[Congressional Record (Bound Edition), Volume 151 (2005), Part 3]
[Senate]
[Pages 3654-3670]
[From the U.S. Government Publishing Office, www.gpo.gov]




    BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 256, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (S. 256) to amend title 11 of the United States 
     Code, and for other purposes.

  Pending:

       Dorgan/Durbin amendment No. 45, to establish a special 
     committee of the Senate to investigate the awarding and 
     carrying out of contracts to conduct activities in 
     Afghanistan and Iraq and to fight the war on terrorism.
       Pryor amendment No. 40, to amend the Fair Credit Reporting 
     Act to prohibit the use of any information in any consumer 
     report by any credit card issuer that is unrelated to the 
     transactions and experience of the card issuer with the 
     consumer to increase the annual percentage rate applicable to 
     credit extended to the consumer.
       Reid (for Baucus) amendment No. 50, to amend section 
     524(g)(1) of title 11, United States Code, to predicate the 
     discharge of debts in bankruptcy by an vermiculite mining 
     company meeting certain criteria on the establishment of a 
     health care trust fund for certain individuals suffering from 
     an asbestos related disease.
       Dodd amendment No. 52, to prohibit extensions of credit to 
     underage consumers.
       Dodd amendment No. 53, to require prior notice of rate 
     increases.
       Kennedy (for Leahy/Sarbanes) amendment No. 83, to modify 
     the definition of disinterested person in the Bankruptcy 
     Code.
       Harkin amendment No. 66, to increase the accrual period for 
     the employee wage priority in bankruptcy.
       Dodd amendment No. 67, to modify the bill to protect 
     families.
       Kennedy amendment No. 68, to provide a maximum amount for a 
     homestead exemption under State law.
       Kennedy amendment No. 69, to amend the definition of 
     current monthly income.
       Kennedy amendment No. 70, to exempt debtors whose financial 
     problems were caused by failure to receive alimony or child 
     support, or both, from means testing.
       Kennedy amendment No. 72, to ensure that families below 
     median income are not subjected to means test requirements.
       Kennedy amendment No. 71, to strike the provision relating 
     to the presumption of luxury goods.
       Kennedy amendment No. 119, to amend section 502(b) of title 
     11, United States Code, to limit usurious claims in 
     bankruptcy.
       Akaka amendment No. 105, to limit claims in bankruptcy by 
     certain unsecured creditors.
       Feingold amendment No. 87, to amend section 104 of title 
     11, United States Code, to include certain provisions in the 
     triennial inflation adjustment of dollar amounts.
       Feingold amendment No. 88, to amend the plan filing and 
     confirmation deadlines.
       Feingold amendment No. 89, to strike certain small business 
     related bankruptcy provisions in the bill.
       Feingold amendment No. 90, to amend the provision relating 
     to fair notice given to creditors.
       Feingold amendment No. 91, to amend section 303 of title 
     11, United States Code, with respect to the sealing and 
     expungement of court records relating to fraudulent 
     involuntary bankruptcy petitions.
       Feingold amendment No. 92, to amend the credit counseling 
     provision.
       Feingold amendment No. 93, to modify the disclosure 
     requirements for debt relief agencies providing bankruptcy 
     assistance.
       Feingold amendment No. 94, to clarify the application of 
     the term disposable income.
       Feingold amendment No. 95, to amend the provisions relating 
     to the discharge of taxes under chapter 13.
       Feingold amendment No. 96, to amend the provisions relating 
     to chapter 13 plans to have a 5-year duration in certain 
     cases and to amend the definition of disposable income for 
     purposes of chapter 13.
       Feingold amendment No. 97, to amend the provisions relating 
     to chapter 13 plans to have a 5-year duration in certain 
     cases and to amend the definition of disposable income for 
     purposes of chapter 13.
       Feingold amendment No. 98, to modify the disclosure 
     requirements for debt relief agencies providing bankruptcy 
     assistance.
       Feingold amendment No. 99, to provide no bankruptcy 
     protection for insolvent political committees.
       Feingold amendment No. 100, to provide authority for a 
     court to order disgorgement or other remedies relating to an 
     agreement that is not enforceable.
       Feingold amendment No. 101, to amend the definition of 
     small business debtor.
       Talent amendment No. 121, to deter corporate fraud and 
     prevent the abuse of State self-settled trust law.
       Schumer amendment No. 129 (to amendment No. 121), to limit 
     the exemption for asset protection trusts.
       Durbin amendment No. 110, to clarify that the means test 
     does not apply to debtors below median income.
       Durbin amendment No. 111, to protect veterans and members 
     of the armed forces on active duty or performing homeland 
     security activities from means testing in bankruptcy.
       Durbin amendment No. 112, to protect disabled veterans from 
     means testing in bankruptcy under certain circumstances.

  The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I understand that at 10:15, the Senator 
from New York is to be recognized to offer an amendment?
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. KENNEDY. Madam President, this bankruptcy bill is mean-spirited 
and unfair. In anything like its present form, it should and will be an 
embarrassment to anyone who votes for it. It is a bonanza for the 
credit card companies, which made $30 billion in profits last year, and 
a nightmare for the poorest of the poor and the weakest of the weak.
  It favors the credit card companies, the giant banks, and the big car 
loan companies at every turn. It favors the worst of the credit 
industry--the interest rate gougers, the payday lenders, and the 
abusive collection agencies. It hurts real people who lose their 
savings because of a medical crisis or lose their jobs because of 
outsourcing or suffer major loss of income because they were called up 
for duty in Iraq or Afghanistan.
  It protects corporate interests at the expense of the needs of real 
people. It does absolutely nothing about the glaring abuses of the 
bankruptcy system by the executives of giant companies such as Enron, 
WorldCom, and Polaroid, who lined their own pockets but left thousands 
of employees and retirees out in the cold.
  It favors companies like MBNA, a top credit card issuer, with over 
$80 billion in loans, which has contributed $7 million to Federal 
candidates, a half a million dollars to President Bush alone, and spent 
over $20 million in lobbying, since 1997, when their lobbyists wrote 
this bill.
  On the other side are people like special ed teacher Fatemeh Hosseini 
on the front page of Sunday's Washington

[[Page 3655]]

Post. She fell on hard times when her husband left her and their three 
children. After her credit card debt reached $25,000, she stopped using 
the cards and took a second job to try to pay down that debt. She paid 
$2,000 a month but was hit with very high interest rates, which were 
raised even higher because of missed payments, heavy late fees, and 
over-limit penalties.
  She made no new purchases, but by last June her $25,000 debt had 
nearly doubled to almost $50,000. The longer she tried to pay what her 
statements told her were her minimum payments, the more her debt went 
up. When all of her salary was going for payments, she had no choice: 
she was forced into bankruptcy, in the hope of getting the ``fresh 
start'' the Nation has long provided to its working people when they 
hit bottom.
  This bill says to companies like MBNA: We'll help you scare that 
teacher out of going into bankruptcy by making the bankruptcy process 
expensive and burdensome to people like her. If we can't scare her 
away, we will help you squeeze your high interest rates out of her for 
a few years longer, even though she can't possibly pay off the amount 
she owes. We will take sides with companies like you and against people 
like her.
  That is what this bill says. We all know that is wrong. How could the 
Senate possibly do something so immoral and unreasonable and unfair to 
our constituents when they are most in need of our help? Where are the 
vaunted values our colleagues talk about so much? Why didn't the 
Judiciary Committee do something about this travesty before it reached 
the floor? Why haven't we fixed it on the floor after more than a week 
of debate?
  This bill was bulldozed through the committee on the pretense that we 
should not deal with its serious problems there but should wait until 
it reached the full Senate for serious negotiations and basic 
improvements. We were assured that there would be good-faith 
discussions and compromises and that all reasonable amendments would be 
given fair consideration.
  But now there has been no good faith at all--no meaningful 
discussions, no negotiation, no real consideration of any of the very 
reasonable amendments that have been proposed to give this bill some 
shred of balance and fairness. On the contrary, the Republican 
leadership has invoked the strictest possible party discipline. When 
individual Republicans say they want to support or offer constructive 
amendments, they are ordered not to do so. Even when a Republican 
identifies a serious gap in the bill, such as the very basic 
jurisdiction outrage pointed out by Senator Cornyn, an outrage that has 
prejudiced workers and retirees in almost every State, the Republican 
leadership said no and refused to let the amendment be called up.
  The excuse for this bad faith and breach of promise is itself 
bizarre. The Republican leaders say they cannot upset the delicate 
compromise reached two Congresses ago, but the only real compromise was 
the one that had the Schumer amendment in it, and this year's bill 
doesn't have that amendment in it. In committee Senator Schumer 
discussed his amendment, but I didn't see the other side jumping up to 
adopt it in order to restore and preserve the so-called compromise. The 
floor leaders have not indicated that they plan to accept this 
amendment to restore and preserve the supposed compromise.
  Let's be clear--any pretense of protecting a previous compromise 
disappeared when the bill's sponsors unilaterally took the Schumer 
amendment out of the bill before introducing it this year. So there is 
no compromise before us in the first place. What's more, even the 2001 
bill is now totally obsolete.
  A great deal has happened in the past 4 years that helps us 
understand the real issues in this bill and shows that abuse of the 
system by consumers is not the real problem. We have now felt the full 
impact of the Bush economic decline, the broad record levels of 
sustained unemployment.
  We have seen an explosion of medical costs, prescription drug costs, 
and health insurance costs. We have seen job after job eliminated or 
downgraded or outsourced.
  A half million guardsmen and reservists have been called to active 
duty in Afghanistan or Iraq, leaving their families and their jobs and 
their small businesses behind to suffer the economic consequences, but 
this Senate said no to the Durbin amendment.
  We have seen the enormous harm caused to employees and retirees by 
corporate mismanagement and fraud at major companies like Enron and 
WorldCom and Polaroid, which abused the bankruptcy laws to avoid their 
obligation to their own loyal workers. We have seen credit card rates 
go higher and higher and higher, as high as 30 percent or more, plus 
fees and penalties and charges, raising credit card profits by another 
$10 billion, even as general interest rates remain low.
  We have seen the credit card companies use a self-help remedy for the 
problems they create by their own indiscriminate and predatory 
marketing practices. They charge still higher risk-based rates to the 
very same people who can't even afford the lower bait-and-switch rates.
  We now know a lot more about the abuse of bankruptcy this bill was 
supposedly designed to address. Four years ago we were told we were a 
nation of bankruptcy abusers. But now, thanks to the careful study of 
actual bankruptcy case files, we know the truth. We know that 50 
percent of the families who go bankrupt have suffered from serious 
medical problems and have exhausted their savings. Most of those 
families had paid for health insurance, but it still left them with no 
financial protection from serious illness or accidents.
  If the family is impacted by cancer, you know right at the outset, 
even if they have health insurance, they are going to have a $35,000 
bill. If it is the heart or stroke, it may be $20,000. If they have a 
child, spina bifida, autism, other kinds of serious children's 
diseases, it is going to be $15,000 to $20,000. We know that right at 
the start. And in too many instances, that is just enough to throw 
hard-working Americans into the bankruptcy system and the harsh 
provisions of this legislation. Most of these families tried in every 
possible way to avoid bankruptcy for years. They gave up food and 
medicine and utilities and other necessities of life and even 
transferred their elderly parents into less adequate nursing homes in 
order to try and avoid bankruptcy. But facts like these don't bother 
the sponsors of this bill. They just make it up as they go along.
  In the past week, for example, some of us offered amendments that 
would exempt people from the burdensome procedures in this bill if 
their finances were devastated by medical problems or because they were 
called up for military duty, and they were voted down. Instead the 
bill's sponsors introduced and adopted a devious amendment that they 
said would do what our amendment did. But, of course, it did nothing of 
the kind. It simply added some words about medical costs and military 
callups in a way that did not change the real substance of the 
committee's bill.
  The sponsors also said our amendments exempting those below the 
median income from the means test were unnecessary because low-income 
filers were already exempt. If they really mean what they say about no 
means testing for people below the median income, then they should not 
be refusing to accept our amendment which makes that exemption 
absolutely clear.
  Another Democratic amendment would have placed a generous limit of 30 
percent on the interest rates any credit card company could charge. It 
very carefully stated that it would not change the status quo in States 
which already had lower limits. That didn't stop the bill's supporters 
from claiming that the bill would be an intrusion on States rights 
because it would lift the limit in States with a lower limit.
  And perhaps the most outrageous claim of all, one which I thought was 
dead and buried after it was dragged out in 2001, was dragged out 
again--a big blue chart and all--and further inflated in their debate. 
The sponsors repeated the old chestnut that every American family is 
paying $400 a year

[[Page 3656]]

in a hidden bankruptcy tax for abuses that this bill would stop. Only 
now they say this mysterious tax has risen to $550 per person per year.
  How is the original $400 number calculated? The debts discharged from 
all consumer bankruptcies each year are about $40 billion. There are 
100 million families in the United States. Therefore, those consumer 
bankruptcies must be costing each family $400 per family. But this 
phony math assumes that every dollar discharged in bankruptcy, 100 
percent, could have been collected in full, if not for the massive 
abuse of the system by every consumer who goes bankrupt.
  It assumes that the credit card companies and payday lenders and 
other lenders who collect this debt under the bill would somehow 
distribute it to all 100 million American families instead of keeping 
it for themselves. Obviously, neither of these assumptions is true. 
Even the bill's supporters have long ago conceded that the maximum 
conceivable amount recoverable from the consumer bankruptcies is about 
10 percent of the total. Other estimates conclude that the real number 
is a small fraction of that.
  We don't have to guess what a responsible lender's loss from 
bankruptcy abuse might be. The lead-off pro-bill witness at our hearing 
on the bill was the head of the Wisconsin community credit union, 
testifying for the national credit union lobby. He told us in the last 
9 years his credit union has had an average of 10 bankruptcies a year 
from 11,000 members. He estimated that the 9-year loss from abusive 
cases was $15,000 to $75,000, with the higher figure based on an 
unlikely assumption of 15 percent abuse. His credit union's loss from 
possible abuse spread across its entire membership was 15 to 74 cents a 
year per member--not per every family in his county or state, but just 
his members. Yes, a real 15 cents instead of the mythical $400 dollars 
we have heard about for years on this floor.
  Why is that lender's loss from abuse so low? Because that credit 
union cares about its members, who are also its owners. It gives them a 
credit level appropriate to their finances, and does not promote 
across-the-board increases in credit limits. It routinely monitors 
credit card debt for signs of trouble. When members hit hard times, the 
credit union does not pounce on them. It looks for ways to help them 
out. In short, it is a careful and responsible lender, not a predatory 
lender.
  Hello? Could this tell us something about the real problem here? 
Perhaps the credit card companies who are really pushing this bill 
should think again about having solicitation desks every fifty feet in 
the airport, offering gifts to anyone who signs up for a card. Perhaps 
they should think twice about offering multiple cards to young college 
students. Perhaps they should not encourage people to raise their card 
limits recklessly or send them pre-printed checks against their 
accounts in junk mailings. Perhaps they should not send monthly 
statements urging their customers to pay only the monthly minimum and 
pile up their debt.
  This bill does nothing to prevent the enticements that the credit 
card companies use to run up their profits. It does nothing to prevent 
the real abuses of the system by those who use unlimited homestead 
exemptions or ``protective'' trusts to hide tens of millions of dollars 
from the bankruptcy process.
  We still have time for common sense amendments on all of these 
issues, but unless there is a change in direction, Republican party 
discipline will be invoked to defeat them.
  In fact, the present bankruptcy system has an effective way of 
dealing with real abusers. Bankruptcy judges can and do deny the 
petitions of those who have defrauded or abused the bankruptcy process. 
The corporate sponsors of this bill know that, but their real 
motivation is only partly to squeeze millions more dollars from the 
people who do get into the bankruptcy system.
  The more insidious purpose of this bill is to frighten people away 
from the system altogether, by making it so burdensome and expensive, 
that they delay filing for bankruptcy or never file. That way, the 
predatory lenders can continue to collect excessive interest and fees 
and penalties month after month from people who cannot afford to pay 
them.
  What this bill does to catch the very small number of potential 
abusers--most of whom can be caught and screened out under the existing 
system--is to impose huge new paperwork and filing and counseling and 
other barriers on all those who seek to enter the system, whether they 
are above or below the median income level, and whether or not there is 
the slightest indication that they are trying to game the system.
  Why else would the bill place such strict and intolerable personal 
liability on the bankruptcy lawyer for mistakes made in the detailed 
information provided by the client? In Boston and throughout the 
country, pro-bono lawyers from leading firms now lend a hand with 
bankruptcy filings to people down on their luck. The sponsors know that 
if this bill passes, those firms will not let their lawyers do that 
public interest work, because the risk will be too high.
  There is so much wrong with this bill that we must take the time to 
get it right. That is why we must have a serious discussion and 
negotiation and amendment process.
  That is why we must defeat tomorrow's cloture vote and continue to 
seek a bill that is not an embarrassment to the Senate and the 
fundamental principle of fairness and simple justice for all. It's 
wrong, deeply wrong, for the Senate to rubber-stamp the greed of the 
credit card industry.
  In a few moments, the Senator from New York will be recognized. I 
wanted to add a word of support for his amendment. His amendment is not 
about abortion. It is about violence. Those who promote the culture of 
life should not be encouraging acts of violence against any members of 
our society. There is no legitimate reason to oppose this amendment. 
Those who break the law through violence and intimidation should not 
have bankruptcy as a shield.
  Finally, in a vote later this afternoon, the Senate will declare its 
true loyalties. Do we stand with low- and middle-income families who 
fall on hard times, or do we stand with the credit card companies 
looking for higher and higher profits at any cost? If we are true to 
our values, we will stand with America's families and defeat this bill 
because above all else, America stands for freedom and fairness and 
opportunity. There is nothing fair about a single parent struggling to 
make ends meet only to be gouged by credit card companies with double-
digit rates. There is no freedom in falling ill with cancer and facing 
a mountain of medical bills only to be hounded by credit card companies 
to pay them first.
  And what is fair when an average American who has done everything 
right still has to go alone into bankruptcy court and stand up against 
the big credit card companies and all their might and try to make a 
fresh start?
  I am reminded of the words of Leviticus in the 25th chapter which 
reads: If one of your brethren becomes poor and falls into poverty 
among you, then you shall help him, like a stranger or a sojourner, 
that he may live with you. Take no usury or interest from him, but fear 
your God that your brother may live with you. You shall not lend him 
your money for usury nor lend him your food at a profit.
  One glance at the story of Fatemeh Hosseini shows that even when you 
try your hardest to repay your debts, you are met by the cold, cruel 
world of the credit card companies. With our vote this afternoon, we 
have an opportunity to live up to the words of Leviticus and our basic 
values as Americans and vote against this bill.
  The PRESIDING OFFICER (Mr. Vitter). The Senator from Illinois is 
recognized.
  Mr. DURBIN. Mr. President, I thank the Senator from Massachusetts for 
his leadership on this legislation. The bill we are considering today, 
S. 256, is the bankruptcy reform bill. For American families who have 
been absolutely devastated by medical bills, by loss of jobs from 
outsourcing of jobs overseas, by family circumstances beyond their

[[Page 3657]]

control, this bill makes it more difficult to go to bankruptcy court to 
put whatever they have on the table and to try to start anew. It was 
written by the financial industry, by credit card companies, and big 
banks in an effort to make certain that people in debt never get out of 
debt. They want to make certain that debt will hound you and trail you 
for a lifetime.
  When Senator Kennedy offers an amendment and says should we not at 
least say to people who have been devastated by a medical crisis in 
their family and go through bankruptcy that they will have a roof over 
their heads, that we will protect their home for $150,000 worth of 
value, the Republicans on this side of the aisle said no. They should 
put that home up, lose it if necessary, if they want to file for 
bankruptcy.
  I offered an amendment that said what about the Guard and Reserve 
units, men and women who are serving overseas leaving behind businesses 
that go bankrupt? Should we not give them some consideration in this 
bill? Should not the harshest aspects of this bill not apply to men and 
women in uniform serving our country? The Republican side of the aisle 
said no; apply the law as harshly as possible to these soldiers as you 
would to everyone else.
  Time and again, as we have offered amendments to try to stand up for 
those who were struggling in America to get by in a tough economy, in 
difficult times, facing family disasters, the Republican side of the 
aisle said it is more important that the credit card companies get 
another dollar from those families. It is more important that the banks 
prevail. Even if the loans they offered in the first place are illegal, 
we have to stand by the credit industry.
  The credit industry will win this battle. American families, American 
soldiers, and those struggling with medical bills will be the losers.
  I hope before this bill is completed that a few basic amendments that 
show common decency and common sense will prevail.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the hour of 10:15 
a.m. having arrived, the Senate will proceed to the consideration of 
amendment No. 47 to be offered by the Senator from New York. The time 
until 12:15 p.m. will be equally divided for debate.
  Does the Senator offer the amendment?


                            amendment no. 47

  Mr. SCHUMER. Mr. President, I offer the amendment, and I ask 
unanimous consent that Senator Feinstein be added as a cosponsor to the 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New York [Mr. Schumer], for himself, Mr. 
     Reid, Mr. Leahy, Mrs. Murray, and Mrs. Feinstein, proposes an 
     amendment numbered 47.

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

(Purpose: To prohibit the discharge, in bankruptcy, of a debt resulting 
 from the debtor's unlawful interference with the provision of lawful 
goods or services or damage to property used to provide lawful goods or 
                               services)

       On page 205, between lines 16 and 17, insert the following:

     SEC. 332. NONDISCHARGEABILITY OF DEBTS INCURRED THROUGH 
                   VIOLATIONS OF LAWS RELATING TO THE PROVISION OF 
                   LAWFUL GOODS AND SERVICES.

       Section 523(a) of title 11, United States Code, as amended 
     by this Act, is further amended--
       (1) in paragraph (18), by striking ``or'' at the end;
       (2) in paragraph (19), by striking the period at the end 
     and inserting ``; or''; and
       (3) by inserting after paragraph (19) the following:
       ``(20) that results from any judgment, order, consent 
     order, or decree entered in any Federal or State court, or 
     contained in any settlement agreement entered into by the 
     debtor, including any court ordered damages, fine, penalty, 
     citation, or attorney fee or cost owed by the debtor, arising 
     from--
       ``(A) an action alleging the violation of any Federal, 
     State, or local statute, including but not limited to a 
     violation of section 247 or 248 of title 18, that results 
     from the debtor's--
       ``(i) harassment of, intimidation of, interference with, 
     obstruction of, injury to, threat to, or violence against, 
     any person--

       ``(I) because that person provides, or has provided, lawful 
     goods or services;
       ``(II) because that person is, or has been, obtaining 
     lawful goods or services; or
       ``(III) to deter that person, any other person, or a class 
     of persons, from obtaining or providing lawful goods or 
     services; or

       ``(ii) damage to, or destruction of, property of a facility 
     providing lawful goods or services; or
       ``(B) a violation of a court order or injunction that 
     protects access to--
       ``(i) a facility that provides lawful goods or services; or
       ``(ii) the provision of lawful goods or services.

     Nothing in paragraph (20) shall be construed to affect any 
     expressive conduct (including peaceful picketing or other 
     peaceful demonstration) protected from legal prohibition by 
     the first amendment to the Constitution of the United 
     States.''.

  Mr. SCHUMER. Mr. President, I hope everybody will pay attention to 
this debate, which has been going on intermittently in the Chamber for 
the last 4 or 5 years. Not much has changed, except the votes of some 
of my colleagues, if you can believe the press reports.
  Let me start by saying I believe in bankruptcy reform. It is very 
wrong for people to abuse the code. But reform should be across the 
board, it should be applied fairly. It should not be just for some 
interests. When some interests are abused, we legislate on that, but 
when other interests are abused, we do not. It should not sweep under 
the rug people who have real needs, as the amendments of some of my 
colleagues--the Senator from Massachusetts and the Senator from 
Illinois--have tried to address. A reform bill should not contain a 
trove of treats for some supposed victims of the system, such as banks 
and credit card companies, but leave others shivering in the cold.
  For this reason, the bankruptcy bill before us today does not do the 
trick. It has many deficiencies and, to my mind, a glaring, gaping 
hole. While the bill supporters give lipservice to fairness, they have 
carved out a loophole for those who use violence, for those who seek to 
use bankruptcy for a purpose it was never intended. It is a loophole 
that I cannot live with, and, once upon a time, in a different world, 
the vast majority of Senators agreed with me and voted to close this 
loophole.
  Most of you are already familiar with this provision. After all, most 
of you have voted for it before. Indeed, this is identical language; 
there is not a single word change in this amendment, the Schumer-Reid 
amendment, from the amendment that was added to the bill a few years 
ago. This identical language was contained in the compromise bill we 
have heard so much about this past week.
  Along with Senator Reid, I am reintroducing the provision that would 
close this loophole once and for all. I am pleased that Senators Leahy, 
Feinstein, and Murray are also cosponsors of the amendment.
  Put simply, the Schumer-Reid amendment would end the ability of 
violent extremists to hide behind bankruptcy laws to escape court-
imposed debts. The amendment is very simple: If you use violence or the 
threat of violence to achieve a goal, a political goal, and you are 
successfully sued--as you should be--by the person or persons you have 
used violence against, you cannot then go back home to a bankruptcy 
court and say, protect me. Has anyone who ever envisioned the 
bankruptcy law felt that it should be used to protect those who use 
violence or threats of violence? I doubt it.
  There is talk by some of ``peaceful protests.'' As I will talk about 
later, the bill explicitly protects peaceful protests but not violence 
or the threat of violence. It doesn't matter if you are an extremist in 
the pro-life movement or the animal rights movement or any other 
movement; if you believe you are so right that you have the ability to 
take the law into your own hands and threaten others and do violence to 
others because your knowledge and feelings are superior to everybody 
else's,

[[Page 3658]]

you are wrong. That is not American. Again, you should not be allowed 
to use the Bankruptcy Code to protect yourself from a rightfully 
imposed civil remedy.
  This amendment could really be called the Schumer-Reid-Hatch 
amendment because in 2001 Senator Hatch sat down with me and together 
we worked out this compromise. We worked out this precise language in a 
bipartisan fashion over 4 years ago. There is only one difference--that 
since we worked out this compromise, which a large number of colleagues 
on the other side of the aisle supported, including those who disagree 
with me on the issue of choice, we have found that a small group in the 
House has been able to block the bill if it had this amendment in it. 
There is no reconsideration of the merits of the amendment. There is no 
argument made against the amendment that hasn't been made before and 
rejected overwhelmingly by this body. It is simply allowing a small few 
in the other body to dictate what we are doing here.
  If reason and logic prevail, this amendment would be considered among 
the least controversial and most sensible fixes to the current bill. If 
bipartisanship and consistency were the order of the day, this 
provision, which was unceremoniously stripped from the current bill, 
would pass again overwhelmingly. The bill is intended to curb abuses of 
the Bankruptcy Code. But why are we curbing abuses when the victim is a 
credit card company or a bank but not anybody else? Why not also when 
the victim is a woman pursuing her constitutional rights? Does that 
woman have any less rights than a bank or credit card company, or a 
doctor pursuing a living, doing what he believes is right and what is 
allowed by law, according to the Supreme Court and enshrined in the 
Constitution, and this doctor tries to prevent people from hounding his 
children, from threatening them with violence, and then you say, no, we 
are going to protect the credit card companies and the banks but not 
that doctor, not that woman; is that fair? Is this bill fair and 
balanced?
  We want to reform bankruptcy; there are abuses. But why are we only 
reforming the abuses that affect some and not others? Why are we only 
reforming the abuses that affect some of the most powerful interests 
and not those who are weaker or more helpless?
  In the current climate, I am sad to say that there appears to be an 
edict from the leadership on the other side to vote down every 
amendment, no matter what its wisdom for efficacy. That is not what the 
Senate is about, that is not what America is all about, and that is not 
what our constituents sent us here to do. It would be a tragedy if that 
sort of marching-in-lockstep attitude affected the Schumer-Reid 
amendment.
  Let me take a minute to describe the history of this amendment, to 
refresh the recollection of many of my colleagues who may have 
forgotten it. Let me tell you what happened. Of course, Roe v. Wade was 
passed by the Supreme Court in 1973. Many opposed Roe v. Wade; they 
felt it was against their religious beliefs. I respect those religious 
beliefs. A large movement of protests developed, the vast majority of 
which was peaceful. The former bishop in my home of Brooklyn would 
stand in front of a clinic every week and pray the rosary. That is an 
American thing to do. That is a peaceful protest. But there were some--
an extreme few--who decided that they were so right, that what they 
heard from God prevailed over what anybody else heard from God, and 
that they should take the issue into their own hands. Some used the 
methods of blockade, passive resistance. Others went further. They 
would put acid on clinics that would render them useless--a destruction 
of personal and private property, if there ever was. They would 
threaten doctors. They would follow their children going home from 
school and harass them. Inhumane. They would even encourage people to 
kill doctors. We know doctors who were killed.
  This protest movement was largely successful. It shut down about 80 
percent of the clinics in America. There were some States and many 
counties where a woman who was seeking her own right to choose would 
not get that right, and, as a result, a number of us worked on a law--I 
was a sponsor in the House, and I believe Senator Boxer was a sponsor 
in the Senate--that would give the clinics that offered people a way to 
effect their right to choose some help. The law made it a Federal crime 
to use violence or the threat of violence against clinics. That was 
necessary because you had large jurisdictions where the elected sheriff 
said, I will not enforce the law, taking matters into his own hands.
  As we were discussing what to do with this bill, I remember a meeting 
in New York, and a young woman from one of the defense funds that 
represent women said: Why don't you include the right to sue, so if the 
Federal Government is unwilling or slow and cumbersome in protecting 
this Federal right, the clinic could sue. We put it in the bill as an 
afterthought, but it really proved to be the hope and the salvation of 
the clinics because they began to sue those who would blockade them 
when police forces would not enforce the law.
  There was Dobbs Ferry in New York, where they wanted to enforce the 
law. They had a police force of three, and hundreds of people were 
protesting violently and blockading--not peacefully--and the police 
force was overwhelmed. But the right to sue opened up these clinics 
and, once again, the constitutional right, available voluntarily to 
women.
  No woman is forced to avail herself of this right; it is choice. That 
is what it is all about--choice. Your beliefs may be different from 
mine, but I respect yours; I hope you respect mine. I am not imposing 
mine on you, and you should not impose yours on me, particularly when 
they are deeply held religious beliefs. That is America.
  So the clinics were open again. Many of these violent protesters sort 
of faded away. They realized the legislatures were going to keep the 
Roe v. Wade law, that they could not succeed in overturning it. If you 
believe the polls, over 60 percent of Americans support the right to 
choose. They had turned to violence and threats of violence, and now 
the FACE law had stymied them in that decidedly un-American way to 
enforce your views or effect your views. So we offered an amendment.
  I skipped one point. Some of the more militant of these groups--the 
militant of the militant--came up with a new way to avoid these civil 
suits that the FACE law allowed. They said: Go back and declare 
bankruptcy once you are sued, and then they cannot pursue the money 
judgment used against you. This was made particularly difficult because 
most of the groups that used violence or threats of violence were not 
indigenous. They were not from the local community. There were a lot of 
people against the clinics in the legal community, but they, like most 
Americans, effected their views peacefully. But these were sort of 
roving bands of groups from across the country. They would be sued 
successfully, and then they would each go back to their home 
jurisdiction and file for bankruptcy.
  It was impossible for these clinics, most of which were small and not 
terribly well funded, to then file after they won the first suit--a 
burden enough to them. They should not have had to do it. It should 
have been the Federal Government or the local government enforcing the 
law. But they went back home, declared bankruptcy, and the clinics were 
not able to pursue each of those suits in their home States.
  An example is that of the notorious Nuremberg files case that took 
place in Portland, OR. The defendants created, in that case, a Web site 
that collected personal information about providers of abortion, clinic 
staff, law enforcement officials, judges, and even Senators. The site 
listed the names of those wounded in gray type and for those who had 
been killed--including Dr. Barnett Slepian in my State who was murdered 
in front of his family in 1998--they crossed out the names, as if they 
had achieved something good.
  Doctors and their families targeted by this Web site had to wear 
bulletproof vests, install security systems,

[[Page 3659]]

and take other precautions. As one witness testified before the 
Judiciary Committee, speaking of the targeted doctors:

       They are not secure in their homes or in their offices. 
     They do not sit by windows in restaurants, and they even 
     refrain from hugging their children in front of open windows.

  Can you imagine? Under the FACE law, the victimized doctors sued 
these violent radicals who would threaten them. Judges and juries sided 
with the victims and issued verdicts. For example, there was a $109 
million verdict against the Nuremberg defendants. In another case, 
Operation Rescue President Randall Terry ran up $1.6 million in fines 
on account of his acts of clinic violence. But did these violent 
extremists pay up? No. They instead filed for bankruptcy to avoid 
responsibility for their heinous acts. In fact, many of these public 
defendants publicly bragged about being judgment proof and thumbed 
their noses at their victims, forcing years of protracted litigation.
  Randall Terry, for example, blithely filed for bankruptcy to avoid 
paying his debts. And the Nuremberg file defendants forced bankruptcy 
litigation for years in six different jurisdictions to avoid their 
debts. Some of the extremist groups even recruited people and had as a 
criteria for admission to the group that you make yourself judgment 
proof. One radical group, for instance, the American Coalition of Life 
Activists, drafted its Constitution to state that members of the 
organization ``must have their assets protected from possible civil 
lawsuits (judgment proof).''
  As one can imagine, with these tactics, it took years to enforce the 
judgments against these violent radicals, and victimized doctors, 
families, and clinics could not get the justice they deserved. We all 
know that the wheels of justice are sometimes too slow, but tactics 
such as this made a mockery of our system.
  So when the bankruptcy bill came before the Senate back in 1999, I 
offered an amendment to stop this awful abuse of the system. It made 
sense. It was not adding a new issue to the bill. The bill was supposed 
to deal with abuses of bankruptcy, and if there was ever an abuse of 
bankruptcy, what these violent extremists did was an abuse of the 
bankruptcy law. No one, when they wrote the bankruptcy law, thought the 
Randall Terrys of the world deserved protection.
  When I offered the amendment, Senator Hatch and others--some pro-
choice, some pro-life--came to me and said: Why are we singling out 
pro-life activists who engage in violence and take the law into their 
own hands? What about other extremists who abuse the Bankruptcy Code by 
using violence or the threat of violence?
  They were right. So we sat down. We had a fruitful discussion. From 
this, Senator Hatch and I worked out a compromise with which everyone 
could live. We hammered out an amendment that was not particular to the 
issue of the clinics but dealt with anybody who would use violence or 
the threat of violence in the same way--blockades, arson, whatever. 
They, too, if they had a judgment against them, could not go to 
bankruptcy court and successfully ask for protection.
  The amendment we have does not mention the word ``abortion'' or 
``choice.'' It simply talks about anyone who uses violence. It would be 
applied with equal force and vigor to animal rights activists, to the 
environmental extremists in the ELF movement. It only affects, frankly, 
those on the far right or the far left who believe they are so morally 
superior to all of us that they can avoid this constitutional democracy 
and, with violence, take actions into their own hands. Anyone who 
violently or misguidedly blocks access to services, whether in the name 
of the pro-life movement, the animal rights movement, the environmental 
movement, or any other movement, would lose the ability to hide behind 
the Bankruptcy Code.
  It would apply equally. It did apply equally to pro-life extremists 
and ecoterrorists, one on the far right and one on the far left. 
Indeed, if militants in the pro-choice movement should block a facility 
that was pushing abstinence, it would apply to them, too. If violent 
atheists blocked access or burned down a church, it would apply to 
them. It applies to anybody who uses violence and then seeks protection 
of the Bankruptcy Code.
  This amendment is not about abortion, as its critics attack it. It 
did have its origins there because that is where violence was used, but 
now, after the Schumer-Hatch compromise, it is an amendment simply 
about the rule of law, something everyone of any political party, of 
any political belief who is an American--when you swear your loyalty to 
the Constitution of the United States, you are basically swearing 
loyalty to the rule of law.
  Let me underscore this: It does no harm, none, not 2-percent harm, 
not 1-percent harm, not .1-percent harm; it does zero harm to 
legitimate protesters who do not engage in violence or threats of 
violence. The amendment expressly states that ``nothing in this 
provision shall be construed to affect any expressive conduct, 
including peaceful picketing or peaceful demonstration, protected from 
legal prohibition by the first amendment to the Constitution of the 
United States.'' If you protest peacefully, you are protected. If you 
use violence or the threat of violence, you are not. That is the 
American way, and we made it clear.
  People who are against this amendment say it stands in the way of 
peaceful protests. I ask them to cite me a single example where that 
has happened. It has not.
  This was a fair amendment. It applied to anyone who used violence to 
effect their means and, in overwhelming numbers, Democrats and 
Republicans supported it. Virtually all of my Republican colleagues now 
on the Judiciary Committee, including some leading pro-life Senators, 
supported it--Senators Hatch, Grassley, Kyl, and Sessions. I take off 
my hat to them. They were being fair. I am sure they received a little 
pressure: Don't do this. Maybe there were some winks: Hey, maybe this 
violence is OK because we feel so passionately about an issue. But they 
stood up. To their credit, these Senators, even though they are 
staunchly pro-life, were reasonable and sensible about the issue.
  Then on March 15, 2001, a bankruptcy bill, largely identical to the 
one before us today, except that it had the Schumer-Reid-Hatch language 
in it, passed in the Senate by a vote of 83 to 15. Only two Republicans 
voted against it, and that was for reasons other than this amendment.
  Then, of course, the bill was sent to the House. It looked like as if 
would pass. I supported the bill with this amendment in it. I have 
always said I will be for the bill with this amendment because I think 
this amendment is so important, even though I am not happy with other 
provisions in the bill. I am, frankly, less happy today with the other 
provisions in the bill.
  The bill was sent to the other body, and a fight ensued within the 
Republican caucus. A large number, probably a majority of the 
Republican caucus, wanted to support the bill, but a small number who 
were the most fervent in their pro-life beliefs said no bill. The 
Republican leadership in the House said since this divides our caucus, 
even though a vast majority of the House would have supported the 
legislation, in my judgment, they pulled the bill.
  So now we are back to where we are today. We have basically the same 
compromise as last year but without the Schumer-Hatch compromise. All I 
am doing today is adding that compromise word for word. Again, not a 
comma, jot, or tittle has been changed in the bill.
  I have watched while amendment after amendment offered by Democratic 
Senators to end abuses and close loopholes has been beaten back because 
of an edict that this ``negotiated compromise''--not negotiated 
certainly with many of us on this side--should be delivered pristine to 
the House.
  Republicans defeated an amendment to protect veterans because it was 
not part of the compromise. That was offered by the Senator from 
Illinois, Mr. Durbin. For example, a National Guard man or woman, a 
reservist sent overseas does not make the same money

[[Page 3660]]

they made before, and maybe they have to go into bankruptcy. Do we want 
to come down like a hammer on these people the same as we would come 
down on somebody who squandered whatever money they had in Las Vegas 
gambling? Absolutely not. But the amendment was defeated.
  There was an amendment that was defeated to protect victims of 
identity theft. I believe that was done by my colleague from Florida, 
Senator Nelson, because it was not part of the compromise.
  Senator Kennedy has eloquently spoken of those who have to go into 
bankruptcy because they do not have adequate health insurance or any 
health insurance, and they are putting their every last nickel to save 
their husband or their wife or their mother or their father or their 
child. Again, no protection.
  An amendment I offered which said millionaires could not abuse the 
code by setting up a trust and putting all their assets in this trust 
and then declaring bankruptcy and shedding themselves of debt also was 
not allowed because of the compromise.
  Mr. President, do you know what was part of the original compromise? 
The Schumer-Reid amendment or, more correctly, the Schumer-Reid-Hatch 
amendment. Yet this provision was stripped from the current bankruptcy 
bill.
  If Senator Hatch continues to suggest we should honor the grand 
compromise from last time and not change it, then let's do it for 
everybody. Let's not just take out this provision.
  What, I ask, has changed since the bill of this language passed by a 
vote of 85 to 13? Absolutely nothing. It was a good law then, it is a 
good law now. On what basis can my colleagues now oppose the Schumer-
Reid amendment because it targets, among others, those who take the law 
into their own hands to oppose a woman's right to choose? That is 
nonsense. Senator Reid is the lead cosponsor of the amendment, and he 
is pro-life. And as I have said, the language is not particular to 
abortion.
  Let me ask my Republican colleagues a question. I hope they are 
listening: Would my Republican colleagues oppose a broadly worded 
murder statute because, among other things, prosecutors could bring 
charges against someone who killed a doctor who would provide abortion 
services? Would they oppose a neutrally drafted arson statute because 
men and women who burn down health clinics might come under its ambit?
  There is no moral reason, no legal reason, no logical reason, for 
Senators who once overwhelmingly supported this language to now oppose 
the Schumer-Reid amendment. Some of my colleagues have said they are 
still in favor of this amendment but do not want the entire bankruptcy 
bill to be held up because of it. My purpose is not to hold up the 
bankruptcy bill, and I think my colleagues on the other side who worked 
with me over the years on this bill understand that. My purpose is to 
preserve the rights of those who seek to do constitutionally protected 
acts in the face of violence.
  So I ask my colleagues to please think about what they are doing. If 
they vote against this amendment, they are voting against the rule of 
law. If they vote against this amendment, they are voting against the 
fundamental way we do things in America. If they vote against this 
amendment, many of my colleagues are voting exactly the opposite of 
what they did a few years ago. I ask my colleagues not to change their 
vote because of political expediency. If my colleagues turn their back 
on this amendment now, it will be a turnaround, an about-face, on 
fairness, on reform, and on bipartisanship.
  As I have said, this is not pro-choice or pro-life. It is pro rule of 
law and it is antiviolence. No matter how strongly people feel--and I 
respect people's passions; I respect their passions whether they come 
from religion or politics or anything else--the greatest danger our 
Republic faces is apathy, so people who feel passionately are good. 
Because someone feels passionately, they should not be allowed to take 
the law into their own hands and then hide like a coward behind the 
bankruptcy law.
  Just as we are trying to end the abuses of the bankruptcy law when it 
affects banks, we should also end abuses of that law when it affects 
victims of violence. It is vital that we make the law perfectly clear 
that debts incurred by violent extremists who take the law into their 
own hands are nondischargeable, and that is all this amendment does, no 
more or no less. If we do not, individuals and organizations seeking to 
shut down public facilities, whether they be clinics, powerplants or 
animal laboratories, will continue to force victims of clinics and 
other violence into a world of perpetual litigation by using the 
Bankruptcy Code as it was never intended.
  I ask my colleagues to support this amendment. Most of them did once 
and they should do so again.
  I reserve the remainder of my time, and 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. SCHUMER. 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. SCHUMER. Mr. President, my colleague from Alabama is in the 
Chamber. I was going to ask that the time be equally divided as we were 
in the quorum call and not charged to myself, but if my colleague from 
Alabama is taking the time, then that is moot.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. I thank the Senator from New York. As someone who has 
worked hard on this bankruptcy legislation for the 8 years I have been 
in the Senate, I have learned a political lesson that no matter how 
much bipartisan support a bill has, how much momentum it has, how 
needed it is, things can go awry.
  In the last passage of this bill, Senator Schumer offered, and 
aggressively argued, for the amendment that we are debating today. The 
leadership on this side of the aisle said, OK, we will accept it. I 
realized that it was problematic for a number of reasons. I opposed the 
amendment, but it passed, and without a whole lot of objection, I 
suppose, from this side. The truth is it then became the single factor 
in the House's rejection of the bankruptcy bill, a bill that passed 
this body by a vote of 83 to 15. It was really a remarkable sort of 
event.
  Let me just say a few things about the bankruptcy procedure. It has 
long been a fundamental principle of bankruptcy that while a bankrupt 
individual may bankrupt against their lawful debts, wipe them all out, 
and pay none of those debts, it has always been the law that a bankrupt 
may not discharge, may not wipe out, erase the debts that they incur as 
a result of intentional or willful misconduct.
  If a debtor lists debts that arise from an intentional wrong against 
someone, the trustee in bankruptcy or a creditor or any of the 
creditors can object to that discharge, and they would note that it 
should not be wiped out, it should not be discharged, because it is a 
debt that arises from a willful, wrongful act.
  The court then considers that and determines whether or not the debt 
should be wiped out and whether or not it was a debt that arose from a 
nondischargeable reason like willfulness.
  Senator Schumer's amendment says that willful violators of abortion 
clinic protest prohibitions, and really a lot of other protestors, it 
appears to me--maybe unions, civil rights, environmental, I think he 
has said that they are covered here--he says that if willful violators 
of abortion clinics and these others included in his bill are sued and 
a judgment is rendered against this protestor under Federal law, then 
automatically those judgments are not subject to discharge; the court 
does not review it; they remain a debt of the protestor for their life, 
and they can be pursued by collection attempts for as long as that debt 
exists, and it can be for some time.
  What we do know is this: Abortion clinic protestors have been sued 
for

[[Page 3661]]

misbehavior at abortion clinics under the FACE Act. Some of these 
people have been relentless in their actions and have acted repeatedly 
in violation of law, and they have been sued. Judgments have been 
rendered against them. Most of them do not violate the law. As the 
Senator has said, the archbishop prays the rosary and conducts lawful 
acts, demonstrating his concern over the taking of what I consider to 
be life by the abortion act, and this is a free country and they are 
allowed to do that. But there are certain things that one cannot do in 
that protest, and a number of people in the past, a lot more than is 
currently happening, frankly, violated those prohibitions of the FACE 
Act. They have been sued and judgments have been rendered against them.
  We also know that some of those protestors who had judgments rendered 
against them went to bankruptcy court and sought to wipe out their 
debts and not pay these debts for their protests, to discharge them 
from bankruptcy.
  Finally, we know that under the current law, and under the law that 
is in the bankruptcy bill that is moving forward today, it has not 
changed on this point. That law prohibits the discharge of debts 
arising from willful acts. In every single case that the courts have 
considered petitions for discharge, in these abortion FACE Act 
violation cases, the bankruptcy court has refused to discharge the 
debt. They say, no, it was a willful act and you cannot discharge it; 
you still owe it. And the abortion clinic plaintiff or doctors or 
whoever is victimized can continue to pursue collection wherever they 
go. They can file garnishments against people's wages, file judgments 
against their property and pursue them aggressively and steadfastly to 
collect that debt. That is what the law has said every single time, and 
there is not much dispute about that. I do not think the Senator from 
New York would dispute that.
  By his amendment, the Senator from New York, because of his concern 
over these very few cases, frankly, but he is concerned about it and 
has raised the issue a number of times, has managed, as a result of his 
successful passing of that amendment on this Senate floor 2 years ago, 
to cause the bankruptcy bill and all of its important parts to actually 
die and not become law because the House refused to accept it. Because 
of his concern, I know he has offered this again.
  What he would want to say, and what his amendment says, I think 
fairly stated, is that a protestor and not just abortion clinics but 
any number of protestors who are sued under Federal law, and a judgment 
is rendered against them, Senator Schumer would want to make that 
judgment automatically not dischargeable, automatically without review 
by the court or any examination of the facts of the situation, to say 
it should not be discharged and will remain a permanent debt of the 
protestor.
  I know the Senator said we all voted for this and there was some sort 
of agreement. I really do not think there was an agreement about this. 
As I recall, it came up in the Judiciary Committee. Chairman Hatch was 
trying to move the bill forward, as he frequently does, and allowed it 
to become accepted by a voice vote without any big to-do. It came up to 
the floor and was debated again, and a decision was made that we would 
just allow it to pass. It was not that big a deal as people saw it at 
the time.
  I opposed it. I did not feel good about targeting these kinds of 
cases. I thought that the current law was acceptable and we should not 
go in this direction, but it passed and I voted for final passage of 
the overall bankruptcy bill. So I think that is why the Senator says I 
and others voted for it. A lot of people voted for the bill on final 
passage that may not have voted for the amendment on the floor.
  Regardless of that, the question is, now what should we do? I would 
just note that there are a number of reasons why I think this should 
not be a part of the bill. First, as I have noted, these protestors 
have lost every single case in which they have sought to discharge 
debts arising from judgments under the FACE Act. The current bankruptcy 
law and this bill will say flatly that such debts are not dischargeable 
if the injury is the result of a willful, malicious act, as these 
violations for the most part are.
  So, first, it is not necessary, and I would again note that the bill 
covers more than just abortion protestors. There could be any number of 
protestors. I think about the situation where maybe somebody from 
Alabama goes up to the southern district of New York and gets sued up 
there and a big judgment is rendered against them for taking a position 
unpopular in New York or maybe, as has happened in the past, people 
from New York have come down to Alabama and have been involved in 
protests and could have judgments rendered against them in local 
courts. So the Senator would say that under no circumstances, when that 
judgment were to appear on a discharge petition in bankruptcy court, 
would the court have any authority to look behind it. This Federal 
bankruptcy judge would have no authority to look behind this judgment 
to see if it was willful or intentional as the current law and the law 
has always been in bankruptcy, to my recollection, pretty much from the 
history of bankruptcy law. He would not look behind it and he would 
decide automatically it is a judgment not dischargeable. I am not sure 
that is good policy. I am not sure we want to do that. As a matter of 
fact, I do not think it is. I think the current law works. We should 
not do this. The Schumer amendment is bad policy. I disagree with it. I 
do not think it is the biggest deal in the entire world, but I think 
under the legal system and the principles of this bill, we would be 
better off allowing the bankruptcy court to consider these debts and 
examine them to make sure they meet the standards of discharge.
  There is a big practical reason. This bill has passed the Senate four 
times by an overwhelming vote. One time I think it was 97 to 1. It has 
been marked up in the Senate Judiciary Committee four times, and it has 
not been lightly considered on the floor of the Senate. It has been the 
subject of hours and hours and days of debate. We are already into the 
second week on this bill. After all the debate and all the hoopla we 
have had, and so many other issues, we continue to pound away at this 
legislation for reasons that I am unable to fathom. But we are moving 
forward. I believe we will pass it again.
  What is the practical reason? The House of Representatives rejected 
this bill the last time for the sole reason of the Schumer amendment. 
It is unbelievable. As much as we had in this bill, all the pages of 
this legislation, one little amendment killed this legislation, an 
amendment that I believe is bad policy, certainly not necessary, and I 
submit could result in killing this legislation again if we move it 
forward.
  So let's not do it. Let's not do this. Let's not go beyond the bill 
that we have now, that came out of the Judiciary Committee with a 
bipartisan vote, an overwhelming vote out of the Judiciary Committee to 
come to the floor without the Schumer amendment in it. Let's not add 
this amendment and jeopardize the passage of the bill.
  Let's not add this amendment and perhaps take a step, I submit with 
all seriousness, that could curtail protests and freedom of expression 
in America. Sure the protesters have lost every time. I believe they 
should have lost every time under the law. But there may be some times, 
under some of these provisions of Federal law, that could result in 
judgments that legitimate protesters were simply standing up under 
hostile circumstances in a hostile jurisdiction for what they truly 
believe in, and then the bankruptcy judge has no ability whatsoever to 
prohibit this judgment from sticking against them perhaps for the rest 
of their lives.
  I don't know.
  I don't think the law is failing in this regard, and I do not think 
the law is being abused in this regard. I think it is being handled 
well. We do not need this amendment for the reasons I stated, and for 
other reasons, frankly, that I will not state at this time.
  I urge the rejection of the Schumer amendment and note with pleasure

[[Page 3662]]

that Senator Hatch, the former chairman of the Judiciary Committee, now 
a senior Republican member of it who has worked on this legislation 
since the beginning, is on the Senate floor. I am pleased to yield to 
him.
  Mr. HATCH. I thank my colleague.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Utah.
  Mr. HATCH. Mr. President, I appreciate the remarks of my colleague. 
As usual, he has done a very good job in outlining what is involved in 
this bankruptcy bill, and I believe he deserves a lot of credit for the 
hard work he has done on the floor.
  Mr. President, comes now the Schumer amendment or, should I say, 
comes again the Schumer amendment. I rise to speak in opposition to 
this amendment. Been there. Done that. In fact, I have been there and 
done that a few times.
  I have been around here long enough to know a poison pill when I see 
one. And make no mistake about it, this has become a classic poison 
pill amendment.
  I have worked in good faith for several years to attempt to 
neutralize the counterproductive effects of this amendment. But no 
matter how we try to adjust the language, we cannot overcome the basic 
flaw in the amendment: The Schumer amendment is a solution in search of 
a problem.
  I oppose this amendment. It is no secret that I am genuinely fond of 
the senior Senator from New York. While I frequently disagree with him 
on issues, I respect enormously his political skills.
  Even when from my perspective he is wrong--such as the leadership 
role he has played in organizing the first permanent filibusters of 
majority-supported judicial nominations--I know that he always tries to 
act in a heartfelt manner that advances his political agenda.
  We have been able to achieve compromises on many issues over the 
years. Senator Schumer and I have worked together on many crime issues. 
For example, we have worked on language pertaining to the designation 
of high-intensity drug trafficking areas.
  Over a period of years we have tried to work together on the subject 
matter of the pending amendment to the bankruptcy bill. I have always 
been willing to work with him and others in the interest of passing the 
bankruptcy reform bill.
  From the beginning of this debate, many others and I have long 
contended that his amendment is unnecessary on its own merits. The 
amendment which we consider today appears to seek to guarantee the 
collection of civil and criminal penalties arising from criminal 
violations of the 1994 Freedom of Access to Clinic Entrances Act. The 
purpose of the Schumer amendment is to make clear that those who are 
fined due to attacks on abortion clinics are prevented from being able 
to discharge these fines and civil judgments resulting from such 
attacks through bankruptcy proceedings.
  My friend from New York has pushed a hot button. He must know that. 
Injecting the polarizing politics of abortion into the bankruptcy bill, 
most would have to agree, does not appear to be calculated to help the 
passage of the bankruptcy bill. Quite the opposite, the Schumer 
amendment has become a wedge issue that has stopped the bill in the 
past and, today, can threaten the passage of this important bipartisan 
bill that enjoys broad bicameral support.
  I urge my colleagues to vote against the Schumer amendment. Let me 
first explain my substantive objections and then I will describe my 
procedural, pragmatic, and political concerns with the Schumer 
amendment.
  At the outset, it should be understood that in its best light the 
Schumer amendment is a belts-and-suspender proposition that attempts to 
solve a problem which, as far as I can tell, has never actually 
occurred.
  We have been debating this bill for 8 years, and I am still unaware 
of any actual case in which a person who has been fined for harming a 
person or property in connection with any unlawful protests against, or 
attacks on, abortion clinics, has had any subsequent fines or financial 
penalties discharged through bankruptcy. At our markup of this 
legislation in February of 2001--more than 4 years ago, Senator Schumer 
said in justification of the amendment:

       . . . this is a vital amendment. I am not going into all 
     the details . . . I will not catalogue them except to tell 
     you that when Maria Vullo testified and anyone else did, they 
     said without the Schumer Amendment we would go back to the 
     days before 1994 when the clinics were closed by some who had 
     felt . . . that they were more moral than the rest of us. . . 
     .

  Certainly that prophesy has not come to pass in the 4 years 
subsequent to the time that Senator Schumer made that statement back in 
2001.
  I am unaware of a systemic shutdown of the network of abortion 
clinics in this country over the past four years. Nor am I aware of any 
evidence of the use of the bankruptcy code as a mechanism of escaping 
financial responsibility for acts of violence against abortion clinics 
or their personnel, or for that matter, any other criminal enterprise.
  The reason for this outcome is simple: Current law prevents such an 
outcome. Section 523(a)(6) of the bankruptcy code already prohibits the 
discharge of debts through willful or malicious injury to a person or 
property, and section 523(a)(12) makes restitution orders resulting 
from a criminal conviction nondischargeable through bankruptcy.
  Nothing in this bill changes these provisions in the law. Moreover, a 
growing body of case law confirms the adequacy of these provisions when 
it comes to enforcing judgments arising from FACE Act violations.
  In Behn v. Buffalo GYN Womenservices, a 1999 decision in Federal 
bankruptcy court in Senator Schumer's home State, the court rejected an 
attempt to discharge a civil award debt resulting from an abortion 
protest.
  So it was rejected.
  In Bray v. Planned Parenthood of Columbia/Willamette, decided in 
2000, a bankruptcy court in Maryland rejected the attempt to discharge 
debts resulting from an Oregon case in which a Web site produced by 
anti-abortion extremists threatened the lives of those working in these 
clinics. The 2001 Treshman decision in a Maryland bankruptcy court 
confirmed that such actions will not be tolerated by permitting 
discharge of restitution or judgment through bankruptcy.
  Randall Terry, the founder of Operation Rescue, is living proof of 
the adequacy of these laws. His Web site now solicits contributions 
after he was completely bankrupted as a result of actions found to be 
violative of the FACE Act.
  From a purely legal perspective, it seems fair to say that what we 
have here is a solution in search of a problem. This is actually 
confirmed by the most recent testimony of my colleague from New York's 
star witness on this subject, Maria Vullo.
  Way back when this amendment was first suggested back in 1998 or 
1999, several cases were still pending. But now these cases have been 
resolved. And in every instance, the courts have refused a discharge of 
these debts.
  In answer to a question of Chairman Specter in connection with the 
Judiciary Committee's last hearing on bankruptcy reform, held only 3 
weeks ago, Ms. Maria Vullo acknowledged that she was ultimately 
successful under current law in all six bankruptcy courts where she 
acted to help prevent such improper bankruptcy discharges of abortion 
clinic-related fines.
  There you have it. The primary litigator in these cases testified 
that she has won in all of her cases under existing law. This should 
help lead us to the conclusion that there is no compelling legal reason 
to change the law. There is an old saying: If it ain't broke, don't fix 
it.
  We are not talking just belts and suspenders, we are talking belts, 
suspenders, and an elastic waist band. Discharges related to FACE Act 
violations have not been permitted under current law.
  Our laws are clear. We discourage, prevent, and punish abusive 
filings, including those related to those offenses that occur in 
connection with abortion clinics. Again, to my knowledge, there

[[Page 3663]]

is a complete absence of cases demonstrating the problem that this 
amendment seeks to address. This is not surprising.
  Our bankruptcy laws already act to prevent, have prevented, and will 
act in the future to prevent precisely the problem that Senator Schumer 
is worried about, but cannot, it appears, document. The truth of the 
matter is that, on the merits, this is just an unnecessary amendment. 
Yet this amendment has already scuttled bankruptcy reform on two 
occasions.
  In 2000 essentially the same bankruptcy bill passed this body with 83 
votes and then 70 votes. It was vetoed by President Clinton in the 
waning days of his second term for failing to include this amendment. 
Then in the 107th Congress, the House of Representatives rejected even 
a twice-amended--and moderated--Schumer amendment.
  Now that it is clear that the courts will not discharge these debts, 
the proponents of this amendment have slightly but subtly changed their 
tune. Now the alleged issue of concern is that some will nevertheless 
continue to attempt to discharge such fines and penalties--that is, 
sometime, some place, someone will try to use the bankruptcy code to 
shield illicit acts involving attacks on abortion clinics.
  Some argue the amendment is justified on the supposed need to codify 
the general prohibition of section 523(a)(6) against discharging debts 
accrued in connection with willful or malicious injury to a person or 
property with a special provision of law geared solely toward abortion 
clinic-related violence. The fact is, however, current bankruptcy law, 
along with the ever growing body of precedents on this subject, make it 
clear that attorneys will not be inclined to make these frivolous and 
abusive filings in the future.
  Rule 9011 of the Federal Rules of Bankruptcy Procedure already allows 
sanctions against attorneys who participate in submissions to delay 
proceedings and needlessly increase the cost of litigation. It says a 
frivolous action without evidentiary support can be punished. I guess 
it is true that particular bankruptcy courts may sometime in the future 
eventually be faced with a filing by someone asking for improper 
discharge of debts, but that is just the nature of litigation within 
the bankruptcy system and the American system of justice.
  Having the right to bring a claim in our system is very different 
from winning that claim. For each case that goes to trial, there is a 
winner and a loser. Trying to get around the bankruptcy code and case 
law precedents in the manner feared by supporters of the Schumer 
amendment is a losing case under current law.
  Courts decide cases on the basis of the law and the particular facts 
in front of them. That bankruptcy courts will have to undertake their 
normal and traditional role of reviewing all relevant aspects of 
individual filings that may, or may not, include these improper and 
unsustainable claims related to abortion clinic damages is hardly a 
grave injustice.
  And for what it is worth, the success of the FACE Act and the 
decisions of bankruptcy courts that hold those debtors to account 
appears to have resulted in an ever dwindling number of judgments that 
must be litigated.
  This is an issue that is being overhyped.
  The current statutes are clear.
  The case law is clear.
  The paucity of evidence of such claims for abortion clinic-related 
violence and injuries being routinely, or even infrequently, made in 
bankruptcy proceedings, reflects the fact that the word is out that the 
statutes and case law already prevent the problem that the Schumer 
amendment allegedly solves.
  Moreover, I would like to add that section 319 of this bill expresses 
the sense of the Senate that all signed and unsigned documents 
submitted to a bankruptcy court must be preceded by a reasonable 
inquiry to verify that this information is well grounded in fact and 
warranted by existing law or based on a good faith argument for an 
extension, modification, or reversal of existing law.
  I am hopeful that this sense-of-the-Senate provision will help spread 
the word even further.
  When the Schumer amendment burst upon the floor in 2000, I worked in 
good faith to make this questionably meritorious issue more palatable 
to Members on my side of the aisle.
  In particular, I wanted to help alleviate the concerns of those who, 
as I, hold strong pro-life views. We are sensitive to the fact that the 
original Schumer amendment could reasonably be interpreted as affecting 
first amendment rights to protest against what we believe is the 
unjustifiable practice of abortion.
  It is my recollection that the original Schumer language back in 2000 
also addressed attempted or alleged harassment, interference, and 
obstruction. Many believed that this language was way too broad and 
could have potentially implicated the actions of peaceful anti-abortion 
protestors who were simply exercising their freedom of speech.
  Nevertheless, for a variety of reasons, mostly political rather than 
legal or policy, the Schumer amendment was accepted. One of the key 
factors was that it appeared to some at the time that the amendment was 
offered in part to give then-Vice President Gore an opportunity to 
possibly cast a tie breaking abortion vote during the Presidential 
election year of 2000.
  I cannot say for certain that this was the case. But if it was, it 
probably would not have been the first time that Presidential politics 
played out on the floor of the Senate.
  Before the February 2, 2000, vote on the Schumer amendment, I said 
the following on the Senate floor:

       Although I believe this amendment to be tremendously 
     flawed, the majority leader, Senator Grassley, and I 
     recommend that Members on both sides vote for this amendment. 
     We will, in good faith, in conference correct the amendment 
     and resolve these problems at that time. With this amendment 
     accepted, nobody will be able to demagogue this issue 
     politically in the context of true bankruptcy reform. We 
     pledge to work with our friends on both sides of the aisle 
     who are interested in this issue during conference to make 
     sure the law is clear, that the due respect for the first 
     amendment, and debts arising from violent acts cannot be 
     discharged in bankruptcy.

  This is hardly a ringing endorsement and certainly nothing near an 
absolute commitment to retain this language at any cost or contingency.
  Nevertheless, in the 106th Congress the bankruptcy bill, with this 
flawed language, passed the Senate with 83 votes.
  Eventually during the House-Senate conference committee the Schumer 
abortion clinic-specific amendment was not contained in the conference 
report. The bankruptcy legislation, without the Schumer language still 
passed the Senate with a strong bipartisan 70 votes.
  Unfortunately, President Clinton then pocket vetoed the bill passed 
by both the House and Senate.
  Early in the 107th Congress, I worked with Senator Schumer on 
compromise language that moved away from the incendiary abortion 
clinics-specific language to a more general and neutrally-phrased 
provision related to ``lawful good and services.'' This provision was 
adopted by a unanimous voice vote of the Judiciary Committee on 
February 28, 2001.
  I would note for the record that despite this compromise, Senator 
Schumer voted against the bill on final approval in the Judiciary 
Committee.
  On July 17 , 2001, this bill passed the Senate by a vote of 82-16.
  The House-passed version of the bankruptcy bill in the 107th Congress 
once again did not contain comparable language. I might add that the 
House passed its bill by a strong bipartisan vote of 306-108 on 
February 26, 2001.
  At this point Senator Schumer and I worked with Representatives Henry 
Hyde and John Conyers and others to fashion an acceptable compromise.
  This compromise was rejected.
  Frankly, at the time, I would have preferred that the compromise be 
accepted and this already overdue bill be signed into law.
  However, I can well understand the frustration of many of my 
colleagues in the House being asked to adopt a watered-down version of 
an amendment

[[Page 3664]]

without meaningful legal effect derived from the inflammatory original 
version of the Schumer amendment that addresses a problem that 
apparently does not exist in the first place.
  Rather than go down this fruitless road again, I ask my colleagues to 
vote down the Schumer amendment for once and all.
  Not only is it unlikely that the House will accept it, the Senate 
should not accept it either.
  One important difference from the situation of 3 and 4 years ago is 
that we now have, as I discussed earlier, a more definitive picture of 
how the courts will interpret the application of section 523(a)(6) in 
the context of abortion-clinic related claims.
  In short, the courts have not and will not allow fines or judgments 
stemming from the willful or malicious injury to a person or property 
to be discharged in bankruptcy whether they arise out of illicit 
actions against abortion clinics that violate the FACE Act, or, for 
that matter, any other of the literally dozens of other injuries that 
can be conjured up relating to willful or malicious injury to a person 
or property.
  No one would, or should, take seriously any amendment that purported 
to state explicitly that fines or judgments incurred from yelling fire 
in a crowded theater could not be discharged through bankruptcy.
  Nor should we support the Schumer amendment when we know it is both 
unnecessary and divisive.
  You do not have to be pro-life to be against the Schumer amendment. 
You just have to conclude that 8 years is enough time to have worked on 
one bill that has repeatedly engendered broad bipartisan support.
  And to hold up this legislation once again over an incendiary, 
extraneous, redundant poison pill amendment is just not right.
  I always try to seek a compromise or accommodation with my colleagues 
whenever it is productive to do so and consistent with my principles.
  In this case it is simply not possible to do so in a productive 
manner absent any sign from the House that its Members are receptive to 
such a compromise.
  Having worked on this issue for several years, I have reached the 
conclusion that the inherent volatility of the subject matter of the 
original Schumer amendment has made it nearly impossible to arrive at a 
neutral language resolution to this undocumented problem at this time.
  Moreover, the well-known by now impasse over the acceptability of 
compromise language is compounded by the simple fact that there is, to 
my knowledge, no compelling evidence that there is a problem requiring 
a legislative fix.
  To a certain extent, this is an exercise that demonstrates why it can 
be harder to fix a hypothetical problem than a real problem.
  Frankly, that we would even be considering an amendment based on the 
2001 Judiciary Committee markup language, rather than the revised 2001 
conference report language, hardly seems like a step in the right 
direction. To use an expression that my friend from New York sometimes 
uses himself, reverting to the earlier language may seem to some a bit 
like a poke in the eye.
  I suspect that this is unintentional on the part of my friend from 
New York. I wish we could have worked this out, and I thought we did 
work it out.
  But as I look at all the facts and circumstances, including the 
developments in the actual cases brought and decided over the last few 
years, I can only conclude that there is even stronger evidence today 
than there was in 2000 and 2001 that this amendment is simply 
unnecessary.
  While I attempted in good faith to resolve this problem 4 years ago, 
time seems to have proven that those I who looked askance at this 
compromise in the first place were correct in their assessment of the 
lack of necessity for this amendment.
  I ask my colleagues to oppose the amendment of my distinguished 
friend from New York for these reasons. It is important that we get 
this bankruptcy bill finished. It is extremely important that we get it 
done. If this amendment is added, it isn't going to get done again, and 
we will be in the ninth year next year, frankly, probably 2 years from 
now because we will never get what really has to be done in the best 
interests of bankruptcy reform.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I would like to ask my colleague a 
question, but, first, I will make a couple of points.
  First of all, nothing has changed since we all supported the Schumer-
Reid-Hatch amendment of a few years ago. The basic purpose then was not 
to make sure that cases in bankruptcy court did not come out on the 
side of those who were victims of violence. It was just impossible to 
pursue the claims of bankruptcy.
  My good friend from Utah cites Maria Vullo. She is a successful 
lawyer in New York who donated her own time which she estimated at one 
of our hearings to be worth over $1 million. She believed passionately 
that those who used violence should be stopped. Not every clinic has 
it. And, of course, if you go through the bankruptcy proceedings, you 
will win. Clinics don't have the ability to do that; first, to fight in 
court on the issue of violence and then to go back to the bankruptcy 
court.
  I say in all due respect to my good friend from Utah, he knew that 
then, and he knows it now. It is the same issue. The very issue that he 
says we don't need this law was brought up in 2000 and 2001. My good 
colleague was then good enough to admit we did need the law even though 
we couldn't find cases, and even though there were no cases in 
bankruptcy court where the Randall Terrys of the world prevailed. You 
would never have the successful suit.
  That is why these fanatical groups are insisting that bankruptcy be 
used.
  I make another point to my colleague. If the amendment is unnecessary 
now, why wasn't it unnecessary then?
  I make this point to my colleagues: The merits have not changed. 
Exactly the situation that prevailed in 2000 and 2001 prevails in 2005.
  What has happened is people have done a 180-degree about-face because 
of a small group in the House who do not represent the mainstream views 
of the House or of even the Republican Party in the House but who have 
insisted on not going forward with a bill with this worthy amendment in 
it. An amendment that was praised, a compromise that was hailed a few 
years ago is every bit as valid today as it was then.
  I know it is difficult and awkward for people to say, well, never 
mind, but we cannot let this issue just die. The rule of law is too 
important. Fairness is too important. What is good and beautiful about 
America is too important.
  We will ask our colleagues to stick with their convictions that they 
have had over the last few years and not do an about-face simply 
because a small group of industry leaders says we must have this bill 
no matter what.
  Senator Hatch spoke for a long period of time. I wanted to rebut him. 
He did not want to do it on his time.
  The PRESIDING OFFICER. The Senator from New York does control time. 
The Senator can yield time to the Senator from California, but in doing 
so the Senator will lose his right to the floor.
  Mr. SCHUMER. I yield 10 minutes to my friend and colleague from 
California, and cosponsor of this legislation, Senator Feinstein.
  Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from 
New York.
  We are both members of the Judiciary Committee. We had an opportunity 
to discuss and debate this amendment in the Judiciary Committee.
  Senator Schumer's amendment is a critical amendment. Essentially, 
when this body in 1994 passed the Freedom of Access to Clinic Entrances 
Act, we said that individuals should be able to go into clinics without 
being obstructed. The law was very clear.
  The law also has led to successful criminal and civil judgments 
against groups that use intimidation and outright violence to prevent 
people from

[[Page 3665]]

obtaining or providing reproductive health services.
  This law would be seriously damaged if we do not close this loophole 
that has allowed some antiabortion extremists to use bankruptcy to 
shield their assets. The Senator from New York mentioned the founder of 
Operation Rescue, Randall Terry, who said in 1998 after filing for 
bankruptcy:

       I have filed a chapter 7 petition to discharge my debts to 
     those who would use my money to promote the killing of the 
     unborn.

  In my home State of California there was a similar incident involving 
a man by the name of John Stoos and several other people in 1989 who 
were sued by the operators of a Sacramento abortion clinic for 
allegedly blocking the clinic's entrance and harassing patients. A 
judge ordered Stoos and others to pay nearly $100,000 in attorney's 
fees incurred by the clinic. As a result, Stoos filed for personal 
bankruptcy, listing that debt among many he could not pay. These 
actions are clear evidence of abuse of the bankruptcy system. This 
bankruptcy bill should stop them.
  I hope the Schumer amendment would be accepted by this Senate.
  Let me use this time to speak a bit more generally about this bill. I 
voted for this bill when it left committee. I have decided to vote 
against this bill in the Senate. I want to say why. In committee, we 
were asked to withhold all amendments to the floor. We knew the bill 
was not a perfect bill. We have seen it improved over the years. We 
knew it was better than the House bill. And with all complicated, 
difficult bills, the tradition of the Senate has always been the floor 
debate and discussion. In a majority of times as a product of floor 
debate and discussion, problems in the bill can be remedied.
  We knew there were problems in the bill. For example, I have an 
amendment which I have withdrawn which says that the credit card 
companies should, in fact, notify a minimum payer how long it would 
take that payer of a credit card, if he only paid the minimum amount of 
interest, to pay off the debt. Senator Akaka had a similar amendment. 
It was summarily defeated. I had an amendment; I had two Republican 
cosponsors. I learned it would also be summarily defeated. Thanks to 
Senator Shelby and Senator Sarbanes, the Banking Committee has taken an 
interest in this and in the future and will take a look at it.
  Nonetheless, the fact of the matter is this bill is all for the 
credit card companies. I know there is credit card fraud. I know that 
has to be met. I felt the bill was important to pass. However, I also 
felt the bill should be balanced and that we should see that the 
consumer is also protected in this process, protected with notice of 
what a minimum payment means, and also, frankly, protected against high 
interest rates.
  Senator Dayton moved an amendment which would limit interest rates on 
credit cards to 30 percent. The amendment was summarily defeated. The 
fact is with penalties, with other charges, with high interest rates--
and many companies have interest rates, believe it or not, well in 
excess of 30 percent--a minimum payer cannot ever pay the full debt 
because the interest on the debt, if combined with certain penalties 
and/or fixed payments, becomes such that it overwhelms the principal. 
Many people do not know that.
  The fact is 40 percent of credit card holders pay off their debt 
every month; 40 percent make only the minimum payment; and 20 percent 
are kind of 50/50 in that category. For those 60 percent who are 
generally people who are not as informed, not as able to pay back their 
bill, who may have one, two, three, four, five, six different credit 
cards, because this is a credit economy, credit card companies have 
been able, with very little interest to the payer of the debt, to 
solicit huge fees, penalties, and interest rates. This is plain wrong.
  If we are unable to correct it, which I had hoped would be corrected 
by these amendments that have been presented, I cannot vote for this 
bill as long as these gross injustices remain.
  Let's for a moment look at the 30-percent interest rate. It is very 
high. Inflation is about 2 percent. The interest rate on 3-month 
Treasury bills is 2.75 percent. The national average lending rate on a 
30-year mortgage is 5.59 percent. Yet an amendment to limit interest 
rates on credit cards to 30 percent went down dramatically.
  I mention there are companies that are charging high annual interest 
rates. Some charge 384 percent, 535 percent. Amazingly, one Delaware-
based company has charged 1,095 percent, according to the Minnesota 
chapter of the National Association of Consumer Bankruptcy Attorneys.
  The Washington Post, the Los Angeles Times, other major newspapers 
have pointed out where fees, rates, and charges have buried debtors. 
They have pointed out a multitude of cases. A special education teacher 
from my home State worked a second job to keep up with $2,000 in 
monthly payments. She collectively went to five banks to try to pay 
$25,000 in credit card debt. Even though she did not use her cards to 
buy anything else, her debt doubled to $49,574 by the time she filed 
for bankruptcy last June. Effectively, interest payments are half of 
the debt. She will never be able to pay that off.
  To push people like this from chapter 7 into chapter 13, when what is 
the problem is interest rates and penalty fees that truly do victimize 
an unsuspecting individual--how could this Senate do that, if someone 
is going to charge a 100-percent interest rate?
  One of my own staff members found that simply getting a credit card 
cash advance resulted in an immediate 3 percent fee which was simply 
added to the interest rate.
  The result is even the most careful credit card users find themselves 
often swamped, particularly those who can only afford to make a minimum 
payment, and the fees, charges, and interests pile up, making it 
virtually impossible to ever pay off the debt.
  This amendment would have been a meaningful addition to the bill. It 
certainly would have added fairness. It certainly would have sent a 
signal to credit card companies that the sky is not the limit. Yet it 
was defeated.
  Senator Schumer's asset protection trust, of which I was a cosponsor, 
was another indication of where wealthy people could shelter assets and 
not have to pay back in chapter 13. These are some of the inequities.
  In recent years a number of financial and bankruptcy planners have 
taken advantage of the law of a few States to create what is called an 
``asset protection trust.'' These trusts are basically mechanisms for 
rich people to keep money despite declaring bankruptcy.
  They are unfair, and violate the basic principle of this underlying 
legislation--that bankruptcy should be used judiciously to deal with 
the economic reality that sometimes people cannot pay their debts, but 
to prevent abuse of the system.
  This loophole is an example of where the law, if not changed, 
permits, or even encourages, such abuse.
  The amendment was simple. It set an upper limit on the amount of 
money that could be shielded in these asset protection trusts, capping 
the amount at $125,000.
  The bottom line: Without this amendment, wealthy people will be able 
to preserve significant sums of money in an asset protection trust, 
effectively retaining their assets while wiping away their debts.
  The proposed cap amount, $125,000, is not a small sum. It is more 
than enough to ensure that the debtor is not left destitute. I believe 
it is a reasonable amount--it is deliberately based on the now-accepted 
$125,000 limit for the homestead exemption, which will also remain 
available to a debtor.
  I would also like to say a few words about my concerns about what 
appears to be a new policy in the Senate.
  It appears that the Republican leadership has decided that rather 
than honoring the 200 plus year tradition of the Senate as a 
deliberative body, the Senate should be run like the House of 
Representatives. There appears to be a new process being implemented in 
which the Senate should no longer seriously consider amendments on the 
floor to improve bills.
  We are now in the middle of the second major piece of legislation 
where the majority has decided that amendments by the minority will be 
rejected wholesale regardless of the merits.

[[Page 3666]]

  It appears that even when serious problems in the underlying 
legislation are raised and even when the Republican leadership agrees 
that the problem exists, amendments offered by the minority will be 
rejected.
  In fact, when the Judiciary Committee was marking up the bill, 
Senators were asked not to offer amendments and instead offer them on 
the floor. Statements were made by the Acting-Chairman like, ``I know 
we are going to go through this on the floor and I don't see any reason 
to keep us here all day and all night''; and, ``[You will] have every 
opportunity to present these amendments on the floor.''
  Yet, upon reaching the floor, Senators have found that their 
amendments are not being considered on the merits.
  It is the Senate's job to carefully debate, carefully consider, and 
pass the very best laws we can. But now the Senate is being asked to 
simply pass legislation as drafted, regardless of its content.
  This lack consideration and care does a disservice to the Senate and 
to the Senators who work hard to reach compromises and find common 
ground. But more importantly, it does a disservice to the American 
people.
  We are here to develop the best policy we can, not to simply play 
political games and jam through legislation for the sake of expediency.
  As I began, I want to be clear. I support bankruptcy reform 
legislation, and I support many of the provisions in the underlying 
bill. However, throughout this process many important issues have been 
raised that identify serious problems that must be addressed. The 
Senate has been and should remain a deliberative body that seeks to 
draft the best legislation we can. Unfortunately, that is not what we 
are doing.
  And unfortunately, based on these concerns, I regret that I am no 
longer able to support the bankruptcy legislation. I do not believe the 
bill before us is balanced. There remain many serious problems that 
must be addressed before I am ready to support the legislation. I have 
decided because of the summary disposition of amendments by the other 
side, this Democrat Member is going to vote ``no'' in the Senate.
  Thank you, Mr. President, and I yield the floor.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Mr. President, I ask the time be charged equally on 
both sides during the quorum call.
  The PRESIDING OFFICER. Without objection, the time during the quorum 
call will be charged evenly to both sides.
  The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I yield myself as much time as I may 
consume from the Republican side of the agenda.
  I thank my colleagues for this good debate on an important issue that 
does not belong on this bill. There are several key reasons, clear 
reasons why this amendment of the Senator from New York should be 
rejected. This is an important piece of legislation, the bankruptcy 
legislation. This amendment brings the most difficult social issue we 
have of our day into this debate. It does not belong here. It is not 
the right place to do this. We have plenty of pro-life issues to come 
before this Senate, and not to tie the bankruptcy bill up would be an 
important thing to do.
  The membership opposes this amendment because, as we learned in 
previous Congresses, it is a poison pill.
  The amendment is meant to kill the overall bankruptcy reform bill. I 
would hope that is not what the author's intent is. But that is the 
effect of this amendment. It kills the bill.
  If the author of this amendment wants bankruptcy reform to move 
forward, it is something that needs to move forward. I have voted 
against bankruptcy reform in the past because I didn't think it was 
proper. I thought particularly we have problems on homestead provisions 
that we have been able to get worked out over the years we have been 
considering this legislation. Now we have that worked out as many other 
pieces have been refined over the 6 years this has been considered.
  Now is not the time to add this most contentious issue into the 
debate. It is not the proper place, and it is time that we move the 
bill forward, move it to the House and to the President for signature.
  Bankruptcy reform is an important matter. It would be my desire for 
my colleague not to offer the amendment so that we can focus on the 
particular critical issue facing our Nation in the form of the need for 
fundamental bankruptcy reform.
  Aside from the abortion issue, I am deeply concerned about what I 
believe to be a lack of fairness and justice embodied in this 
amendment. There is a fundamental fairness issue involved with this 
amendment. No one in this Chamber condones violent crime. I am certain 
that everyone believes violent crime should be prosecuted to the 
fullest extent of the law. While the pending amendment is presented as 
a way to address violent crime, it would primarily and inappropriately 
intimidate and harm peaceful protesters. In fact, were the Schumer 
amendment to become law, no crime would even be necessary to trigger 
its sanctions. Merely violating a Federal or State civil statute, such 
as a minor trespass, would be enough to place a violator in financial 
jeopardy.
  Historically this legislative body has fashioned criminal and 
bankruptcy penalties in a manner proportional to the gravity of the 
offense and the degree of injury and culpability. If enacted, this 
amendment would be a radical break with this tradition of prudence and 
fairness. For example, under current law, there are only a few extreme 
cases where a debtor is prevented from seeking discharge of his or her 
debts through bankruptcy protection. For example, instances in which 
discharge of debt is prohibited include intentional financial 
wrongdoing, such as fraud and embezzlement, or cases where the debtor 
has created a grave unjustifiable risk to human life, such as injury 
caused by drunk driving. Those are appropriate.
  The Schumer amendment would put a peaceful pro-life protester who, in 
the course of exercising his or her first amendment rights, simply 
steps in the wrong place--trespassing--on a par with embezzlers or 
drunk drivers. Should the price of constitutional freedom be the risk 
of financial ruin? Amazingly, this amendment says yes. The amendment 
says that people who protest and who do no physical harm, have no 
malicious intent should be singled out for harsh treatment.
  While I make no excuse for violations of the law, I have to ask 
again: Should not the gravity of the punishment correspond with the 
offense? I don't think that is at all the case in this particular 
amendment.
  A literal reading of the Schumer amendment would strip a peaceful 
protester of bankruptcy protection should he or she simply step in the 
wrong place while leafleting or even praying the rosary. Whether the 
fine involved is $10 or $1 million, we are talking about a peaceful 
individual and families with young children who should not be forced to 
risk paying this price simply for doing what the Constitution permits.
  Fairness and the great tradition of our first amendment freedoms 
counsel against the adoption of this amendment.
  I urge my colleagues to vote against it. It kills the bankruptcy 
bill. It is against fundamental fairness and freedom for people to 
exercise their right of free speech.
  I suggest the absence of a quorum and ask unanimous consent that the 
time be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.

[[Page 3667]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LAUTENBERG. Mr. President, I rise to support the Schumer 
amendment to the bankruptcy legislation presently before the Senate.
  The amendment provides that debts or judgments arising from acts of 
violence and threats of violence cannot be discharged in bankruptcy 
proceedings. While this provision was drafted in previous Congresses to 
specifically apply to reproductive health service providers and 
abortion clinics, it has been expanded this year with the help of some 
of our Republican colleagues.
  The amendment now addresses violence and intimidation aimed at 
blocking access to any type of lawful good or service. The Schumer 
amendment now applies to anyone who threatens, intimidates, or harms 
another person in the course of a lawful practice in places like houses 
of worship, the workplace and restaurants.
  Supporters of the bankruptcy bill argue that this amendment should be 
defeated because any amendment to so-called compromise bankruptcy 
legislation would upset the apple cart, causing the House of 
Representatives to reject it.
  I cannot understand how this Senate could could fail to pass an 
amendment that would simply prevent perpetrators of violence from 
hiding behind our bankruptcy laws. Where is the justice in permitting 
such a practice?
  For the past week, supporters of the bankruptcy legislation have 
consistently talked about personal responsibility and the need to 
prevent people from abusing the bankruptcy process.
  In fact, the centerpiece of this legislation is a means test that 
presumes chapter 7 filers are abusing the bankruptcy laws because their 
monthly income increases by as little as $100.
  The Schumer amendment is intended to prevent extremists and fanatics 
from abusing our bankruptcy laws to shield themselves from paying fines 
and fees imposed by a court of law after they have endangered someone's 
livelihood.
  These attacks are more common that one might imagine. Since 1977, 
there have been 7 murders, 17 attempted murders, 41 bombings, 171 
arsons, 100 butyric acid attacks, and 655 threats targeting abortion 
providers alone.
  In total, there have been more than 4,000 cases of stalking, 
burglaries, kidnappings, assaults, anthrax threats, invasions, 
attempting bombing and acts of vandalism, perpetrated against people 
who were performing or offering a legal procedure. And in case after 
case, after the perpetrators of these acts of intimidation and violence 
are brought to justice, they hide behind the bankruptcy code to shield 
themselves from assuming responsibility for their actions.
  As Senator Schumer has said, this issue is neither pro-choice nor 
pro-life; it is ``pro-rule-of-law and anti-violence.''
  While we have a right to disagree with the law in this country, and a 
right to try to change the law, no person has the right to take the law 
into his own hands.
  I have followed this issue for a long time. The first blockade of an 
abortion clinic occurred in Cherry Hill, NJ, in 1987.
  The first murder of an abortion provider occurred 12 years ago, on 
March 10, 1993, when Dr. David Gunn was slain during an antiabortion 
protest at a Pensacola, FL clinic. Since then, there have been six more 
murders.
  In 1994, responding to a rash of violence against abortion providers 
around the country, I asked the United States attorney to convene a 
task force to ensure that all appropriate measures were being taken to 
protect women and doctors and to prosecute those who threatened them 
with violence.
  Later that year, Congress enacted the Freedom of Access to Clinic 
Entrances, FACE, Act, which established Federal criminal and financial 
penalties for those who employ violence and intimidation to prevent 
persons from obtaining or providing reproductive health services.
  Unfortunately, the perpetrators of violence have used our bankruptcy 
laws to evade responsibility and escape the financial penalties that 
were part of the FACE Act. For example, former Operation Rescue 
president Randall Terry has filed for bankruptcy to avoid paying more 
than $1.6 million in fines and fees that he owes as a result of his 
illegal actions.
  We must not allow those who would take the law into their own hands 
and commit acts of violence against their fellow citizens to hide 
behind our laws when it suits their purposes. We must not allow our 
bankruptcy laws to be abused as a shield for violence.
  I encourage my colleagues to support the Schumer amendment.
  Mr. SCHUMER. Mr. President, we have 11 minutes on our side. How much 
time remains left on the other side?
  The PRESIDING OFFICER (Mr. Burr). There is 10 minutes remaining on 
the minority side and 15 minutes on the majority side.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the last 5 
minutes be reserved for me and the previous 5 minutes to whoever wants 
to speak for the other side.
  The PRESIDING OFFICER. Without objection, 5 minutes will be reserved 
on each side to be allocated from that side's time remaining.
  Mr. SCHUMER. Mr. President, 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. REID. 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. REID. Mr. President, it is my understanding there is 6\1/2\ 
minutes on the Democratic side.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. REID. I will use a minute and a half of that now.
  Mr. President, I am happy today to rise as a cosponsor of the Schumer 
amendment. This amendment would ensure that debts arising from unlawful 
acts of violence cannot be discharged from bankruptcy.
  America is a nation of laws. One might not always agree with the law 
or how it is interpreted, but that does not entitle you to willfully 
violate the law. The right to express disagreement is to seek change 
through peaceful means. It is never appropriate to resort to violence 
or intimidation in violation of the law. Here in the Senate we express 
policy differences through civil discourse and resolve them through the 
political process, not through violence. We debate in this body 
passionately but in a manner of respect and civility in an attempt to 
persuade others of the merits of our position, and that is the purpose 
of the debate. Those who resort to violence are violating not only our 
laws but our American principles and values. They are violating what we 
call the rule of law on which this country was founded.
  Unfortunately, some who break the law are using a loophole in the 
Bankruptcy Code to avoid paying the fines and penalties assessed 
against them as a result of their illegal activities. This amendment 
will ensure that individuals who engage in such acts of violence, 
intimidation, or threats, cannot hide in bankruptcy from the penalties 
imposed on them from violating the law.
  I emphasize that this amendment is not about the right to abortion, 
nor does it single out anti-abortion protestors. This amendment applies 
to anyone who violates a law related to the provision of lawful goods 
and services. It applies to any extremist who will turn to violence to 
protest lawful activities.
  For example, this amendment would apply to animal rights activists 
who engage in illegal tactics to shut down a lawful animal research 
center. There are many people who think that using animals for medical 
research is immoral and wrong, but this does not entitle those people 
to come in and trash one of those facilities, as has been happening. It 
would apply to an ecoterrorist who engages in illegal tactics to 
intimidate car dealerships or timber companies from doing business with 
people they think they should not do business with. It would apply to 
an arsonist who starts a fire at a church to deprive worshippers of the 
right to practice their religion. All of these extremists must be held 
accountable for

[[Page 3668]]

their actions, and none should be permitted to discharge their debts in 
bankruptcy.
  It is true that some of the worst abuses of this kind have been anti-
abortion extremists who have terrorized reproductive health care 
workers. They have directed thousands of acts of violence against 
abortion providers, including bombings, arson, death threats, 
kidnappings, assaults, and murders. When a man by the name of Barnett 
Slepian, who was a father of four, a husband, was a victim, I was the 
first person to come to the Senate floor and say that is wrong. When 
violence occurred at a Planned Parenthood clinic--I believe that is 
where it was--someplace in the South, I came to the floor immediately 
to say that one cannot violate the law because they disagree with what 
a lawful business is doing.
  Dr. Slepian was an obstetrician/gynecologist. He provided health care 
to women and delivered babies and, on occasion, he performed abortions. 
He was at a downtown clinic, and he worked there specifically because 
he believed it was important he give his expert advice to people who 
were poor. Because of this, one night he was in his living room, and 
someone with a high-powered rifle shot and killed him while he was 
there with his family.
  I did not know this doctor, but I learned after his death that he was 
an uncle of a woman who worked for me. The woman was from Reno. She was 
a good employee. Of course, she was heartbroken over the fact that her 
uncle had been murdered. The person who did this was not only a 
murderer but should be seen as a terrorist.
  What is going on in Iraq today? We have these extremists, these 
terrorists, who do not like what is going on there, and so they are 
committing these criminal acts. They are taking the law into their own 
hands.
  The man responsible for killing Dr. Slepian was extradited from 
France a few years ago where he had fled. His name was James Kopp. Kopp 
was part of an organized network of violent extremists, including a 
group that called itself the Army of God. The group and others similar 
to it have engaged in a long campaign of violence.
  In 1994, we passed the Freedom of Access to Clinic Entrances, called 
FACE, which established Federal criminal and financial penalties for 
those who employed violence to prevent persons from obtaining or 
providing reproductive health services. The FACE Act is essential to 
protecting the lives of women and health care providers.
  Unfortunately, some of the people charged under this act are filing 
for bankruptcy to avoid accountability for their illegal acts of 
terrorism. As an example, defendants in the so-called Nuremburg files 
case have tried to nullify years of court proceedings by filing a 
chapter 7 proceedings.
  What are the Nuremburg files? Listen to this one: They posted on a 
Web site the names, addresses, and license plate numbers of people who 
worked in these health care facilities. They even posted pictures of 
their target's families, all members, and they would list them--father, 
son, mother, brother, whatever it might be--and places where their 
children waited for the school bus. Doctors who still worked appeared 
in plain text on the Web site, a person who had been wounded was grayed 
out; and those who had been murdered, including Dr. Slepian, had a line 
through their names.
  It is intolerable that the groups which incite these heinous acts of 
violence can discharge their civil penalties in bankruptcy, but that is 
exactly what happened. If we want to prevent future acts of violence, 
including clinic violence, it seems to me that we need to have a 
specific provision in the bankruptcy law to prevent discharge of 
violence-related debts. That is what this amendment is all about.
  I do not support abortion, but this amendment is not about abortion. 
It is about holding responsible those who commit illegal acts and 
believe that they are above the law. This amendment is about preserving 
the rule of law.
  I cannot imagine how this amendment is causing a concern or a 
problem. Are we now to believe that there are people who are telling 
members of the majority, do not do this, we want to go and commit acts 
of violence, we want to commit crimes, and do not vote against us 
because you will prevent us from filing bankruptcy? That is what this 
is all about. Should not we as a body say that if one goes out and does 
these terrible acts, where they kill people, they maim people--one of 
their latest tricks is they figured out this acid which is some kind of 
a chemical compound, and they walk into these facilities and they throw 
it all over. It cannot be washed out. It cannot be steamed out. The 
only thing one can do is tear the facility down. Should they not be 
held responsible?
  I cannot believe we are going to have a bill as important as this 
bankruptcy bill jeopardized because of the terrorists who are out there 
waiting to file bankruptcy. That is what this is all about. People are 
out there wanting to commit crimes, waiting to commit crimes, saying, 
do not pass this because if you pass it I will not be able to file 
bankruptcy. I just think it is beyond my ability to comprehend that 
people who know they are violating the law, they are killing people, 
they have this Web site that they are soliciting murder.
  And we are going to condone this activity under the guise that this 
is a choice, this is a pro-life/pro-choice issue and we cannot get 
involved. This is not about abortion. It is about maintaining the law.
  I am so disappointed that the majority is going to go along with the 
ability of people to commit crimes and terror and discharge them in 
bankruptcy.
  The PRESIDING OFFICER. Who yields time? The Senator from New York.
  Mr. SCHUMER. Mr. President, what is the status of the time on both 
sides?
  The PRESIDING OFFICER. The majority has 11 minutes remaining. The 
Senator from New York has the last 5 minutes.
  Mr. GRASSLEY. Mr. President, I rise in strong opposition to the 
Schumer amendment which would make debts incurred in connection with 
violations of the Freedom of Access to Clinic Entrances Act 
nondischargeable in bankruptcy. This amendment has been a poison pill 
to enactment of the bankruptcy bill and must be defeated.
  On two previous occasions, CRS performed research for us and told us 
that FACE debts had never been discharged in bankruptcy. Just recently, 
I asked CRS to perform an updated search on reported decisions 
considering the dischargeability of liability incurred in connection 
with violence at reproductive health clinics by abortion protesters. 
CRS confirmed that this amendment is not necessary. The CRS memo 
identified only one reported case, which found the debt to be 
nondischargeable under the bankruptcy law's discharge exception for 
willful and malicious injury. So this amendment is not necessary. Even 
Senator Schumer's own witness at the Senate Judiciary Committee hearing 
on the bankruptcy bill testified that in all the cases that she had 
litigated, the court had always found that the debts incurred under the 
FACE Act were nondischargeable in bankruptcy.
  My colleagues make a big deal out of the fact that some of us on this 
side have supported amendments similar to this one before. The truth 
is, when the Schumer abortion amendment was offered in 1999 to the 
comprehensive bankruptcy bill, Vice President Gore was campaigning for 
the Democrat nomination. His opponent, Senator Bradley, was alleging 
that Vice President Gore was not sufficiently pro-choice. Vice 
President Gore's allies in the Senate were maneuvering to create a tie 
vote on the Schumer amendment so Gore could ``break the tie'' to 
improve his political standing.
  To avoid this, most Republicans voted in favor for the Schumer 
amendment. Thus, that vote in the 106th Congress was not a vote on the 
merits of the Schumer amendment.
  The Schumer amendment was included in the 107th Congress bankruptcy 
bill. But the fact is that in the 107th Congress, the Schumer amendment 
killed the bankruptcy conference report because the House would not 
take it. Thus, the Schumer amendment is a poison pill and must be 
defeated.

[[Page 3669]]

  Let me reiterate that in two previous memos, CRS concluded that the 
Schumer amendment is unnecessary because abortion protester debts are 
already not dischargeable in bankruptcy. We have just updated this 
research and CRS has confirmed that FACE Act violations are not 
dischargeable in bankruptcy. The proponent's own witness testified 
before the Judiciary Committee that none of these debts have ever been 
discharged in bankruptcy. The reality is that the Schumer amendment is 
just a political ploy designed to generate opposition to the bankruptcy 
bill. The Schumer amendment is a poison pill which will kill the 
bankruptcy bill. This amendment must be defeated, and I urge my 
colleagues to oppose it.
  The PRESIDING OFFICER. Does the Senator from Iowa ask unanimous 
consent to yield back the remaining time?
  Mr. GRASSLEY. Yes.
  The PRESIDING OFFICER. The Senator from New York is recognized for 
his final 5 minutes.
  Mr. SCHUMER. Mr. President, in conclusion, I would like to rebut some 
of the comments of my colleague from Utah who said this amendment was 
not necessary, and he talked about Maria Vullo, the lawyer who 
represented the clinic in the Nuremberg files case.
  Here is the major point. She did not collect any money in that case. 
Despite spending $1 million of her own money, pro bono, despite 
relitigating in six bankruptcy courts, she was unable to collect any 
dollars. This is the point we are making. Perhaps at the end of the day 
you will get a nominal victory if you go all around the country chasing 
these fanatics in bankruptcy court, but you cannot collect. That is why 
the American Coalition of Life Activists, a violent fringe anti-choice 
group, actually requires its leaders to be judgment proof.
  Here is the bottom line: This amendment, which was supported by so 
many on the other side, is being dropped, not because it is wrong but 
for expediency, so there will not have to be a bloody battle in the 
House between those who are on the Republican side, between those who 
are more probusiness and those who are vehemently opposed to this 
amendment. I will not denigrate the pro-life movement by labeling them 
that way because the pro-life movement cannot be for these violent 
groups.
  This amendment is for the rule of law. This amendment says you cannot 
use violence against any group to achieve a political end and then, 
when you are sued civilly, use the bankruptcy courts for protection. 
That has never been what the bankruptcy courts were intended to be. It 
is neutral on terms of what issue. Yes, it might be extremists who are 
against abortion. It also might be extremists on the left side, on the 
environmental side who burn buildings or houses or cars. Are we going 
to, as a society, condone that type of activity?
  I will tell you, if we defeat this amendment, that is what we are 
doing. Make no mistake about it, make no mistake about any of the 
subterfuges. To me, this amendment and the rule of law and the American 
way of life that this amendment stands for are more important than the 
rest of the bankruptcy bill.
  The bankruptcy bill, whether you are for it or not, twists the dials 
a little bit with regard to the balance between creditors and debtors. 
I assure you that was not on the Founding Fathers' minds when they 
wrote the Constitution and created the Republic.
  What this amendment does goes right to the heart of what America is 
all about. It says those who use violence to achieve their political 
goals cannot get a benefit, in this case bankruptcy. It, in my 
judgment, as I said, is more important than the rest of the bill.
  So I ask my colleagues on the other side to rise to the occasion. Do 
not let arguments of expediency persuade you. That is the slow road to 
oblivion. That is the tortured path to undoing step by step, bit by 
bit, as the river creates a canyon, the way of life that we love. No 
matter how strongly one feels about something, their job is to persuade 
others to their viewpoint, not to take the law into their own hands and 
use violence. And if they do, they should not be allowed to use the 
Bankruptcy Code or anything else to prevent just civil or criminal 
action against them.
  I ask my colleagues to look into their hearts, to examine what this 
amendment does, and to have the same courage--courage of conviction and 
courage of a fair compromise--that we showed a few years ago. I urge 
support of this amendment.
  I yield the floor.
  Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to amendment No. 47 offered by the 
Senator from New York. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New Jersey (Mr. Corzine) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 46, nays 53, as follows:

                      [Rollcall Vote No. 28 Leg.]

                                YEAS--46

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Cantwell
     Carper
     Chafee
     Clinton
     Collins
     Conrad
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sarbanes
     Schumer
     Snowe
     Specter
     Stabenow
     Wyden

                                NAYS--53

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Coleman
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--1

       
     Corzine
       
  The amendment (No. 47) was rejected.
  Mr. McCONNELL. 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. HATCH. Mr. President, in a few hours we will be voting on cloture 
for this bill. I would just like to take a minute or two and remind 
everyone why it is time to end the debate on this bill.
  It has been 8 long years of consideration on this legislation. We 
have all compromised a great deal. Not everyone got their preferred 
language or amendments. Not everyone is happy with the current 
legislation.
  But I think everyone would have to agree that we have given 
thoughtful consideration and fair opportunity to all suggestions on the 
bill throughout the years of debate.
  Over the years, we modified the homestead exemption.
  We modified the means test.
  We provided for sanctioning attorneys who file abusive claims.
  And we hindered creditors who would try to collect through predatory 
lending practices.
  All of these changes, among scores of others, came from my Democratic 
colleagues.
  After all this, just 2 weeks ago, we took 5 more Democratic 
amendments in the Judiciary Committee markup.
  And yet almost everyone of the pending amendments today touches upon 
the areas where we have previously compromised.
  At a certain point, the time comes to move forward with what we have. 
Given how far we have come on this bill already over the last 8 years, 
and considering all the compromises that

[[Page 3670]]

have been made, we may get no bankruptcy bill at all if we try to take 
more amendments.
  The lopsided votes in favor of this bill in the past--with 70, 83, 
and even 97 votes in this Chamber--reveal that we are left with only a 
small minority of opposition. The fact is that a large majority of this 
body recognizes that we are not doing anything radical in this bill.
  We simply ask that higher-income filers who can pay their bills, 
should pay their bills. It is as simple as that. There is no reason to 
ask the vast majority of bill-paying consumers to pickup the tab when 
those with means do not repay their obligations.
  After 8 long years, we have compromised every which way we can. The 
remaining amendments being proposed are just further adjustments of 
adjustments to adjustments that were already made during this process.
  There is simply no reason to continue to holdup this bill through the 
amendment process. The longer we delay, the greater the chances for 
mischief. The more we stall this measure, the more likely we open it to 
political, message amendments that can only act to stall work on this 
bill.
  A time comes when you just have to say enough is enough. Eight years 
should be long enough to pass one bill.
  I urge my colleagues to join me in voting for cloture.
  Mr. BAUCUS. Mr. President, I want to explain my decision to oppose 
closure on the Bankruptcy bill. I have offered an amendment to this 
bill modeled on legislation I have introduced to set up a permanent 
health care trust fund for current and former Libby residents, and 
former workers at the W.R. Grace vermiculite mine in Libby, MT. The 
trust fund will help pay for medical costs associated with treating 
asbestos-related disease or illness caused by exposure to deadly 
tremolite asbestos and other fibers released by Grace's mining 
operations.
  I offered this amendment to this bill because it presented an 
opportunity to make whole the people of Libby, who have suffered, while 
preventing a company like W.R. Grace, which has filed for bankruptcy, 
from emerging from that bankruptcy without setting up a health-care 
trust fund for its victims.
  I have worked very hard to make sure the people of Libby, MT, are 
protected in any asbestos legislation to come before Congress; to 
include special provisions in an asbestos bill for Libby residents that 
take into account the unique kind of health impacts associated with 
exposure to the deadly asbestos fibers from the W.R. Grace vermiculite 
mine.
  For years, I have been committed to securing a common sense solution 
for the residents of Libby. I strongly believe that too many people 
have suffered, and they deserve fair compensation. I will do everything 
in my power to help Libby make their community whole again and to make 
sure their long-term health care needs are met. Passing bankruptcy 
legislation, with consideration of my asbestos amendment is essential. 
I will fight to get additional protections for Libby residents and then 
work to pass the bill.
  Unfortunately, we have not had an opportunity to vote on this 
amendment, and it has been judged to be non-germane. The bankruptcy 
bill is all about responsibility and accountability. This amendment 
tries to hold W.R. Grace accountable for its actions. Because we were 
not able to vote on this amendment, I can not support limiting debate 
on this bill.

                          ____________________