on the other side that if they don't get their whole way, they want to 
change the rules. If there had been for 20 years protests from many of 
my colleagues who sat in those seats in 2000 and 2000 and 1994 and 1994 
when there were filibusters, maybe we could feel there was some genuine 
feeling here, some genuine fidelity. Instead, I would argue most of 
those who study logic know that things can be made; that the weakest 
arguments are outcome determinant. In other words, you look for the 
outcome you want and then you make the argument. That, I would argue, 
with all due respect, is what my colleagues are doing.
  The bottom line is filibusters were not an abomination to the 
Constitution when President Clinton nominated. And, by the way, in the 
inverse case, holding back judges from even getting a vote in the 
Judiciary Committee was perfectly OK. That didn't unbalance the 
Constitution.
  What my colleagues have done is taken the result they want, which is 
172 to 0, and then come up with an argument that all of a sudden 
filibusters are bad. Blocking judges can't be bad because look at all 
these judges the other side blocked and didn't even allow to come up 
for a vote. So it can't be that blocking judges is wrong. But it also 
can't be that filibusters are wrong because they did them in recent 
history. They just didn't succeed.
  Now they have this twisted logic that only a successful filibuster is 
bad. That doesn't make much sense. I am sure my good colleague from 
Alabama wishes his filibuster had succeeded. He felt it passionately. 
He felt Judge Berzon and Judge Paez were too far over, maybe.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. SCHUMER. I will be happy to yield since I mentioned the Senator's 
name.
  Mr. SESSIONS. Did the Senator know that although the Senator from 
Alabama strongly opposed Berzon and Paez and voted against both those 
nominees, that there were holds on those nominees, and the Republican 
leader, Trent Lott, moved for cloture to move the nominations forward, 
and this Senator, as did Trent Lott, voted for cloture to bring an up-
or-down vote and voted against the nomination although we----
  Mr. SCHUMER. Let me reclaim my time.
  Mr. SESSIONS. That is not the kind of filibuster we have going on 
today.
  Mr. SCHUMER. I simply say to my colleague----

[[Page 28633]]

  The PRESIDING OFFICER. The Senator from New York controls the time.
  Mr. SCHUMER. Thank you, Mr. President.
  What I said before was, and I say it again, I did not hear an outcry 
about filibustering being wrong or being unconstitutional or being evil 
when these judges came up. I didn't see people get on the floor for 30 
hours. There were four of them in the last 6 years. I didn't even hear 
people get on the floor for 3 hours and take up time to say why 
filibustering is bad.
  Do you know why they say it is bad now? Because we have succeeded. 
Again, why have we succeeded? Because President Bush has changed the 
way people are appointed to the judiciary. He has nominated judges 
through an ideological prism to a far greater extent than any President 
in history.
  I say to my colleagues, do you want to get it to be 172 to 0? Tell 
the President to sit down with us, to advise, to come to some 
compromise, and then you will probably get 172 to 0. But as long as 
this process continues where there is no advise and consent, as long as 
this process continues where certain judges who believe decisions that 
have been discredited 50 and 100 years ago should be law, we have no 
alternative but to do what we are doing.
  Mr. REID. Will the Senator yield for a question?
  Mr. SCHUMER. I will be happy to yield to my colleague for a question.
  Mr. REID. Does my friend from New York support the unanimous consent 
requests--plural--that have been entered today on the record and 
rejected by the majority, first of all to extend up employment 
benefits? Does the Senator from New York believe we would be better 
advised to go forward on something like that than on these four people 
who do have a job?
  Mr. SCHUMER. I say to my colleague, most definitely, because, first, 
not only do these people have a job, but they shouldn't be on the 
bench.
  Mr. REID. I ask another question. Does the Senator also agree that 
rather than going through 30 hours of this--first of all, with all due 
respect, everybody, including me, everything that has been said so far 
tonight in these 5 hours has already been said.
  Mr. SCHUMER. More than once.
  Mr. REID. And I am sure for the next 25 hours, there will still be 
nothing new. Having said that, I ask my friend from New York, does he 
think it would be a good idea that the unanimous consent requests I 
proffered where I asked to do something about the minimum wage right 
here on the Senate floor tonight, does the Senator think that would be 
a good idea to help the American people?
  Mr. SCHUMER. I say to my colleague, it would be an excellent idea. 
This debate, as I mentioned earlier, is not going to accomplish a 
thing. In fact, if it accomplishes anything, since we haven't had the 
media drumbeat on our side the way the others have, it is going to help 
us; it is going to get this very fact out. Why not have a debate on 
something we haven't debated, such as minimum wage, such as health 
care, such as energy policy, instead of having two people decide energy 
policy. Nobody knows what the conference report will be. Let's have a 
debate about that.
  Here we are repeating over and over and over and over again the 
arguments that have been made and made and made.
  The bottom line, I say to my good colleague from Nevada, is there are 
100, 200, 300 better ways to spend 30 hours in the Senate than redebate 
these issues. If this is frustration on the other side because 4 of the 
172 have been blocked, the solution is not to repeat the same arguments 
which we regard as specious. The solution is to come to the middle and 
compromise and talk to us, as we have done in certain States.
  I say this to my colleagues: Stop using outcome-determinative 
arguments. Filibusters are fine when you do them. Only when we do them 
successfully are they no good. And blocking judges? That is just fine. 
You blocked so many more than we have. This argument is like trying to 
thread a needle: Blocking judges is OK; filibustering is OK; only 
successful filibustering is unconstitutional.
  I doubt many legal scholars of any political persuasion would be able 
to sustain the contradictions in my friends' arguments from across the 
aisle.
  The bottom line is simple: We believe advise and consent really means 
what it says.
  The PRESIDING OFFICER (Mr. Enzi). The Senator has consumed his time.
  Mr. SCHUMER. We believe keeping judges in the mainstream is within 
what the Founding Fathers wished us to do. I will have more to say in 
the next hour.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, it is my understanding that there is a rough 
sense between the Democratic and Republican sides that the next hour, 
at least on our schedule, had been designated, that the Republican time 
would take half an hour and the Democratic side half an hour. If there 
is a different point of view on that side, perhaps that could be 
expressed. Otherwise, we would go forward. If there is not, then what I 
would like to do at this time is yield 5 minutes to the Senator from 
Idaho.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I have spent a fair amount of time on the 
floor tonight listening. I am a freshman on the Judiciary Committee. 
There are a great many things Senators can do. They can speak 
flamboyantly, they can speak articulately, they make history, but they 
cannot rewrite history.
  I heard a few phrases tonight that were trying to rewrite a little of 
the history. So I thought for a few moments I would read from a letter 
from the Senator who was there for the Abe Fortas debate, not a 
filibuster but a debate, a cloture vote. We are trying to say tonight 
that cloture votes are somehow filibusters. Well, my goodness, what an 
interesting term of art. Most importantly, what an interesting play of 
words.
  Filibusters are nonstop speaking. Cloture votes are simply to gain 
the majority necessary, a supermajority, to continue the work of the 
Senate. Now, those are the rules of the Senate.
  Let me read a letter that came to us from Robert Griffin, Republican 
Senator from Michigan. He writes to the Honorable John Cornyn, chairman 
of the Subcommittee on the Constitution:

       Dear Mr. Chairman: An Associated Press piece which appeared 
     yesterday in many of the Sunday newspapers (copy attached) 
     speculated that Chief Justice Rehnquist and/or Justice 
     O'Connor might retire this year or next, and concluded with 
     this comment: Presidents have not had much success in 
     appointing Supreme Court justices in election years. . . . 
     The last person to try it was Lyndon Johnson in 1968, when he 
     failed to elevate Justice Abe Fortas to replace Chief Justice 
     Earl Warren. Republicans filibustered the nomination and 
     Johnson backed off.

  That is what the article in the paper said. Here are the facts from a 
Senator who was on the floor at the time debating the Abe Fortas 
nomination. He goes on:

       Whether intended or not, the inference read by many would 
     be: Since the Republicans filibustered to block Justice 
     Fortas from becoming Chief Justice, it must be all right for 
     Democrats to filibuster to keep President Bush's nominees off 
     the appellate courts. Having been on the scene in 1968, and 
     having participated in the debate, I see a number of very 
     important differences between what happened then and the 
     situation that confronts the Senate today.
       First of all, four days of debate on a nomination for Chief 
     Justice is hardly a filibuster.

  He goes on to speak of the remarks that he gave in closing out that 
debate.

       When is a filibuster, Mr. President? . . . There have been 
     no dilatory quorum calls or other dilatory tactics employed. 
     The speakers who have taken the floor have addressed 
     themselves to the subject before the Senate, and a most 
     interesting and useful discussion has been recorded in the 
     Congressional Record.
       Those who are considering invocation of cloture at this 
     early stage on such a controversial, complex matter should 
     keep in mind that Senate debate last year on the investment 
     tax credit bill lasted 5 weeks--

  In other words, Senate leadership is now considering imposing a 
cloture vote on the debate that has gone on for

[[Page 28634]]

4 days. Nothing was said about a filibuster. So we go on, and he speaks 
about that. Then he says:

       While a few Senators, individually, might have contemplated 
     the use of the filibuster, there was no Republican Party 
     position that it should be employed. Indeed, Republican 
     leader of the Senate, Everett Dirksen, publicly expressed his 
     support for the Fortas nomination shortly after the President 
     announced his choice. Opposition in 1968 to the Fortas 
     nomination was not partisan. Some Republicans supported 
     Fortas; and some Democrats opposed him.

  Then he goes on to speak about the cloture vote. There were 45 in 
favor of the motion and 43 against.
  What happened the next day, when the President, a Democrat President, 
could see he simply did not have bipartisan support on the floor for a 
majority, 50 plus 1? He pulled the Abe Fortas nomination. There was no 
filibuster. There was simply a cloture vote.
  Now, it is a term of art that is trying to be finely defined tonight 
and finely written. When is a filibuster a filibuster? When is a 
cloture a cloture? Well, my colleagues cannot use the Abe Fortas 
example as a filibuster because simply this Senator will never allow 
other Senators to rewrite history. History is what it is at the time it 
is recorded and the Congressional Record clearly demonstrates----
  Mr. SCHUMER. Will my colleague yield for a question?
  Mr. CRAIG. I will not yield at this time.
  It is simply a fact recorded in the Congressional Record, so spoken 
by Robert P. Griffin, then the Senator from Michigan, who was there 
debating the cloture.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I yield 5 minutes to the Senator from 
Virginia.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Mr. President, I thank the Senator from Arizona. We have 
heard some comments about we ought to be talking about jobs and the 
economy. On this side of the aisle, we are always looking at ways to 
make our tax laws, our regulatory policies, and our legal system more 
conducive to more jobs with more investment in this country.
  We have heard this evening all sorts of excuses and justifications 
for filibustering. For example, we heard mentioned earlier by the 
Senator from Michigan, Mr. Levin, a citation as justification from 
Lyndon Johnson who said: ``If I should have the opportunity to send 
into countries behind the iron curtain one freedom and only one, my 
choice would be to send those nations the right of unlimited debate in 
their legislative chambers,'' to which my view was, gosh, there are a 
lot more important rights, such as freedom of expression, freedom of 
religion, property rights, due process under the rule of law.
  When we get to the rule of law and how important that is for the 
credibility in this country, whether it is people in this country or 
outside of America to take a risk and invest in this country, the fair 
adjudication and administration of laws is very important. It is 
vitally important that we have judges on the courts so that if there 
are contractual disputes, or if property is being taken, or if there is 
a dispute, it is as expeditiously handled and decided rather than being 
delayed because of insufficient judges.
  In many of these circuits, we have judicial emergencies. In fact, it 
is a fundamental principle of the American judicial system that justice 
should be blind, that people can get a fair hearing regardless of who 
they are, where they come from, or what they look like. Surely, 
nominees to the Federal bench deserve the same rights to a fair hearing 
as any of us.
  Our sense of what is right for the country tells us that the most 
political among us realize that it is imperative that our courts are in 
working order. Common sense tells us that many of America's highest 
courtrooms do not have judges to run them and as a result the legal 
system cannot function.
  When it is said that the economy is somehow not doing as well as it 
should, all of us, on this side of the aisle, President Bush and his 
Cabinet, are working to make sure that our economy gets stronger and 
more jobs are created. In fact, the gross domestic product is the best 
in nearly 20 years. We had negative growth in 2001, obviously because 
of a variety of factors, including, of course, the terrorist attacks. 
The gross domestic product has grown every quarter since the passage of 
the Economic Growth and Tax Relief Reconciliation Act of June of 2001.
  It grew our economy by a 7.2-percent annual rate the third quarter of 
this year. This was the fastest pace of growth since 1984, almost 20 
years ago. Employment continues to make gains. Payrolls increased by 
126,000 new jobs, net new jobs, in October. The stock market continues 
to grow. That means more money for people's nest eggs, for their 
security and retirement.
  Business is reacting favorably to tax relief and corresponding 
economic growth, where businesses are growing, thereby providing more 
jobs. We also find an increase in disposal household income, where 
mothers and fathers have more money so they are spending it on their 
children, which is great for those who are selling whatever products or 
services that they are purchasing, as well as whoever is packaging, 
transporting, fabricating, assembling, or manufacturing what they are 
purchasing.
  Dividend relief also is leading to billions of new dividends 
distributed to shareholders. All of this is going on now. It also is 
important, though, that we have judges and the fair administration of 
the rule of law in the laws that we pass.
  We cannot have activist judges. Activist judges create uncertainty. 
Businesses want to know what the laws will be so they can make those 
strategic long-term decisions. To have judges coming up with activist 
inventions of new laws that were not written or adopted by the 
legislative branch is dangerous for security, jobs, and investment in 
this country.
  To put a fine point on judges, look at the Ninth Circuit Court of 
Appeals. Ask those affected every day by the decisions by our Federal 
appellate courts whether confirming circuit court nominees is 
important.
  The people of California almost had their constitution gutted by a 
three-judge panel in the Ninth Circuit only to have a larger panel of 
the same circuit reinstate their constitutionally authorized 
gubernatorial recall election. I think it is pretty important who sits 
on the Ninth Circuit.
  I am sure those in circuits where, for example, schoolchildren in 
Montana, Nevada, Arizona, and Idaho, who cannot say the Pledge of 
Allegiance because of leftwing activist judges in that circuit, who say 
that if one person takes offense at some other revering our flag, then 
the pledge is unconstitutional, would say these judges do matter.
  They matter in our everyday lives. They matter in our schools. They 
matter in our businesses. Let's put in judges who will interpret the 
law, not invent it.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I thank the gentleman for his comments, both 
on the status of our economy and the great economic growth that we are 
now enjoying, but also the last point about the importance of 
confirming judges.
  I hope people around America are watching tonight so they will 
understand why we are talking about the importance of confirming judges 
nominated by the President to the Federal bench.
  We have all heard the phrase, ``justice delayed is justice denied.'' 
The reason that is a common phrase is because there is a lot of truth 
to it. What we are seeing around the country today is delay in justice 
because the Senate is denying the President a mere up-or-down vote on 
some of his nominees to the bench.
  While it is possible for minority members, along with some in the 
majority, to defeat a judge on an up-or-down vote, that has only 
happened one time, a few years ago, since I have been in the Senate.
  The judges who are being denied confirmation would all pass with a 
majority vote, but the minority is holding them up through the 
mechanism of the

[[Page 28635]]

filibuster. I will have more to say about that mechanism in a moment.
  The key point the Senator from Virginia made was that it is important 
we confirm these judges, as important as many of our other functions.
  Let us reflect for a moment. The Senate was given some very unique 
responsibilities by the Framers of our Constitution. Among those unique 
responsibilities is the sole ability to ratify treaties and confirm 
nominations of the President. Advice and consent of the Senate is the 
way the Constitution refers to it.
  The House of Representatives, with all of the great responsibilities 
of that body, does not have this authority. This is alone the job of 
the Senate, and it is a job that the Senate, throughout its entire 
history, has taken very seriously. Never, in the history of the Senate, 
has there been a successful filibuster of a nominee to the bench by the 
President. That is what is so striking, what is so important, what is 
so significant, about the activity of the minority party during the 
course of the last couple of years, and it is why we are here tonight 
talking about this and trying to move America to move our Democratic 
colleagues to recognize that it is only fair to provide an up-or-down 
vote for these candidates. That is all we are asking.
  We have talked about the fairness to the nominees themselves. Miguel 
Estrada, one of the most competent attorneys in the country, after more 
than 2 years, finally withdrew his name from consideration because he 
had to move on with his career. We could talk about the fairness to 
these nominees of having to languish for months, for years, without 
even the courtesy of an up-or-down vote. We could talk to the fairness 
of the President. We could talk to the fairness of the majority in the 
Senate.
  What I want to address briefly is the fairness to the American people 
in denying justice by the delay in filling vacancies, vacancies which 
are emergency vacancies.
  What is an emergency vacancy? An emergency vacancy is one which has 
been determined by the Judicial Conference, which is a nonpartisan 
entity that acts as the principal policymaking body for the 
administration of the U.S. courts, that there are so many cases per 
judge in a particular circuit or district that an emergency exists; 
there are not enough judges to take care of the cases in any reasonable 
timeframe, as a result of which litigants suffer.
  Perhaps the clearest way to make this point is, every schoolchild 
knows that the Constitution of the United States guarantees a criminal 
defendant a speedy trial, but they cannot get a speedy trial if there 
is no judge. So what happens is that all of the other litigants in the 
courts have to go to the back of the line and stay there until all of 
the criminal defendants have had their speedy trial.
  In some cases, that means the civil cases languish for 3, 4, 5, 6 
years. That is justice denied in the case of those litigants whose 
justice has been delayed.
  What are these judicial emergencies? There are 12 judicial 
emergencies on the circuit court of appeals including the Ninth 
Circuit, the Fifth Circuit, the Sixth Circuit, and the Fourth Circuit. 
Democrats are obstructing nominees for every one of those circuits. For 
all three of the nominations who have already been filibustered--
Priscilla Owen, nominated to fill one of the two Fifth Circuit judicial 
emergencies; Charles Pickering to fill one of the Fifth Circuit 
judicial emergencies; and Bill Pryor, nominated to fill an Eleventh 
Circuit judicial emergency--in each case, the filibuster is preventing 
us from filling a seat which has been declared a judicial emergency.
  This is not some theoretical exercise. This is a problem that has to 
be dealt with, and the Senate is falling down in its responsibility to 
fill these emergencies.
  Democrats have also threatened to filibuster other nominees who have 
been named to fill judicial emergencies in other circuits, by name, 
Carolyn Kuhl, who I would like to speak about a little later, nominated 
to fill a Ninth Circuit judicial emergency, Henry Saad for the Sixth 
Circuit, Susan Neilson for the Sixth Circuit, Richard Griffin for the 
Sixth Circuit, David McKeague for the Sixth Circuit, and Claude Allen 
to fill a judicial emergency in the Fourth Circuit.
  The cost of judicial vacancies to litigants in civil rights cases not 
being able to vindicate their civil rights in commercial disputes, in 
contract disputes, in regulatory cases involving Federal regulations, 
in every kind of case one can mention, there are cases languishing and 
litigants who are not being given their rights because there are not 
sufficient judges to hear their cases.
  I mentioned the Ninth Circuit. That is the circuit in which my home 
State of Arizona is located. I am very familiar with the delays in that 
circuit. It is hurting the economies of our States. It is hurting the 
rights of litigants in our States. I will mention a couple of details 
to make the point.
  The Ninth Circuit is the largest circuit in the country. It hears 
appeals from California, Arizona, Nevada, Idaho, Montana, Washington, 
Oregon, Alaska, and Hawaii. There are over 5,200 cases pending in the 
Ninth Circuit. It has the largest civil docket in the Nation, more than 
1,500 cases. Since early 2001, cases filed in the district court of the 
Ninth Circuit and that make their way through the court of appeals take 
longer to resolve than they did 2 years ago. In 2001, it took 30 months 
for a case to go from original filing to a final decision on appeal. By 
June 2003, it took 31 months. This 1-month increase in delay may seem 
small but the delay adds up across the circuit. There are more than 
4,100 cases in the Ninth Circuit affected by this delay.
  That means there are more than 123,000 extra days that have been 
spent by both parties waiting for a decision. It takes 5 months longer 
to resolve a case in the Ninth Circuit than the national average of 
courts of appeal, 31 months versus 36 months. That is what has affected 
my State and other States in the United States Court of Appeals. The 
filibuster that has been conducted by the Democrats is responsible for 
the inability to fill these vacancies. Not just vacancies, but judicial 
emergencies.
  The last point I make before yielding time, if the Senator from 
Alabama is still here and would like to speak briefly, to answer a 
question that has been asked of me by constituents in Arizona. They 
remember the movie ``Mr. Smith Goes to Washington'' with Jimmy Stewart. 
A couple of them have read in the history books about the great 
filibuster Strom Thurmond conducted over 24 hours. They asked me, if 
the Democrats are filibustering these judges, why can't you make them 
talk all night? The answer to that question is, that is not the nature 
of a modern filibuster. When Jimmy Stewart and Strom Thurmond were 
speaking that long, they were trying to hold the floor, as our 
colleague from Nevada did a couple of nights ago when I think he spoke 
over 8\1/2\ hours. He did not want to give up the floor because he did 
not want business to be conducted.
  In the case of Strom Thurmond and Jimmy Stewart, in the movie, they 
did not dare give up the floor because they were a one-man band for 
their cause. They may have had one or two colleagues with them, but 
basically they were it. They knew as soon as they gave up the floor, 
the leader would say: I ask unanimous consent we now vote on the matter 
they were arguing about. They would object and say, I object, and under 
Senate rules that is enough. It only takes one person to object to go 
to the next stage. The next stage is filing a cloture motion and then a 
vote occurs. If 60 Senators say, ``We are ready to vote,'' you take the 
vote on whatever matter it is. In this case, it would be the nomination 
of these judicial nominees. They might pass by 51 votes, but you cannot 
take the vote until 60 Senators agree.
  That is the rule that applies on the legislative calendar. Up until 
now no one thought it would be a rule that would be abused with respect 
to the Executive Calendar, the calendar on which the judicial nominees 
are considered.
  The Democrats have decided to seek to apply that 60-vote rule so if 
more

[[Page 28636]]

than 40 of them vote no to take a vote, we would not have the 60 votes 
necessary to take that vote and the majority rule would never be 
permitted to prevail. That is the way it has been for the last several 
months. We have taken a cloture vote several times and each time there 
are 44, 45 Democrats who vote against cloture. They vote against taking 
the final vote. That means there may be 55 or 56 on the other side with 
some Democrat support, obviously, willing to take the vote. But we 
cannot get that number up to 60.
  Up until now, in the interpretation that has prevailed, we cannot 
take the final vote which would pass for all of these nominees; 51 
votes would be secured for every one of the nominees that have been 
filibustered. That is why we cannot make someone talk all night. If our 
colleagues on the Democrat side wished, they could have one person on 
the floor all night tonight and simply object to our request to go to 
these votes. But they would not have to talk if they did not want to.
  I am pleased they are joining in this debate so we can actually have 
a discussion about these candidates. In that sense, I guess we have 
forced an all-night discussion. It is a discussion that should have 
occurred a long time ago. It is a useful discussion, but it is not a 
discussion at the end of the day that I suspect will change any of 
their minds, as a result of which, as long as we adhere to the 60-vote 
rule that has always been the rule in the past, we cannot get to a vote 
where the majority would be able to prevail. That is what the Senate 
rules are.
  On Friday, we will have a vote to change the rules. That vote 
requires a two-thirds majority to pass. It is unlikely that will occur, 
either.
  That is the state of play right now. That is why, to answer the 
question, ``Can you make somebody talk all night,'' the answer is no, 
not if they have 40 friends, because if they have 40 friends, all they 
have to do is vote ``no'' when you have a cloture vote and you cannot 
go on to your final vote. That rule may sound arcane, but I also say on 
legislative matters, it has been used by both parties to defeat 
legislation that did not have a 60-vote majority. It is a right 
Senators have always felt important, for important matters to require 
60 votes. To pass a treaty, it takes two-thirds. The Constitution 
explicitly spells that out. But to confirm a judge, the Constitution 
has no supermajority requirement.
  There are a lot of people who believe the real intent of the Framers 
was that a simple majority should apply. Perhaps one day that issue 
will be tested. Until then, we are with the proposition that as long as 
any Senator objects, it takes 60 votes to get to a final vote in which 
a simple majority would prevail. As of right now, that is what is being 
applied in the case of these judicial nominees.
  The important point for Americans to understand is the minority has 
thwarted the will of the majority; that the consequences are 
significant for the country; that emergency judicial vacancies are not 
being filled; and while this is unfair to nominees themselves, it is 
even more unfair to the American people because the judicial vacancies 
remain vacant.
  It is a solemn responsibility of the Senate to act on the President's 
nominees. We are not fulfilling that responsibility. It is for that 
reason the Republican majority decided to take this time tonight and 
tomorrow to try to bring this matter to the attention of the American 
people to urge our colleagues to reconsider their position in 
opposition to even taking a vote on these nominees so eventually we can 
get to the point where we can simply have an up-or-down vote on the 
nominees President Bush has made for these important positions.
  I reserve the balance of the time allotted to the Republican side 
during this hour. If there is another Republican wishing to speak, I am 
happy to recognize that person. If not, I am happy to yield the floor 
to colleagues on the Democrat side for whatever time is remaining and 
pick that up a little bit later.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. I am happy to yield to my colleague.
  Mrs. HUTCHISON. I am happy for the Senator to go forward and then we 
will come back at the end of the hour.
  Mr. KYL. Mr. President, I inquire how much time remains of the half 
hour?
  The PRESIDING OFFICER. Two and \1/2\ minutes.
  Mr. KYL. If either Democrat who is on the floor would like to speak, 
fine. Otherwise I will go ahead and use that time.
  Mr. REID. Mr. President, it works better when we use our time and do 
not get mixed up so no one owes time.
  Mr. KYL. I am happy to follow the precedent we have established and 
use the remaining 2\1/2\ minutes.
  I wanted to speak to the qualifications of some of these nominees. 
Obviously, during the short period of time I have, I am not going to be 
able to do that except that I said I wanted to mention the 
qualifications of one of these nominees, Judge Carolyn Kuhl, nominated 
to the Ninth Circuit Court of Appeals, a judge who would be sitting on 
cases I might argue to the Ninth Circuit Court.
  She has been a judge in a State trial court in Los Angeles since 
1995. The American Bar Association rated her ``well qualified,'' their 
top rating for the Ninth Circuit Court of Appeals. She has served as a 
superior court judge in Los Angeles County in both the criminal and 
civil divisions and supervising judge of the civil division, the first 
woman to hold that position. Before that, she was a partner in a 
prestigious law firm in California. Before that, she served in the 
Department of Justice. She worked as a deputy solicitor general of the 
United States and argued cases before the United States Supreme Court 
in that capacity. She has extraordinary bipartisan support. A 
bipartisan group of 23 women judges on the superior court who serve 
with Judge Kuhl have written to our Judiciary Committee and said, ``As 
sitting judges, we, more than anyone, appreciate the importance of an 
independent, fair-minded and principled Judiciary. We believe that 
Carolyn Kuhl represents the best values of such a Judiciary.'' That is 
from a bipartisan group of judges.
  A bipartisan group of nearly 100 judges who serve with her said: We 
believe her elevation to the Ninth Circuit Court of Appeals will bring 
credit to all of us. As an appellate judge, she will serve the people 
of our country with distinction, as she has done as a trial judge.
  There are a variety of other endorsements that have been made of this 
fine candidate. The bottom line is we reviewed her record, we heard her 
testimony. She made a tremendous impression on all of us on the 
committee. The worst a couple of people on the other side can say is 
they disagreed with a couple of her decisions. I daresay if that was 
the test of every one of us as Senators, we would be in a sorry 
position because we cannot go very long without people disagreeing with 
us philosophically on positions.
  Judge Carolyn Kuhl, it is plain, will follow the Constitution. She is 
one of the candidates we need to act upon. I urge my colleagues to 
consider these remarks in consideration of her nomination.
  Mr. REID. Mr. President, the first 15 minutes will go to the Senator 
from California, Mrs. Boxer, and the second 15 minutes to the Senator 
from New York, Mr. Schumer.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. I am glad Senator Kyl brought up the Kuhl nomination 
because I will be talking a little bit about that nominee and her 
background and the number of people from all sides of the spectrum who 
oppose this nominee and the fact there is a very serious case involving 
a breast cancer patient who she ruled against in terms of her privacy 
rights. I will get into that. Judge Kuhl was overturned immediately. I 
will get into that and why it is we have taken a stand on a handful of 
these very extremist, very controversial judicial nominees.
  First, I remind us of the scorecard. If I were the Republicans and I 
got 168 of the judges I wanted and only was

[[Page 28637]]

turned down for 4, I would do what my mother said when I was a kid: 
``Honey, if you get 90 percent of what you want, say thank you, give 
the person a hug, and leave the room.''
  Instead, what do we have? We do not have smiling, we do not have 
thank you's. We have 30 hours of wasted time to hear people complain 
and whine about the fact they did not get four.
  Somebody wrote a book once, called ``All I Really Need to Know I 
Learned in Kindergarten.'' I honestly think this is the most childish 
situation. The President gets 168 and does not get 4 and his party is 
up in arms.
  How does that compare to President Clinton? Let's take a look at 
that. President Clinton had 63 nominees blocked, or 20 percent of his 
nominees. President Bush has, up to now, four--I suspect if we get 
these new two women we are talking about coming forward on Friday, 
hopefully, there will be six, but tonight there are four. That is 2 
percent, and we have complaining going on.
  I do not get it. I feel like Barbara in Wonderland. It makes 
absolutely no sense. I cannot figure it out. It is like the kid who 
comes home from school and says to his dad, ``Dad, I got 98 percent; 
aren't you proud of me?'' Dad says, ``What happened to that other 2 
percent?'' What is it about? We all learn to be gracious when we win. 
When we win 98 percent, we should be gracious.
  Here are the names of the Clinton nominees who were blocked. Fifteen 
times more judicial nominees blocked than that of President Bush. Why 
were they blocked? The other side felt, for whatever reason, maybe they 
did not feel they came from the mainstream.
  I remember speaking to Senator Hatch. He actually called me into his 
office. We had a very good talk. This is when he was chair of the 
Judiciary Committee and President Clinton was President. He said to me: 
``I just want you to know, Barbara, if your side sends over from 
California liberal judges, they will never go anywhere. Do not send me 
liberal judges.''
  I said: ``Orrin, I get it. I am a pragmatist. I have a committee 
advising me. I will so instruct them.'' We got almost all of our 
nominees through.
  When President Bush was elected, I said to Senator Hatch: ``I hope 
you are not going to send us rightwing nominees, because they are out 
of the mainstream and this President promised us mainstream nominees.''
  Remember the night the Court decided he had won the election? The 
President came out--I will never forget it--we needed healing, and he 
came to the mike. It was very healing. He said: ``I will govern from 
the center. I am a uniter, not a divider.''
  Yet we see some of these nominees who are coming down who are so far 
off to the right they are falling off the charts. I want to be clear. I 
want to say this unequivocally to my colleagues. I don't deserve to be 
here if I don't exercise the right given to me in the Constitution of 
the United States, which I revere. If I don't exercise that right, I do 
not deserve to be here. If I don't stand up and block some of these 
people, I do not deserve to be here. It is as simple as that. You can 
come to my State, you can call me every name in the book, it does not 
matter to me, because my constituents want me to stand up for what is 
right. What is right is to support mainstream candidates for the 
judiciary and stand up to extremist nominees and those who are out of 
the mainstream. I have to do it. It is my job.
  Do you want to come and talk about it for 30 hours when we could be 
doing other things? That is fine with me. I can talk about it for 630 
hours. That is how strongly I feel in my heart about what we have done.
  What does the Constitution say about our job? The Constitution says: 
The President--that means this one and every other one--must seek the 
Senate's advice and consent. It does not say ``sometimes.'' It does not 
say ``usually.'' It does not say ``when you feel like it.'' It says 
very clearly, the President must seek the Senate's advice and consent. 
That does not mean notifying Senators, ``This is who we are coming up 
with.'' It means sitting down with us. It means talking to us. I have 
to say, this administration falls short.
  When Carolyn Kuhl was nominated, I said to Alberto Gonzales, the 
President's man on this, Give me some time. I wanted to support a woman 
for this judgeship. Members know my record. I said, Let me get back to 
you. Lo and behold, what did I find out? I want to tell you what I 
found out.
  First I found out about this case. Think of yourself as the woman in 
this circumstance, perhaps as her husband or as a relative. A woman had 
a mastectomy. It is a brutal operation. She is frightened. She is sick. 
She is going to the doctor for a followup exam. She is in the office. 
The doctor has another person in the office, dressed in a white coat, 
and the exam takes place. This other gentleman is leaning over this 
woman in one of the most embarrassing moments, her most frightened 
moments, her most humiliating moments, and he is fanning her. He is 
involved in this. He is staring at her the whole time. When she leaves 
the doctor's office on the way out, something did not feel right to 
her. She asks the receptionist, ``What doctor was that in the office 
with me?'' The receptionist said, ``That was no doctor; that was a drug 
salesman.''
  The woman was appalled. A drug salesman had been in this room with 
her without her permission, without her knowledge.
  The bottom line of all of this, she sues. The case comes before Judge 
Kuhl, who is a new judge in the State. Judge Kuhl rules against this 
woman. The case is appealed and Carolyn Kuhl is overturned.
  Is this someone you think should be rewarded with a lifetime 
appointment? I say not.
  Let's see what the National Breast Cancer Coalition has written. This 
is a group that does not get involved in politics. This is a group that 
does not get involved. They were so upset, they said:

       We cannot afford to have Judge Kuhl on the court of appeals 
     where she will have a greater effect on women with and at 
     risk of breast cancer and our family and friends.

  The National Breast Cancer Coalition getting involved in a judicial 
nomination. I will tell you, if I did not stand up for the women across 
this country--how many of us get breast cancer? About one in nine. If I 
did not stand up for them, I do not deserve to be here.
  So if you want to talk about it for 30 hours, for 40 hours, for 50 
hours, count me in--count me in--because if I were to roll over and 
allow someone such as that to get on the bench, someone who is hostile 
to women, someone who is hostile to civil rights, someone who is 
hostile to privacy rights, someone who is off the deep far right end of 
the spectrum, I do not deserve to be here because I promised my 
constituents I would support mainstream judges. I have supported many 
judges, 90 percent of the judges President Bush has brought forward. 
But once in a while you have to take a stand.
  Let's look at the number of groups that are against Carolyn Kuhl's 
nomination, which is going to be brought up on Friday. I cannot even 
read all of these to you. It would take too long. But I will give you a 
few: the AFL-CIO, the American Association of University Women, the 
American Federation of School Administrators, the Asian Pacific 
American Labor Alliance, Breast Cancer Action, the Breast Cancer Fund, 
the Women's Law Center, Clean Water Action, Communication Workers, 
Defenders of Wildlife, the Feminist Majority, the Foundation for a 
Smoke-Free America, Friends of the Earth, the International Federation 
of Professional Technical Engineers, Los Angeles County Federation of 
Labor, NARAL, Moveon.org, National Breast Cancer Coalition, National 
Center for Lesbian Rights, National Council of Jewish Women, National 
Employment Lawyers Association.
  It goes on and on and on, and there are reasons why these groups have 
gotten involved in this. Because all you have to do is see the record 
of this woman and you understand why these groups are against her.
  Office and Professional Employees International Union----
  Mrs. HUTCHISON. Mr. President, will the Senator yield?

[[Page 28638]]


  Mrs. BOXER. No, I will not. People for the American Way, Physicians 
for Social Responsibility, Planned Parenthood, Pride at Work, 
Progressive Jewish Alliance, the Sierra Club, Smoke Free Educational 
Services--this goes on--Taxpayers Against Fraud, United American 
Nurses. It goes on and on.
  There is more: the Wilderness Society, the Women's Leadership 
Alliance; the Members of the California delegation: the Honorable Nancy 
Pelosi, Barbara Lee--all the women of California who are on the 
Democratic side in the Congress.
  So you want to talk about it for 30 hours? We will talk. We will 
talk.
  This is from 102 law professors from across the United States on 
Judge Kuhl:

       Judge Kuhl has spent her entire professional life--in the 
     Government, in private practice, and on the State bench--
     aggressively promoting an extremist agenda that is hostile to 
     women, minorities, injured workers, and the environment.

  Judge Kuhl's record goes back to when she worked in the Reagan 
administration and tried to persuade the Reagan administration to say 
that it was OK that Bob Jones University get a tax deduction. She was 
called part of a band of zealots who did that.
  So you want to talk about Judge Kuhl. I know her record inside out. I 
wanted to support a good woman from California. My whole life is spent 
promoting women but not women who would be hostile to other women and 
hostile to the guy who maybe needs to join an organization and perhaps 
get into a law suit. She does not even like the fact there are juries. 
She does not like the fact there are juries.
  So here we are. It is a quarter to 12 at night. I am all perky now. 
The reason is, I feel deeply about this. This is a chance to stand here 
and say, ``What are you doing?'' to the other side of aisle. You have 
168. You did not get four. You are whining and you are complaining and 
you are crying and you are marching into the Senate and you are 
stopping progress.
  What about the millions of jobs that have been lost? Three million 
jobs lost, 2.6 million in manufacturing. Let's talk about that for 30 
hours--instead of crying, crying about not getting 100 percent but only 
98 percent of what you want.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. BOXER. I ask for 1 more minute, and then I will turn it over to 
my colleague from New York.
  Mr. SCHUMER. I yield a minute to my colleague from California.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. So here we see the problems. We have lost jobs. You do 
not want to talk about that. I think right now I ought to ask unanimous 
consent that the Senate now return to legislative session and proceed 
to the consideration of Calendar No. 3, S. 224, the bill to increase 
the minimum wage, that the bill be read the third time and passed, and 
the motion to reconsider be laid upon the table.
  Mrs. HUTCHISON. I object.
  The PRESIDING OFFICER. Is there objection?
  Mr. SANTORUM. Mr. President, reserving the right to object.
  Mrs. BOXER. Was there an objection?
  Mr. SANTORUM. Mr. President, reserving the right to object.
  Mr. REID. Mr. President, there was either an objection or no 
objection.
  Mr. SANTORUM. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mrs. BOXER. Just finishing up my minute, this proves my point that 
they want to complain about four judges who already have jobs. But they 
do not want to deal with the people who are unemployed and this 
terrible economic situation we have in our country today.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. BOXER. I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Thank you, Mr. President.
  First, I thank my colleague from California. She is feisty any time 
of the day but, not only feisty, on target. I very much appreciate her 
great work, particularly in bringing to our caucus's attention the 
problems with Judge Kuhl.
  Now, I would like to review the bidding so far. First, we have had a 
lot of talking, virtually none of it new. Second, there have been 
repeated refusals to go on to issues that we do not talk about, such as 
minimum wage, loss of jobs, health care. Third, we believe this debate 
is helping us because the rightwing radio and the rightwing groups have 
talked about their argument.
  I mentioned the Wall Street Journal editorials that never mention 
this number, what anything fair would be. We are getting this number 
out: 168 to 4.
  When I go to parades in upstate New York, conservative areas, they 
say: Why are you stopping the President's judges? I say: It is 168 to 
4. They say: Never mind. Well, that is what this debate is doing. The 
American people are going to say: Never mind.
  Finally, I think we have revealed how our colleagues' arguments are 
outcome-determinative. Lawyers will tell you they are the weakest 
arguments. You pick your outcome and then you determine it.
  Are they against filibusters? No. Again, I will repeat my challenge: 
Let a Senator on the other side show me that they got up and demanded 
30 hours or 3 hours or 5 hours when Members on their side attempted to 
filibuster Judge Barkett, Judge Sarokin, Judge Marsha Berzon, Judge 
Paez. Did anyone get up and complain? No.
  So you are not against filibusters and you are not against blocking 
judges. Here they are. You have blocked a whole lot of judges. You did 
not use filibuster. You refused to give them a vote. But they were 
blocked--same effect. The only thing you seem to object to is a 
successful filibuster. Where is the logic there?
  Finally, you want to have viewer-successful filibusters? Talk to us. 
Come and meet with us. Nominate judges who may be conservative but are 
not so far out of the mainstream, such as Justice Brown who believes 
that Government is evil. She is against all zoning laws, at least 
according to her speech to the Federalist Society. And she thinks the 
Lochner decision, one of the most discredited decisions which said the 
State government could not regulate the number of 60 hours--New York 
State said 60 hours is when a bakery worker could not work any longer. 
They can't do that.
  So nominate some people who are conservative but not so far out that 
they want to make law, not interpret law. That is the bidding so far.
  Now, one other point that was made since I last spoke. My good friend 
from Idaho, I love him. He is a fine guy. We even worked together on a 
gun control bill, so it shows you anything is possible around here. But 
he is saying Judge Abe Fortas was not filibustered? What is this 
argument? A cloture vote is not a filibuster? As my daughter would say: 
``Hello.''
  Why do we have a cloture vote? Because there is a filibuster. Here is 
the headline in the New York Times: ``Critics of Fortas Begin 
Filibuster. . . .'' Why is that not a filibuster? But the New York 
Times, they are one of those wacky, liberal publications, and this is 
one of these slanted liberal headlines.
  So let's take the U.S. Senate Web site. What is the headline? October 
1, 1968: ``Filibuster Derails Supreme Court Appointment.'' I am 
paraphrasing: In June 1968, Chief Justice Earl Warren informed 
President Lyndon Johnson that he planned to retire because of a 
filibuster.
  Mr. President, I ask unanimous consent to have a document from the 
Senate's own Web page printed in the Record. I would ask all of my 
colleagues who believe that Abe Fortas was not filibustered to make a 
motion to correct the Web site.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Filibuster Derails Supreme Court Appointment

       In June 1968, Chief Justice Earl Warren informed President 
     Lyndon Johnson that he planned to retire from the Supreme 
     Court. Concern that Richard Nixon might win the presidency 
     later that year and get to choose his successor dictated 
     Warren's timing.

[[Page 28639]]

       In the final months of his presidency, Johnson shared 
     Warren's concerns about Nixon and welcomed the opportunity to 
     add his third appointee to the Court. To replace Warren, he 
     nominated Associate Justice Abe Fortas, his longtime 
     confidant. Anticipating Senate concerns about the prospective 
     chief justice's liberal opinions, Johnson simultaneously 
     declared his intention to fill the vacancy created by Fortas' 
     elevation with Appeals Court Judge Homer Thornberry. The 
     president believed that Thornberry, a Texan, would mollify 
     skeptical southern senators.
       A seasoned Senate vote-counter, Johnson concluded that 
     despite filibuster warnings he just barely had the support to 
     confirm Fortas. The president took encouragement from 
     indications that his former Senate mentor, Richard Russell, 
     and Republican Minority Leader Everett Dirksen would support 
     Fortas, whose legal brilliance both men respected.
       The president soon lost Russell's support, however, because 
     of administration delays in nominating the senator's 
     candidate to a Georgia federal judgeship. Johnson urged 
     Senate leaders to waste no time in convening Fortas' 
     confirmation hearings. Responding to staff assurances of 
     Dirksen's continued support, Johnson told an aide, ``Just 
     take my word for it. I know [Dirksen]. I know the Senate. If 
     they get this thing drug out very long, we're going to get 
     beat. Dirksen will leave us.''
       Fortas became the first sitting associate justice, 
     nominated for chief justice, to testify as his own 
     confirmation hearing. Those hearings reinforced what some 
     senators already knew about the nominee. As a sitting 
     justice, he regularly attended White House staff meetings; he 
     briefed the president on secret Court deliberations; and, on 
     behalf of the president, he pressured senators who opposed 
     the war in Vietnam. When the Judiciary Committee revealed 
     that Fortas received a privately funded stipend, equivalent 
     to 40 percent of his Court salary, to teach an American 
     University summer course, Dirksen and others withdrew their 
     support. Although the committee recommended confirmation, 
     floor consideration sparked the first filibuster in Senate 
     history on a Supreme Court nomination.
       On October 1, 1968, the Senate failed to invoke cloture. 
     Johnson then withdrew the nomination, privately observing 
     that if he had another term, ``the Fortas appointment would 
     have been different.''

  Mr. SCHUMER. I thank you, Mr. President. So I guess I have caught a 
little of the feistiness of my friend from California.
  Now, Senators, this is a serious issue. Many of my colleagues have 
done a great job of bringing up the issue of jobs and health care and 
all of that. I think we should do that because we have heard these 
arguments over and over and over and over again. We have not talked 
about the minimum wage once or for providing health care for the 
uninsured or many other issues. But so be it.
  Let me again go over what our Constitution says. Does our 
Constitution say, ``Do not filibuster''? It does not say that. In fact, 
our Constitution says the Senate ought to be the cooling saucer.
  We all know the story. James Madison was explaining, I believe it was 
to Thomas Jefferson, why there was a Senate. Jefferson thought it 
looked too much like the House of Lords. He had been over in Paris. And 
he had not written the Constitution.
  He came back and he goes over to James Madison's house and Madison is 
pouring tea. He says: You see. He pours the boiling water into a cup, 
and he says: You see the boiling water in the cup? That is the House of 
Representatives, where the people's passion bubbles over. Then he 
poured some of the water into the saucer, and he said: The Senate is 
the cooling saucer.
  Well, James Madison, we have been, by stopping these four nominees, a 
little bit of that cooling saucer. Our job, when the President goes too 
far, as he has with some of these nominees, is to be the cooling 
saucer.
  Now, unfortunately, our being the cooling saucer gets some of the 
others on the other side very hot. But we are defending the 
Constitution. The idea that a successful filibuster is bad has nothing 
to do with the Constitution. That comes from a few of my colleagues' 
view that they want to get every nominee. So let's make an argument. 
Because if a successful filibuster is bad and an unsuccessful 
filibuster is OK--and we have been through that before--then you cannot 
make any argument about a filibuster.
  Again, I would like my colleagues to read this over and over and over 
again. There is nothing in there that says: No filibuster. There is 
nothing in the Constitution that says: A majority will decide judges, a 
51-to-49 majority. It says the President must seek the Senate's 
``Advice and Consent.''
  Constitutional scholars will tell us that the reason we have these 
rules in the Senate--unlimited debate, two-thirds to change the rules, 
the idea that 60 have to close off debate--is embodied in the spirit 
and rule of the Constitution.
  Yes, my colleagues, we are the cooling saucer. When the President's 
passion for hot rightwing judges who might make law rather than 
interpret law gets overwhelming, we will cool the President's passion. 
That is what the Constitution is all about, and we all know it.
  By the way, when, again, my colleagues thought President Clinton was 
nominating a few judges too far left, what did they do? What did you do 
over there? You filibustered. Paez and Berzon were very liberal, no 
question about it. But because President Clinton had, by and large, 
nominated moderate nominees, nominated moderate people, your filibuster 
could not last.
  Let me say something to my colleagues. We did not want to undertake a 
filibuster. Many of us on the Judiciary pleaded with Chairman Hatch to 
go to the White House and say: Meet with us. No. Many of us pleaded 
with Counsel Gonzales to come meet us a little bit of the way. No.
  So we had no choice. Either we could be a rubberstamp or we could use 
the only means we had at our disposal to stop the President from 
getting every nominee, and that was the filibuster. Again, it is in 
keeping with the Constitution. We believe we are fulfilling our 
constitutional obligation.
  Again, I see my colleague from Pennsylvania brought up his chart: No 
successful filibusters. Did my colleague object to the unsuccessful 
filibusters of Barkett, Sarokin, Berzon, and Paez? Did my colleague say 
he wanted 30 hours on the floor because a filibuster was wrong?
  Mr. WARNER. Will the Senator yield for a question?
  Mr. SCHUMER. I am happy to yield. I want to finish my point and then 
I will yield to my friend from Virginia, who is one of the most 
respected and erudite Members of this body, and I consider him a friend 
of mine.
  I would simply say that the argument that filibusters are OK but 
successful filibusters are not OK just melts under even the sunshine of 
a distant logic.
  I yield to my colleague from Virginia.
  Mr. WARNER. Mr. President, I have had the privilege of leaving the 
floor and talking with a number of visitors. It is remarkable how many 
people have come from all across the country to be here. They have 
asked me, in a very straightforward manner: Senator, we have followed 
this debate and we cannot understand how one side says there is no 
filibuster and the other side says there is a filibuster.
  So, Mr. President, I would hope we could enter into a colloquy and 
allow the colleagues here--the former attorney general of Alabama, who 
is on the Judiciary Committee, and the distinguished Senator from 
Pennsylvania, who has taken such a leadership role--to see whether or 
not in colloquy we can provide some clarity to those trying to follow 
this very important debate on this highly technical use of the word 
``filibuster.''
  So I am just wondering if you would state what your understanding is, 
and then my colleagues on this side will state their understanding.
  Mr. SCHUMER. I thank my colleague from Virginia for that excellent 
inter--I do not mean interruption--I mean it in the classical sense, 
trying to bring us together.
  I will be happy to yield to either of my colleagues from Alabama or 
Pennsylvania and ask them, because I would like to have debate here 
instead of each of us getting up and making speeches. I asked a few 
times and my colleagues were not on the floor.
  Mr. WARNER. So, Mr. President, you have your chance. So let's go.
  Mr. SCHUMER. Well, this is a good interjection by my friend from 
Virginia.

[[Page 28640]]

  Why is it that a successful filibuster is wrong but an unsuccessful 
filibuster is OK? Because we have had them before, and many on your 
side participated in them. We did not hear any of these arguments about 
the Constitution or anything else. I would be happy to yield to my 
colleague from either Alabama or Pennsylvania for an answer. Maybe we 
can come to some meeting of the minds.
  Mr. SESSIONS. Mr. President, maybe I would suggest, as we go forward 
here, the time be counted to each side. We are now in the next hour 
anyway. Is that where we are?
  The PRESIDING OFFICER. We are 15 seconds from the minority's time 
running out.
  Mr. SESSIONS. All right. So in the next time block we set aside 
perhaps we can count the time against each side if we speak.
  Let me explain what happened. The Senator from New York was not 
here--
  The PRESIDING OFFICER. The minority's time has expired.
  Mr. SESSIONS. I thank the Chair.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that, during 
this colloquy, whatever time is consumed by whatever party member run 
off the time of that hour of that side of the aisle.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. So we make sure we understand, what we are saying is 
whoever is talking, time will be taken off their side; is that right?
  Mr. SANTORUM. That is correct.
  Mr. SESSIONS. The Senator from New York was not here during the 
Clinton years in the Senate; he was in the House.
  Mr. SCHUMER. Will my colleague yield? I was here the last 2 years of 
the Clinton years. I was here for Berzon and Paez.
  Mr. SESSIONS. Let's talk, then, about Berzon and Paez and get this 
straight. That is real good to remember. I just assumed the Senator 
couldn't have been here or he might have understood a little 
differently.
  Holds are placed on legislation by Senators. Holds are placed on 
nominees by Senators. One way to break that hold is to file for cloture 
which guarantees an up-or-down vote. Holds were placed on Berzon and 
Paez. President Clinton was President of the United States. These were 
two of his most liberal nominations to the most liberal circuit in 
America; the one that struck down the death penalty, struck down the 
Pledge of Allegiance, struck down the ``three strikes and you're out'' 
law in California, and Berzon and Paez participated in all those 
opinions.
  Anyway, when they were up for nomination, I strongly believed those 
were not good nominees and opposed them. We discussed these nominations 
within the Republican ranks. Somebody said: Why don't we filibuster? 
The chairman of the Judiciary Committee, Senator Orrin Hatch, said: No, 
filibusters are not appropriate for judges. We should not enter a 
filibuster.
  A Democrat said: We want a vote on Berzon and Paez. We have waited 
long enough. So we got to the point where Trent Lott, the Republican 
majority leader, the equivalent of Tom Daschle in this circumstance, 
filed for cloture. He said: Let's bring these two nominations up for a 
vote.
  I and a whole lot of others did not support the Berzon and Paez 
nominations but did not believe in filibusters. The Senator from New 
York suggested we were unprincipled. He suggested that we are now 
opposing filibusters which we then favored. But when Trent Lott moved 
for cloture, I voted for cloture. Only half a dozen or so voted against 
cloture, and the nominees came up, and they got an up-or-down vote. 
Trent Lott voted against the nominees. I voted against the nominees. 
They had an up-or-down vote, and they were confirmed.
  You can say that is a filibuster, but it is not the same thing as a 
filibuster organized by the Democratic leader and unified Democratic 
ranks to block now six nominees from even getting an up-or-down vote. 
It is not the same. I don't think there is any doubt about it, it is 
the first time a filibuster has been used systematically under these 
circumstances.
  Mr. SCHUMER. If I might respond to my colleague from Alabama, let me 
say to everyone here, I have great respect for my colleague from 
Alabama. We work together on the Judiciary Committee quite well. We 
have had some legislation together. Let me make a few points.
  First, I don't disagree that Paez and Berzon were very liberal. There 
could be made an argument--I didn't agree with it--that they may have 
been out of the mainstream and maybe should have been blocked. 
Certainly, that is what our former colleague, Mr. Smith from New 
Hampshire, believed.
  In fact, I agree with the Senator from Alabama. I think the Ninth 
Circuit is a very liberal circuit. I voted for Jay Bybee, who is far to 
the right of me, because I thought the Ninth Circuit could use some 
balance. I don't have a problem with people saying Paez and Berzon were 
very liberal and we ought to try to block them.
  Let me make two points in reference to what is a hold. A hold is 
saying ``I am going to filibuster.''
  Mr. SESSIONS. No.
  Mr. SCHUMER. If I might finish. That is why the hold is able to hold 
things. There is nothing in the rules about one Senator can hold things 
up, but the way things work around here, you say: If you bring this to 
the floor at this point, I am going to keep talking and you are going 
to need 60 votes. I don't know it to be any different than a 
filibuster. It is certainly not a difference that makes a difference. 
One may call it a hold rather than a filibuster, but it is a 
filibuster.
  Second, I say, in all due respect to my colleague, again, let's not 
get semantical here. It is true that my good friend from Alabama 
opposed cloture. How many Senators voted for cloture? How many voted 
against? Thirty-one? I don't think there was a Democrat among them--
maybe; maybe one. I don't recall if Senator Miller was here then. 
Thirteen voted against Judge Berzon.
  But immediately after on the vote for Paez, my colleague from Alabama 
got up and made a motion to ``indefinitely postpone the nomination.''
  Let's not get semantical here. If you are indefinitely postponing the 
nomination, you are seeking to do what we are seeking to do, which is 
block a nomination you thought was ideologically incompatible.
  The bottom line is this: I will make this argument and then yield--I 
defer to our great whip here--we have divided up all our time and I am 
taking somebody else's time; maybe my friend from Minnesota, and I 
don't know who the other Senator was--Senator Boxer. So I don't want to 
take too much of it.
  I simply say, again, these arguments sort of, a little bit, contain a 
bit of sophistry. Blocking a judge is the goal--successful filibuster, 
unsuccessful filibuster, a motion to indefinitely postpone, not 
allowing a judge to come to a vote. When either side has thought a 
judge out of the mainstream, they have used the device that was 
available to them to allow the Senate, I would argue, to do what the 
Founding Fathers wanted us to do, which is to be the cooling saucer. 
Sometimes it was successful, sometimes it wasn't, but it is not a 
difference that makes a difference, as the law professors used to say.
  I yield the floor.
  Mr. REID. Parliamentary inquiry, please: How much time remains on our 
side following the statement of the Senator from New York?
  The PRESIDING OFFICER. Twenty-six and a half minutes.
  Mrs. HUTCHISON. No, Mr. President, parliamentary inquiry: It is now 
the majority's time, as I understand it. The minority time has 
finished.
  The PRESIDING OFFICER. The time that is used will be taken off the 
sides. It has been taken off when it was being used.
  Mrs. HUTCHISON. That is right, but Senator Sessions and Senator 
Schumer took equal amounts of time. Wouldn't the majority time follow 
since the minority time----
  Mr. REID. We know that.
  The PRESIDING OFFICER. The majority has 26 minutes left and have a 
priority on that unless they wish to

[[Page 28641]]

continue the agreement they had of having an open debate.
  Mr. REID. Mr. President, we will go back to the original system we 
had.
  Mr. SESSIONS. I object to the change, if he is making a point.
  Mr. SCHUMER. If I might make a parliamentary inquiry.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, while the Senator from New York is here, 
and he is such a good advocate, as we say in Alabama, you make soup out 
of slop. A motion to postpone is not a filibuster. It is an up-or-down 
vote to delay.
  I was in negotiations with the Senator from California and the White 
House to say we can let Berzon and Paez go but at least put more 
decent, more mainstream judges in California. We didn't get that 
agreement, and they moved forward with the vote. That was not a 
filibuster.
  I want it to be clear that the leadership on this side, the chairman 
of the Judiciary Committee, the majority leader, and this Member of the 
Senate did not vote to maintain any kind of extended debate but voted 
for cloture which would have guaranteed a vote and did guarantee a vote 
for them. That is not a classic filibuster.
  Mr. GRAHAM of South Carolina. Will the Senator yield for a question?
  Mr. SESSIONS. Yes.
  Mr. GRAHAM of South Carolina. The Senator from Virginia made a good 
point. There are a lot of people confused, and the Senator put me in 
that category. I sat here and listened to this debate.
  Is it true that the main difference between the example they are 
using and our problem is that these two people are on the court?
  Mr. SESSIONS. That is certainly a distinct and obvious difference. 
Both of these nominees were moved forward by the action of Trent Lott, 
the Republican leader, to move a Clinton nominee for an up-or-down 
vote. He got the up-or-down vote. Both those nominees were confirmed. 
That is exactly correct.
  And you want to talk about consistency, I ask the Senator from New 
York if he still stands by his statement he made that the basic issue 
of holding up judgeships is the issue before us, not the 
qualifications, which we can always debate; it is an example of 
Government not fulfilling its constitutional mandate because the 
President nominates and we are charged with voting on the nominees?
  And Patrick Leahy, the chairman of the Judiciary Committee----
  Mrs. HUTCHISON. Will the Senator yield?
  Mr. SESSIONS. I will for a question.
  Mrs. HUTCHISON. I want to clarify a point because the Senator from 
New York tried to equate a filibuster with a hold. I was hoping the 
Senator from Alabama would show the difference between a hold and a 
filibuster. If we start calling a hold a filibuster, then we have 
really changed the rules around here because holds are used for a 
variety of purposes. They are used for negotiation, and they may or may 
not lead to a filibuster, and usually they don't.
  To say that someone put a hold on someone and then there was an 
effort through extended debate to get those holds taken off is a 
filibuster is a misreading of the rules; would the Senator agree?
  Mr. SESSIONS. I would certainly agree, and as the Senator from 
Georgia suggested, we do that a lot around here.
  Mr. CHAMBLISS. Will the Senator yield for a question?
  Mr. SESSIONS. I will.
  Mr. CHAMBLISS. I noticed my friend, the Senator from New York, for 
whom I have great respect, made a comparison between a hold and a 
filibuster but yet at the same time he has shown this chart over and 
over again, showing where we have 168 approved and only 4 filibustered. 
But as the Senator well knows, the Senators from Michigan have had 
holds on numbers and numbers of judges for months and months. So his 
number four, instead of being four, should be about eight, if he really 
believes a hold was equivalent to a filibuster. So his argument simply 
doesn't hold water, if I may pose that in the form of a question to the 
Senator.
  Mr. SESSIONS. I agree, if a hold is a filibuster, then there are a 
lot more Bush nominees now being filibustered than have been suggested. 
I think there are four being held by Senator Levin.
  Mr. SESSIONS. I yield for a question from the Senator from Virginia.
  Mr. WARNER. In the nature of a question, first, I ask the Presiding 
Officer to inquire of the Parliamentarian if the word ``filibuster'' 
appears in any of the rules of the Senate. My understanding is that it 
does not.
  The PRESIDING OFFICER. The Senator from Virginia is correct.
  Mr. WARNER. So the word ``filibuster'' is not in the rules. I want to 
clarify that. I have done a lot of study on this question, and I think 
I can work our way through it. It is not in the rules. Let's go to 
Webster's Dictionary. It is rather interesting, the word has been used 
throughout history in many ways.
  Filibuster--the first definition: ``An irregular military adventurer; 
an American engaged in fomenting insurrections in Latin America in the 
mid-19th century.'' But then we get to the last definition, and herein 
I think is some guidance: ``a: the use of extreme dilatory tactics in 
an attempt to delay or prevent action, esp. in a legislative assembly. 
b: an instance of this practice.''
  I think somewhere in between lies the truth. So perhaps with this 
background and the assurance it isn't in the rules, the Senator from 
Alabama can continue to educate the Senate as to his perspective, and 
the Senator from New York can continue to educate the Senate from his 
perspective, and let us hope we have brought some light on this issue.
  Mr. SCHUMER. I thank the Senator.
  Mr. WARNER. Mr. President, if I can add one more thing, there is a 
very fine book issued by the Library of Congress. I ask the Presiding 
Officer the title of that book. The Parliamentarian knows of it.
  The PRESIDING OFFICER. The title would be ``The History of the 
Cloture Rule.''
  Mr. WARNER. Yes, I have studied that, and it is issued by the Library 
of Congress; am I not correct in that?
  The PRESIDING OFFICER. That is correct.
  Mr. WARNER. For those who want to pursue this in great depth. I thank 
my colleague for this colloquy, and I hope perhaps we got some clarity 
to the issue.
  Mr. SESSIONS. I thank the distinguished chairman of the Armed 
Services Committee, Senator Warner. He has brought wisdom here and 
helped us to keep from going around in circles.
  There is an argument that can be made by the Senator from New York 
that holds that were ended by cloture votes are filibusters, but they 
were not really filibusters in the sense we are facing them today. What 
we are seeing today is a sustained deliberate attempt by the leadership 
of the Democratic Party to block judges by having less than 50 votes to 
do so. They block judges by requiring through the procedural rules of 
the Senate that we have to have 60 votes to confirm a judge instead of 
51.
  We know that in each one of these nominees that have been held up 
that more than 50, usually as many as 55, 54, 53 votes are there to 
confirm the nomination, but they have been blocked by a sustained 
filibuster led by the Democratic leadership and Tom Daschle and his 
team. That is what has brought us to this point. I think we have 
clarified that issue.
  I say on the question of are we changing our views on this side, I 
reject that point. This side was principled during the Clinton years. 
This side did not resort to the filibuster as a tool of the opposition, 
as the Democrats have. There can be no debate about that. Their 
nominees were moved forward. We did not adopt this policy.
  I see the Senator from Texas is here. She has some thoughts she would 
like to share with us about a particular comment that was made about 
the nominee from California, Judge Kuhl. I yield time to her.

[[Page 28642]]


  Mr. REID. Parliamentary inquiry: How much time is left on both sides?
  The PRESIDING OFFICER. Seventeen minutes on the majority side; 25\1/
2\ on the minority side.
  Mr. REID. It would be, I think especially for the wee hours of the 
morning, better if we continue with what we started with so there is 
not a fight for who gets recognized. Does anybody have a problem with 
the way we have done it?
  Mr. SESSIONS. I am not exactly sure of the way we have done it.
  Mr. REID. What we have done since 6 o'clock; the majority would take 
the first half hour and we take the second half hour.
  Mr. SESSIONS. En bloc.
  Mr. REID. Yes. I hope we can go back to that arrangement. That is my 
request.
  The PRESIDING OFFICER. I assume you mean during this hour the 
majority would get its 16 minutes----
  Mr. REID. Absolutely, and we will get our 25.
  The PRESIDING OFFICER. And the next hour would be half hour first for 
the majority and----
  Mr. REID. Yes, starting at 1 a.m. going back to the regular system.
  The PRESIDING OFFICER. Unless the Senator agrees to an alternate 
position, that would be the policy.
  Mr. REID. That request is granted?
  The PRESIDING OFFICER. That is the way the unanimous consent was set 
up to begin with.
  Mr. REID. Thank you, Mr. President.
  Mr. SESSIONS. I yield 5 minutes to the Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I wanted to tell the rest of the story 
on Judge Carolyn Kuhl because I think a misimpression was left by the 
Senator from California regarding the case of the woman who was having 
a breast exam, and when she left the office, she asked who the doctor 
was, and the receptionist said: That wasn't a doctor, that was a 
pharmaceutical company representative.
  When I first heard about that, I definitely wanted to hear more 
because that did not sound like the kind of judge I would want on the 
bench, a judge who would dismiss the case against the pharmaceutical 
company for having a person in the room when the patient was not even 
told this person was not a doctor or who this person was. I, in fact, 
did look at the rest of the story and I found a very different story. 
In fact, the plaintiff sued both the pharmaceutical company and the 
doctor. The doctor was sued for negligence in not informing the patient 
and asking the patient's permission, or having the patient have the 
right to say, no, I do not want that person in the room. The plaintiff 
sued the doctor, the doctor's firm, and the pharmaceutical company.
  Judge Kuhl allowed the case to stay open, which she dismissed against 
the pharmaceutical company, because the case against the pharmaceutical 
company was common law intrusion upon seclusion, which was not settled 
law in California at the time, but she kept the case against the doctor 
for his failure to consent. The judge allowed the cause of action, the 
trial, to go forward against the doctor and the medical partnership for 
failure to obtain consent, and the plaintiff did recover. The plaintiff 
should have recovered, and the plaintiff did recover. Judge Kuhl 
allowed that to happen by keeping the lawsuit open against the doctor 
who was the person negligent in this case.
  I think it is very important that when we know the full story it 
shows Judge Kuhl, in fact, was very sensitive to this woman's claim and 
allowed it to go forward. She made sure it went forward, and, in fact, 
the woman did settle for a full recovery.
  I just wanted to set the record straight because I thought there was 
a misimpression in the record about Judge Carolyn Kuhl, and I would 
hope we would acknowledge she did let this case go forward and there 
was a recovery.
  I think Judge Kuhl is an outstanding judge. After looking at her 
record very fully, I am very pleased to support her. I am very aware 
she is supported in a bipartisan way by many people in California, and 
most certainly when we talk about needing some balance on the Ninth 
Circuit Court of Appeals I think Judge Carolyn Kuhl would be an 
excellent addition to bring some balance to this circuit that is the 
most reversed circuit in the entire United States of America. Of all 
the circuit courts of appeal in the United States of America, the Ninth 
Circuit is the most reversed by the Supreme Court. I think that would 
tend to show we need some balance on this court, and I would hope Judge 
Carolyn Kuhl would get a fair vote, because if she does, she will get 
the majority in this body. They will look at the facts in her record. 
They will see how qualified and balanced she is, and she will get 
confirmation if she has a fair shot.
  I thank the Senator from Alabama for letting me bring out the rest of 
the story, as Paul Harvey would say, and make sure the record is 
complete on behalf of Judge Carolyn Kuhl.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank the Senator from Texas so much 
for those comments. I remember when that came up in the Judiciary 
Committee. We heard these allegations that this woman, Carolyn Kuhl, 
was insensitive about the rights of women and she had made this big 
error in this case. What she said simply was, as the Senator mentioned, 
the doctor allowed this man to come into the room, and not the drug 
company who hired this gentleman. They did not even know about it, I am 
sure. The permission was given by him, and if anyone committed a wrong, 
it was that doctor. She allowed the case to go forward, and under 
California law, the full recovery can come out of any one defendant who 
is liable, and the full recovery did come in fact from the doctor. It 
is an important matter to note.
  I will just share, since the issue was raised, about this side not 
being principled and I pointed out during the 8 years of President 
Clinton's administration, the leadership on this side of the aisle 
absolutely rejected filibusters. During that same time when President 
Clinton was seeking to get judges confirmed, the Democratic Senators 
also were attacking filibusters and used a lot of language that would 
make that clear.
  For example, Senator Boxer on May 14 of 1997 said: It is not the role 
of the Senate to obstruct the process and prevent numbers of highly 
qualified nominees from even being given the opportunity for a vote on 
the floor.
  Senator Feinstein said: A nominee is entitled to a vote. Vote them 
up, vote them down.
  Senator Daschle, now the Democratic leader, said: I find it simply 
baffling that a Senator would vote against even voting on a judicial 
nomination.
  Senator Leahy, the chairman of the Judiciary Committee during the 
time of the Democratic majority, said: I think the Senate is entitled 
to a vote in this matter. I think the President is entitled for the 
Senate to vote--he is talking about President Clinton--and I think the 
country is entitled for the Senate to vote.
  Now Senator Leahy is leading the filibuster. So is Senator Daschle. 
They are completely changing their position, and this side did not do 
that.
  Senator Hatch explained to us why filibusters were bad, so this side 
rejected that and did not go forward.
  Senator Kennedy said: It is true that some Senators have voiced 
concerns about these nominations, but that should not prevent a 
rollcall vote which gives every Senator the opportunity to say yes or 
no.
  Mr. CHAMBLISS. Will the Senator yield?
  Mr. SESSIONS. I would be pleased to yield to the Senator from 
Georgia.
  Mr. CHAMBLISS. Just like the Senator from Alabama, I was somewhat 
shocked by the comments of the Senator from California about the fact 
that if you get 98 percent you ought to be happy with what you get and 
go home. The fact of the matter is, never before in the history of the 
United States of America has any President gotten 98 percent. Every 
other President, prior to this President, prior to the obstructionism 
coming from the other side of the aisle on these judicial nominees, has 
gotten 100 percent. It is zero and four filibusters out there right 
now.

[[Page 28643]]

  I remind the Senator from California of her comment made back on 
March 9, 2000, as per the Congressional Record: I make an appeal, if we 
vote to indefinitely postpone a vote on these two nominees or one of 
these two nominees, that is denying them an up-or-down vote, that would 
be such a twisting of what cloture really means in these cases. It has 
never been done before for a judge, as far as we know, ever.
  So the Senator from California agreed with us back in March 9 of 
2000. Again, it would be in line with what Senator Lott said when he 
said these people deserve an up-or-down vote.
  The thing about these votes is that if people disagree with them, if 
any Senator on the other side of the aisle or if any Senator on this 
side of the aisle disagrees any judicial nominee is qualified to serve 
on the Federal bench at the district level or on any circuit court, 
they should have the right to vote against them, but they are entitled 
to a vote.
  I agree 100 percent with the Senator from California when she made 
her comment in March of 2000 that we ought to have an up-or-down vote; 
that it has never--and I repeat her statement--it has never been done 
before for a judge, as far as we know, ever. It has never been done.
  When it comes to saying ``has there been a filibuster'' or ``has 
there not been a filibuster,'' I agree with the Senator from 
California; there has never been a filibuster before of a circuit court 
nominee. There ought not be a filibuster that continues on these 
judges. We ought to have an up-or-down vote.
  I yield back to the Senator from Alabama.
  Mr. SESSIONS. Mr. President, how much time remains on our side?
  The PRESIDING OFFICER. The Senator from Alabama has 5 minutes 40 
seconds.
  Mr. SESSIONS. If the Senator from South Carolina wants to make a 
comment, I will yield to him.
  Mr. GRAHAM of South Carolina. Just very briefly. I thank the Senator 
for yielding.
  I never thought in a 30-hour debate you would have to fight to get 
something to say. We may want to extend this thing.
  It has been good to hear everybody's perspective about what has gone 
on in the past. I am really more worried about the future. I am new to 
the Senate. This is my first year here. I do not know who shot John 5 
years ago or 10 years ago, and who is still mad about what happened 
during Clinton, Bush 1, or George Washington. That is not my concern.
  My concern is I am in the Senate at a time when I know that if this 
continues, we are going to destroy the judicial nominating process as I 
have understood it to be since law school. We are going to drive good 
men and women from wanting to serve because the nominees who are being 
filibustered--I have been on the Judiciary Committee--have had a 
hatchet job done on them. They have had an opinion here and a 
dissenting opinion there taken out of context. They are all well 
qualified by the American Bar Association. They all come highly 
recommended by the people who know them best.
  For one of the nominees, they used a letter he and his wife wrote to 
his diocese about Christian marriage. Mr. Pryor from Arkansas was asked 
about whether or not he chose to take his kids to Disney World during 
Gay Pride Day. You are asking people questions I feel are unbelievably 
uncomfortable asking anybody as to whether they are qualified to be a 
judge.
  This process is broken. The past has its abuses on both sides, but 
this process is broken. There is no precedent for what is going on 
here.
  I may be wrong, and if I am wrong somebody correct me, but it is my 
understanding, in the history of this country, over 200 and something 
years of following the Constitution, we have never had an occasion 
where somebody came out of the Judiciary Committee, was voted out of 
the committee, and was unable to get a vote on the floor, until now.
  If that is the case, then we are doing something different that is 
really bad, in my opinion, because it will be answered in kind down the 
road. If this is successful, to expect the Republican Party to sit on 
the sidelines if there is a Democratic President and not answer in kind 
is probably too optimistic.
  If that happens, you are taking the Senate in a death spiral of where 
40 people, 41 people, answering to special interest groups, are going 
to hijack the Constitution. This is a big deal. This is wrong and it 
needs to stop. It has never happened before. It should not happen now. 
Whatever problems we have had in the past with judges, you have taken 
it to a new level that will destroy the ability to follow the 
Constitution, and you will take politics to a level that it has never 
been before in a rule-of-law nation and we will all suffer greatly.
  Mr. SESSIONS. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from Alabama has 2\1/2\ minutes.
  Mr. SESSIONS. Mr. President, I agree so strongly with the Senator 
from South Carolina that this has the real danger of undermining the 
independence of the judiciary and injecting politics into the judiciary 
in a way we do not want to do.
  I had the opportunity to obtain information from one of our greatest 
understanders of Senate rules on holds. I think I would like to share 
that with the Presiding Officer, Senator Enzi, who is as skilled on the 
history of the Senate as anyone.
  He just notes this: What is a hold? A hold is a request by a Senator 
to be notified so a unanimous consent request can be objected to. If 
somebody is going to move a bill, legislation, or a judge, and you want 
to talk more about it or so forth, you put a hold. They have to call 
you before they will do a unanimous consent without your knowledge and 
slip something through you want to talk about or debate. It is not a 
filibuster.
  A filibuster would be a continuous success by less than a majority of 
the Senators to stop progress to a vote in an action or a matter. It is 
a success continually by a minority of the Senate to stop the majority 
from bringing a matter to a vote. A cloture, more than a majority, 
stopped by a minority, 55 votes for cloture to stop debate, can be 
defeated by 45 Senators who vote contrary to that, is a filibuster, as 
has been admitted by the Senators on the other side.
  I think we have been playing some games with words, but the bottom 
line is what has occurred this year is unprecedented. It is a 
systematic, organized filibuster by the Democratic leader, Tom Daschle, 
and his team and the assistant leader and most of the Members on the 
other side--but not all--but on these now six nominees to date we have 
not had 60 votes to shut off debate.
  That is what we are talking about. You can call a hold a filibuster 
if you choose. Maybe you could justify that. But I do not think it is.
  The PRESIDING OFFICER. The majority's time has expired.
  Mr. REID. We will divide the time on this equally between the Senator 
from California and the Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, how many minutes do I have?
  The PRESIDING OFFICER. The Senator has 12 minutes 42 seconds.
  Mrs. BOXER. Well, here we go, more of complaining and more upset from 
the other side. They just did not get 100 percent of what they wanted. 
They only got 98 percent. The score is 168 to 4. Other charts can be 
printed, but here is the truth. Do my colleagues want to see it another 
way? Here are the names of the people we have confirmed to the Federal 
bench for George Bush, 168 strong, and there are 4 we believe are out 
of the mainstream, who we believe would actually hurt the rights of our 
people to privacy, to dignity, to fairness, to justice, and we have 
stood up and we have said, no. The other side cannot believe they did 
not get 100 percent of what they wanted. Maybe in their life they get 
100 percent of what they want. Most of us do not. Most of us work hard 
for what we believe and we are happy to get maybe close to what we 
want.

[[Page 28644]]

  We have more complaining and more bickering, more upset, 30 hours 
taken away from other issues. This is where we are. We even had Senator 
Graham stand up and throw out this fact: No one is going to apply for 
judgeships. No one is going to apply for lifetime judgeships that pay a 
lot of money because Democrats stood up and said 4 did not meet the 
test of fairness, 4 were outside the mainstream and, yes, 168 were 
fine. So now people are not going to apply for judgeships anymore? 
Well, if I spoke to someone who said, do you think I ought to apply for 
a judgeship, the first thing I would say is, well, your odds are pretty 
good, 168, and only 4 did not make it. So I would say your chances are 
pretty good.
  Then we hear all this talk about we Democrats are doing something 
different, we have never filibustered, never, even though on the Senate 
Web site itself there is discussion that there have been filibusters, 
and Chuck Schumer put that in the Record.
  Let me read something much more recent than that one. This is just a 
couple of years ago, when we had the Berzon and the Paez nominations. 
The other side today is saying those were not filibusters. Well, let's 
hear what Republican Bob Smith said as he launched, yes, a filibuster.
  I wish my colleagues would listen, but it is okay, their minds are 
made up. He said: It is no secret that I have been the person who has 
filibustered these two nominees.
  Let me say that again. A couple of years ago, Bob Smith said: It is 
no secret that I have been the person who has filibustered these two 
nominees, Judge Berzon and Judge Paez.
  The issue is, why are we here? What is the role of the Senate in 
judicial nominations? The Constitution gives the Senate the advise-and-
consent role. We are supposed to advise the President and consent if we 
think the judge should be put on the court.
  Republican Bob Smith, who led the filibuster against two 
Californians, goes on to say--do I remember it? It is etched in my mind 
forever. These were two terrific people who were held up, one for 4 
years and one for 2 years, and then we finally got them to the floor 
and Bob Smith launched a filibuster saying a filibuster in the Senate 
has a purpose. It is not simply to delay for the sake of delay. It is 
to take the time to debate, to find out about what judges' thoughts 
are, et cetera.
  Can we please not have a debate over whether the other side ever 
launched a filibuster? They admitted it. I ask unanimous consent that 
this be printed in the Record at this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                          The Paez Filibuster

       So that the record on this point, this dramatic reversal in 
     positions, is clear, I feel constrained to mention that the 
     15 Senators who voted to continue to filibuster the Paez 
     nomination and to, in fact, postpone it indefinitely, (voting 
     both against cloture and for indefinite postponement) were 
     Senators Frist, Bob Smith, Jessie Helms, Wayne Allard, Larry 
     Craig, Michael Enzi, Phil Gramm, Asa Hutchinson, James 
     Inhofe, Frank Murkowski, Sam Brownback, Jim Bunning, Mike 
     DeWine, and Richard Shelby. How many of the current Senators 
     among them have you seen on this Senate floor claiming that 
     [President Bush's] judicial nominees are entitled to an up or 
     down vote and that delaying or filibustering is wrong? I have 
     seen some of them. It is their right to change their minds, 
     but at least acknowledge their past efforts to block 
     President Clinton's nominees, which kept many seats for this 
     President to try to pack.
       I will let the words of the Senators who filibustered 
     Clinton nominees speak for themselves. For example, in 2000, 
     just three years ago this month, Senator Smith noted during 
     the filibuster of Judge Paez and Marsha Berzon, a Ninth 
     Circuit nominee:
       ``[I]t is no secret that I have been the person who has 
     filibustered these two nominees, Judge Berzon and Judge Paez. 
     The issue is, why are we here? What is the role of the Senate 
     in judicial nominations? The Constitution gave the Senate the 
     advise-and-consent role. We are supposed to advise the 
     President and consent if we think the judge should be put on 
     the court. . . .
       Filibuster in the Senate has a purpose. It is not simply to 
     delay for the sake of delay. It is to get information.
       It is to take the time to debate and to find out about what 
     a judge's thoughts are and how he or she might act once they 
     are placed on the court.''
       So, those who came before the Senate and said no Republican 
     ever filibustered a Clinton nominee were dead wrong. Senator 
     Smith went on to explain:
       ``As far as the issue of going down a dangerous path and a 
     dangerous precedent, that we somehow have never gone before, 
     as I pointed out yesterday and I reiterate this morning, 
     since 1968, 13 judges have been filibustered by both 
     political parties appointed by Presidents of both political 
     parties, starting in 1968 with Abe Fortas and coming all the 
     way forth to these two judges today.
       It is not a new path to argue and to discuss information 
     about these judges. In fact, Mr. President . . . [w]hen 
     William Rehnquist was nominated to the Court, he was 
     filibustered twice.
       Then, after he was on the Court, he was filibustered again 
     when asked to become the chief Justice. In that filibuster, 
     it is interesting to note, things that happened prior to him 
     sitting on the Court were regurgitated and discussed. So I do 
     not want to hear that I am going down some trail the Senate 
     has gone down before by talking about these judges and 
     delaying. It is simply not true.''
       This straight-forward Republican from New Hampshire 
     proclaimed:
       ``Don't pontificate on the floor and tell me that somehow I 
     am violating the Constitution . . . by blocking a judge or 
     filibustering a judge that I don't think deserves to be on 
     the court. That is my responsibility. That is my advise-and-
     consent role, and I intend to exercise it.''
       Thus, the Republicans' claim that Democrats are taking 
     ``unprecedented'' action, like the White House claim that our 
     request for Mr. Estrada's work while paid by taxpayers was 
     ``unprecedented,'' is simply untrue. Republicans' desire to 
     rewrite their own history, while understandable, is just 
     wrong. They should come clean and tell the truth to the 
     American people about their past practices on nominations.
       They cannot change the plain facts to fit their current 
     argument and purposes. It is also noteworthy that, before the 
     debate on Bush nominations this year, the distinguished 
     chairman of the Judiciary Committee, my good friend from 
     Utah, admitted that the Republicans had filibustered Judge 
     Paez's nomination in 2000. After cloture was invoked in 
     Paez's nomination, Senator Sessions made a motion to 
     indefinitely postpone a vote on the nomination; this motion 
     failed by a vote of 31 to 67.
       Senator Hatch then admitted there had been a filibuster: 
     ``I have to say, I have served a number of years in the 
     Senate, and I have never seen a `motion to postpone 
     indefinitely' that was brought to delay the consideration of 
     a judicial nomination post-cloture. ``Indeed, I must confess 
     to being somewhat baffled that, after a filibuster is cut off 
     by cloture, the Senate could still delay a final vote on a 
     nomination. A parliamentary ruling to this effect means that, 
     after today, our cloture rule is further weakened.''

  Mrs. BOXER. Let me quickly say about Judge Kuhl, Senator Hutchison 
said, in fact, that Judge Kuhl showed a lot of compassion to this 
victim who went into a doctor's office and was subjected to the 
humiliation of having a drug salesman witness her exam without her 
permission. Senator Hutchison said she was very, very kind to this 
victim.
  Let's see what the victim says about Judge Kuhl.

       My name is Azucena Sanchez-Scott. I am a survivor of breast 
     cancer and Judge Kuhl's courtroom. I stand before you now 
     because I want to tell my story so that other people will 
     never have to relive it.
       Nothing about my cancer is easy. Not the chemotherapy, not 
     the fear, and certainly not the emotional pain of 
     disfigurement. As a person battling cancer each visit to the 
     doctor brings questions about my future and my health. That 
     is where I was when my doctor and a stranger walked in. The 
     doctor offered no introduction and proceeded to examine me 
     and asked that I disrobe. It was only when I left the office 
     and inquired with the receptionist that I learned that the 
     stranger was a sales representative for a drug company with 
     no medical reason for being there.

  The bottom line, Carolyn Kuhl ruled against this woman, and when 
Senator Hutchison said she allowed the case of the doctor to go 
forward, that is what Judge Kuhl said. Then she retracted that and 
said: I made a mistake; I never had the doctor's case before me.
  So let's get the facts straight here. Why do you think we have three 
major breast cancer organizations--Breast Cancer Action, Breast Cancer 
Fund, the National Breast Cancer Coalition--asking us to defeat Carolyn 
Kuhl? Not because Carolyn Kuhl was compassionate. But because of the 
opposite reason: She turned her back on a woman in need, on a sick 
woman. And Carolyn Kuhl was overturned in a unanimous vote by the court 
of appeals. For that, my friends want to

[[Page 28645]]

promote her to this lifetime appointment.
  I say if I caved in to that, again, I do not deserve to be here. 
Sometimes you have to stand up for people who need protection. Carolyn 
Kuhl had that chance. She took a hike. She ruled against this woman. 
This woman has been scarred in more ways than one from that experience.
  Here we are. It is 12:45. We could be working on issues that really 
matter to people instead of rehashing these judgeships. They got almost 
everything they wanted. But they are going to pound their fists and say 
the same thing over and over, ``This has never happened before''--
despite the fact it has and make it sound as if we are being unfair 
when we are not. We are just doing our job. But there we are.
  Look at what we could be doing. We have lost almost 3 million jobs in 
this country. This President has the worst record of any President 
since Herbert Hoover on private-sector employment. Why don't we spend 
30 hours talking about that? Why don't we pass the 6-year highway bill? 
We got it out of our committee thanks to Senator Reid and Senator 
Inhofe today. Why not bring that bill down, I say to my friend, Senator 
Reid? Let's vote on the 6-year highway bill. Do you know how many jobs 
we would create in this country? In my State, 80,000 jobs.
  Let's pass a manufacturing jobs tax credit so that manufacturing 
stops leaving this country. Let's raise the minimum wage. I tried to do 
that by unanimous consent. The other side objected. They do not want to 
do that.
  With our salary, we make the minimum wage for a year in just a couple 
of months here. But no, they are spending 30 hours talking about 4 
people who already have jobs and they do not want to talk about the 3 
million jobs that were lost. They do not want to protect overtime. As a 
matter of fact, they tried to take it away from workers. They do not 
want to extend unemployment insurance.
  Nothing is getting done that really matters to people. That is a sad, 
sad situation.
  Long-term unemployment: These are the people who have been out there 
and out there--2 million, plus. That is a terrible record. Long-term 
unemployment tripled since George Bush took over.
  How about the tax cuts? Let's look at how fair they are. They are 80 
times larger for millionaires than for middle income households earning 
about $50,000 to $75,000.
  The Bush economic record? The only administration going back to 
Eisenhower with a decline in manufacturing output--big manufacturing 
job losses.
  No, we cannot talk about that. We cannot have an action plan to get 
people back to work. And I have not even talked about school 
construction, which would really employ a lot of people. I visit some 
of my schools and the tiles are falling off the ceiling. No, we cannot 
talk about that. We do not have time. But we have time to discuss, for 
30 hours, judgeships that we have gone over and over. And they are 
winning. They got 168 through and they did not get 4. They are worried 
about 4 people; I am worried about 3 million people. I am worried about 
the unemployed in my State, the people without health insurance.
  I will tell Members what else I am worried about. We have a President 
who has rolled back so many environmental laws--I have them on a scroll 
and I cannot show them because it is not allowed by the Senate rules. 
But I will hold this up. If I took this scroll and I rolled it across 
the Chamber, it would go from one end to the other. It goes on and on 
and on. It is small print. It shows all of the environmental rollbacks 
of this administration.
  Just 2 weeks ago they came up with an incredible idea. When there are 
PCBs on your land--those are the most toxic chemicals there are; they 
are carcinogens--we always had a rule if you had PCBs on your land you 
had to have a plan to clean it up and EPA had to oversee it. No. Gone. 
Now you can sell your land and God help the people who buy it with PCBs 
on it.
  Superfund under President Clinton, 80 sites a year we cleaned up--the 
most toxic sites. Now we are down to 40 a year.
  How about arsenic and playground equipment? In the latest hit of the 
administration, they announced they will allow the use of arsenic-
treated lumber for playground equipment. Wake me up when this 
environmental nightmare is over.
  It is 12:35 in the morning and I can still feel it in my heart that 
we are doing the wrong thing tonight. Why not try to reverse this 
horrible record and protect our children and protect the health of our 
people and get our people working again? Instead, we are debating 168 
to 4.
  I close with this, and I will probably dream about these numbers all 
night--what is left of the night. They got 168, and they did not get 4. 
They cannot accept the fact that 98 percent is pretty good. I don't 
know what else we are supposed to do, but I will say, whatever it 
takes, I will not be intimidated into voting for nominees that are so 
far right they would roll back the hands of time. They will not protect 
the health of the people, the privacy of the people, the safety of the 
people. I am not going to do that.
  I was sent here on a promise that I would stand up for the people of 
my State. That is what I intend to do. With 168 to 4, they ought to be 
smiling instead of whining.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I have learned politicians' priorities can 
be measured by their passions. What do they care about most? What stirs 
their souls? For that reason, the exultation of my colleagues across 
the aisle about this session, their fervor, their apocalyptic 
predictions, their press announcements, other than tax cuts for the 
rich and the super-rich, I have not seen that much passion across the 
aisle in my 3 years in this Chamber. Frankly, it does not do that for 
me.
  My passion tonight is what my colleague from California said: to work 
on other matters. We would be far more aroused talking about how to put 
Americans back to work, the over 3 million who have lost their jobs 
since this administration took office less than 3 years ago. And not 
just a return to any jobs, but jobs that are the same as, as good as or 
preferably better than the jobs they held before. Not minimum wage jobs 
with no benefits, no health coverage for spouses and children, no 
pensions, no protections, no real future.
  I would like us to talk about how we replace the 2.6 million 
manufacturing jobs lost in this country in the last 3 years, jobs moved 
offshore to someplace other than America. Many of them, I fear, are not 
coming back to America.
  The majority of the Republican caucus leadership has the authority to 
decide the Senate's agenda and has decided we will spend 30 hours on 4 
jobs. We have not spent 30 minutes on jobs for the other 3 million 
Americans out of work who are looking for jobs. We have not spent 3 
minutes on jobs and survival assistance for the over 2 million 
Americans who cannot find jobs for so long that they have exhausted 
their unemployment benefits. Many are completely broke. If we do not 
provide them with some support soon, more will be completely broke.
  Every time we have tried to bring up a bipartisan bill to extend 
unemployment benefits for Americans out looking for work, except one 
time last year, someone has objected across the aisle and we cannot 
proceed. No one has objected to spending 30 hours on 4 people, but we 
do not spend 30 seconds on most people affected by unemployment in this 
Nation.
  I will try again. I ask unanimous consent that the Senate proceed to 
legislative session and the Finance Committee be discharged from 
further consideration of S. 1853, a bill to extend unemployment 
insurance benefits for displaced workers; that the Senate proceed to 
its immediate consideration, the bill be read the third time and 
passed, and the motion to reconsider be laid on the table.
  That would extend the basic program unemployment for 6 months. It 
would extend the long-term unemployment for an additional 13 weeks and 
would benefit 5 million Americans.

[[Page 28646]]

  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DAYTON. As I said, you can tell the priorities and what arouses 
people's passions. I could get really compassionate about the Senate's 
whole last week and the disaster aid for Minnesota and elsewhere where 
crops have been devastated by the summer's drought. Many of Minnesota's 
farmers had their crops totally destroyed. I did not detect as much 
passion and priority or concern among Members of the caucus, combined, 
as in one of them tonight for the misfortune falling on thousands of 
Minnesotans.
  I get passionate talking about prescription drug coverage for seniors 
on Medicare, which went to the Republican-controlled conference 
committee last July and has not come out since. That is only half as 
good as the resources committed to the Members of Congress, which is 
why I introduced my ``taste of their own medicine'' amendment which 
passed the Senate months ago by a vote of 93 to 3. It says that 
prescription drug benefits that Members of Congress receive can be no 
better than what we vote for seniors and others under Medicare.
  Over 17,000 Minnesotans were compassionate enough about that 
principle that they signed a petition at the Minnesota State Fair in 12 
days. That is what Minnesotans are passionate about.
  I could get passionate about learning the truths about the present 
conditions in Iraq. After being told for weeks now how much they are 
improving and that things are getting better, I read today a CIA report 
disclosed by two people high up in the administration who cannot get 
their message through at that level any other way than going to the 
American people and saying, You do not know all the facts. You do not 
know even the right perspective on what is going on there.
  We have sons and daughters and husbands and wives and children of 
Minnesotans who have given their lives, who are giving their bodies and 
well-being or giving their livelihoods, and we cannot find out the 
truth about when they are coming home or whether their stay of duty 
will be extended and for how long.
  Those are things that Minnesotans can get very passionate about. That 
is real life or death.
  What is important to people? If we do not manifest it here, people 
will not care about the institutions such as the Senate. I do not 
question my colleagues' right to their choice of priorities. I don't 
question their right to have different views on policies and judges or 
any other matter. That is the nature of our process. That is the 
strength of our process. That is the wisdom of our process.
  I have been, in less than 3 years, in the parity, even, 50-50 Senate, 
with the Vice President, the tiebreaker, but in committee and 
conference committees equal, and in the majority for a year and a half 
and this last year in the minority. The previous year and a half there 
were 69 cloture votes that the Democratic leader, the majority leader, 
then had to file to move to proceed to legislation, to consider 
legislation, voting on legislation, issues that were far more important 
and affected a far greater number of Minnesotans and other Americans 
than a particular judgeship: health care for senior citizens; benefits 
for our veterans; environmental protection. And now this year, the 
conditions have changed.
  As somebody once said, how a minority reaching majority, seizing 
authority, hates the minority. So we have, as colleagues across the 
aisle noted, and I agree, seen a certain role reversal. But that is, in 
part, the different responsibilities of minority and majority caucuses, 
and it is particularly the difference of the responsibilities of those 
in the party other than the President and in the party the same as the 
President.
  I don't question the right of my colleagues, one of them or all of 
them, to support the President, whether he is right, whether he is 
wrong, whether they believe he is right or wrong. Those are individual 
decisions of conscience and politics.
  The Founders of this country--and this applies whether the President 
of the United States is Democrat or Republican, in which case the 
situation is reversed--understood that the incredible foresight and 
wisdom of the separation of powers, this coequal authority of the 
legislative branch, equal to that of the executive branch, was critical 
in every respect, critical to this country's genuine freedom and 
preservation of our democracy.
  Judge Brandeis, almost 100 years ago, said the separation of powers 
was adopted by the convention of 1787 not to promote efficiency but to 
preclude the exercise of arbitrary power. The purpose was not to avoid 
friction but, by means of the inevitable friction inherent in the 
distribution of governmental powers among the three branches, to save 
the people from autocracy, to save the people from despotism, from 
tyranny. That is what they were concerned about. That is the practice 
that has served us well in this Nation and in this institution of the 
Senate for 216 years.
  So it concerns me, and I do not question anyone's right to take 
whatever position they wish, but it concerns me as I read my colleagues 
on the other side who were designing this debate, this forum, have a 
combined number of years of experience in the Senate that amounts to 
less than one half of 1 percent of the combined collective wisdom 
achieved by nearly 1,900 men and women who have served in this body in 
its 216-year history. Yet I hear Members of this body who have been 
here less than a year saying emphatically this system is broken and it 
should be radically overhauled and that somehow the process we are 
engaged in is one that illserves our country and is even, they say, a 
violation of our Constitutional responsibilities. That is one of the 
most serious charges that anyone can make against a fellow Senator, 
because when we take this office, we stand, each of us, and recite the 
same pledge----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. DAYTON. To uphold the Constitution of the United States.
  Mr. President, I ask unanimous consent for 1 minute to complete my 
thought.
  The PRESIDING OFFICER. Under the time agreement----
  Mr. REID. What was being asked?
  Mr. DAYTON. A unanimous consent request for 1 minute to complete my 
thought.
  Mr. REID. Well, we will just take that out of our time from the next 
half hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DAYTON. Thank you, Mr. President.
  That is the most solemn oath I have ever taken, to uphold the 
Constitution of the United States. I do not question the commitment of 
anybody in this body to upholding that oath and carrying it out as he 
or she believes is right, which is the reason we are elected 
independently, to exercise that independent authority.
  But when people put out releases saying these matters we are engaged 
in are dangerous and irresponsible, that we have no right to be doing 
this, that it is a dangerous dereliction of our constitutional duty, 
those are very serious accusations.
  If anyone in this body believes what we are doing is 
unconstitutional, they should take that question to the proper court. 
If anyone believes what we are doing in this body is a violation of 
Senate rules and procedures, they should take that question to the 
Parliamentarian.
  I was told earlier today that the Parliamentarian has not been asked. 
I believe the Parliamentarian, based on all the rules and precedents of 
the Senate--this book of 1,400 pages of precedents that have been 
adopted over 216 years--would find we are acting responsibly and within 
that authority which is our responsibility and our right.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The minority's time has expired.
  The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Thank you, Mr. President.

[[Page 28647]]

  As we go into the 1 o'clock hour, Jimmy Buffett says it is 5 o'clock 
somewhere. But it is 1 o'clock here. We will try to reorient ourselves 
as to what was going on in the last hour. It is kind of an update, a 
CNN headline update.
  The last hour was pretty interesting, I thought. We had examples used 
by our friends on the Democratic side to say basically that what we 
Republicans have done in the past we complain about now. I reiterate, 
as far as I am concerned, the past is the past, and I am more worried 
about the future. I have been here a year and all I have known since I 
have been here is fussing and fighting about everything, particularly 
judges. It has not been too pleasant to be on the Judiciary Committee 
because a lot of good men and women have had a hatchet job done on 
their professional qualifications and who they are as people, to not be 
allowed to be voted on. There have been a lot of manufactured reasons.
  But as I understand, from having listened to the debate the last 
hour, the idea of holding a judge has been used as an example of an 
abuse, that holds have been put on judges, which is apparently a 
process in the Senate to deny somebody from going through the committee 
process, or to go forward.
  The example Senator Schumer used was two judges: Paez and Berzon. I 
hope I have their names right. They were two judges who were appointed 
by President Clinton, and I think Senator Smith from New Hampshire 
tried to block their nominations, put a hold on it. There was a real 
contention about what was going on with those two judges. But the 
curious thing to me was there was an intervention in those cases, in 
those two nominations by the Republican leadership, as I understand it, 
that basically brought to a close the process of blocking those judges 
from having a vote after they came out of committee.
  To me, that illustrates that in the past, when efforts were tried or 
were being used to basically hijack the constitutional requirement of a 
majority vote, once the nominee was presented to the Senate, there has 
been intervention to right the ship.
  Since I have been here, the only intervention I have seen is to shut 
down what has been going on for 200-some years. Now, it is like a 
cricket match. It is 168 to 4. It is 168 to 16. Cricket goes on for 3 
days. It is pretty interesting for the first hour or 2, but 3 days 
later I kind of get blurry-eyed watching cricket--the same way here 
with these numbers.
  The point is, there never has been in the history of the country a 
situation where somebody was reported out of the Judiciary Committee to 
come to the floor of the Senate to be voted on as a judicial nominee, 
that they were not eventually voted on--until now. There have been 
cloture motions made, but they were always made to bring about a vote.
  There has been a concerted effort by the Democratic leadership to 
block judicial nominees in an unprecedented way. That is why we are all 
here tonight. Not only is it unprecedented, it is very dangerous. The 
reason I think it is dangerous is because it effectively changes the 
constitutional standard.
  I am going to read, since we have 30 minutes here, where the 
Constitution talks about a supermajority vote: The ``Concurrence of two 
thirds'' of either the House or the Senate is required to ``expel a 
Member'' of Congress.
  That is kind of self-serving. But we do not want to throw each other 
out until we get two-thirds of our colleagues to agree we should be 
thrown out. So that is a real check on us keeping our jobs.
  Also: ``And no Person shall be convicted'' by the Senate in an 
impeachment trial ``without the Concurrence of two-thirds of the 
Members present,'' according to article I, section 3.
  I have a little experience with that article. That is a very high 
standard to achieve. And it should be a high standard to achieve. Can 
you imagine what would happen if, by Senate rule, we changed the 
impeachment standards so the President of the United States could be 
impeached by a majority vote?
  I am sure the Supreme Court would not allow that to happen. I am sure 
there would be a great outcry by the public if we, in a partisan 
fashion, changed the way you impeach a President because we did not 
like that person or their agenda. There would be a huge outcry in the 
country because we would have subverted the Constitution.
  That is exactly what is going on here in reverse. Instead of a two-
thirds requirement to confirm a judge, like we have to throw somebody 
out of the House or the Senate, or to impeach the President, or to 
ratify a treaty--why two-thirds to ratify a treaty? The Founding 
Fathers were worried about a President making a deal with some foreign 
power that was not in the best interests of the country, so you had a 
high standard to ratify. You had a check over Presidential power.
  They give the power in the Constitution for the President to veto 
legislation coming out of these bodies, to make sure we do not get off 
track. The only way we can override a Presidential veto is the two-
thirds vote.
  There was a lot of thought going into supermajority votes. It was not 
just by accident that the Constitution has six or seven provisions that 
require a majority vote, and I would argue strongly it is not by 
accident that the majority vote requirement applying to judges was put 
there on purpose.
  Our job, as I see it, is not to say what we would do if we were 
President. Our job, as the Constitution lays out for us, is to advise 
and consent by a majority vote to make sure the President--whoever he 
or she might be--is not sending over their brother-in-law or sister-in-
law or unqualified people.
  What we have done this year, different from other years, is we have 
taken our political differences and our desire to make the court go one 
way versus the other and we have hijacked the Constitution for 
political reasons.
  Our friends on the other side of the aisle lost badly in 2002. There 
was an article right after the election where the conference came 
together and started inventorying: Why did we lose? There was a strain 
of thought on the Democratic side that they lost because they were too 
accommodating to the President, and the Democratic base was deflated; 
that you are working with them too much on taxes, you are helping him 
with homeland security, that you are doing this and that with President 
Bush. One thing you might want to do to fight back--and this is in the 
article; and I do not have it with me--is to go after his judges.
  Well, that certainly gets people fired up. Republican and Democratic 
base voters very much follow issues such as this: who the President may 
pick for the Supreme Court, who the President may pick for the Federal 
bench.
  I am asking, in all sincerity, that somehow we find a way out of the 
box that we are in. Because I have been in the Senate for a year--I do 
not know how much longer I will be here but I do understand what is 
going to happen down the road.
  If this is successful--and why they pick people, I really do not 
know. I have been on the Judiciary Committee. They do not do this to 
everyone. But they pick certain people for court of appeals jobs right 
below the Supreme Court and they will pick a few out of the herd, and 
they will start saying awful things about them--I will talk about that 
in a moment--and they will wind up, after they come out of committee, 
not getting an up-or-down vote in the Senate--for the first time in 
history. I will talk about this later when I have more time.
  There are dozens of quotes by Democratic Senators saying it is really 
an abuse of the Senate's power not to allow somebody to be voted on up 
or down. They were right then. They were talking about a situation in 
President Clinton's term where they thought the Republicans were 
denying people a chance to go through committee and they were latching 
on to the constitutional provision of a majority vote, the advise and 
consent vote, saying: The high road for the Senate to take is if you do 
not like these people, if you do not like their philosophy, and if you 
do not think they are qualified, vote against them, but do not change 
the constitutional standard because it would be bad for the country.

[[Page 28648]]

  That way of thinking has been replaced. I think the reason it has 
been replaced is because the political moment is so hot. We are a 
divided nation. The year 2000 was a very close election. In 2002, there 
was a change in the Senate's makeup. It is 51 to 49. And we are being 
consumed by the political moment.
  I can tell my colleagues on the other side of the aisle, and my 
Republican colleagues, that if we keep up this practice, it will do 
long-term damage to this country.
  The one thing I like most about America is it is a rule-of-law 
nation. Instead of having to go in the parking lot and fight people, 
you have a court to go to. There is a way in this country for the weak 
to make the strong answer; and that is called the courtroom. The people 
you put in the courtroom are important. We have constitutionally, in 
the Federal system, given that power to the President. We, by majority 
vote, say yes or no to that nominee.
  What we have done is politicize this process in an unprecedented way, 
in a dangerous way. If you don't think down the road it will be 
answered in kind by the Republican Party, I think you are very naive. I 
hope I will have the courage not to go down that road as an individual 
Senator.
  But the animosity being generated by this practice is red hot among 
both bases, and it will be almost impossible, in my opinion, for this 
not to become the norm. Payback is hell. That is a phrase with which we 
are all familiar. Payback, when you are messing with the Constitution, 
is dangerous. Political payback has to have boundaries. When you are 
messing with the constitutional standard about judges, I think you have 
gone too far.
  The question is, is this really a filibuster?
  It is obvious that it is a filibuster in terms of these nominees 
because they have come out of committee and they cannot get a vote 
because our Democratic colleagues, behind their leadership, have 
united, with a few breaking away, to deny a vote. We have had hours of 
debate on all these nominees. They cannot come to the floor for an up-
or-down vote. The Democratic Party has changed its whole opinion about 
whether that is a good or bad idea, and they have adopted a practice 
that no one has done before in the history of the country.
  But we are having a hard time. It is 1:15 in the morning and we 
cannot get the other side to admit that their filibuster going on here 
is different than anything that has happened before.
  I used to be a prosecutor, and the old saying was: Follow the money. 
If you want to know what happened in the criminal enterprise, follow 
the money.
  Well, let me tell you about an e-mail that was sent by a good friend 
of mine. Senator Corzine is a very nice person. His job is to retake 
the majority for the Democratic Party. He is in charge of the 
Democratic Senatorial Committee. Senator Allen, who sits right next to 
me, is in charge of the Republican Senatorial Committee. Their jobs are 
to go out and recruit candidates and raise money so the party will be 
effective in taking over the majority, if you are a Democrat, or 
retaining it, if you are a Republican.
  Here is what an e-mail said about what is going on right now:

       Senate Democrats have launched an unprecedented effort. By 
     mounting filibusters against the Bush administration's most 
     radical nominees, Senate Democrats have led the effort to 
     save our courts.

  November 3, 2003, it was an e-mail to donors from Senator Corzine. I 
would argue that when he said they are engaging in ``an unprecedented 
effort . . . mounting filibusters against the Bush administration's 
most radical nominees'' that he was not tricking people, that he was 
telling them: We are up here fighting by using the filibuster.
  One of two things are true: The e-mail is accurate, which I think it 
is, and it is designed to get people to send in money; or he is 
tricking people and he ought to give their money back. Because if you 
listen to our Democratic friends on the other side, this e-mail is 
wrong, and these people deserve a refund. They are raising money on the 
idea that they are filibustering Bush's nominees. That is the best 
evidence of what has gone on here. They are trying to get people to 
open up their wallets to give their money because they are doing 
something that is unprecedented. What is that something? We are 
``filibuster[ing] against the Bush administration's most radical 
nominees.''
  There are a bunch of quotes out there. Senator Boxer:

       Frankly, from my perspective, if people are off the charts 
     on the right wing, I am not going to vote for them. I will 
     not filibuster them.

  February 26, 2003.
  One of the people being filibustered comes from California, Justice 
Brown.
  Let me tell you a little bit about her, and then I will yield to my 
friend from Georgia.
  Justice Brown sits on the California Supreme Court. She has been 
there since May of 1996. In California, people get to vote on who they 
want to be on the court. She received 76 percent of the vote in her 
last election.
  Now, the last time I checked, California is not a hotbed of 
Republican conservatives. I do not know why we lose so badly; and we 
do. We have lost almost every national election in California since 
Ronald Reagan. But she received 76 percent of the vote from people who 
live in her State.
  A little more about her: She is the daughter of a sharecropper, born 
in Greenville, AL. She attended segregated schools. I grew up in South 
Carolina. The first African American I ever went to school with, I was 
in the 6th grade--not something to be proud of but a fact. She preceded 
me.
  She has an academic record that if she were your daughter you would 
be unbelievably proud. She received a BA in economics from California 
State, her JD from the UCLA School of Law. She received an honorary 
degree from Pepperdine University. She has authored more majority 
opinions for the California Supreme Court than any other justice.
  This is how nasty this has gotten. This is a cartoon from something 
called ``The Black Commentator,'' September 4, 2003. This person is a 
racial stereotype. Your eyes can tell you better than I can. It says: 
``Welcome to the Federal bench, Ms. Clarence . . . I mean, Ms. Rogers 
Brown. You'll fit right in.'' And the people clapping are a caricature 
of Justice Thomas, Colin Powell, and Condoleezza Rice.
  This is what people are having to go through. This is the way they 
are being characterized and being attacked. I think it is a low for the 
Senate. I am very sorry that she had to go through it, but she is being 
filibustered after having come out of committee.
  If you don't like Justice Brown, then you can vote against Justice 
Brown, but you don't have the right to take the Constitution and turn 
it upside down for petty politics, and that is exactly what is going on 
here.
  I can tell my friends on the other side, if they think we are not 
going to fight back, they are dead wrong. They are going to have a 
fight on their hands as long as this goes on, and at the end of the 
day, the loser is going to be the American people if we don't find a 
way out of this mess because 40 people are a lot easier to gather up 
than 50 when it comes to politics. Sixty is really hard to get.
  What is going to happen if this continues is that we are going to 
have special interest groups, whether it is environmentally driven, 
abortion driven, gun driven--there is a group for everything out 
there--that is going to be upset with a particular nominee, and they 
are going to try to get 40 Senators to jump on their side.
  The people being empowered from this practice are special interest 
groups, and the big loser is the average, everyday American. The big 
loser is the 76 percent of the people who voted for Justice Brown.
  I yield to my friend and colleague from Georgia to talk about another 
abuse that exists in California.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I thank my friend from South Carolina. 
He and I served together for 8 years in the House of Representatives. 
We were both elected in 1994 and came in with a

[[Page 28649]]

bunch of revolutionaries who came to Washington to change the world. We 
were staying up all night on the House side on a regular basis. He and 
I looked over at the Senate, and said: The decorum is great; they go to 
bed at a reasonable hour. What do you know, here we are.
  I am sorry the Senator from California has left the floor because she 
made the point over and over that President Bush had his nominees 
confirmed 98 percent of the time. The fact is, the Constitution of the 
United States must be complied with 100 percent of the time. Ninety-
eight percent of the time is not good in that particular instance.
  There are some other situations where 98 percent of the time isn't 
that great, and that is why I am really sorry she is not here. If I 
told my wife that I was faithful 98 percent of the time----
  (Disturbance in the Galleries.)
  She wouldn't be all that happy with me. I wouldn't be happy if my 
food was 98 percent free of E. coli bacteria. I would not be happy if 
my car started 98 percent of the time.
  The PRESIDING OFFICER. The Senator will suspend. The Galleries are 
not allowed to react to any statement on the floor. The Senator will 
resume.
  Mr. CHAMBLISS. I would not be happy if my soap was only 98-percent 
pure. I would not be happy if our voting machines had a 98-percent 
accuracy rate.
  I would not be happy if the power worked only 98 percent of the time. 
And I would be awfully nervous if the airplane that I was flying on had 
a track record of landing safely 98 percent of the time.
  So the Senator's reference to this President getting 98 percent of 
his judicial nominees confirmed simply does not hold water.
  I wish to talk for a minute about Carolyn Kuhl. Again, she was 
referenced by the Senator from California about her qualifications and 
her abilities to serve on the Ninth Circuit Court of Appeals.
  Carolyn Kuhl is a very special lady. She has been a judge in 
California since 1995. But prior to that, Carolyn Kuhl had an exemplary 
record that includes service both as a committed advocate as well as an 
impartial jurist. She has outstanding qualifications and bipartisan 
support.
  Her qualifications include having graduated cum laude from one of 
those liberal universities--excuse me, one of those conservative 
universities called Princeton University and having graduated Order of 
the Coif at Duke University Law School. The Senator from South Carolina 
and I graduated from the University of South Carolina and the 
University of Tennessee, respectively.
  Order of the Coif means you were in the top one or two, not percent, 
the top one or two in your class. Neither one of us was there. That is 
something special. She was a law clerk to then-Judge Anthony Kennedy of 
the Ninth Circuit. She then worked in the Department of Justice as a 
Special Assistant to the Attorney General, Deputy Assistant to the 
Attorney General, and Deputy Solicitor General.
  She was a partner in the very prestigious law firm of Munger, Tolles 
& Olson. She was the first female supervising judge of the civil 
department of the Los Angeles County Superior Court. Carolyn Kuhl 
brings excellent, outstanding educational credentials to the bench.
  There are a number of individuals who have registered their support 
for Judge Kuhl. There has been some indication that maybe some female 
members of the bar are upset with her over some of her decisions, and 
one decision in particular.
  Let me show you what 23 members of the Los Angeles Superior Court, 23 
women judges on the Los Angeles Superior Court bench said about Judge 
Kuhl, and this was a bipartisan group:

       Judge Kuhl approaches her job with respect for the law and 
     not a political agenda. Judge Kuhl has been a mentor to new 
     women judges. . . . She has helped promote the careers of 
     women, both Republican and Democrat. . . . As sitting judges, 
     we more than anyone appreciate the importance of an 
     independent, fairminded and principled judiciary. We believe 
     that Carolyn Kuhl represents the best values of such a 
     judiciary.

  There was a case that, if you listened to the Senator from 
California, you would have thought that Judge Kuhl was the doctor in 
the office who was being sued, not the judge on the bench who was 
reviewing the case.
  Let me tell you what the appellate court judge who wrote the opinion 
in the case, referenced by the Senator from California, said about 
Judge Kuhl and about that specific opinion that he reviewed:

       On appeal, I was the author of the Sanchez-Scott opinion. . 
     . . Judge Kuhl's order sustaining the demurer without leave 
     to amend was not an act of bias or insensitivity. . . . In 
     fact, a strong argument can be made that she correctly 
     assessed the competing societal interests the California 
     Supreme Court requires of all jurists in this State to weigh 
     in determining whether the tort of intrusion has occurred. 
     With respect to those who have criticized Judge Kuhl as being 
     insensitive or biased because of my opinion in Sanchez-Scott, 
     they are simply incorrect.

  Judge Kuhl brings impeccable credentials to the bench. She brings 
impeccable educational credentials, as well as jurist credentials, to 
the bench. She brings bipartisan support from the women, from the men, 
from the Republicans, and the Democrats in the State of California who 
know her best.
  For us to have to go through the exercise here of, once again, 
contending with a filibuster from the folks on the other side of the 
aisle with respect to the nomination of Carolyn Kuhl, is truly an 
injustice and is one of those injustices that, as my friend from South 
Carolina has said, there will be a payback on. That is not the way we 
want to operate. It is not the way this body has operated for well over 
200 years since we have been approving judges, and it is not the way we 
should operate in the future.
  There is still time to correct the process that we are going through, 
and based upon what we are doing here tonight, I hope the profile of 
this issue is going to be brought home to the household of every 
American and every voter, and that they will understand there is a 
group in the Senate who wants to move forward to make sure their lives 
are made better because good judges are going to be put on the bench, 
and good judges ought to be confirmed by the Senate; and that there is 
another group in the Senate who is being obstructionist and is doing 
everything within their power to prevent the President of the United 
States from having the judges that he thinks are the best qualified 
from being put on the Federal bench all across America.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Thank you, Mr. President. On this half hour to which we are 
entitled, the two Senators from Arkansas are going to split the time, 
with Senator Lincoln taking the first time, whatever time she may 
consume, leaving the remainder to the junior Senator from Arkansas.
  The PRESIDING OFFICER. The senior Senator from Arkansas.
  Mrs. LINCOLN. I thank the Chair. Mr. President, I am proud to be here 
this morning to see that this age-old institution is acting as it 
should. We are looking at, reviewing, and exercising our constitutional 
responsibilities.
  I am not, however, proud of the fingerpointing that is going on--as 
we say to young children, I hope no one's eyes get put out--and all the 
fingerpointing that goes on in these 30 hours of discussion and debate, 
the warnings we have just heard: There's a payback; there's a payback.
  I do rise this morning, however, to express my extreme disappointment 
and dismay that we are expending such a large portion of our remaining 
time and energy on this unnecessary debate. We probably have only a few 
days left in this session to deal with important issues on which we 
have not yet completed action this year. How many seniors have my 
colleagues talked with in their travels back home to their States about 
the need for prescription drug coverage for our elderly?
  How many of them have they talked with as they traveled with Meals on 
Wheels and other programs and talked with these seniors who are telling 
you

[[Page 28650]]

that they are cutting their medications in half, that they are not 
going to be able to afford their heating bill this winter and their 
prescription drugs?
  I implore my colleagues, how many have you talked with in your 
travels back home?
  Looking at education funding, how many teachers have my colleagues 
spoken with as they traveled back home--teachers who are telling them 
they are going to have to spend their own money on supplies come 
February because they don't have enough glue and construction paper for 
their children or that they are having to spend an undue amount of time 
meeting demands that we have put on these school districts and yet have 
been unwilling to provide the resources for them to meet those demands?
  How many of those single mothers who are working day and night to 
pull themselves up by their bootstraps, to leave the welfare rolls and 
bring dignity to their children and to put bread on the table--how many 
of those have my colleagues spoken with as they have traveled home to 
their States when we could be doing the welfare reauthorization bill 
and making it bigger and better than we did before?
  The highway bill: How many people have they talked with when they go 
home to their States? I had a group come to me the other day who said: 
We come to you all in Congress begging every year for a few million 
dollars to try to create the infrastructure that we need in rural 
States, such as Arkansas, to improve our economy, and all of a sudden 
$87 billion falls out of the sky? What about us at home? Are you all 
going to talk about us? Are you going to bring us up? Are you going to 
do something about the things we need to make our lives stronger, to 
make our families better, to strengthen the fabric of this Nation?
  Those are the issues about which we should be talking, Mr. President, 
and I wish we were. We have not yet completed action on all the 
appropriations bills. We have an Energy bill that should have been 
finished in 2002 to bring our country into the 21st century. For the 
last 25 years, we have needed a new energy policy in this country. 
Other countries are leaving us behind in the new and innovative ways 
they are looking to provide renewable fuels to improve not only their 
economy and their environment but to lessen their dependence on foreign 
oil.
  These are the issues about which we should be talking, and genuine 
concern about what we want to do to strengthen our Nation.
  We are still waiting. We are still waiting for these to be completed, 
time tonight that could be spent in dealing with those very important 
issues.
  Faced with these and many other pressing issues and faced with a 
tight schedule, what does the leadership propose? They propose to spend 
30 hours of our time, and far more time in preparation and staff hours, 
overtime for police officers and multitudes of others who are here for 
these 30 hours, debating four or five judicial nominees, all of whom 
have been debated, generated significant opposition where they live and 
work. All have been given adequate review time, and all of whom, in my 
judgment, should not be promoted to a lifetime appointment on the 
Federal bench.
  Instead of focusing so much time and attention trying to promote a 
lifetime position for these individuals who already have very good 
jobs, my wish would be that President Bush and the Republican 
leadership would focus more of our time on issues that truly impact the 
lives of all of our constituents, and particularly the lives of the 
Arkansans I represent--issues such as creating good paying jobs in 
Arkansas, improving public education and expanding access to affordable 
health care and prescription drugs for our seniors, and, yes, providing 
something we all have agreed would make a big difference in people's 
lives: a refundable child tax credit, something that got overwhelming 
support in the Senate but is buried in a couple of conferences and 
here, there, and yonder because it is not a priority.
  Those people in this country who make between $10,500 and $26,650 are 
not important enough for us to deal with. Somehow they don't work hard 
enough, although they have to work, they have to bring home a paycheck, 
and they have to be raising children to be eligible for a refundable 
child tax credit. But for some reason, they are not a priority here 
anymore.
  We could have done that months ago, but we didn't. Here we approach 
the holidays, people have been in school, a multitude of needs that 
families across this country have, and we fail once more to even look 
at the small ways we can be helpful.
  There are any number of issues that merit careful and lengthy 
consideration in the Senate, but filling a handful of judgeships should 
not be given a priority given the backlog of pressing issues the Senate 
has yet to complete this year.
  Unfortunately, this is a manufactured crisis to distract the American 
people from the very real crises that we are going through; the ones 
that we are facing, such as the fact that in the next 15 to 20 years, 
we are going to go from 41 million Americans over the age of 65 to over 
70 million Americans over the age of 65. We as a nation are so 
completely underprepared for that crisis.
  We have 126 medical schools in this country. Only three of them have 
a department in geriatrics. We are training less geriatricians, and we 
are training even less academic geriatricians who will teach those 
geriatricians who might be there to take care of me, and I am the 
youngest in this body.
  We are so underprepared with health care, a reform in Medicare, and a 
prescription drug package to meet these unbelievable numbers that will 
cause a crisis in this country.
  We are here tonight, tomorrow, until midnight tomorrow talking about 
four people who did not get a job they wanted. It is unbelievable.
  What about our children? What about educating our children to be 
prepared in the 21st century, to be competitive in a global economy, 
teaching our children the skills they are going to need to be 
competitive? They are the future of this country. They are our future 
workers. They are our future leaders.
  We came up with a great bipartisan bill to educate our kids, and we 
do not have the guts to pay for it. Out of the $8 billion for the 
education plan for our kids, we are only funding $2 billion of it from 
the President's budget, a quarter. I have to say, that is a misspent 
priority there.
  We have record deficits that are going to be heaped on the shoulders 
of our children. Sixty-six percent of that debt comes due in 4 years. 
What happens to our constituents if all of a sudden somebody comes up 
and says, ``Guess what, your debt is due and I want it on demand. No, 
you cannot refinance, no way. I am going to call that debt on you''?
  These are serious crises we should be addressing and we are spending 
our time pointing fingers and not addressing the issues of the American 
people.
  We have a conflict in Iraq that is taking the lives of American 
soldiers every day, and there is no end in sight. These are crises, not 
the fact that four people who wanted a job did not have the support of 
enough Senators and that is what we are spending all this time on.
  Today, 95 percent of Federal judicial seats are filled. This is the 
lowest number of judicial vacancies in 13 years. This 5 percent vacancy 
rate is lower than the U.S. unemployment rate and the poverty rate, and 
I know because I represent a State that is very high in poverty. I come 
from one of the 20 highest poverty counties in the country.
  Today there are more lifetime-appointed Federal judges serving than 
at any time in our Nation's history. Furthermore, since President Bush 
was elected, the Senate has confirmed 168 Federal judges and rejected 
only 4--2 percent of his nominees.
  By comparison, when Republicans controlled the Senate during 
President Clinton's administration, more than 60, or 20 percent, of his 
nominees never received a vote in the Senate.
  Sadly, I think the Senate's record on this matter truly speaks for 
itself. I believe all executive and judicial nominations that come 
before the Senate are

[[Page 28651]]

entitled to courtesy and respect, but I also believe the Senate's role 
of advice and consent is a very important check and balance our 
forefathers designed and instituted. It is an obligation I do not take 
lightly.
  Senators are not elected to play a ceremonial role in the nomination 
process. This is not an issue of whether one likes the President or 
does not like the President. This is not an issue of whether one thinks 
these nominees are good people. They are all good people. Ours is not a 
ceremonial role in this nomination process. Instead, we have an 
obligation to carefully consider each nominee individually, to help 
ensure the judiciary is fair and balanced and to ensure the American 
public maintains faith in our judicial branch of Government. We have a 
responsibility to make sure these judicial nominees will not be 
partisan in their decisionmaking, that they will not be biased or 
partial to their own personal beliefs, but will institute the rule of 
law, the Constitution, and the precedent of the higher courts.
  Given the undue attention that has been lavished on these four 
nominees, I certainly believe it is worth revisiting a bit of their 
cases just to reconsider why they have not been confirmed. In each 
case, it is clear each of the nominees who has not been confirmed has 
shortcomings that in my opinion disqualify these individuals for the 
important positions to which they have been nominated. This does not 
mean I do not think they are good people. It does not mean I do not 
like the President. It simply means I am doing the job the people of 
Arkansas sent me here to do, to evaluate these people.
  When we look at Ms. Owen, after reviewing the record and meeting with 
Judge Owen, discussing her tenure with members of the bar who practice 
in Texas and in Arkansas, I was not satisfied this nominee could set 
aside her personal views and give each side a fair hearing. She had not 
in the past. In some instances, it is not just me. Judge Owen's own 
colleagues have criticized her failing to understand and abide by the 
plain meaning of statutory provisions before her as a judge on the 
Texas Supreme Court.
  Likewise, we look at the case of Alabama's Attorney General William 
Pryor. He is one of the most strident and outspoken nominees we have 
seen. After reviewing some of the statements General Pryor has made 
about sitting Supreme Court Justices and the decisions of that Court, I 
am concerned that he does not possess the necessary judgment and 
temperament to be a Federal judge, to oversee that element of the 
judiciary.
  Judge Pickering of Mississippi, who I do think is a good man, has 
also been invoked in this debate and his record does bring me concern. 
His record raises serious questions about his ethical conduct on the 
bench. His repeated contacts with the Justice Department in an attempt 
to obtain a lesser prison sentence for a convicted defendant, and his 
solicitations of letters of recommendation from lawyers in Mississippi 
who had cases before him are well-known examples.
  Finally, consider the case of Miguel Estrada, who withdrew himself 
from consideration earlier this year. By many accounts, Mr. Estrada was 
a distinguished attorney with a very talented legal mind. However, when 
we in the Senate attempted to verify this assessment by asking Mr. 
Estrada to come before the Judiciary Committee to answer additional 
questions and submit all of the relevant information that was 
necessary, and the burden of proof was in his court--we asked the same 
of President Clinton's nominees--Mr. Estrada indicated he would rather 
not. To me, and many of my colleagues, Mr. Estrada's response simply 
was not acceptable.
  It is important to note there are good, solid reasons as to why these 
people were not confirmed. These reasons had nothing to do with any 
personal beliefs or characteristics. They had nothing to do with 
partisanship. They had nothing to do with working against the 
President. I opposed these nominees because I am not convinced they 
meet the requirements of what is expected of those who receive a 
lifetime appointment to the Federal bench. That is my job.
  Again, these are 4 nominees. Out of 172, 4 have not been confirmed. 
Do 4 nominees constitute any sort of judicial crisis? Of course not. Of 
course they do not. If we do math, the Senate has confirmed 98 percent 
of President Bush's nominees. I do not know about you, but you are 
right in that we do not want our automobile to work at 98 percent, but 
let me tell you 98 percent is pretty good. It is not 100 percent, but 
that makes me think about my kids. If they come home from school after 
they make 98 on their test, am I going to send them to their room? Am I 
going to punish them for that? Am I going to say, well, I cannot 
believe you did not do 100? No.
  What I am going to do for my children is what we should be doing. I 
am going to sit down with them and I am going to help them reach 100 
percent. I am going to work with them. That last 2 percent may be the 
most difficult, but the most difficult is worth working towards. When 
we work together, we can get there. In working together, we could reach 
that. But the administration does not want to do that. No, telling them 
they had not done good enough is not what I would do. I would work hard 
with them to get to where we needed to be.
  It is my sincere belief if President Bush would make a good-faith 
effort to work with Democrats in a spirit of cooperation, all of his 
nominees would be confirmed, with little or no controversy or 
opposition. Unfortunately, it has become apparent the President is more 
interested in staging a fight and casting blame, which is really a 
recipe for gridlock. In gridlock, the only ones who get hurt are the 
American people.
  It is disappointing the President and the Senate leadership are 
expending so much time and energy to secure jobs for four people who 
already have good jobs, particularly considering the millions of people 
who are out of work and finding it increasingly difficult to make ends 
meet. The people who lose out in this fictional crisis are the American 
people. Tying up the Senate for 30 hours on 4 judicial nominees means 
we are not talking about the issues that matter most to the people we 
represent. It means we are not talking about how we are going to finish 
that prescription drug bill in order to help seniors cope with the 
rapidly rising cost of those prescription drugs. It means we are not 
spending our time focused on improving our schools and educating our 
children, so they can get the best possible start towards competing in 
that global marketplace. It means we are not doing all we can to create 
jobs and move our economy forward. It means we are not building that 
infrastructure that is so necessary in rural America and elsewhere 
across this country.
  Just this week, I learned Arkansas has experienced its highest rate 
of unemployment in a decade. While my colleagues on the other side of 
the aisle point to the improving economic indicators as evidence that 
the doldrums are behind us, I can assure them that for most people in 
Arkansas those numbers are just abstractions. They want to see jobs, 
and they want to see real action in the Senate to get things done on 
behalf of the voters who sent us here.
  Unfortunately, I think we have taken this time and used it most 
unproductively. Many Members have come to the floor tonight to talk 
about the past. I have heard some very eloquent speeches about their 
times as pages and debates they have heard, many quoting history from 
centuries ago. I think the most important thing we can talk about 
tonight is the future. I think we must talk about the future. I think 
we must talk about all of these crisis issues we are faced with, and I 
think we must come back to our children and let that be our focal 
point.
  All of us in this body are so blessed. I started out speaking about 
how blessed I feel to even be in this body, to be in this place 
tonight, to be a part of an institution that is so incredible that it 
has lasted over 200 years. We are all blessed in many things, and for 
whatever faults some people may find in our Government, I believe, and 
I think the American people believe, we still live

[[Page 28652]]

in the greatest country on the face of this Earth.
  Tonight I looked at one of my greatest blessings, my children. I put 
them in bed before I came over. I tucked them in. I thought about what 
we were going to talk about tonight. I thought about this great country 
we live in. I thought about the conflict in Iraq. There were mothers 
who were putting their children to bed tonight whose husbands may be 
stationed abroad. There were children who were being put in bed tonight 
tucked in by their grandparents because their mothers had been called 
up and were in a strange and dangerous land. I thought about the fact 
my children are so blessed to live in this country under a rule of law 
that separates us from the rest, a rule of law that, when it is 
administered without bias, without the interjection of political issues 
or personal views, can create security and safety. It creates freedom. 
It creates a life I want my children to have.
  I look in the eyes of mothers across the globe who do not put their 
children to bed in a nice, warm home, who have not been fed. They live 
in violence and terrorism. They live in a land that is stricken with 
famine because there is no rule of law, or what law exists is 
implemented through a political regime. That is what separates us from 
them, that we have a system designed specifically to separate the 
political from the rule of law.
  I am proud to be here. I do not have the background many of my 
colleagues do, having been Governors and attorneys general, having 
served in this body for a long period of time, but I challenge any of 
them to match my pride, my pride of this country and in what that rule 
of law represents to me, not only as an American but as a mother and as 
a Senator.
  I have no qualms in doing my job the people of Arkansas sent me here 
to do, to make sure these individuals we send to the Federal bench to 
implement the rule of law in this Nation, the Constitution, and the 
precedent of the higher courts do not interject their political views, 
their bias, or their personal views because we know that through these 
years a nonbiased judicial branch of government has served us well. It 
is what has separated us from those countries that right now we work so 
hard to change.
  I yield time to my colleague who I am extremely proud to serve with, 
the other Senator from Arkansas.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. PRYOR. Mr. President, how much time do we have remaining?
  The PRESIDING OFFICER. Two and one-half minutes.
  Mr. PRYOR. Mr. President, in this 2\1/2\ minutes, I would like to 
thank some people for tonight. I would like to thank the staffers who 
are here on both sides. I would like to thank the Senate staff, the 
Sergeant at Arms staff, the doorkeepers, the cloakroom staff, all the 
various people who make the trains run on time around here, because I 
certainly understand they have families to go home to, that they have 
lives outside of these halls. I know the sacrifice they are making 
tonight to be here.
  I also want to thank my colleagues on the other side of the aisle for 
their viewpoints. We may differ on some of these issues, but I 
appreciate their opinions and respect their viewpoints and the 
zealousness by which they approach the subject at hand.
  I want to thank colleagues on my side who are here in the wee hours 
of the night and will be here throughout the day tomorrow to talk about 
these issues that are very important to the people of this country. I 
know members of the Senate on our side of the aisle are equally 
passionate about these issues. Some of this is a matter of opinion. 
Some of it is a matter of fact and history and tradition. Certainly 
people on this side of the aisle are very passionate about this.
  In the couple of minutes I have remaining, I want to acknowledge some 
of the hard work the people in this institution and around this 
institution have put into this 30-hour filibuster or marathon debate, 
whatever one wants to call it, because it has come at quite a sacrifice 
to the members of the staff in this body.
  Do I have any time remaining?
  The PRESIDING OFFICER. Twenty seconds.
  Mr. PRYOR. I would again thank my colleague from Arkansas. We have a 
great tradition in our State of sending strong Senators to Washington, 
and certainly Senator Lincoln is one of those. She shows great 
leadership not just for the State but for the Nation. I want to thank 
her for her contribution tonight.
  The PRESIDING OFFICER. The time of the minority has expired.
  The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I am very proud of the State I 
represent. The State of Georgia is, in my opinion, the greatest State 
in our country because that is where I come from, and I am very blessed 
to represent that State. A number of great individuals from our State 
have served in this very august body. We have had a tradition of strong 
leadership in the Senate from Georgia, the Walter Georges, the Richard 
Russells, the Sam Nunns, the Paul Coverdells.
  Outside of the Senate, we also have had a history of strong 
leadership coming from our State. For the past 30 years the man who has 
epitomized political leadership and strength in our State is now our 
senior Senator. It has been a great privilege and pleasure for me to 
have the opportunity, No. 1, to know this man over the past 35 years or 
so, but to have an opportunity to serve with him in the Senate and for 
him to be my senior Senator has truly been a great honor to me.
  It is with great pride, and I consider it a great privilege, to be 
able to yield such time as he may consume to the Senator from Young 
Harris, GA, senior Senator from Georgia, Mr. Miller.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. MILLER. Mr. President, I stand here proudly next to a copy of the 
U.S. Constitution. It is a document that has stood the test of time. It 
is a document that is revered throughout the world. As a history 
professor, I have read it many times. But I need to know tonight where 
in the U.S. Constitution does it say the President's nominees for the 
judiciary must have a supermajority to be confirmed? Where does it say 
that? I have searched high and low for that clause and that provision. 
I cannot find it. Maybe these old 71-year-old eyes are getting kind of 
dim. Perhaps I need a magnifying glass.
  I seek. I search. I hunt in vain. For is it not there. Even if I had 
the eye of an eagle I could not find it because it is simply not there.
  No, the U.S. Constitution says only the Senate is to advise and 
consent on the President's nominees. Somehow that has been twisted and 
perverted into this unmitigated mess we have today where 59 votes out 
of 100 cannot pass anything because 41 votes out of 100 can defeat 
anything. Explain that to Joe Sixpack in the Wal-Mart parking lot.
  Explain that to this man, James Madison, who wrote that Constitution. 
He predicted and he feared some day someone would try to finagle this 
system, that they would try to plot and conspire and pervert the 
process in just the way they have. James Madison warned about this in 
Federalist Paper 58. He said: If that should happen, ``The fundamental 
principle of free government would be reversed. It would be no longer 
the majority that would rule. The power would be transferred to the 
minority.''
  But don't just take my word for it. Look at others who are far 
smarter, far wiser than I will ever be and how they have expressed the 
kinds of things that are going on around here.
  On June 1, 1950, a brave woman who was then the Senator from the 
State of Maine, Margaret Chase Smith, gave one of the most courageous 
speeches ever given on the floor of this Senate. It has been called the 
``declaration of conscience'' speech. Senator Smith questioned what was 
happening at that time in the Senate. It was not about filibusters but, 
make no mistake, it was about intrigue, and it was about character 
assassination.
  Let me give you a few excerpts from Senator Smith:


[[Page 28653]]

       The United States Senate has long enjoyed worldwide respect 
     as the greatest deliberative body in the world. But recently 
     that deliberative character has too often been debased to the 
     level of a forum of hate and character assassination 
     sheltered by the shield of congressional immunity.

  She went on:

       It is ironic that we senators can during debate in the 
     Senate [and in committee], directly or indirectly, by any 
     form of words, impute to any American who is not a Senator 
     any conduct or any motive unworthy or becoming an American--
     and without that nonsenator American having any legal redress 
     against us.

  She went on:

       It is strange that we can verbally attack anyone without 
     restraint and with full protection, and yet we hold ourselves 
     above the same type of criticism here on the Senate floor. 
     Surely, the United States Senate is big enough to take self-
     criticism and self-appraisal. Surely we should be able to 
     take the same kind of character attacks we dish out to 
     others.

  She continued:

       I think it is high time for the United States Senate and 
     its members to do some real soul searching and to weigh our 
     consciences as to the manner in which we are performing our 
     duty for the people of America and the manner in which we are 
     using or abusing our individual powers and privileges.
       I think it is high time we remembered that we have sworn to 
     uphold and defend the Constitution. I think it is high time 
     that we remembered that the Constitution, as amended, speaks 
     not only of the freedom of speech but also of trial by jury 
     instead of trial by accusation.

  So said Margaret Chase Smith in 1950.
  Let me tell you what Thomas Sowell, in his recent book ``The Quest 
for Cosmic Justice'' writes about the role of a judge:

       The traditional conception of the role of judges was 
     expressed thousands of years ago by Aristotle, who said that 
     a judge should ``be allowed to decide as few things as 
     possible.'' His discretion should be limited to ``such points 
     as the lawgiver has not already defined for him.''
       A judge cannot ``do justice'' directly in the cases before 
     him. This view was strongly expressed in a small episode in 
     the life of Justice Oliver Wendell Holmes. After having lunch 
     [one day] with Judge Learned Hand, Holmes entered his 
     carriage to be driven away. As he left, Judge Hand's parting 
     salute was: ``Do justice, sir, do justice.'' Holmes ordered 
     the carriage stopped. ``That is not my job,'' Holmes said to 
     Judge Hand. ``It is my job to apply the law.''
       Elsewhere Holmes wrote that his primary responsibility as a 
     judge was ``to see that the game is played according to the 
     rules whether I like them or not.''
  Lastly, I want to quote a Georgian named Phil Kent. In his book ``The 
Dark Side of Liberalism,'' he takes the liberal argument in this 
controversy and states it. He says:

       The United States [according to the liberals, according to 
     the Democrats in this debate we are in today] comprises 
     diverse people and cultures. As such, judges should have the 
     power to change laws when circumstances dictate. The U.S. 
     Constitution is a document in flux, and is many times 
     irrelevant in modern society. Therefore, federal judges 
     should be chosen on the basis of their views or the positions 
     of their issues and should be tested on their ideologies.

  That is what the Democrats have been saying to us in all this debate. 
Then Kent answered that premise:

       We are a nation of laws, not of men. Our government is 
     constitutional, not political. Our highest court is the 
     arbiter of constitutional controversies, and the protector of 
     unalienable rights. As former President Ronald Reagan 
     underscored, ``Freedom is indivisible--there is no ``s'' on 
     the end of it. You can erode freedom, diminish it, but you 
     cannot divide it and choose to keep some freedoms while 
     giving up others.''
       Ignoring the law, whether seen as politically expedient or 
     ideologically sound, suggests that the courts are merely 
     devices to be used to change policy.
       The courts, however, are partners with specific duties 
     separate and apart from lawmaking and law execution. We've 
     missed that point as a nation for too long, to our great 
     peril.

  That brings me to this map of the United States. I ask you to look at 
the faces on this map. They are the faces of America. These are the 
faces of America. There is Miguel Estrada, who spoke little English 
when he came to this country as a teenage immigrant from Honduras. But 
a few years later, this immigrant graduated magna cum laude from 
Columbia College in New York and from Harvard Law School. He clerked 
for Justice Anthony Kennedy on the highest court in this land, the U.S. 
Supreme Court. He continued to soar with a very distinguished law 
career. Yet the Democrats in this Chamber have decided this man could 
not even have an up-or-down vote. It is a shame, and it is a disgrace.
  There is Bill Pryor, a devout Catholic and a southerner who grew up 
in a house where both John F. Kennedy and Ronald Reagan were revered. 
He graduated magna cum laude from Northeast Louisiana University and 
Tulane University Law School. He also has had a very distinguished law 
career, including winning statewide election twice as Alabama's 
attorney general. Yet the Democrats in this Senate will not give him an 
up-or-down vote.
  Then there is Charles Pickering, another southerner, a grandfather, a 
courageous and a deeply religious man. He graduated at the top of his 
law school class at the University of Mississippi, served in elective 
office for 12 years, practiced law for 30 years, and has served this 
country ably on the U.S. District Court since 1990. Yet the Democrats 
in this Senate refuse to give Judge Pickering an up-or-down vote.
  There is Priscilla Owen, who grew up on a farm in rural Texas and 
later rose to win election to the Supreme Court of Texas. Along the way 
she graduated in the top of her class at Baylor University Law School 
and practiced law for 17 years. In her successful reelection bid to the 
Supreme Court in 2000, every major newspaper in Texas endorsed her. Yet 
in this Senate, this woman cannot get an up-or-down vote.
  Finally, there is Janice Rogers Brown. I have spent a lot of time 
with this woman. I have read dozens of her speeches. I love and admire 
her. The daughter of an Alabama sharecropper who rose to serve on the 
California Supreme Court, she attended segregated schools until she was 
in high school and decided to become a lawyer after seeing African-
American attorneys in the civil rights movement praised for their 
courage. In 1998, 76 percent of Californians voted to retain Justice 
Brown, an approval rating most of us can only dream of. Yet this 
African-American woman will not be given an up-or-down vote because the 
Democrats in this Chamber refuse to let her do it. They are standing in 
the doorway and they have a sign: Conservative African-American women 
need not apply, and if you have the temerity to do so, your reputation 
will be shattered and your dignity will be shredded. Gal, you will be 
lynched.
  These are the faces of America, men and women who pulled themselves 
up, who worked hard, who played by the rules, and excelled in the field 
of law, and now all of their hard work and success has landed them in 
the doorway of the Senate, and each one of them is having that door 
slammed in their faces. The very least they deserve, the very least 
they deserve is an up-or-down vote. Surely, in the name of all that is 
fair and reasonable, surely, in the name of James Madison, surely in 
the United States of America in 2003, that is not too much to ask, just 
an up-or-down vote, just an up-or-down vote, just an up-or-down vote.
  The majority of this Senate deserves to have its voice heard.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I thank my colleague from Georgia for 
his always direct, forthright, from-the-heart statement. He knows he 
and I share an awful lot with respect to this issue and so many others. 
Again, it has been a pleasure for me to serve with him.
  I want to talk about one of the men he just mentioned who is one of 
the faces on that map and is one of the individuals who is being 
filibustered. That is Judge Charles Pickering.
  What an injustice to an individual is being carried out with respect 
to the filibuster of the nomination of Judge Charles Pickering to the 
Fifth Circuit Court of Appeals. I feel a very special relationship to 
the Fifth Circuit because when I began practicing law in 1969, I was a 
member of the Fifth Circuit. At that point in time, all of Georgia was 
a part of the Fifth Circuit.
  Then I believe it was 1979 or 1980, we split off. We became the 
Eleventh Circuit and the Fifth Circuit became the

[[Page 28654]]

circuit that handled cases from Texas, Louisiana, and Mississippi.
  This man, Charles Pickering, grew up in Mississippi. It has been said 
by his critics on the other side of the aisle--and I quote because I 
was in the chair presiding Monday when this statement was made by one 
of the individuals from the other side of the aisle on the floor, in 
talking about his record on race, ``He has a bad record.''
  Nothing could be further from the truth. Judge Pickering has been a 
strong advocate of the civil rights movement since the very early days 
of his career. Judge Pickering was one who came through a very 
difficult time in the history of our country, particularly coming from 
the South. Those of us who grew up in that same South, particularly in 
the rural South during those days, know the difficult times we faced 
and how far we have come since then. We are still not where we need to 
be. But boy, what strides we have made. It is only because of men like 
Judge Charles Pickering that we have made those strides.
  So for anybody to say this man has a bad record on race is simply not 
just incorrect, but it does a grave injustice to a man who worked so 
hard to make sure civil rights did come to his part of Mississippi.
  Judge Pickering, in 1967--you have to think back. In rural 
Mississippi, a part of Mississippi where the Ku Klux Klan, which today 
we would brand as terrorists--at that point in time, they were very 
active in that part of Mississippi. Judge Pickering stood face to face, 
eye to eye with the Ku Klux Klan. He went to court and testified 
against the Imperial Wizard of the Ku Klux Klan in Mississippi. For 
those who had not lived through that time, you cannot have a real 
appreciation for what he did, how brave, courageous, and how much 
integrity this man showed by doing this. He testified against the 
Imperial Wizard in a criminal action, in which the Imperial Wizard of 
the Ku Klux Klan was charged with the murder of a man named Vernon 
Dahmer.
  Unfortunately, although Judge Pickering did that, now on the floor of 
this Senate it is said he has a bad record when it comes to civil 
rights. Judge Pickering is a strong, religious man. He has a very 
strong faith. He believed there ought to be equality among children in 
schools. For that reason, he made sure his children went to integrated 
schools from the very first day they were eligible to go to school.
  Again, for those of us who grew up in the South during those days 
when integration began, this was not a very popular thing to do in the 
white community, to say the least. But Judge Pickering, again, stared 
racial injustice in the eye and he said we have to do the right thing 
and we have to make sure all of our children have an equal opportunity, 
so he sent his children to the same schools as the African-American 
community sent their children to during, again, this very difficult 
time.
  The list goes on and on about what Judge Pickering has done with 
respect to race relationships, from organizing local committees, to 
organizing statewide committees dealing with the issue of racial 
justice in the State of Mississippi.
  Judge Pickering served on the Federal bench in the district court 
where he lived for several years. He has been criticized for having a 
bad judicial record. Well, let me tell you about his judicial record. 
Some 99.5 percent of his cases have either been affirmed or not 
appealed--99.5 percent. They have either been affirmed or not appealed. 
Of those appealed, Judge Pickering has only had a reversal rate of 7.9 
percent, which is 20 percent lower than the U.S. Department of 
Justice's national average of 9.1 percent, and 2 times lower than the 
average district court judge under the Fifth Circuit Court of Appeals.
  Judge Charles Pickering is not just a good man, Judge Charles 
Pickering is an outstanding judge. This is the kind of man the folks on 
the other side of the aisle are being obstructionist about and are not 
allowing an up-or-down vote with respect to his confirmation on the 
floor of the Senate. It is wrong, it is unjust, and it ought not to 
continue.
  I want to talk to you about one other individual very quickly, and 
that is Miguel Estrada. Miguel Estrada has withdrawn his nomination, 
after being under consideration for years. He decided he was not going 
to put his family through this any longer and he decided the best thing 
to do was withdraw his nomination and move on.
  Miguel Estrada came to the United States as a teen from Honduras. He 
spoke very little English. He made sure he learned English quickly 
enough to enter school and he graduated cum laude from undergraduate 
school and went to Harvard Law School, where he graduated with honors 
and was a member of the Harvard Law Review. He has given his life to 
public service. Most recently, his public service included being in the 
office of the Solicitor General of the United States of America under 
both a Republican President, President George Herbert Walker Bush, and 
a Democratic President, Bill Clinton. In both instances, he served 
under a Solicitor General who has now come forward and said this man is 
a good man, an outstanding lawyer, and this man deserves to be 
confirmed to the DC Circuit Court of Appeals.
  Obstruction came from the other side of the aisle, and they would not 
even give Miguel Estrada an up-or-down vote to confirm his nomination 
to the DC Circuit Court of Appeals.
  I want to spend the last part of my time here talking about this 
issue of cloture. The Senate has operated under various different rules 
on cloture, which is the ability of the Senate body to terminate debate 
on a pending matter. From 1789 until 1806, the Senate cloture rule 
allowed debate to be shut off by a simple majority vote. For 17 years 
after the country began operating under the U.S. Constitution, the 
Senate rules provided a simple majority vote was all that was needed to 
cut off debate.
  In 1806, the Senate eliminated its first cloture rule which, in 
effect, put the Senate under a system where unanimous consent was 
required to end debate. This unanimous consent system lasted for over 
100 years and survived 3 unsuccessful attempts to bring back some sort 
of cloture rule.
  In 1917, the Senate filibustered a proposal supported by President 
Woodrow Wilson to arm American ships against German submarines, prior 
to America's entry into World War I. This filibuster was rather 
controversial and led to support for the Senate approving the first 
version of today's cloture rule, which is rule XXII. That required a 
vote of two-thirds present and voting to end debate on ``pending 
measures.''
  Rule XXII was again amended in 1949 to extend cloture to any measure, 
motion, or other matter, but cloture became inapplicable to any rule 
change, making it more difficult to change the rules again. Part of 
this 1949 rule change raised the required number of Senators for 
cloture from two-thirds of those present and voting to two-thirds of 
all Senators.
  Ten years later, in 1959, rule XXII was extended to rule changes, but 
the number of required Senators was moved back to two-thirds of those 
present and voting. In 1975, our esteemed senior Senator from West 
Virginia, Senator Byrd, championed another amendment to rule XXII that 
changed the required number of Senators for cloture to three-fifths of 
Senators duly sworn and chosen--in other words, a hard 60 Senators, 
without regard to how many are present and voting. The 1975 rule change 
left the cloture requirement for rule changes at two-thirds of Senators 
present and voting.
  In 1979, Senator Byrd again proposed another amendment to rule XXII. 
This time, the amendment imposed a 100-hour limit on post-cloture 
debate. This was reduced to 30 hours in 1986.
  We started off in 1789 with the cloture rule that closed off debate 
by a simple majority vote. The original rule was clearly constitutional 
because it didn't impose more than a simple majority to end debate and 
proceed to the question of an up-or-down vote on the President's 
nominees. Now it is interesting, and I think very telling, that the 
Framers of the Constitution set out only five instances where they 
thought the Senate needed more than a

[[Page 28655]]

simple majority vote to act. That is what is referred to as a 
supermajority, such as three-fifths, two-thirds, and such--anything but 
a simple majority.
  Those five instances requiring a supermajority are: impeachment, 
expulsion of a Senator, the override of a Presidential veto, 
ratification of a treaty, and adoption of a constitutional amendment.
  I ask unanimous consent that I be allowed to continue and that my 
time be taken off of the next hour, same as we have been doing.
  The PRESIDING OFFICER. Is there objection?
  Mr. DASCHLE. I have no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CHAMBLISS. I thank the minority leader.
  In contrast, the approval of Federal judges should occur frequently. 
I would go so far as to say 100 percent of all qualified nominees 
should be approved by the Senate. This is why there is no requirement 
in the Constitution for more than a simple majority to confirm these 
nominees. The Constitution charges this body with the responsibility of 
advice and consent on the President's nominations.
  With this in mind, when the Senate began operations, it required only 
a simple majority vote to end a filibuster. We have come a long way in 
the last 214 years. As you have just heard, we have tinkered with the 
cloture rule on a number of occasions. I am of a mind that the number 
of cloture rules we have had since the original rule were, or are, 
unconstitutional, including the present rule XXII, where they are 
applied to prevent a majority of Senators from confirming the 
President's judicial nominees. But that has never happened before this 
year. We have never in our Nation's history had a minority of Senators 
try to prevent a vote on the President's nominees under the guise of 
rule XXII.
  By acting in this way, a minority of Senators has found a way to make 
the cloture rule unconstitutional in practice. The Framers of the 
Constitution knew the situations where they wanted more than a simple 
majority for the Senate to act. Confirmation of the President's 
nominees was not one of these instances.
  If you look at the text of article II, section 2, in the second 
paragraph, you see in the very same sentence where the Framers require 
two-thirds of Senators present to ratify a treaty, they charge the 
Senate with responsibility for advice and consent without a word said 
about a supermajority requirement; just a simple majority is clearly 
all they thought was needed to advise the President.
  With respect to the Senate's consideration of nominees, I think the 
only constitutional cloture rule we have ever had was the first one, 
which stood for the first 17 years the Senate was in operation. We have 
tolerated a number of different accommodations over the years, 
including the absence of any cloture rule for over 100 years, where we 
could only end debate by unanimous consent and a lot of other 
compromise cloture rules along the way. Ultimately, what decides 
whether a rule is constitutional is whether 51 Senators say it is 
constitutional.
  We have another proposal offered this year to resolve the impasse 
that has prevented the Senate from discharging its constitutional duty 
to advise the President on nominations of the individuals we are here 
talking about.
  Senate Resolution 138, of which I am a cosponsor, was introduced by 
Majority Leader Frist and has bipartisan support from the senior 
Senator from my State, Senator Miller, who is an original cosponsor of 
the resolution.
  S. Res. 138 is a reasonable compromise to break the impasse we now 
face. Instead of setting a fixed supermajority requirement of 60 votes 
to end debate and bring a nominee to a vote, S. Res. 138 starts with a 
60-vote requirement and gradually reduces the number of necessary votes 
until ultimately a simple majority of Senators present on the floor can 
decide whether to consent to the President's nominee. While respecting 
that the filibuster has a historic role in the Senate, this bill 
assures that, ultimately, the will of the majority will prevail. Over 
the past few years, measures similar to S. Res. 138 have received 
bipartisan support at various times.
  We have a history of support of this concept from people on both 
sides of the aisle for a needed change to the cloture rule. Now is the 
time to come together and make it happen. We can end this filibuster by 
cooperation in a bipartisan fashion, or we will have to decide other 
options that might work.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The minority leader is recognized.
  Mr. DASCHLE. Mr. President, when will the Democratic allotment of 
time expire?
  The PRESIDING OFFICER. At 3:05.
  Mr. DASCHLE. I thank the Chair for the information.
  Mr. President, the distinguished Senator from Arkansas has been a 
stalwart participant during the wee hours here. I want to publicly 
acknowledge his presence and laud him for his willingness to not only 
be on the floor, but to stay on the floor. I asked if he would mind if 
I would take a couple of minutes, and then I will relegate the balance 
of time for this allotment to him. He has some important remarks to 
make and I, like others, would like to hear him.
  Let me respond briefly to the comments made by the distinguished 
Senator from Georgia. He noted, of course, that the Constitution 
provides the authority to the Senate to write its rules. That, in 
essence, is what we have done, as he has also noted. There have been 
various ways with which the Senate addressed the issue of unlimited 
debate, which is the essence of this institution. Having unlimited 
debate means an opportunity for Senators to be heard for whatever 
length of time, but it also means an opportunity to protect the 
minority--the minority being whatever the case may be, whether it is a 
political minority, ethnic minority, minority on a given issue, 
regardless. That was really the essence of what the Founding Fathers 
saw with regard to the delegation of this authority to the Senate to 
write its rules with an expectation that filibusters, this extended 
debate, would be part of the deliberative spirit and soul of this body.
  But my colleague from Georgia fails to recognize, and certainly 
others have ignored the number of times our Republican friends have 
used the rules of the Senate, the filibuster, to advance their 
position. There have been a number of occasions over the course of the 
last three decades where filibusters and cloture votes have been cast. 
There were 63 occasions where nominees from the Clinton administration 
did not even reach the floor because of an effective filibuster within 
the committee. One Senator would say: I will not allow this nominee to 
go forward. That assertion was respected and, ultimately, 63 of the 
Clinton nominees never got out of committee because of a Republican 
filibuster. That has not happened, of course, during this Congress. The 
Republicans have moved their nominees at will, and the only option we 
have available to us, of course, is to vote either against or for the 
nominee in committee, and then on cloture as some of these nominees 
with whom we have grave concern come to the Senate floor.
  No. 1, this is not unprecedented. No. 2, it was used to a far greater 
degree by our Republican colleagues during the 8 years of the Clinton 
administration--as I said, on 63 occasions.
  That issue should not be debated. It is not even arguable. I don't 
think this debate should be about 4 jobs, which, by the way, are 
generating incomes of over $100,000. It is our view that the debate 
tonight should be about the 3 million jobs that have been lost under 
this administration and the 9 million jobs which are lost and for whom 
people are attempting to find some way to survive financially and 
economically.
  Those 3 million jobs have been lost, in our view, because of a 
mismanaged economy that needs to be addressed if indeed we are going to 
bring this economy back. All one has to do is look at the comparison 
between the Clinton and Bush administrations to gain some understanding 
of the degree of difference between the Democratic approach and the 
Republican approach to

[[Page 28656]]

the economy. The Clinton administration created 22 million jobs in 8 
years. The Bush administration has lost 3 million jobs in 3 years. Our 
view is, if we are ever going to turn this around, it is important we 
do three things.
  First and foremost, we address the concerns of those who are 
unemployed today by providing unemployment compensation beyond the 
limits that have now been put in place. There are too many people who 
have, through no fault of their own, been unable to get employment and 
who have run out of unemployment benefits. We need to address that. I 
hope the Senate will do so before we leave this year.
  The second thing we need to do is to ensure those who are employed 
have the kind of incomes they deserve. That means, in some cases, 
increasing the minimum wage for the first time in now almost 7 years 
and addressing the fact that at minimum wage we are at the lowest 
purchasing power in the history of minimum wage.
  It also means we protect people's overtime. Contrary to what the 
administration would like to do, we need to ensure those 8 million 
people who could see their overtime lost are provided the confidence 
and the knowledge they will not lose the overtime and will be 
compensated as we have done now for almost 70 years, for time they have 
worked over a 40-hour work week.
  Finally, I think it is critical we understand we must provide some 
relief for the extraordinary costs our working people especially are 
facing with regard to health care. Health insurance costs have 
skyrocketed--some 15 percent a year.
  There are a number of ways with which to create jobs--the highway 
bill, the manufacturing job tax credit. We offered tonight unanimous 
consent requests with the hope our colleagues might join us in at least 
allowing this legislation to go forward. Obviously they have objected. 
But that is the first thing we need to do--create the jobs for those 3 
million people who have lost their jobs in this administration.
  Second, we need to ensure the incomes of those who are working are 
protected.
  Third, I hope we can recognize that, even with incomes, they can't 
afford their health insurance today unless we help them to find ways in 
which to bring its cost down.
  There is a lot more to talk about with regard to jobs and this 
economy, but as I said, the distinguished Senator from Arkansas has 
been waiting. He has done an extraordinary job of representing this 
caucus on the Senate floor and I yield the floor now for his remarks.
  The PRESIDING OFFICER (Mr. Chafee). The Senator from Arkansas.
  Mr. PRYOR. Mr. President, I would like to acknowledge and thank my 
colleague from South Dakota, who has done such an outstanding job 
tonight, and always.
  Tonight I would like to read a portion of a book that won the 
Pulitzer Prize recently. It is called ``Master of the Senate.'' It is 
about Lyndon Baines Johnson as a Senator, not as President. It was 
written by Robert Caro. It is 1,040 pages. I assure you I am not going 
to read all thousand pages tonight. I am just going to read a few 
excerpts from chapter one. Chapter one is entitled ``The Desks of the 
Senate.'' I am only going to read a small portion of chapter one. I 
will be starting on page 3. But I think it is important for us to all 
put this in context and remember what the Senate is all about and how 
it works and how it is designed to function within our constitutional 
system. So, if I may start midway down, on page 3.

       When a person stood on the floor of the Senate Chamber, 
     however--in the well below the dais--the dais was, suddenly, 
     not plain at all. Up close, its marble was a deep, dark red 
     lushly veined with grays and greens . . .

  In fact, on this pilaster behind me you can see those colors Mr. Caro 
is referring to here.

     . . . and set into it, almost invisible from the galleries--

  We have a number of people in the gallery tonight.

     . . . almost invisible from the galleries, but, up close, 
     richly glinting, were two bronze laurel wreaths like the 
     wreaths that the Senate of Rome bestowed on generals with 
     whom it was pleased, when Rome ruled the known world--and the 
     Senate ruled Rome.
       From the well, the columns and pilasters behind the dais 
     were, suddenly, tall and stately and topped with scrolls, 
     like the columns of the Roman Senate's chamber, the columns 
     before which Cato spoke and Caesar fell, and above the 
     columns, carved in cream-colored marble, were eagles, for 
     Rome's legions marched behind eagles. From the well, there 
     was, embroidered onto each pale damask panel, an ornament in 
     the same pale color and all but invisible from above--a 
     shield--and there were cream-colored marble shields, and 
     swords and arrows, above the doors. And the doors--those 
     seven pairs of double doors, each flanked by its tall columns 
     and pilasters--were tall, too, and their grillwork, hardly 
     noticeable from above, was intricate and made of beaten 
     bronze, and it was framed by heavy, squared bronze coils. The 
     vice presidential busts were, all at once, very high above 
     you; set into deep, arched niches, flanked by massive bronze 
     sconces, their marble faces, thoughtful, stern, encircled the 
     Chamber like a somber evocation of the Republic's glorious 
     past. And, rising from the well, there were the desks.

  Let me pause here because these desks have a lot of history. In fact, 
I think it is safe to say almost all of American history in some way or 
another has flowed through the Senate. I don't think that is an 
overstatement.

       The desks of the Senate rise in four shallow tiers, one 
     above the other, in a deep half circle. Small and spindly 
     individually, from the well they blend together so that with 
     their smooth, burnished mahogany tops reflecting even the dim 
     lights in the ceiling so far above them, they form four 
     sweeping, glowing arcs. To stand in the well of the Senate is 
     to stand among these four long arcs that rise around and 
     above you, that stretch away from you, gleaming richly in the 
     gloom: powerful, majestic. To someone standing in the well, 
     the Chamber, in all its cavernous drabness, is only a setting 
     for those desks--for those desks, and for the history that 
     was made at them.
       The first forty-eight of those desks--they are of a simple, 
     federal design--were carved in 1819 to replace the