Of a perfecting nature.

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 1390, which the clerk will report.
The assistant legislative clerk read as follows:

A bill (S. 1390) to authorize appropriations for fiscal
year 2010 for military activities of the Department of
Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other
purposes.

Pending:

Reid (for Leahy) amendment No. 1511, to provide Federal
assistance to States, local jurisdictions, and Indian tribes
to prosecute hate crimes.
Reid (for Kennedy) amendment No. 1539 (to amendment No.
1511), to require comprehensive study and support for
criminal investigations and prosecutions by State and local
law enforcement officials.

The PRESIDING OFFICER. The Senator from Delaware is recognized.
Mr. KAUFMAN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

In Praise of Jeffrey Knox

Mr. KAUFMAN. Mr. President, last week, I spoke about the founding
generation of Americans and the legacy they passed down to us of
sacrifice and service above self. These are the values that constitute
the foundation of our civil service, and it is these values that
motivate our Federal employees. It is what drives each of them, each
day, to perform the small miracles that make the American Government
work. Without their dedicated efforts and important contributions, we
could not have a government that is responsive and representative. That
is the birthright the Founders left for us--that the people should be
represented not only by officials they have elected but by civil
servants entrusted to carry out the people's business.
In thinking about these ideas and about the Founders, I cannot help
but think of those who risk their safety working as Federal law
enforcement officers and prosecutors. One such Federal prosecutor is
Jeffrey Knox. As an assistant U.S. Attorney from the Eastern District
of New York's Violent Crimes and Terrorism Division, Jeffrey is on the
front line in both the war on crime and the war on terror.
At age 36, Jeffrey has already achieved distinction for prosecuting a
number of important cases. He has become one of the Nation's preeminent
prosecutors trying suspects in terrorism cases. In his role as head of
the Violent Crimes and Terrorism Division, Jeffrey has been a leader in
investigations of terror groups such as al-Qaida, Hamas, and LTTE. His
colleagues have praised him for his roll-up-your- sleeves, get-your-
hands-dirty philosophy, and he has traveled to dangerous hot spots in
pursuit of evidence.
One of Jeffrey's landmark cases was the successful investigation,
arrest, and indictment of four suspects who were charged with plotting
to attack the fuel tanks at JFK Airport. The attack they had planned
was intended to be as devastating as September 11. Jeffrey worked
closely with the military, the intelligence community, foreign
governments, and local law enforcement agencies in an 18-month-long
investigation.
In another high-profile case, he successfully obtained the
convictions of a group of conspirators who were attempting to deliver
missiles and other weapons to the LTTE in Sri Lanka. He also worked to
put behind bars an Iraqi translator who stole classified defense
information and passed it to insurgents targeting our troops. Jeffrey
has prosecuted violent street gangs in New York City as well.
What inspires me most about Jeffrey is that he did not start as a
criminal prosecutor. Before September 11, he was a corporate lawyer on
Wall Street. After that terrible day, Jeffrey was motivated to leave
Wall Street and work in the Federal Government as an assistant U.S.
attorney. When asked why he gave up such a lucrative position on Wall
Street for a tough job prosecuting terrorists and gang members, Jeffrey
said:

If you can put a dangerous individual behind bars so that
individual will never have the ability to jeopardize another
person's life again, then it's all worth it.

Jeffrey Knox is just one of many Federal prosecutors and law
enforcement officials who risk their lives every day to keep Americans
safe. The sacrifices they make all too often go unrecognized. I urge my
colleagues to join me in honoring their service and sacrifices, and I
join all Americans in thanking them for the important contribution they
make to our Nation.
The PRESIDING OFFICER. The Senator from New York is recognized.

Amendment No. 1511

Mrs. GILLIBRAND. Mr. President, I rise today in support of the
Matthew Shepard Hate Crimes Prevention Act of 2009. I am proud to join
Senator Kennedy as an original cosponsor of this important legislation.
This legislation condemns the poisonous message that some human beings
deserve to be victimized solely based on their sexual orientation,
gender, gender identity, or disability.
Hate crimes are serious and well-documented problems that remain
inadequately prosecuted and recognized. Current Federal hate crimes law
affords important protections against crimes motivated by a person's
race, color, religion, or national origin. It fails to protect a
significant number of Americans when victims are targeted based on
their actual or perceived sexual orientation, gender, gender identity,
or disability. This legislation will expand protection to these groups,
ensuring that all Americans are afforded equal protection under the
law.
In addition to recognizing and prosecuting all forms of hate crimes,
we must also provide local law enforcement agencies with the requisite
tools to successfully combat these heinous acts. This legislation
provides significant support to local law enforcement agencies across
the Nation, including critical technical, forensic, prosecutorial, and
other assistance to State, local, and tribal law enforcement officials
for hate crime investigations and prosecutions.
It is essential that we send the message that these crimes will not
be condoned. When we fail to prosecute violence driven by hatred and
protect Americans' human rights, we risk escalation of such activities.
New York State has recently had numerous examples of hate crimes that
would be prosecuted under this legislation. Within 3 weeks, three
communities in Queens and Long Island--within an hour's drive--have
experienced violent hate crimes targeted at gay, lesbian, and
transgender victims. In each instance, the victims were the targets of
violent attacks while the assailants communicated homophobic slurs.
During one of the incidents in Queens, a transgender female was
brutally attacked while walking to her home. As she walked down her
residential block, she was repeatedly taunted by two men who only ended
their taunting with homophobic slurs so they could focus on beating her
with a metal belt buckle. Her anguished cries for help were met with
laughter as the two men removed all of her clothing and left her naked
and bleeding in the middle of the street.
Unfortunately, this case was not investigated as a hate crime because
current law does not provide protection for gender identity. This
victim, like many others around the Nation, was a target of violence
because of who she was. This must end.
In 2007, there were 500 such incidents in New York State alone. This
is a reflection of a larger national trend where we see that the number
of documented hate crimes is on the rise. In 1991, the Federal Bureau
of Investigation began collecting hate crimes statistics, and since
then the number of reported crimes motivated by sexual orientation has
more than tripled.

[[Page S7592]]

This legislation, which has received bipartisan support before, is
supported by more than 300 civil rights, law enforcement, and civil and
religious organizations in addition to the vast majority of the
American people. It is important we ensure that all Americans and all
States are covered under this comprehensive hate crimes legislation.
There is some concern this bill would impact the first amendment. It
does not. The Matthew Shepard Hate Crimes Prevention Act of 2009 covers
only violent acts or attempted violent acts that result in death or
bodily injury. It does not prohibit or punish speech, expression, or
association in any way. Thoughts and speech are explicitly protected in
this bill. This bill is not infringing upon freedom of speech. It is
about safeguarding Americans' human rights and equal justice.
As Dr. Martin Luther King once said, ``injustice anywhere is the
threat to justice everywhere.''
I strongly believe freedom and equality are inalienable American
rights and should not be ascribed based on gender or race, religion or
sexual orientation or gender identity. This legislation is an important
step toward expanding human dignity and respect for all Americans.
Mr. President, 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. HATCH. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, although I have been an active participant
in the Judiciary Committee's Sotomayor confirmation hearings, I have
followed with great interest the floor debate on continuing the
production of the F-22A Raptor.
Unfortunately, over the years I have heard a number of incorrect
assertions made about this aircraft, and I have tried to correct them.
But after listening to this week's debate and reading misleading
articles, especially in the Washington Post, about the F-22's
performance and capabilities, I believe the Raptor's opponents have hit
bottom--and have begun to dig.
Therefore, I would like to set the record straight about the F-22 and
its extraordinary war-winning capabilities.
Fact No. 1: The F-22 is, and will continue to be, the preeminent
fighter/bomber for the next 40 years.
The F-22 is the stealthiest aircraft flying today. Unlike the F-117
Nighthawk and the B-2 bomber the F-22s can be deployed on stealth
flight operations not just at night, but 24 hours a day. This one-of-a-
kind capability provides our combatant commanders with unprecedented
flexibility to engage ground and air targets at a time of their
choosing--thus denying any respite to the enemy.
The Raptor is equipped with supercruise engines that are unique
because they do not need to go to after-burner to achieve supersonic
flight. This provides the F-22 with a strategic advantage by enabling
supersonic speeds to be maintained for a far greater length of time. By
comparison, all other fighters require their engines to go to after-
burner to achieve supersonic speeds, thus consuming a tremendous amount
of fuel and greatly limiting their range.
The F-22 is the deadliest fighter flying today. During a recent
military exercise in Alaska, the Raptor dispatched 144 adversaries
versus the loss of only one aircraft.
Further advantage resides in the F-22's radar and avionics. When
entering hostile airspace, the F-22's sensor-fused avionics can detect
and engage enemy aircraft and surface threats far before an enemy can
hope to engage the F-22. At the same time, its advanced sensors enable
the F-22 to be a forward-surveillance platform capable of gathering
crucial intelligence on the enemy.
Often overlooked, the F-22 is a very capable bomber. It can carry two
GPS-guided, 1,000-pound joint direct attack munition bombs or eight
small-diameter bombers.
Fact No. 2: The F-22 is not a Cold War dinosaur. It is designed to
meet and eliminate the threats of today and tomorrow.
As the longest-serving member of the Senate Intelligence Committee, I
know full well the greatest air threat of today and tomorrow is, and
will continue to be, the advanced integrated air defense system.
Such a system is composed of two parts. The first component is
advanced surface-to-air missile systems such as the Russian-made S-300,
which has a range of over 100 miles. The second are highly maneuverable
and sophisticated fighters like the Su-30, which have been sold to
China and India. Coupled together, these anti-access systems make
penetrating hostile airspace extremely difficult, if not deadly, for
those aircraft lacking the F-22's advanced stealth technology and
sustained supersonic speeds made possible by its supercruise engine. It
is also important to remember the mainstays of our aerial fleet, the F-
15, F-16 and F/A-18, are not stealth aircraft and are not equipped with
supercruise engines.
Unfortunately, integrated air defense systems are relatively
inexpensive, placing them within the purchasing potential of nations
such as Iran with its seeming insistence on developing nuclear weapons.
The advanced integrated air defense system is exactly the threat the
F-22 was designed to neutralize. In addition, the F-22 will almost
simultaneously be able to turn its attention to other ground targets
that threaten the national security of the U.S. and our allies.
In a related argument, some argue the United States should devote
more of its military resources toward bolstering its counterinsurgency
capabilities.
This is a fair point. Unwisely, the United States did permit its
counterinsurgency capabilities to atrophy after the Vietnam war. As
events in Iraq and Afghanistan have shown, we continue to pay dearly
for that error. However, as we reconstitute our ability to successful
prosecute counterinsurgency campaigns, we cannot make a similar mistake
and undermine one of the fundamental foundations of our military
strength: hegemony in the air.
Even Defense Secretary Robert Gates said this January, ``Our military
must be prepared for a full spectrum of operations, including the type
of combat we're facing in Iraq and Afghanistan as well as large scale
threats that we face from places like North Korea and Iran.'' I could
not agree more, and the aircraft that will enable our Nation to
decisively defeat our adversaries in the air is the F-22.
Mr. President, others point out the F-22 has not been deployed in
support of our operations in Iraq and Afghanistan. This is true.
However, there were recent plans to deploy the F-22 to the Persian
Gulf. But according to the July 9, 2008, edition of the widely
respected Defense News, the Pentagon overruled those plans, citing
concerns about ``strategic dislocation.'' This means the F-22 is hardly
a dinosaur. It is a weapon that can change the balance of power in a
region and deter our adversaries.
Fact No. 3: 187 F-22s is an insufficient number to meet the minimum
requirements of our national military strategy.
Our Nation's military requirements are decided upon in detailed
studies of the threats our Nation and its allies confront. These
studies also recommend force structures to deter and, if necessary,
defeat threats to our national security. Accordingly, the Department of
Defense and the Air Force have conducted a number of studies to
determine how many F-22s are required to meet our national military
strategy.
I am unaware of any comprehensive study that has concluded F-22
production should cease at 187 aircraft. Specifically, unclassified
excerpts from the Air Force's sustaining air dominance study stated
``180 F-22s was not enough,'' and the Department of Defense TACAIR
optimization study concluded the procurement of additional Raptors
``was the best option.'' On April 16, these conclusions were reinforced
by comments made by GEN Norton A. Schwartz, the Chief of Staff of the
Air Force, after the F-22 procurement termination was announced.
General Schwartz stated, ``243 [Raptors] is the military requirement.''
Opponents of the Raptor will most likely dispute this, pointing to
comments made by General Cartwright during his July 9 testimony before
the Senate Armed Services Committee.

[[Page S7593]]

During his testimony the general stated the decision to terminate
production of the F-22 is supported by a ``study in the Joint staff
that we just completed and partnered with the Air Force.'' However, my
staff has inquired about this study and was informed a recently
completed comprehensive, analytic study does not exist.

No doubt, the Joint Staff has prepared some justification for F-22
termination.Yet I believe it is only natural to question the
objectivity of any assessment which justifies previously reached
decisions.
Unfortunately, yesterday, my suspicions about this so-called analysis
were proven correct when Geoffrey Morrell, the Pentagon's press
secretary, stated General Cartwright was referring to ``not so much a
study [as a] work product.''
Therefore, I believe the Congress should place great significance on
the June 9 letter by GEN John Corley, the commander of air combat
command, who stated ``at Air Combat Command we have a need for 381 F-
22s to deliver a tailored package of air superiority to our Combatant
Commanders and provide a potent, globally arrayed, asymmetric deterrent
against potential adversaries. In my opinion, a fleet of 187 F-22s puts
execution of our current national military strategy at high risk in the
near to mid-term. To my knowledge, there are no studies that
demonstrate 187 F-22s are adequate to support our national military
strategy.''
I believe these are important words from the four-star general who is
responsible for the Air Force command which is the primary provider of
combat airpower to America's war-fighting commands.
Fact No. 4: The Washington Post article that alleged technical and
maintenance difficulties of the F-22 was misleading and inaccurate.
In fact, the Air Force has written two rebuttals to this article.
After viewing the first rebuttal, I found it striking the Air Force
stated six of the points made in the article were false, four were
misleading, and two were not true.
Specifically, the primary assertion made by the Post was the F-22
cost far more per hour to fly than the aircraft it is replacing, the F-
15. However, this is misleading. Only when you include all of the one-
time costs that are associated with a new military aircraft is this
true. A far more accurate measurement is to compare variable flying
hours. The F-22 costs $19,750 per hour to fly versus $17,465 for the F-
15. The F-15 costs less to fly, but the 1960s-designed F-15 does not
have nearly the capabilities of the F-22.
The article asserts the F-22 has only a 55-percent availability rate
for ``guarding U.S. airspace.'' This is misleading. Overall, the F-22
boasts a 70-percent availability rate, and that has been increasing
every year over the past 4 years.
Finally, the article states the F-22 requires significant
maintenance. This is true. But the Post article misses the critical
point: the F-22 is a stealth aircraft. Making an aircraft disappear
from radar is not accomplished through magic. It is achieved through
precise preparation and exacting attention to detail.
I believe we can all agree it is far better to expend man hours to
prepare an airplane that will win wars than to buy replacement aircraft
after they have been shot down, not to mention the moral cost of not
exposing our pilots to unnecessary dangers.
Fact No. 5: The F-22's detractors argue erroneously that the Raptor's
role can be filled by the F-35, also known as the Joint Strike Fighter.
But the Raptor and the Joint Strike Fighter were designed to complement
each other, not be substituted for each other. The F-22 is the NASCAR
racer of this air-dominance team. Fast and unseen, the Raptor will
punch a hole in an enemy's defenses, quickly dispatching any challenger
in the air and striking at the most important ground targets. The Joint
Strike Fighter is the rugged SUV of the team. Impressive, but not as
maneuverable or capable of sustained supersonic speeds, the F-35 will
exploit the hole opened by the F-22 and attack additional targets and
directly support our ground forces. This is not to say the F-35 is not
a highly capable stealthy aircraft. But the F-35's role is to
supplement the F-22, not substitute for it. Only by utilizing the
strengths of both aircraft do we ensure air dominance for the next 40
years.
Fact No. 6: Our allies recognize the critical capabilities of the F-
22 and are eager to purchase the aircraft.
This is one of the most compelling reasons for purchasing additional
numbers of F-22s. The Japanese and Australian governments have
consistently approached our government about purchasing the Raptor for
themselves. If the F-22 is such a boondoggle, why would these nations
be willing to spend billions of dollars to purchase them. Australia
already plans to purchase up to 100 F-35s. Why does it need the Raptor?
Perhaps it is because these nations realize a number of the threats to
their security can only be defeated using the F-22 Raptor.
In conclusion, we have an opportunity to ensure this and future
generations continue to benefit from one of the foundations of our
national security: the ability to defeat any air threat and strike any
target anywhere in the world. The world is changing; threats are
growing. Today we have an opportunity to ensure those air threats are
met.
To be honest with you, our young men and women who fly deserve the
very best equipment we can give to them, not equipment that is getting
old, outmoded, and cannot do the job.
I hope my colleagues will join me in voting against the Levin-McCain
amendment.
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. JOHANNS. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JOHANNS. I ask unanimous consent to speak for 10 minutes as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Johanns pertaining to the submission of S. Res.
212 are located in today's Record under ``Submitted Resolutions'').
Mr. JOHANNS. 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. BROWN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Shaheen). Without objection, it is so
ordered.
Mr. BROWN. Madam President, I ask unanimous consent to speak as in
morning business for up to 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

Health Care Reform

Mr. BROWN. Madam President, yesterday was a wonderful day for this
institution but, more importantly, it was a spectacular day for
hundreds of millions of Americans who are concerned about our health
care system. The Health, Education, Labor, and Pensions Committee
completed the markup of its health care reform legislation. The first
rule of thumb was that if you are satisfied with the health insurance
you have today, you can stay in it. The whole point of health reform is
to reduce health care costs and expand access to quality care for all
Americans.
Earlier this week, the HELP Committee had a historic opportunity to
cut costs for millions of Americans by creating a commonsense pathway
for generic versions of what are called biologic drugs. Biologic drugs
are live cells, unlike the more old-fashioned but still very, very
common chemical drugs that are made and that we have known of for many
years. Biologic drugs treat cancer, Parkinson's, diabetes, arthritis,
rheumatoid arthritis, Alzheimer's, and other serious conditions.
Earlier this week, the HELP Committee could have limited what are
called around here exclusivity rights--better known as monopoly
rights--could have limited monopoly rights for biologics to 7 years
instead of enabling that monopoly for 12 years. Earlier this week in
the committee, consumers lost and the biotech industry won. How can we
improve access to health care if people cannot afford their biologic
drugs? How can we reduce costs if we don't inject competition into the
marketplace, if we grant monopolies and

[[Page S7594]]

block any competitors from coming in and competing for these drugs?
During the debate, we heard a lot of numbers on how many years the big
drug companies should have unchecked monopolies. We heard it should be
13 years or one of them was 13\1/2\ years or 12 years or 10 years. I
wanted 5 years or maybe 7 years at the most.
Let me include some other numbers as we debate the minutia of health
care reform. Let me include some other numbers that are too often yet
sometimes deliberately overlooked.
Some 190,000 women will be diagnosed with breast cancer this year.
Herceptin is the brand-name biologic that treats breast cancer. It
costs $48,000 a year. That is $1,000 a week. If you are lucky enough to
have insurance, you might get part of this paid for, but you probably
have a 20 percent copay, so then it is $200 a week. That is if you are
lucky. If you are not so lucky, you simply can't afford it.
More than 1.3 million Americans live with rheumatoid arthritis.
Remicade is the brand-name biologic that treats rheumatoid arthritis.
It costs $20,000 a year. If you are lucky enough to have insurance, you
are probably paying a 20 percent copay. That would be $4,000 a year
just for the biologic drug for your treatment--not counting lost work,
not counting paying doctors' bills, not counting trips to the hospital,
not counting tests. That is $4,000 a year for that drug, if you are
lucky enough to have insurance.
This year, more than 148,000 people will be diagnosed with colon
cancer. Avastin is the brand-name biologic that treats colon cancer and
costs $100,000 a year, which is $2,000 a week. So if you are lucky
enough to have insurance, you pay a copay of $400 per week, which is an
awful lot of money.
To put these numbers in perspective, the average annual household
income in Ohio is $46,000. So when you look at these drugs--one I
mentioned, Herceptin, is $1,000 a week; Remicade for rheumatoid
arthritis is $20,000 a year; Avastin for colon cancer is $100,000 a
year, $2,000 a week--again, if you are lucky enough to have insurance,
your 20-percent copay for that $100,000 a year is $20,000, and an
average income in Ohio is $46,000.
Brand-name biologics, these relatively new kinds of treatments, will
make up 50 percent of the pharmaceutical market by the year 2020. The
prices for most of these drugs are increasing far faster than
inflation--far faster even than medical inflation--and we know what
that is all about--about 9.3 percent each year. The price for biologic
drugs for multiple sclerosis increased by 23 percent last year.
I remember about a dozen years ago, if you had a family member who
was suffering from cancer, we were outraged and just so surprised and
shocked and upset that Taxol, the chemical cancer drug, in those days
cost $4,000 a year. We thought that was outrageous, exorbitant,
unaffordable, out of reach, $4,000 a year. But this cancer drug now is
$40,000 a year; Herceptin is more than $40,000 a year. So where is the
outrage now?
I understand drug companies need to protect their investment and
their profit. However, many of these biologics that have been developed
came initially from research that all of us as taxpayers funded. We
appropriate every year about $31 billion for the National Institutes of
Health, something I fought for when I was in the House. I was part of
the group that doubled funding for NIH, in those days, from about $12
billion to $25 billion a year. It was a wonderful investment. As we
invest in these drugs, invest in this research that is the foundation
for these drugs, it is a good thing. Then these companies, at their
expense and at their risk, develop them into wonderful medicines and
medication. But after building their foundation on taxpayer research,
they are charging this much for these biologics, and even if you are
lucky enough to have insurance, you simply can't afford them. So I want
these drug companies to protect their investment and their profit, but
we can't give companies open-ended protection from competition.
The committee voted earlier this week to grant 12 years of monopoly.
Orphan drugs get a 7-year monopoly protection. Standard drugs, which
have been wonderful for so many people in this country--very important,
very complicated drugs; pretty much as complicated as these biologic
drugs--get 5 years of monopoly protection. So orphan drugs get 7 years,
standard drugs get 5 years. Other products on the market that have
patents, as these do, and have those protections don't get additional
monopoly protections. But this committee this week--I thought
outrageously so--gave 12 years of monopoly protection. That is
unacceptable to many of us. President Obama says it should be 7 years.
The AARP says it should be 5 to 7 years.
The Federal Trade Commission reported that additional years of
monopoly protection actually crimps innovation, that giving these extra
years of monopoly protection actually hinders innovation. I would argue
that this monopoly protection harms innovation because it discourages
biotechs from searching for new revenues.
Let me give an example. If a drug company produces a biologic that
can matter a lot in an important treatment and they got a 12-year
monopoly protection and consider that the biologic might be
administered by injection in a doctor's office; that those same
scientists who have created that biologic that you inject, after 5 or 6
years, come up with a new way to do it, to take it by aerosol.
Everybody I know would rather do that than stick a needle in their arm
every day or so, however often they need the treatment. But do you know
what. That new innovation is not going to come until the 12 years are
up.
That is why the committee erred so extravagantly when it gave 12
years of monopoly protection to the drug industry. It hinders
innovation. That means patients are going to keep getting the shot
every day for 12 years. They will have to wait until the 12 years are
up before they introduce the new aerosol way of administering this
drug. If there had been for 4, 5, 6, or 7 years, they would have
brought that new drug on the market much quicker.
The only argument that the biotechs' allies on the HELP Committee
used was simple: This hurts innovation.
It only hurts their profits. It clearly doesn't help innovation. The
only study put forward, other than a study from PhRMA, the big drug
company lobbyist or study from biologic companies--and many are the
same companies--other than their studies, the only one out there was a
Federal Trade Commission study on this 12 years. What good are these
biologics if nobody can afford them?
The Hatch-Waxman Act, which introduced generic versions of chemical
drugs, has proved we can still lead the world in biologic innovation
with competition from generics. Twenty-five years ago, the drug
industry said the same line they are using now--that there is no way we
will innovate, and this will put them out of business.
Patients in Akron, Bowling Green, Chillicothe, and Dayton understood
that this law from 25 years ago worked to keep prices down. Those same
people around my State, people in Xenia, Springfield, Mansfield, and
Portsmouth need that same access to generic versions of these
biologics.
The vote this week was not in the best interests of patients
suffering from multiple sclerosis, arthritis, cancer, Alzheimer's or
heart disease. It was not in the best interest of taxpayers. Who is
paying the bill? Either people are paying out of their pockets--and
most cannot afford it--and insurance companies are going to raise rates
to employers and to patients or the taxpayers are going to pay for it.
The beneficiaries are not patients. It hurts innovation. The
beneficiaries are the drug executives and the biologic company
executives. It is not in the best interest of taxpayers. An article in
Roll Call today or yesterday pretty much said that biologic industry--
they spent $500,000 in ads in the last few days. The health care
industry spends a million dollars a day lobbying, and they were rather
successful in what they did.
I am proud to have been part of the historic health debate that
passed a bill as good as we passed. I am also proud to have been part
of this debate that continues to talk and educate the people on
biologics.
Clearly, the fight for affordable generic drugs is not over. I will
fight and do whatever is best for taxpayers and patients, and that
means a continued effort to make this law work, as Hatch-Waxman worked
for so many Americans.

[[Page S7595]]

I will fight for the breast cancer patient who has to spend $1,000 a
week for biologic Herceptin or the colon cancer patient who spends
$2,000 a week or the person with rheumatoid arthritis who spends $2,000
a month for medicine they desperately need.
I applaud groups such as AARP that put families and consumers first.
I look forward to working with Members in the House and Senate and the
administration who are fighting for what is right.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mrs. Hagan). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. MERKLEY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MERKLEY. Madam President, I rise because of a document our
forefathers signed 233 years ago, the Declaration of Independence.
Specifically, the Declaration stated:

We hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness.

That simple phrase created the bedrock foundation for a nation
founded under equality under the law, freedom from persecution, and the
pursuit of happiness by our citizens--government by and for the people
under the concept of quality and freedom from persecution.
It is an honor to rise to advocate for that philosophy.
I rise in strong support of the Leahy amendment that would amend the
Department of Defense bill to include the Matthew Shepard Hate Crimes
Prevention Act of 2009. First, I thank and acknowledge Senator Kennedy
for his strong decade-long commitment to this legislation. I extend my
appreciation to Senator Leahy for leading this effort in Senator
Kennedy's absence.
It has been more than 10 years since Matthew Shepard was brutally
murdered simply because of his sexual orientation. It is long past time
that we take action to strengthen the Federal Government's ability to
investigate and prosecute hate crimes. There is no room in our society
for these acts of prejudice. Hate crimes fragment and isolate our
communities, and they tear at our collective spirit. They seek to
terrorize our society through brutal violence against targeted
individuals. The Matthew Shepard Hate Crimes Prevention Act is a
critical step to protect those who are victimized simply for who they
are.
Hate crimes legislation is not a new concept. In fact, the United
States of America has had hate crime laws in place for 40 years. The
Hate Crimes Act of 1969 was passed shortly after the assassination of
Martin Luther King. That assassination motivated Congress to action.
That law says it is illegal to ``willfully injure, intimidate or
interfere with any person, or attempt to do so, by force or threat of
force, because of that other person's race, color, religion or national
origin.''
That hate crimes law was passed by our parents' generation to address
the hate crimes so evident through the assassination of Martin Luther
King and so many other actions in the 1960s.
Now it is time for our generation to pass a hate crimes bill that
will strengthen the work done by our forefathers 40 years ago and that
will address new forms of hate crimes that have become far too
prevalent in our society. We need to add provisions to prosecute those
who commit violent acts based on gender, gender identity, disability,
and sexual orientation.
Of the 7,624 single-bias incidents reported in 2007, more than 16
percent resulted from sexual orientation bias, indicating that members
of the gay and lesbian community are victimized nearly six times more
frequently than an average citizen.
Just this past spring, we experienced a terrible incident in my home
State. In March, two men, Samson Deal and Kevin Petterson, were
visiting the Oregon coast during their spring break. They wandered away
from an evening campfire and ran into a group of four strangers who
asked if they were gay and then called them derogatory names. Then
these two men were beaten brutally and left unconscious on the beach.
This was in the town of Seaside, a place I have visited many times in
my life, a beach I have walked on many times in my life. Seaside police
chief Bob Gross said the Seaside police have ``had some hate crimes
before, mostly threats, but have never dealt with anything this
serious.''
I am happy to report that Samson and Kevin lived through this
incident, but many do not. The attack could have been worse. According
to the National Coalition of Anti-Violence Programs, 2007 saw the
greatest number of anti-LGBT murders in 8 years: 21 gay and transgender
people were murdered in the United States in 2007--more than double the
number of 2006.
Currently, only 11 States and the District of Columbia include laws
covering gender-identity-based crimes. We must make sure gender
identity is a protected characteristic included in this legislation.
But members of the gay community are not the only victims. We were
all shocked last month when Stephen Johns, a guard at the Holocaust
Museum, was shot and killed by a White supremacist. Recent numbers
suggest hate crimes against individuals in the Hispanic community
increased by a staggering 40 percent between 2003 and 2007.
According to a recent report from the Leadership Conference on Civil
Rights Education Fund, in the nearly 20 years since the enactment of
the Hate Crimes Statistics Act, the number of hate crimes has hovered
around 7,500 annually, nearly one every single hour. As if that figure
is not high enough, it is well known that data collected on hate crimes
almost certainly understates the true numbers because victims are often
afraid to report these crimes or local authorities do not accurately
report the incidents as hate crimes, which, unfortunately, means they
do not get reported to the Federal Government.
What specifically is in this legislation? It gives the Department of
Justice the power to investigate and prosecute bias-motivated violence.
It provides the Department of Justice with the ability to aid State
and local jurisdictions.
It makes grants available to State and local communities to combat
violent crimes.
It authorizes the Attorney General to provide technical, forensic,
prosecutorial, and other assistance to State and local governments.
It authorizes grants from the Justice Department of up to $100,000
for State, local, and tribal law enforcement officials who have
incurred extraordinary expenses in the prosecution or investigation of
hate crimes.
It authorizes the Treasury Department and Justice Department to
increase personnel to better prevent and respond to allegations of hate
crimes.
It requires the FBI to expand their statistic gathering so we can
better understand the types and structures of hate crimes in the United
States of America.
These provisions will strengthen the original facets of the
legislation from 1969. That legislation, as I noted, addressed issues
related to race, color, religion, or national origin. All of that is
improved in this legislation.
In addition, we expand this legislation to address the hate crimes we
now see so prevalent in the LGBT community as victims.
Our Constitution laid out a vision. We did not have complete equality
under that vision in 1776. Indeed, it was a vision far ahead of its
time. We have gradually worked toward it. We have extended our law to
protect women, to include more folks to vote, to enable people to get
rid of the racial boundaries that existed for voting, and so on. We
have steadily sought to take strides toward that vision of equality
under the law and the ability to pursue happiness without the fear of
persecution. Today I am advocating that we take another important
stride toward that vision our forefathers laid out before us.
Martin Luther King said the long arc of history bends toward justice,
but it doesn't bend by itself. It is bent by citizens who say this is
wrong, and we are going to do something about it. This great
strengthening of the hate crimes legislation in the United States is a
huge stride toward equality under the law and freedom from persecution.
I encourage all of my colleagues to join in taking this historic
stride forward.

[[Page S7596]]

Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mrs. LINCOLN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Begich). Without objection, it is so
ordered.
Mrs. LINCOLN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. LINCOLN. Mr. President, today I rise to speak in support of five
amendments that I have introduced to the bill before us, the National
Defense Authorization bill for fiscal year 2010. Each amendment focuses
on improving the benefits and care for the members of our Nation's
National Guard and Reserve forces so that we can improve military
readiness and strengthen our efforts to recruit and train quality men
and women to serve.
I know each of us from our States recognizes the tremendous bravery,
courage, and the dedication of our National Guard and reservists in
each of our States. They are part of our community. They certainly, in
many instances I know of from our seeing the deployments, are people of
public service, but they are also people who are serving their
communities. Whether they are firemen or police officers, maybe they
are school principals, maybe they have small businesses that hire a
tremendous number of people in those communities, they are hard-working
Americans who also find time to serve their country. They are
dedicated, they are brave, and we certainly know the critical role they
play.
It is a reality that our military is relying increasingly upon our
reserve components as an operational reserve, not just simply a
strategic reserve. My amendments reflect that reality by taking needed
steps to honor the increased service and invest in these men and women
who give so much on our behalf. When duty called, they stepped up to
the plate, and now it is time for Congress to do the same.
My first amendment is identical to the Selected Reserve Continuum of
Care Act I introduced in May. This legislation will ensure that
periodic health assessments for members of the Guard and Reserve are
followed by government treatment to correct any medical or dental
readiness deficiencies that are discovered at those screenings. We know
we will begin to see these periodic health assessments, because they
are mandatory beginning in September, and we need to make sure we
follow up on these.
As an operational force serving frequent deployments overseas, these
men and women require greater access to health care so they are able to
achieve the readiness standards demanded by current deployment
cycles. Far too many men and women are declared nondeployable because
they have not received the steady medical and dental care they need to
maintain their readiness.

We have all heard the horror stories of the military simply pulling
soldiers' teeth and sending them on to Iraq and Afghanistan because
they don't have the time to provide adequate dental care to bring them
up to the medical/dental readiness status necessary in order to be
deployed.
Now that we are going to have mandatory assessment, there is no
reason we would not want to provide them the medical care they need in
order to meet that assessment. This is absolutely unacceptable, that we
would not. And it is inexcusable. Considering the sacrifices we are
asking them to make on our behalf, the least we can do is provide them
the care they need to meet the readiness standards we have set. Pulling
their teeth and rushing them to war is simply not going to get it done.
This practice itself has become so prevalent, we now have a name for
these men and women. They are called pumpkin soldiers. How absolutely
awful is that? It is awful that it is such a prevalent practice that it
has a nickname.
Compounding this challenge is the fact that short-notice deployments
occur regularly within the Reserve Forces. When men and women are
declared nondeployable, it can cause disruption in the unit by
requiring last-minute replacements from other units or requiring
treatment periods that should be set aside for the predeployment
preparation and training.
Last year, prior to the second deployment of the Arkansas National
Guard's 39th Infantry Brigade Combat Team to Iraq, members from 11
units across our State were pulled to fill out the combat team. Some of
these cross-leveled members had as little as 2 or 3 three weeks' notice
prior to their deployment. They were having to fill in because when it
came time, those who were in those units, the regular Guard and Reserve
who were there, did not meet the deployable standards, and so
consequently we had to pull people from all different units at a late
notice to put them in there while these others met that medical and
dental readiness.
My amendment would prevent, in large, all of this from happening in
the future by providing the necessary care at the front end of these
assessments. Instead of compressing treatment costs into a short
predeployment period or the bottlenecked medical support unit at the
mobilization station, my amendment would spread the same costs over a
longer period, with a more orderly and reliable result.
We are having a huge debate right now on health care reform. One of
the things we see is that if we can provide prevention or wellness, or
certainly make sure that medical care gets there when we first detect
what that medical problem is, the outcome is better and it is usually
less costly in the overall. The further out from the deployment
uncorrectable conditions are discovered, the more time a unit will have
to replace a discharged member and mitigate the effects from that loss.
So it is not just the well-being of the soldiers we are looking at, it
is also the well-being of the unit.
We can and should do more to bring our Selected Reserve members into
a constant state of medical readiness for the benefit of the entire
force. My amendment does just that. That is why it has been endorsed by
the Military Coalition, a consortium of nationally prominent uniformed
services and veterans associations representing over 5.5 million
members across this country.
I am proud to have worked with Senators Landrieu, Tester, Risch, and
Byrd on this important legislation and thank them for that support and
realization of how important, how practical, and how much sense it
makes for us to use these assessments to quickly provide the medical
treatment that is necessary to ensure our soldiers, when they do
receive those orders to be deployed, are meeting the medical and dental
readiness they need to meet in order to be deployed.
Mr. President, my second amendment calls for an increase in the
Montgomery GI bill rate for members of the Selected Reserve to keep
pace with their increased service and the rising costs of higher
education. I am pleased my friend, Senator Mike Crapo, and I have
joined in this effort. Mike and I have worked together on so many
different issues, everything from wildlife to education and certainly
with our military, representing States that have large rural areas and
therefore large numbers of Guard and Reserve. It has also been endorsed
by the Military Coalition as well, the group I mentioned earlier.
This amendment would simply tie education benefit rates for guardsmen
and reservists to the national average cost of tuition standard that is
already applied to Active-Duty education benefit rates. We have worked
hard to try to increase the educational benefit to be commensurate with
the time these guardsmen and reservists are working on our behalf, who
are so bravely deploying and working and serving alongside our Active-
Duty military. The problem is, now that we have increased their access
to a more commensurate educational benefit, the value of that benefit
is immediately losing value because they depend on the appropriators
and us to increase that amount. When it is increasing at half the rate
of the cost of higher education, then they are getting further and
further behind each year in keeping that commensurate benefit at a rate
that makes sense and certainly is adequate for their needs in
education. I believe it is absolutely critical that we do this. It
builds upon

[[Page S7597]]

my Total Force GI bill, first introduced in 2006, which was designed to
better reflect a comprehensive total force concept that ensures members
of the Selected Reserve receive the educational benefit more
commensurate with their increased service. The final provisions of this
legislation became law last year with the signing of the 21st Century
GI bill. Now it only makes sense that we would maintain that benefit at
a rate, again--just at the rate of increase we are seeing in higher
education. It certainly makes sense for our Guard and Reserve.
My third amendment would lower the travel reimbursement threshold for
National Guard and Reserve members who are traveling for drills from
100 miles to 50 miles. Our current high threshold has caused undue
hardships for members of the Selected Reserve, especially those in
rural areas who often incur significant expenses because they have to
travel significant distances. If we cannot ease their burden, I fear we
are creating significant obstacles to recruiting and retaining men and
women to serve in the Guard and Reserve--particularly during times of
economic hardship. We saw the price of gasoline explode last year. We
know how difficult it is, particularly for many of our Guard and
Reserve who live in those rural areas. I believe this is a commonsense
thing we can do on behalf of these brave men and women.
I am so very pleased to be joined here by Senators Tester and Wyden
in offering this amendment. It was among the recommendations of the
independent Commission on the National Guard and Reserves. It is
supported by numerous military and veterans service organizations. It
only makes sense that we would appropriately provide them the
reimbursement they need and the travel expenses to get to where they
need to be for their drills and for their training.
My fourth amendment would enable a valuable program, the National
Guard Youth ChalleNGe Program, to expand to new cities and new sites
and reach even more of our young troubled Americans. Currently
operating in 22 States, the Youth ChalleNGe Program trains and mentors
youth who have dropped out of high school. It puts them on a path to
become more productive, employed, and law-abiding citizens.
I recommend to any of my colleagues in this body who have not visited
a National Guard Youth ChalleNGe Program to go and visit. I have
visited our Youth ChalleNGe Program on more than one occasion and have
been amazed, both at those who have graduated from that program and
come back to mentor these other youths--who are disadvantaged, who have
found themselves in the court system, have been thrown out of school,
or are certainly in a troubled nature--and amazed at those who are able
to come into this environment and to feel the security of the military
and the rules of the military that prompt them into a sense of pride
and a sense of courage and a sense of accomplishment so they finish
their education and they go on to do so many great things, so many
things that otherwise could have turned sour for these youths.
As I said, I encourage any of the Members of this body, if you have
never visited one of those National Guard Youth ChalleNGe Programs, I
really encourage you to do so.
For 22 weeks, these young men and women receive more than 200 hours
of classroom learning designed to prepare them to take the general
equivalency diploma exam. I attended the graduation of a class in
Arkansas, and I can attest to the program's positive results.
At a time when we know financial insecurity in our country is shaking
our families, our youth who are finding themselves in, certainly,
different circumstances than many of us did growing up, with all kinds
of temptations and distractions and things that can put them on the
wrong pathway, here we have an opportunity, when they start out on that
wrong pathway, to grab them and put them into a program that is going
to continue to build on the positive things they have to offer and set
them on a good pathway.
Since the inception of the National Guard Youth ChalleNGe Program,
more than 85,000 young men and women have graduated from the program
nationwide, and they have received their high school degrees. Nearly 80
percent have gone to college, earned productive jobs, and joined the
military. Currently, the Department of Defense provides 60 percent of
the funding, while States are responsible for the remainder.
Unfortunately, the current cap on funding has restricted many of our
States from establishing additional programs or building on their
existing programs.
Along with additional funding, this amendment would help jump-start
the Youth ChalleNGe Program by fully funding new programs for 2 years
while they get their feet on the ground. When they better understand
the tremendous value of this program and, more importantly, how their
States can begin to invest in a program such as this, it ensures that
the Federal Government's share is 75 percent into the future instead of
the current 60 percent that it is right now.
This amendment is endorsed by the National Guard Youth Foundation,
the Enlisted Association of the National Guard of the United States,
and the National Guard Association of the United States.
I am so pleased to be joined by Senators Byrd, Casey, Cornyn, Hagan,
Landrieu, Murkowski, Risch, Rockefeller, Snowe, Udall of Colorado, and
Wyden in this effort. It is identical to the legislation I have
previously introduced which has 32 bipartisan cosponsors. It is a great
move, to help our children, particularly our troubled children and,
more importantly, it really sends them in the right direction so they
can become contributing parts of this great Nation. I encourage my
colleagues to look at this amendment and help us get it passed in this
very important bill.
Mr. President, you have been incredibly patient. I appreciate that
patience, having to talk about five different amendments, but these are
issues that are critically important to me and critically important to
the people of Arkansas, particularly our Guard and Reserve.
My final amendment is an amendment that would grant full veteran
status to members of our Nation's Reserve Forces who have 20 or more
years of service. I am joined in this effort by Senator Hutchison of
Texas. This amendment is endorsed by the Military Coalition, which is
the large group, the coalition of military groups.
Under current law, members of Reserve components who have completed
20 or more years of service are considered military retirees. At the
age of 60, they are eligible for all the benefits received by Active-
Duty military retirees. Unfortunately, they are denied the full
standing and honor that comes with the designation of ``veteran'' if
they have not served a qualifying period of Federal Active Duty other
than Active-Duty training. As a result, these men and women are
technically not included in various veterans ceremonies and
initiatives, such as an effort to have veterans wear their medals on
Veterans Day or Memorial Day, or in legislation authorizing veterans to
offer a hand salute during the playing of the national anthem or the
presentation or posting of the colors.
I don't know about you, but when I am at an event at home in
Arkansas--or here as well but certainly at home--when I am surrounded
by my family of Arkansas people and the flag comes down the parade or
the colors are presented, I support making sure everyone who has stood
up and said ``I am ready to serve my country when it calls on me''
should be given that respect of being noticed as a veteran.
My amendment does not seek to change the legal qualifications for
access to benefits. Instead, it simply seeks to correct this inequity
by honoring and recognizing those who have served their country for 20
years or more, those who have said continually over those 20 years:
When my Nation needs me, if my Nation needs me, I will be there. I will
take up my arms. I will do what is asked of me as a member of the
military forces.
Those men and women wore the same uniform, were subject to the same
Code of Military Justice, received the same training, and spent 20 or
more years being liable for callup whenever it did happen. This
amendment recognizes their long careers of service and would entitle
them to receive proper recognition as a veteran of the United States of
America.

[[Page S7598]]

I know of few designations that embody such dignity and honor. These
men and women certainly embody those traits, and it is time we grant
them the recognition they have earned.
I ask my colleagues to give these efforts thoughtful consideration.
These five proposals help us keep our promise to these brave men and
women and will help to strengthen recruitment and retention for our
National Guard and Reserve and increase their readiness as an operation
force in the continued defense of this great Nation that we all love
and are all so very pleased to be a part of.
I yield the floor and 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. REED. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REED. Mr. President, I rise in support of the National Defense
Authorization Act for fiscal year 2010. First I wish to speak briefly
about the Matthew Shepard Hate Crimes Prevention Act. Unfortunately, we
have seen far too many cases of these types of crimes of violence
motivated strictly by prejudice and hatred of people. This amendment
would simply extend the current definition of Federal hate crimes to
include crimes committed on the basis of someone's gender, gender
identity, sexual orientation, or disability. This amendment does not
federalize all violent hate crimes. Rather, it authorizes the Federal
Government to step in as a backstop, only after the Justice Department
certifies that a Federal prosecution is necessary. It also supports
State and local efforts to prosecute hate crimes by providing Federal
aid to local law enforcement officials. This amendment affirms our
commitment to the most basic of American values--the dignity of the
individual and the right of that individual to be himself or herself. I
am pleased to lend my support. That is an issue we will confront in the
context of our armed services bill, and I think we should go forward
and adopt it.
I wish to commend, with respect to the specifics of the armed
services bill, my colleagues on the committee for their work, and the
leadership of Senators Levin and McCain. I hope this is a bill
President Obama can sign. During the committee's markup, I voted
against an amendment to provide funding for additional F-22s and for
the Joint Strike Fighter alternate engine. I remain opposed to these
programs. We should not put this bill in jeopardy of a veto, so I urge
my colleagues to vote, when it comes to the floor, for the Levin-McCain
amendment to strike the F-22 funding, which I hope will be considered
soon.
As evidenced by the F-22 issue, this bill is the product of many
tough decisions. I commend Secretary Gates particularly for his very
judicious, thoughtful approach to this budget, and his uniformed
colleagues. They have thought long and hard about the new world of
threats. They have thought long and hard about how we can provide the
most necessary resources for our men and women in uniform. They have
recommended to us a very sound approach. With certain exceptions, the
legislation before us recognizes and accepts those recommendations.
The new administration and President Obama have also done a
remarkable job in terms of trying to change strategic direction, change
acquisition policies, and to develop a fighting force that will meet
the threats of today and prepare ourselves for future possibilities.
This Defense authorization bill contains many aspects which are
critical to the success of our men and women in uniform. Let me suggest
a few.
First, it once again recognizes the extraordinary service and
sacrifice of these young Americans by authorizing a much needed 3.4
percent across-the-board pay raise. The extraordinary sacrifices they
make every day can never be compensated by dollars and, indeed, their
motivation is not financial. It is to serve the Nation and serve it
with courage and fidelity. They do it so well. I have had the privilege
to travel to Afghanistan and Iraq on numerous occasions and to witness
the heroic and decent service of these remarkable people. This pay
raise reflects, at least in part, the value we place on their service.
The legislation fully funds Army readiness and depot maintenance
programs to ensure that forces preparing to deploy are properly trained
and equipped. It also authorizes $27.9 billion for the Defense Health
Program and permits special compensation for designated caregivers for
the time and assistance they provide to servicemembers with combat-
related catastrophic injuries or illnesses requiring assistance in day
living. What we are seeing is success medically on the battlefield,
where the mortality rates relative to the injuries have declined, as
they have since World War II. But we have a significant population of
very severely wounded young men and women. They need help, and the
caregivers need help. This legislation recognizes that.
The legislation fully funds the President's budget request of $7.5
billion to train and equip the Afghan National Army and the Afghan
National Police forces. The bill also includes a provision that
emphasizes the need to establish measures of progress for the
administration's strategy for Afghanistan and Pakistan and to report to
Congress regularly on efforts to achieve progress in that region. I saw
the merits of this approach in my recent trip with Senator Kaufman to
Pakistan and Afghanistan in April. In fact, as we observe the increased
tempo of operations in southern Afghanistan, led by our marines and
British forces, we also recognize the need to partner with more Afghani
police and security forces and military forces. Our strategy can't be
just an American presence. It has to be an American-Afghani presence,
which ultimately will translate to an almost exclusive, if not
exclusive, Afghan presence. To do that, we have to support the building
and the professionalization of Afghan security forces.
There is within this budget funding for our Navy that is absolutely
critical. It includes funding to complete the third Zumwalt class
destroyer. This ship is critical to maintaining the technical
superiority of our Navy that it enjoys across the oceans of the world.
The future maritime fleet must be adaptable, affordable, survivable,
flexible, and responsive. The Zumwalt class provides all these
characteristics as a multimission service combatant, tailored for land
attack and littoral dominance. It will provide an independent presence,
allow for precision naval gunfire support of joint forces ashore and,
through its advanced sensors, ensure absolute control of the combat
airspace. All of this capability is based on today's proven and
demonstrated technologies. We can't build the same ships we were
building 20 years ago and hope to maintain our superiority and, indeed,
hedge against the emerging threats of tomorrow.
This Zumwalt technology is also the transition to the next class of
surface combatants, which are likely to be a new class of cruisers. The
hope is that we can leverage what we learn on Zumwalt so that the next
class of surface combatants will be even more capable and, we hope,
extremely cost efficient.
I also note that the underlying legislation fully funds the continued
procurement of the Virginia class attack submarine. These attack
submarines are on the highest level of demand by area commanders. The
CINCs, when they are asked what they need in terms of resources,
invariably place very close, if not on the top of their list,
additional submarines because of their stealth, their ability to
operate intelligence areas, and their ability to have a forward
presence without being recognized. These are critical, and I am pleased
by the recognition of the administration and the committee in this
regard.
This year I was once again extremely fortunate and honored to serve
as the chairman of the Emerging Threats and Capabilities Subcommittee.
I particularly thank and commend Senator Wicker and his staff. They
were true collaborators. Their cooperation was significant in terms of
improving the quality of our subcommittee report. We have worked
together very well. I, again, particularly commend and thank Senator
Wicker for his insights, his energy, and for his great collaboration in
this effort. The Emerging

[[Page S7599]]

Threats and Capabilities Subcommittee is responsible for looking at new
and emerging threats to our security and considering appropriate steps
we should take to develop new capabilities to face these threats. In
preparation for our markup, Senator Levin provided guidelines for the
work of the committee including the following two items: Improve the
ability of the Armed Forces to counter nontraditional threats,
including terrorism, the proliferation of weapons of mass destruction,
and their means of delivery; and, second, enhance the capability of the
Armed Forces to conduct counterinsurgency operations.
In response, our subcommittee recommended initiatives in a number of
areas within our jurisdiction. These areas include supporting critical
nonproliferation programs and other efforts to combat weapons of mass
destruction; supporting advances in medical research and technology to
treat such modern battlefield conditions as traumatic brain injuries
and post-traumatic stress disorder; increasing investments in new
energy technologies such as fuel cells, hybrid engines, and alternate
fuels to increase military performance and reduce cost; increasing
investments in advanced manufacturing technologies to strengthen our
defense industrial base so that it can rapidly and efficiently produce
the materiel needed by the Nation's warfighters; and increasing
investments in research at our Nation's small businesses, government
labs, and universities so that we have the most innovative minds in our
country working to enhance our national security.

Specifically, some notable actions in this bill that originated in
the Emerging Threats and Capabilities Subcommittee include: authorizing
full funding for the Special Operations Command and adding $131.7
million to meet unfunded equipment requirements identified by the
commander of our Special Forces to enable them to conduct
counterinsurgency operations and to support ongoing military
operations; authorizing full funding requested for the Joint IED Defeat
Organization, JIEDDO. This is particularly important as we read about
the increasing IED attacks against our forces in Afghanistan since our
offensive began in Helmand Province weeks ago. These IEDs are the No. 1
threat to our forces in the field and our allied forces in the field.
This very sophisticated organization uses the information technology,
innovation, communication, and new techniques, working closely with
battlefield commanders, to protect our forces and our allied forces.
They have a critical role and a critical mission. We fully support both
in this legislation.
We authorize the Cooperative Threat Reduction Program, providing an
additional $10 million for new initiatives outside the former Soviet
Union. We provide $3 million for chemical weapons demilitarization in
Russia and elsewhere, and $7 million for strategic offensive arms
elimination. We have to recognize that these weapons are distributed
too broadly in many respects, and our efforts to restrict them and to,
we hope, dismantle them have to be broad also.
We added $50 million to nonproliferation research and development for
nuclear forensics and other R&D activities and required the development
of an interagency forensics and nuclear attribution program. One of the
hopes--and this must be based on very calculable scientific and
technological research--is that if we can identify the source of a
nuclear detonation positively, we would have an extraordinarily
powerful deterrent card which we could use diplomatically to indicate
that if any nation, particularly covertly, attempts, directly or
through terrorist groups, to deploy a nuclear weapon anywhere in the
world, we could trace it back and respond immediately. That could give
us, again, an enhanced deterrence. This depends upon the progress we
make in research, but we must begin with energy research. We have that
in the legislation.
The bill also highlights the importance of a strong manufacturing
industrial base. The bill would create a new position, the Assistant
Secretary of Defense for Manufacturing and Industrial Base, to oversee
the Department's policies and programs for our Nation's industrial
base. Further, the bill increases funding for manufacturing research in
DOD by roughly $100 million to support the defense industrial base and
reduce the cost of production of weapons systems and our ability to
meet surge requirements demands of operating forces.
This bill also reauthorizes the DOD's Small Business Innovation
Research program, in coordination with the efforts of Senator Mary
Landrieu, chairman of the Senate Committee on Small Business and
Entrepreneurship. To support investments in next-generation
technologies and advanced military capabilities, this bill would
increase the Department's funding for innovative science and technology
programs by over $480 million for a total of $12.1 billion.
The bill authorizes the full funding that was requested for chemical
and biological defense programs and the full amount requested for
chemical weapons demilitarization in the United States. This funding
totals over $3 billion.
With regard to counterdrug programs, the bill fully funds DOD drug
interdiction and counterdrug activities. It also includes a provision
that would extend the authority to use counterdrug funds to support the
Government of Colombia's unified campaign against narcotics cultivation
and trafficking and against terrorist organizations involved in such
activities. It also recommends a $30 million increase in funding for
high priority National Guard counternarcotics programs.
This issue of narcotics is particularly central to our efforts in
Afghanistan. When I was there in April, we were in Helmand Province
which was covered, literally, with opium poppies. The opium trade
provides support for opponents of the Taliban. If we disrupt that trade
and we are able to reduce the flow of resources to the Taliban but also
provide legitimate family farmers with the opportunity and the
profitability to grow alternate crops, then we can make a successful
dent in the power and the presence of the Taliban there. These
counternarcotics programs, not only in Colombia but also in
Afghanistan, are absolutely important.
This is a good bill. It is, I think, wise legislation, with the
exceptions I noted. Members of the committee and the committee staff
have worked many hours to get this bill to the floor. We are a nation
engaged in two conflicts and an ongoing struggle in many parts of the
world to intercept, interdict, and preempt terrorists. We need to
support our military forces, and I urge my colleagues to work together
to pass it so we can quickly have a conference with the House and send
it to the President for his signature.
With that, Mr. President, I yield the floor.
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. BURRIS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Udall of New Mexico). Without objection,
it is so ordered.
Mr. BURRIS. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Sotomayor Nomination

Mr. BURRIS. Mr. President, the Judiciary Committee is hearing the
testimony from the distinguished Judge Sonia Sotomayor. Today I rise in
strong support of Judge Sonia Sotomayor's nomination to the U.S.
Supreme Court.
I believe that while Judge Sotomayor's expansive legal experience
makes her a logical choice, it is her background and unique perspective
that will make her an ideal selection for a seat on our Nation's
highest Court.
Certainly no one can argue with Judge Sotomayor's legal
qualifications. After graduating from Princeton University and Yale Law
School, she served as an assistant district attorney and then had a
successful legal practice of her own.
In 1991, President George H.W. Bush appointed Ms. Sotomayor as the
first Hispanic judge to the U.S. District Court in New York State.
Eight years later, President Clinton elevated her to the U.S. Court
of Appeals, where she serves today.

[[Page S7600]]

Throughout her distinguished career, Judge Sotomayor has been a
prudent and thoughtful jurist. She has constantly exhibited the highest
standards of fairness, equality, and integrity.
I was proud to write to President Obama on May 15 urging her
nomination. However, it is not simply Judge Sotomayor's wealth of legal
experience and long public record that make her the best possible
candidate for the Supreme Court. Her life story will make her a dynamic
and thoughtful addition to that august body.
Born into relative poverty and raised in a housing project in the
Bronx, young Sonia's childhood was remarkable in that it was
overwhelmingly normal. She was not a child of privilege. Yet she had
come to value her cultural traditions while also embracing the need for
judicial objectivity and legal impartiality. This delicate balance is
precisely what will make her such an important voice on the Supreme
Court.
As we consider her nomination, we must bear this in mind. When we
evaluate the makeup of the Court, we seek to build dissent rather than
consensus. We seek to engender debate among its members. Diversity--of
prospective, of background, of opinion--lends legitimacy and integrity
to judicial rulings.
Throughout her career, Sonia Sotomayor has proven herself to be a
moderate, restrained judge whose rulings are bound by the weight of
precedent. Judgment must remain free from passion, but passion for the
law cannot be lost. Ms. Sotomayor carries with her a lifetime of that
passion--something I consider a valuable asset.
As a Supreme Court Justice, Judge Sotomayor will bring much-needed
diversity and a rich understanding of the American dream to every
opinion she writes. All that she has she has achieved on her own merit,
and it is this relatable quality that will lend fresh perspective to
the Court.
I applaud President Obama's nomination of Judge Sotomayor. As her
confirmation hearings continue, we must ensure they are tough but fair.
We must hold her to the same standard to which we would hold any
nominee. And just as the Senate has confirmed her twice before, I am
confident we will do it once again, with strong bipartisan support this
time.
It will be an honor for me to cast my vote in favor of her
confirmation when the time comes. I look forward to the day when she
takes her rightful seat on the bench in the highest Court in our land.
Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Climate Change

Mr. DORGAN. Mr. President, in recent days and weeks, the House of
Representatives has passed legislation sponsored by Congressman Waxman
and Congressman Markey, called the American Clean Energy and Security
Act of 2009, that deals with the issue of climate change. And more
specifically, it deals with taking steps to decarbonize the energy use
in this country in order to protect the planet.
I support the goals of a low-carbon future by decarbonizing our
energy sources to reduce emissions of greenhouse gases into the
atmosphere. The scientific consensus is that by maintaining our current
course of burning fossil fuels and emitting greenhouse gases we are
threatening our planet with future warming. So I support the goal of
trying to deal with this issue of climate change.
The question is, how do we address it? How do we move forward to meet
this challenge? The House of Representatives has established one
approach. I think we need to explore other approaches that still
achieve the goal of reducing our carbon emissions. This is a very big
issue with consequences for virtually all Americans--for families, for
businesses, and for our climate.
The question for us is: How do we move forward in a way that allows
us to use our energy resources in a such a way as to protect the
environment and grow the economy?
Now, we all wake up in the morning and begin our day taking energy
for granted. One of the first things we do, for example, is flick a
switch and a light comes on, plug in a hair dryer, or turn on the
toaster oven. In so many different ways, virtually everything we do
involves using energy. We get in our cars and drive to work, or we get
on a subway. In both cases, we are using energy. And no doubt about it,
we are using a lot of energy.
The current Secretary of Energy, Dr. Chu, is a Nobel Prize-winning
scientist. I once heard him use the following analogy to describe how
we use energy today. He talked about going back a couple thousand
years. For most of human history, we move no faster than a horse could
take us. A couple thousand years ago, if someone wanted to go out and
find something to eat, he got on a horse.
These days, of course, times have changed. We still use horses, but
in a different way. We measure the power of our engines in horsepower.
If one wants to go get a loaf of bread, then we simply jump in a truck
and crank up about 270 horses, and away we go to the grocery store.
We never think much about the advantage of having energy at our
command at almost any moment, and we certainly don't think--and haven't
thought very much--about what the use of that energy does to the
climate.
So here we find ourselves in the year 2009 with what the vast
majority of scientists say is a very serious problem for the future of
this planet and the security of our civilization. Most of our energy is
fossil energy. That's the carbon from plants that has accumulated as
coal and oil over millions of years. As we burn these fossil fuels to
power our economy, we release that carbon back into the atmosphere. The
accumulation of these greenhouse gases warm the planet and cause other
harmful consequences. Therefore, we need to try to find a way to
decarbonize our energy to bring about a low-carbon future, and thereby
lower our emissions of CO<inf>2</inf> into the atmosphere.
So how do we do that? Well, as I indicated, the House of
Representatives has written a bill, Waxman-Markey. It is a 1,427-page
bill, and very, very complicated, I might add.
Let me describe another path. The Senate Energy Committee worked to
write a new Energy bill. It was completed some weeks ago and passed
with bipartisan support.
Let me describe just a bit of what we have done in that Energy bill:
We included provisions to reduce our dependence on foreign oil;
increase domestic production of electricity; electrify and diversify
our vehicle fleet; create a transmission superhighway so we can produce
renewable energy where it is most plentiful, and then put it on the
transmission grid to move it to the load centers where it is needed;
and train our energy workforce of tomorrow.
These are just a few of the things we have done. We establish a
national renewable energy standard of 15 percent by 2020. And I believe
the standard needs to be stronger. But the fact is, this is the first
time the Senate has sent a clear signal by demonstrating support for
such a standard. This standard says: We want to maximize the production
of renewable energy, which means a carbon-free energy source.
We are producing green energy when we take energy from the wind,
gather energy from the Sun, and put that electricity on a transmission
grid to send it to where it is needed. This is an essential step to
building the low-carbon economy we need to address the threat of
climate change. And our energy bill does so much more to set the stage
for helping address climate change.
When we talk about energy, climate is one of the twin challenges that
we need to address. With respect to the vulnerability of our country,
we must also consider our energy insecurity. It is the case that we
import 70 percent of our oil coming from off our shores. We need to put
into place an energy policy that will make us less dependent on foreign
oil. One way to reduce our oil dependence is to electrify our vehicles.
Moving toward an electric drive transportation system has the benefit
of replacing foreign oil with domestic electricity. Further, as we
decarbonize our

[[Page S7601]]

electricity generation, we get the additional benefit of reducing the
greenhouse gas emissions from our transportation sector. Our
legislation moves aggressively to promote electrification of our
vehicles.
In addition to producing more renewable energy, the Energy bill
expands the production of energy in this country by opening some areas
that have not been opened in the eastern Gulf of Mexico to oil and gas
development. As my colleagues know, natural gas is a cleaner-burning
and lower carbon fossil fuel. We need to increase production of natural
gas where it is appropriate. So the Energy bill does many things to
move toward the low-carbon future we need to ensure the security of our
planet and our nation.
So I believe we ought to take up the piece of legislation we passed
in the Energy Committee, bring it to the floor of the Senate, debate
it, and pass it. I have talked about this at some length in recent
weeks. I think the Energy bill we have produced is a significant step
toward addressing the climate change challenge.
So it seems to me it would make sense to do the energy piece first,
get it to the President, and get it signed. With that progress in
addressing climate change in the bank, we should then legitimately be
able to boast about what we have done in a significant way to maximize
the production of green energy from wind, solar, and biomass. This
would not be an insignificant achievement. I think we ought to do that.
Second, I would like to discuss the question of cap and trade or
Waxman-Markey or some other carbon-constraining piece of legislation
for a moment. Clearly, the Senate is going to deal with this issue. My
preference would be that we not take up the Waxman-Markey bill in its
current form. I know a lot of work has gone into that legislation, but
my preference would be that we start to explore other directions.
It is not that I oppose capping carbon. I believe we need to move
toward a low-carbon future. I believe we will have to cap emissions of
carbon. The question is what are the appropriate targets and timelines
that would allow us to mitigate climate change and at the same time,
prevent a substantial disruption to our economy. We have to be careful
to avoid creating targets and timelines for reducing CO<inf>2</inf>
emissions that are simply unachievable.
We have a lot of people across this country who are doing inventive
work--interesting, world-class, cutting-edge research. They are working
to create the next generation of technologies that could unlock the
opportunity of capturing and sequestering carbon dioxide, or developing
ways to beneficially reuse CO<inf>2</inf>. These technologies hold
the promise of allowing us to continue to use our abundant fossil fuels
while protecting our environment. I am convinced--absolutely
convinced--that we will achieve that goal. The opportunity, through
research, to unlock the mystery of how we separate and capture carbon,
store it or reuse it beneficially, is critical, and I am convinced we
will do that. I don't think there is much question about that. But what
I have difficulty with is not the goal. I am for a low-carbon future. I
believe we are going to move in that direction, and I will support that
goal.

I do not support, however, establishing a new trading system for
carbon securities, as would be the case under the 400-page cap-and-
trade provision of the House bill. Let me describe why.
In my judgment, there are better ways to deal with these issues than
establishing a very substantial carbon securities trading system. Such
a system is ripe for the biggest investment banks and the biggest hedge
funds in the country to sink their teeth into these marketplaces and
make massive amounts of money. My profound feeling about this is that
we have seen now a decade in which many of these markets have been
manipulated and have failed to work at all with respect to the market
signals of supply and demand. I have very little interest in consigning
our low-carbon future to a trading system of carbon securities that
will be controlled by the biggest trading companies in the world. And
it would not be very long before these entities will have created
derivatives, swaps, synthetic CDOs, and more. It will be a field day
for speculation, which I think is not in the interest of this country.
Let me just describe something I think might be a harbinger of things
to come. Here is chart showing how oil prices soared in 2008. We all
remember what has happened to oil prices in the last two years. They
went from $60 a barrel up to $147 a barrel in day trading last July.
Even as the price of oil was going through the roof, the best experts
looking at supply and demand were predicting that the price of oil
would only slowly increase over many months. They said: Well, here is
where we think the price of oil is going to be. Straight on across,
through the end of the year. Here is what they suggested in May of
2007, and here is the price.
The fact is, the price of oil shot up like a roman candle. Here is
what they suggested in January 2008. Here is the price they predicted,
but the price went up much more quickly. Why is it we have an oil
futures market in which supply and demand doesn't determine where the
price goes? The price goes right off the chart, and yet supply was up
and demand was down.
So what we saw in the oil futures market last year should be a wake-
up call. This included speculators engaged in about two-thirds or
three-fourths of all the trades. They were trading at 20 to 25 times
the amount of oil that is produced every single day, and creating an
orgy of speculation as shown by the red line on this chart--and by the
way, it went right down like a roller coaster. And the same people who
made money going up made money when prices went back down. If we like
that sort of thing, we are going to love the carbon market piece in cap
and trade because we are going to create a big, perhaps trillion-dollar
market for carbon securities. It would not be long before the same
investment banks and hedge funds will all be engaged in trading carbon
derivatives, swaps, and you name it.
I happen to think that makes no sense at all. The New York Times
said: Managing emissions has become one of the fastest growing
specialties in financial services. Investment banks like Goldman Sachs
and Morgan Stanley have rapidly expanded their carbon businesses.
I am told, by the way, that most of the large investment banks right
now have created carbon trading units.
Charlotte Observer: Firms such as Goldman Sachs and Morgan Stanley
already have carbon desks and teams . . . Peopling those carbon desks
are the former commodities traders or former securitization or
structured finance professionals--like many who've lost jobs at
Wachovia (now Wells Fargo) and Bank of America . . .
The New York Times says in a news story: As Congress gears up for a
debate on a national ``cap-and-trade'' program to limit greenhouse gas
emissions, resumes from Wall Street--or from ex-Wall Streeters--are
flooding into the Nation's few carbon-trading shops.
Chris Leeds, the head of emissions trading, carbon trading at Merrell
Lynch, said carbon could become: one of the fastest-growing markets
ever, with volumes comparable to credit derivatives inside of a decade.
Louis Redshaw, head of Environmental Markets Barclays Capital says:
Carbon will be the world's biggest commodity market, and it could
become the world's biggest market over all.
So do we want to sign up for a future in which we consign our ability
to constrain carbon and protect this planet by creating a carbon
securities market that, in my judgment, would likely subject us to the
same vision of the last decade with unbelievable speculation, movements
in markets that seem completely disconnected from supply and demand?
That is not a future I want to see happen.
There are other ways of capping carbon and addressing these issues. I
want to be clear, I am for capping carbon. I am for a low-carbon
future, but, in my judgment, those who would bring to the floor of the
Senate a replication of what has been done in the House, with over 400
pages describing the cap and ``trade'' piece, will find very little
favor from me, and I expect from some others as well. There are better,
other, and more direct ways to do this to protect our planet.
I have been to the floor many times talking about what has happened
with credit default swaps, what has happened with CDOs, what has
happened

[[Page S7602]]

with the oil futures market, on and on and on. If what has happened
gives anybody confidence, then they are in a deep sleep and just don't
understand it. Again, I come back to the chart I showed a moment ago,
the head of emissions trading at Merrill Lynch saying carbon could
become one of the fastest growing markets, with volumes comparable to
credit derivatives.
Think of this, the unbelievable volumes of credit derivative swaps
that most people couldn't even pronounce and didn't know existed, and
it turns out we had tens of trillions of dollars worth of these things,
and worldwide these products were supposedly worth hundreds of
trillions of dollars.
Frankly, I think it is not in the country's interest to establish a
new financial market and to have the same players engage in the same
games that gamble on this country's future.
I think two things: No. 1, there is a piece of energy legislation
that is ready to come to the floor, passed by the Energy Committee,
that moves in the direction of addressing climate change. We ought to
get the benefit of that legislation and pass that bill along to the
President for signature. It maximizes renewable energy, and there are a
lot of things that will dramatically reduce the impact of our carbon
footprint.
No. 2, those in the Senate who are working very hard and talking
about the issue of climate change, and how we can take steps to cap
carbon, and what kind of a low-carbon future we might be able to
achieve. There are some of us--and I speak only for myself--who believe
cap and ``trade'' in terms of speculative carbon futures markets makes
no sense. We ought to explore a carbon cap with different approaches.
I wanted to raise these concerns at this point, so that those who are
working on the climate change bill and attempting to replicate the
House approach will understand that some of us will aggressively resist
the carbon market ``trade'' side of cap and trade.
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. BUNNING. Mr. President, I ask to speak in morning business for up
to 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

Sotomayor Nomination

Mr. BUNNING. Mr. President, today I rise to speak on the nomination
of Judge Sotomayor to be a Justice on the U.S. Supreme Court. After
much consideration, I cannot support this nomination.
I have been following this process closely. I have been reading her
rulings and her speeches. I have been watching her hearing at the
Senate Judiciary Committee. I met with her one on one and was able to
ask her questions. Unfortunately, I find her to be unsuitable as a
member of the U.S. Supreme Court.
The first problem I would like to discuss is her lack of direct
answers to direct questions. I had this problem in my meeting with her
and it appears from watching the Judiciary Committee hearings that
other Members have had that problem too. My biggest concern in this
area is that she answered the questions from the perspective of the job
she has, not the job she has been nominated for. As a member of the
district or circuit court, she must rely heavily on precedent. However,
as a Justice of the Supreme Court, she is in the position to set
precedent. When I asked her simple questions about how she would treat
certain subjects, she retreated to saying that she would use precedent
to decide how to proceed. I found this unsatisfactory because she would
be setting precedent as a member of the Supreme Court. In fact,
throughout her nomination process I have seen her sidestep direct
questions time and time again. We have seen this happen numerous times
during her hearing before the Judiciary Committee. I think we deserve
answers to these questions and we have not gotten them.
However, we can learn about her views and how she might perform on
the Supreme Court by studying her record. She has an extensive record,
which includes 17 years as a judge and, prior to that, time spent as a
prosecutor, in private practice, and as a member of groups such as the
Puerto Rican Legal Defense and Education Fund. This gives us much to
look at, such as her decisions, speeches, and other sources. I have
studied these and I would like to comment on them and her views.
When I spoke on the nomination of Chief Justice John Roberts in 2005,
I pointed out the problem of the Supreme Court and other judges trying
to replace Congress and State legislatures. Important social issues
have been taken out of the political process and decided by unelected
judges. I can say with certainty that this was not the way the Founding
Fathers and authors of the Constitution intended for it to work.
The creation of law is reserved for elected legislatures, chosen by
the people. The Supreme Court is not a nine person legislature created
to interact with or replace the U.S. Congress. When judges and justices
take the law into their own hands and act as if they were a legislative
body, it flies in the face of the Constitution. Because of this,
whether in the Supreme Court or in lower courts, many people have lost
respect for our judicial system. This cannot continue to happen. In
addition to obvious constitutional concerns, if someday the public and
the rest of the political system begin to tune out the courts and
ignore their decisions altogether, it would be grave for our country.
During their confirmations, I felt that Chief Justice Roberts and
Justice Alito understood this. That is probably the biggest reason why
I voted for them. I am afraid that I cannot say the same about Judge
Sotomayor.
Much has been said about Judge Sotomayor's ``wise Latina woman''
comments. Even though they have been discussed many times over, they
are still relevant and speak to her views on the role of judges. In her
infamous 2001 speech, she said that ``a wise Latina woman'' would
``more often than not reach a better conclusion than a white male.''
This shows a clear method of her thinking and indicates she accepts the
idea that personal experiences and emotions influence a judge's
rulings, rather than the words of the law and the Constitution.
She used the ``wise Latina woman'' phrase in at least four other
speeches, most recently in 2004. The fact that it was repeated so often
indicates that she believes it. She has said that the notion of
impartiality on the bench is ``an aspiration'' and has gone on to claim
that ``by ignoring our differences as women or men of color we do a
disservice both to law and society.'' When President Obama began
discussing what sort of person he wanted to nominate to Supreme Court,
he put a premium on the nominee having ``empathy.'' Well, it appears
that he got his wish.
Empathy in and of itself is not a bad thing. However, in this context
it means that the law would lose out to a justice who feels an
emotional pull to rule one way or the other. Empathy belongs best in
legislatures, where it can reflect the wishes of the people who voted
for the members of those bodies. This is not the job of the Supreme
Court, or any other court of law for that matter. I do not have faith
that Judge Sotomayor would fully respect the roles of the judiciary and
the legislature.
While understanding that the role of the Supreme Court is
interpreting law instead of making it might be the most important
quality of a Justice, there will be times when precedent must be set
and it is crucial that this is done correctly. Now, I understand a
nominee's hesitancy to discuss a case or issue that might come before
them, but I do think they can explain their methods for arriving at a
conclusion. During the confirmation hearings of Justices Roberts and
Alito, they were both willing to walk through their decision making
process. However, Judge Sotomayor has been unwilling to do even this.
It is unfortunate, but I have no basis to understand how Judge
Sotomayor will think through a case as a member of the highest court in
the land.
Her views on race, as seen in the Ricci case, are troubling. The city
of New Haven decided to throw out the results of their firefighter
promotional exam because they felt that not enough minorities had
passed it. Many who passed that exam had made great sacrifices to
prepare for the test, including the lead plaintiff, Frank Ricci, who
overcame a disability to pass it with flying colors. Seventeen White
and one Hispanic firefighter filed suit that this

[[Page S7603]]

was reverse discrimination and Meir case eventually found its way
before Judge Sotomayor at the Second Circuit. She dismissed their
claims in a one-paragraph opinion that cited no precedent and was later
roundly criticized by judges of all stripes. Fortunately, just last
month, the Supreme Court overturned this erroneous decision.
Judge Sotomayor also has shown an unacceptable hostility to second
amendment rights. In the recent Heller Supreme Court ruling, it was
found that the second amendment confers an individual right to keep and
bear arms. However, in two cases Judge Sotomayor has lent her name to
extremely brief opinions that the second amendment is not a fundamental
right. Her rulings, and the lack of explanation on them, indicate that
she is hostile to the second amendment and will not protect it with the
same energy as she might for any of the other nine amendments in the
Bill of Rights. She has not stated that she believes a clearly spelled-
out right, such as the second amendment, is fundamental, but she is
willing to recognize that something that is not clearly spelled out,
such as a right to privacy, is fundamental. I fear that her appointment
to the Supreme Court could undo the progress from the Heller decision
that recognizes Americans have the right to defend themselves.
Another area of concern is Judge Sotomayor's views on the use of
foreign law in American courts. Less than 3 months ago, she said she
believes ``that unless American courts are more open to discussing the
ideas raised by foreign cases, and by international cases, that we are
going to lose influence in the world.'' First of all, the Court's
responsibility is to review the laws passed by the government that it
is a part of, not laws passed by a foreign government. Second of all,
if there is a foreign law that looks like a good idea, then an elected
legislature should consider it and, if it has merit, pass it into
law. Judges should not be looking around the country or the globe for
laws they like and then try to implement them.

Judge Sotomayor has a history of writing or signing on to brief and
inadequate opinions that are not suitable for the gravity of the
matters on which she is ruling. In the Ricci firefighter case I
discussed earlier, half of the judges on her court criticized her
opinion as ``perfunctory disposition'' that ``rests uneasily with the
weighty issues presented by this appeal.'' The opinion was only one
paragraph long. When the Supreme Court issued its majority opinion on
that case, it was 34 pages long. In one case I mentioned above, she
joined the summary panel opinion and discarded the idea of the second
amendment as a fundamental right in a one-sentence footnote. This is
unacceptable.
What is perhaps the most shocking about these exceedingly brief
investigations of the law is that they affected very important cases
and very important issues. For instance, the Ricci case could become
the affirmative action case of this generation, and it received only a
one-paragraph analysis from Judge Sotomayor. Her casual treatment of
the second amendment cases flies in the face of the efforts the Supreme
Court has put in these decisions. The U.S. Supreme Court is the last
stop for important legal decisions, and a Justice must provide
explanation and insight to the country on how and why they ruled the
way they did. Judge Sotomayor did not do that for these extremely
important cases.
This will be the first time I have ever voted against a Supreme Court
nominee, and I am not happy I have to do so. However, it is the
constitutional role of the Senate to provide confirmation for this
position and my duty as a Senator to be part of this process. On
viewing the record of Judge Sotomayor, I do not find her to be a
suitable candidate for Justice of the Supreme Court of the United
States and will vote against her whenever the Senate considers her
nomination.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. DeMINT. Mr. President, I have to say there have been some amazing
proposals coming out of the House and the Senate in the last few weeks
in some fairly desperate economic times, when job loss is at some of
its highest rates in years, when borrowing and spending have gone
through the roof. It is pretty amazing that we have come out with
proposals, such as cap and trade, that are going to add huge taxes on
electricity and other energy when we should be doing all we can to
create more energy in our country and to lower the cost, if possible,
for Americans. It is pretty amazing to me that we would consider adding
taxes and cost onto the cost of living when so many are out of work and
we are in very difficult economic times.
Now we see this health care proposal that the Congressional Budget
Office says is going to hurt our economy, it is going to insure very
few uninsured people, and it will cost trillions of dollars. Again, at
a time when we are having difficulty paying the interest on the debt we
already owe, we have proposed this massive expansion of government.
Here we are today supposedly discussing funding for our whole defense
system in our country, the Defense authorization bill, and the majority
has decided to add on to that bill hate crimes legislation. They
apparently have scheduled a vote at 1 a.m. tomorrow morning for hate
crimes legislation in the middle of a defense authorization debate
which should be bipartisan, should be focused on the defense of our
country, a clear constitutional responsibility. But we are spending the
day waiting for a cloture vote at 1 a.m. tomorrow morning on hate
crimes.
There are many practical problems with this hate crimes amendment
they are trying to force us to attach to the Defense authorization
bill. The broad language will unnecessarily extend Federal law
enforcement beyond its constitutional bounds, it will undermine the
effectiveness and confidence of local law enforcement, and it will
create conditions for arbitrary and politicized prosecution of certain
cases. But instead of the practical problems, I want to focus on basic,
fundamental problems with Federal hate crimes legislation.
The rule of law requires that we oppose this amendment on principle.
Justice is blind, and under the rule of law justice must be blind--
blind to the superficial circumstances of the victims and the
defendants.
The law says crime must be investigated and punished. There is no
evidence to suggest that crimes defined by this amendment as hate
crimes are not being prosecuted today. This amendment is, therefore,
unnecessary as a matter of criminal law.
There is no need, or even any law enforcement benefit, to create a
special class for crimes based on--and I quote from the amendment--
``the actual or perceived race, color, religion, national origin,
gender, sexual orientation, gender identity, or disability of the
victim.'' Indeed, as a matter of justice, this amendment is patently
offensive. It is based on the premise that violence committed against
certain kinds of victims is worse and more in need of Federal
intervention and swift justice than if it were committed against
someone else. I am sure most parents of a minority, homosexual, or
female victim would appreciate the extra concern, but that also implies
that certain crimes are better, for lack of a better word. Where does
that leave the vast majority of victims' families who, because of the
whims of political correctness, are not entitled under this amendment
to special status and attention? How can a victim's perceived status or
the perpetrator's perceived opinions possibly determine the severity of
the crime?
The 14th amendment explicitly guarantees all citizens equal
protection of the laws. This amendment creates a special class of
victims whose protection of the laws will be, in Orwell's phrase, more
equal than others, and if some are more equal, others will be less
equal; that is, this amendment will create the very problem it purports
to solve.
Let's talk about thought crimes for a minute. This amendment will
also move our Nation a dangerous step closer to another Orwellian
concept--thought crime. This legislation essentially makes certain
ideas criminal in that those ideas involved in a crime make that crime
more deserving of prosecution. The problem, of course, is that
politicians are claiming the power to decide which thoughts are
criminal and which are not.
Canadians right now live under this regime where so-called human
rights

[[Page S7604]]

commissions operating outside the law prosecute citizens for espousing
opinions with which the commissioners disagree. This concern is only
heightened by the last section of this hate crimes amendment which says
it does not allow ``prosecution based solely upon an individual's
expression of . . . religious . . . beliefs.''
Let me repeat that because we are being told this would not affect
anyone expressing a religious opinion or value judgment:

Prosecution based solely upon an individual's expression of
religious beliefs . . .

Two questions come to mind: First, if the hate crimes amendment is
really just about law enforcement, why should it even need a
restatement of the self-evident fact that religious expression is
constitutionally protected? And second, why include the adverb
``solely'' if not to allow for the potential prosecution of people's
religious speech so long as it is part of a broader prosecution of the
accused hater?
Today, only actions are crimes. If we pass this legislation, opinions
will become crimes. What is to stop us from following the lead of
European countries and American college campuses where certain speech
is criminalized? Can priests, pastors, and rabbis be sure their
preaching will not be prosecuted? In Canada, for instance, Pastor
Stephen Boissoin was so prosecuted by Alberta's Human Rights Commission
for publishing letters critical of homosexuality, a biblical concept.
Or will this amendment serve as a warning to people not to speak out
too loudly about their religious views lest the Federal law enforcement
come knocking at their door? What about the unintended consequences,
such as pedophiles and sex offenders claiming protected status as
disabled under this legislation? There is no such thing as a criminal
thought, only criminal acts. Once we endorse thought crimes, where will
we draw the line? And more importantly, who will draw the line?
Let me talk a little bit about equality and how it relates to this
bill. If my own children were attacked in a violent crime, justice--
true justice--demands that their attackers be pursued no more or less
than the attackers of any other children.
We also say we want a colorblind society--even Judge Sotomayor. But
we cannot have a colorblind society if we continue to write color-
conscious laws. Our culture cannot expect to treat people equally if
the law, if the ruling class treats citizens not according to the
content of their character but according to their race, sex, ethnicity,
or gender identity.
As we wait through the night to vote on this hate crimes bill, I
encourage my colleagues, first of all, to set this aside and let's
focus on it separately, if it needs to be focused on. It is not part of
the Defense authorization bill. But they are holding the Defense
authorization bill hostage to other things, much like we did a few
weeks ago when we were trying to pass a defense appropriations bill and
they attached a $100 billion giveaway to the International Monetary
Fund. In order to vote for the support of our troops, we had to vote to
give away another $100 billion from American taxpayers.
This hate crimes legislation makes no sense. It violates all the
principles of equal justice under the law. It makes what we think and
what we believe a crime, rather than what we do. It asks judges and
juries to determine what we were thinking when we were committing a
crime, instead of trying to decide what we really did. This is not what
is carved above the Supreme Court, which says ``equal justice under the
law.'' It violates all the principles we have talked about as far as
blind justice, that a judge does not look at who is in front of him but
considers the facts of the case.
Hate crimes violate everything that is essentially American and fair
and equal about a justice system. It makes no sense to bring it up at
all. It makes even less sense to bring it up under the Defense
authorization bill.

I encourage my colleagues, particularly the majority, to withdraw
this amendment and let us move ahead with the debate of the defense of
our country.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Louisiana.
Mr. VITTER. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Highway Investment Protection Act

Mr. VITTER. Mr. President, in September of this year, just a couple
of months away, the highway bill--the program under which we build
bridges and roads and highways around the country--is set to expire.
Even more worrisome, in August of this year--next month--the highway
trust fund, which funds all of that activity, is scheduled to run out
of money. So I think--I hope--there is a broad consensus here that we
need to act to continue the ongoing highway program. To not act--to
allow the highway trust fund to run out of money, to allow the highway
program to end--would be an enormous antistimulus for the economy
because a lot of significant, productive infrastructure spending and
activity would just stop overnight.
So we must act, and I believe everyone acknowledges that. What I am
concerned about is that we are going to go right up to the eleventh
hour, to the precipice, and then we are going to be given one choice,
and one choice only, here on the floor of the Senate, rather than have
a calm and reasoned debate about the best way to act and the best way
to pay for that. So I strongly urge the Senate to take up this matter
sooner rather than later and to consider all of the reasonable and all
of the available options.
As I understand it, the Obama administration will propose an 18-month
extension of the current highway program, and I have absolutely no
problem with that. I plan to support that. The key issue in my mind is
how we pay for that extension, how we replenish the trust fund, at
least for the next 18 months. We faced this shortfall late last year,
and unfortunately there was no good idea, no option presented except to
spend more money--borrowed money--and increase the debt to keep that
trust fund going.
I suggest that with our debt rising so dramatically, with all of the
actions this Congress has taken--the stimulus, the budget that doubles
the debt in 5 years and triples it in 10--we need a better solution
than merely to print more money or borrow more money from the Chinese.
That is why I have introduced my proposal, S. 1344. That bill
specifically is called the Highway Investment Protection Act. It would
extend and reauthorize the highway program for an initial 18 months,
and it would fund that out of existing stimulus dollars which have
already been appropriated.
Some may ask: What is the point of that? The point is real simple. If
we use existing, already appropriated stimulus dollars, we are not
borrowing more money, we are not printing more money, we are not
borrowing more money from the Chinese, and we are not yet again
increasing the deficit and increasing the debt. That is very important.
We are also not increasing taxes, which is a horrible thing to do,
particularly in the middle of a very serious recession.
One of the clear lessons from the Great Depression is the things you
don't do, which, unfortunately, leaders back then did, in some cases.
One of the things you don't do is to increase taxes, which made the
Depression far worse and far longer in duration than it otherwise
needed to be.
So this program doesn't print more money, it doesn't borrow yet more
from the Chinese, and it doesn't raise taxes. That is the great
advantage of it.
In addition, it is specifically structured to give maximum
flexibility to the Obama administration in terms of where to find those
stimulus dollars. So we don't say specifically take it from this
account, which they may favor; take it from that account, which they
may prefer. We give the Obama administration maximum flexibility. And I
think virtually everyone acknowledges that at the end of the day, when
the entire $800-plus billion stimulus program is worked through, there
will be over this amount of money that remains unspent and unobligated.
There will be more than what is required for the next 18 months for the
highway trust fund--about $20 billion--which cannot be spent out of the
stimulus anyway. So this is simply capturing that money and using it to
extend this vital highway program and this important infrastructure
spending.

[[Page S7605]]

Several months ago, when we debated the stimulus here on the floor of
the Senate, there were many of us--Democrats and Republicans alike--who
wanted more infrastructure spending, more highway spending in the
stimulus. It is very clear from every poll that was published that the
American people felt that way. One of the absolute top categories of
stimulus spending money the American people supported was highway
construction--roads, bridges, highways. So this is very consistent with
the idea of a broad-based stimulus program. It is not inconsistent with
that at all.
Again, the alternatives are to simply move money from the general
fund. That means we are borrowing more money from the Chinese or
whomever--in a sense, printing more money--or there may be a proposal
to increase taxes to pay for it, which I believe, no matter what the
source, is a very bad idea in the middle of a serious recession. That
is very antigrowth.
My fear is that given our very constricted busy schedule between now
and the August recess, this matter is going to be pushed to the very
end, right before we are set to leave for the August recess, and there
will be one alternative and one alternative only: Just print more
money. Just borrow more from the Chinese. My fear is there is going to
be an attempt to rush that through the Senate, and I don't think that
is the way to get the best result and the most consensual result on
this important issue.
I propose we think about this now, sooner rather than later. I
propose we discuss all the reasonable alternatives and certainly look
at the very commonsense alternative of using already appropriated
stimulus dollars--again, no new debt, no new spending; use what has
already been appropriated in the stimulus; give the administration
maximum flexibility in terms of how to do that.
Finally, I would also point out that the bill is drafted very
carefully, so that within these 18 months, if the Congress were to
enact a new highway reauthorization program, a new multiyear program,
this extension would automatically dissolve and go away and this money
from the stimulus would automatically stop and whatever the provisions
of that new multiyear highway bill would be would come into full force
and effect. I urge all my colleagues--Democrats and Republicans--to
consider this commonsense approach.
In that vein, I would like to propound a unanimous consent request.

Unanimous Consent Request--S. 1344

I ask unanimous consent that the Senate proceed to the immediate
consideration of S. 1344, a bill to use stimulus funds to protect the
solvency of the highway trust fund; and I ask unanimous consent that
the technical amendment at the desk be agreed to; the bill as amended
be read a third time and passed, the motion to reconsider be laid upon
the table, and that any statements relating to the bill appear at this
point in the Record.
The PRESIDING OFFICER (Mr. Udall of Colorado). Is there objection?
Mr. LEVIN. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. VITTER. Well, in light of the objection, I would ask the
distinguished Senator from Michigan, if the Senator would at least
agree to a unanimous consent request to allow this bill to be the next
order of business after the current Defense authorization bill is fully
dealt with which would provide for limited time agreements and relevant
germane amendments?
Mr. LEVIN. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. VITTER. Mr. President, in closing, let me say that I think it is
unfortunate we don't take up this serious matter next after the Defense
authorization bill and that we don't take it up in plenty of time to
look at all of the reasonable alternatives.
I hope when we finally take it up, it isn't in a mad dash to the
August recess; that it isn't under all of the normal artificial
pressure that is built up where we must act in the next few hours and
we have one choice and one choice only. We have heard all that before.
We have heard it before when we were forced into quick consideration of
the bailouts. We heard it about the stimulus. Now we are hearing it
about health care.
Let's try to do some things right and not just quick. This has to be
done before the August recess because the highway trust fund will run
out of money during the August recess. So let's take this up sooner
rather than later.
Let's take this up right after the current Defense authorization bill
on the floor is dealt with and look at all the available alternatives,
including using stimulus funds already appropriated so we don't raise
taxes in the middle of a recession, so we don't increase the debt and
so that we don't borrow more money from the Chinese and print more
dollar bills. The American people are very fearful of that growing
trend.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I ask unanimous consent to speak as in
morning business for such time as I might consume.
The PRESIDING OFFICER. Is there objection?
Hearing no objection, it is so ordered.

Health Care Reform

Mr. ENZI. Mr. President, many of my colleagues have called me an
``eternal Optimist.'' Since I entered the Senate more than 12 years
ago, I have consistently worked across party lines to find new
solutions and broker bills that then become law. I have a long and
consistent track record of working in good faith with my colleagues
from both sides of the aisle. I had hoped, and still hope, to do that
on the complex issue of health care reform.
Last Congress, I proposed Ten Steps to Transform Health Care in
America. I traveled 1,200 miles across my home State last March to
bring my message of reform directly to the people of Wyoming. My
message was built on the belief that the American people needed more
choice and more control over their health care. I put it together by
working with people on both sides of the aisle. I found a way to get
coverage for everybody if we did all 10 steps, and any one of them
would increase access and cut costs.
Among other things, my plan attempted to level the playing field in
the tax treatment of health insurance and also provide a helping hand
to low-income Americans in the form of subsidies to ensure access to
quality, affordable health insurance. My plan also provided greater
equity and ease to our Nation's small business owners by allowing
cross-State pooling. Each of my proposals targeted three fundamental
goals: Increasing access to health care, reducing costs within our
health care delivery system, and improving the quality of care.
As the only accountant in the Senate, I was and remain very concerned
about the effect of any health reform proposal on our Federal budget,
as well as personal and family budgets. We all want coverage for
everyone, including preexisting and chronic conditions. We want
portability. We want health care, not sick care.
I have continued my work on health care reform this Congress. As the
ranking member on the Committee on Health, Education, Labor, and
Pensions, a member of the Finance Committee, and a member of the Budget
Committee, I assumed a unique role in the health reform debate this
year. I worked hard to foster a constructive dialogue with the members
of all three committees, and I have met with the President and
administration officials to share ideas on how to best craft a strong
bipartisan bill. As the debate on health care reform progresses in the
Senate, I continue to stand ready to work on this critical issue. As I
have noted many times before, this is likely to be the most important
piece of legislation that we will work on as Members of the Senate. It
touches the life of every single American in a very real way.

Our health care system is approximately one-sixth of our Nation's
economy, and the changes we make in it will ultimately affect the lives
of every single American. I have never worked on a bill that was that
extensive. It is a sacred trust we have, and we must not be moved by
artificial deadlines and short-term political considerations.
I do not think a good bill and a bipartisan bill are mutually
exclusive. To the contrary, I believe a health care reform bill will
need strong support from

[[Page S7606]]

both sides of the aisle to gain the credibility and the support of our
constituents. It is still my hope we can produce a strong bipartisan
health care bill that upwards of 80 Members of the Senate could
support. I see that as a possibility.
I remain eternally hopeful we will deliver the American people the
strong bipartisan health care bill they deserve. But I have to tell you
I am disappointed by the recent developments of the House of
Representatives and, more particularly, in the Committee of the Senate
on Health, Education, Labor and Pensions.
Yesterday, on a party-line vote, 13 to 10, the committee passed the
Affordable Health Choices Act. But don't let the name fool you because,
with a $1 trillion pricetag, the bill is anything but affordable.
Unfortunately, the HELP Committee chose to gallop down a path of
partisanship. Despite my strong urging that we start with a blank piece
of paper, HELP Committee Republicans were presented with roughly 600
pages of longstanding Democratic policies. It seems not a single
Democratic member of the committee was told no, as every pet project
was included in this bill. Because Republicans were shut out of the
drafting process, we were forced to file hundreds of amendments.
Unfortunately, of the 45 committee rollcall votes on Republican
amendments, 2 were successful. There were a number of amendments that
were accepted, but they fall more in the category of proofreading
amendments and some slight changes.
President Obama has repeatedly called for a health care bill that
will reduce costs. He has called for a bill that will help every
American get access to quality health care, a bill that allows people
who like the care they have to keep it, a bill that will not increase
the deficit. Republicans strongly support those goals. Unfortunately,
the HELP bill does not meet any of them.
In my view, and graded on the criteria specified by the President,
the bill voted out of the HELP Committee fails on all counts. The bill
breaks the President's promises and falls short on achieving the
commonsense goals the Republicans and President share. Instead, the
partisan HELP bill adds $1 trillion to the deficit, despite the
President's promise that health care reform must and will be deficit
neutral. The bill increases that deficit by more than $1 trillion over
10 years. It is not as bad as the House bill. It is my understanding
that increases it by $4 trillion over 10 years. Maybe it is just more
honest, because there are ways to avoid a cost by phasing in
authorizations and by using such sums in authorizations--little tricks
of budgeting that avoid the score. But this is on the heels of news
last week from official scorekeepers that the Federal budget deficit
was $1.1 trillion for the first 9 months of fiscal year 2009.
According to scorekeepers, this bill will bend the cost curve the
wrong way, driving up the cost of health insurance for most Americans
and increasing total spending on health care.
I refer people to an article by Lori Montgomery in the Washington
Post today, ``CBO Chief Criticizes Democrats' Health Reform Measures.''

Instead of saving the Federal Government from fiscal
catastrophe, the health reform measures being drafted by
congressional Democrats would worsen an already bleak budget
outlook, increasing deficit projections and driving the
nation more deeply into debt, the director of the nonpartisan
Congressional Budget Office said this morning.
Under questioning by members of the Senate Budget
Committee, CBO director Douglas Elmendorf said bills crafted
by House leaders and the Senate health committee do not
propose ``the sort of fundamental changes that would be
necessary to reduce the trajectory of federal health spending
by a significant amount.''
``On the contrary,'' Elmendorf said, ``the legislation
significantly expands the federal responsibility for health
care costs.''
Though President Obama and Democratic leaders have said
repeatedly that reining in the skyrocketing growth in
spending on government health programs such as Medicaid and
Medicare is their top priority, the reform measures put forth
so far would not fulfill their pledge to ``bend the cost
curve'' downward, Elmendorf said. Instead, he said, ``The
curve is being raised.''
The CBO is the official arbiter of the costs of
legislation, and Elmendorf's stark testimony is certain to
undermine support for the measures even as three House panels
begin debate and aim to put a bill on the House floor before
the August recess. Fiscal conservatives in the House, known
as the Blue Dogs, were already threatening to block passage
of legislation in the Energy and Commerce Committee,
primarily due to concerns about the long-term costs of the
House bill.
Cost is also a major issue in the Senate, where some
moderate Democrats have joined Republicans in calling on
Obama to drop his demand that both chambers approve a bill
before the August recess. While the Senate health committee
approved its bill on Wednesday with no Republican votes,
members of the Senate Finance Committee were still struggling
to craft a bipartisan measure that does more to restrain
costs.
The chairman of the Senate Budget Committee, Kent Conrad
(D-ND), has taken a leading role in that effort. This
morning, after receiving Elmendorf's testimony on the
nation's long-term budget outlook, Conrad turned immediately
to questions about the emerging health care measures.
``I'm going to really put you on the spot,'' Conrad told
Elmendorf. ``From what you have seen from the products of the
committees that have reported, do you see a successful effort
being mounted to bend the long-term cost curve?''
Elmendorf responded: ``No, Mr. Chairman.''
Asked what provisions would be needed to slow the growth in
federal health spending, Elmendorf urged lawmakers to end or
limit the tax-free treatment of employer-provided health
benefits, calling it a federal ``subsidy'' that encourages
spending on ever more expensive health packages. Key
senators, including Conrad, have been pressing to tax
employer-provided benefits, but Senate leaders last week
objected, saying the idea does not have enough support among
Senate Democrats to win passage.
Elmendorf also suggested changing the way Medicare
reimburses providers to create incentives for reducing costs.
``Certain reforms of that sort are included in some of the
packages,'' Elmendorf said. ``But the changes that we have
looked at so far do not represent the sort of fundamental
change, the order of magnitude that would be necessary to
offset the direct increase in federal health costs that would
result from the insurance coverage proposals.''
Senate Majority Leader Harry Reid dismissed Elmendorf's
push for the benefits tax. ``What he should do is maybe run
for Congress,'' Reid said.
But Senate Finance Chairman Max Baucus expressed
frustration that the tax on employer-funded benefits had
fallen out of favor, in part because the White House opposes
the idea. Critics of the proposal say it would target police
and firefighters who receive generous benefits packages. And
if the tax is trimmed to apply only to upper income
beneficiaries, it would lose its effectiveness as a cost-
containment measure.
``Basically the president is not helping,'' said Baucus.
``He does not want the exclusion, and that's making it
difficult.''
But he added, ``We are clearly going to find ways to bend
the cost curve in the right direction, including provisions
that will actually lower the rate of increase in health care
costs.''
Ideas under consideration include health-care delivery
system reform; health insurance market reform; and empowering
an independent agency to set Medicare reimbursement rates, an
idea the White House is shopping aggressively on Capitol
Hill.
But Baucus is not giving up on the benefits tax. ``It is
not off the table, there's still a lot of interest in it,''
Baucus said.

I would mention the members of the committee are still working to
find that bipartisan match, but it does take time. There are so many
moving parts to this bill. But the partisan HELP bill breaks the
President's promise, ``if you like what you have, you can keep it.''
The scorekeepers report the bill would force millions of Americans to
lose their health care plan they have and like. Several Republican
members offered amendments that aimed at ensuring Americans who like
the coverage they have they can keep it, but they all suffered the same
failing fate.
The partisan HELP bill kills jobs and cuts wages. The nonpartisan
Congressional Budget Office concludes the bill will result in lower
wages and higher unemployment. These jobs and wage cuts would hit low-
income workers, women, and minorities the hardest. It is hard to
believe that with unemployment at a generational high, Democrats on the
committee will even consider putting more jobs on the chopping block.
Despite passage of the so-called stimulus bill earlier this year,
Americans are facing the highest unemployment rate in 26 years. At the
same time, the HELP Committee and the House Democrats are attempting to
impose new taxes on small employers that will eliminate jobs for low-
income minority workers.
The partisan HELP bill raises taxes at the worst possible time.
Despite several amendments offered by Republican members, which the
Democrats defeated on party-line votes, the bill breaks President
Obama's promise not to raise taxes on individuals earning less than
$250,000 per year. The bill would impose a new tax on people without
health insurance. The partisan

[[Page S7607]]

HELP bill allows Washington bureaucrats to ration health care. The bill
lays the groundwork for a government takeover of health care, giving
Washington bureaucrats the power to prevent patients from seeing the
doctor they choose and obtaining new and innovative medical therapies.
I could go into the cost effectiveness--the clinical effectiveness
research, but I will not go into the details of that at this time. But
that is a way that care could be rationed. How do we know? We tried a
bunch of amendments that would specify what could not be rationed, and
every one of those was defeated.
The partisan HELP bill traps low-income Americans in a second-tier
health care program. Despite several amendments, the other side refused
to give Medicaid patients the choice to access higher quality care.
The other side claims to support giving patients choices but when the
choice is a new government-run health plan. However, they refuse to
give low-income Americans the chance to get out of the worst health
care programs in the country.
I would mention government-run programs, instead of giving the lowest
income Americans a choice to enroll in private insurance with
subsidies, the HELP Committee bill forces them to stay in a program
where 40 percent of the physicians will refuse to see them and the care
they receive will be worse than what is available through private
health insurance.
I have to remind you, if you cannot see a doctor, you don't have
health care.
Instead of reducing health care costs, the partisan bill will spend
billions of taxpayer dollars on new porkbarrel spending. The bill would
build new sidewalks, jungle gyms, and farmers markets through a
mandatory spending $80 billion slush fund. That is just the first 10
years, which is delayed 2 years; otherwise, it would be $100 billion.
That is for additional porkbarrel projects.
Talk about a rating system. A rating system is how much difference
you have between the low age and the high age, the more well and the
sicker people. That is being compressed dramatically, which will raise
the rates for virtually everybody in America.
The partisan HELP bill preserves the costly, dangerous, medical
malpractice system. Again, despite several blocked attempts by multiple
Republican committee members, the bill fails to reduce medical lawsuits
which drive up the cost of health care and force doctors to order
wasteful tests and treatments to cover liabilities.
The bill worsens doctor shortages. According to an analysis by the
Department of Health and Human Services, the bill would worsen the
Nation's primary care physician shortage by providing fewer medical
students with financial assistance in return for work in underserved
areas.
In short, the HELP Committee bill costs too much, covers too few, and
if you like what you have you can't keep it. Under this bill, if you
like your job, you may not be able to keep that either. With all these
bad policies comes a $1 trillion pricetag. That is $1 trillion this
country cannot afford right now and a trillion reasons why it is a bad
bill for America. We have not even talked about clinical effectiveness
or some other programs that were not actuarially sound.
As I said at the beginning of the speech, I am an eternal optimist.
Despite my comments on the perils and policies in the HELP bill, we
still have a chance. We can write a good bill, a bill that ensures
every American has quality, affordable health care; a bill that is
fully paid for with savings exclusively from health care; a bill that
reverses the cost curve; a bill that lets Americans keep what they have
if they like it; a bill the American people deserve. We are working on
that now. We are trying to put together that bill, but it takes time.
Those are all things that can be done. One way to enact real change
is to sit down and work out the details. Health care is complicated.
The laws of unintended consequences are severe and unforgiving. We
cannot rush into something that will change one-sixth of our Nation's
economy and affect 100 percent of Americans. We must take our time and
get the policies right.
I have heard reports of White House staff calling the HELP Committee
bill a bipartisan bill. I heard White House staff say this bill
incorporated Republican ideas. White House staff speak for the
President, not for Senate Republicans.
I can tell you as the ranking Republican on the HELP Committee, the
partisan vote speaks for itself. Republican ideas were excluded from
the process and from this legislation. We have five bills that have
ideas that would meet the goals of the President and the ones I have
stated. Parts of those were considered; most were rejected.
I passionately want to reform our health care system to improve
quality, reduce costs, and increase access. I think the HELP Committee
legislation fails to meaningfully address those goals and sticks the
American people with a bill we cannot afford. I hope we can get back to
work and construct real reform that has the support of the American
people.
I appreciate the openness that Senator Baucus has had in dealing with
Finance Committee members and am optimistic eternally that something
good can come out of it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Washington is recognized.

Amendment No. 1511

Mrs. MURRAY. Mr. President, in every corner of our country,
communities have been working to end hate crimes. Despite the great
gains in equality and civil rights throughout the last century, too
many Americans today are still subjected to discrimination, violence,
and even death because of who they are. That is why I have joined with
many of my colleagues as a cosponsor of the Matthew Shepard Hate Crimes
Prevention Act. This is a commonsense, bipartisan bill that will stand
up for the victims of hate crimes and their families.
I am glad it has been offered as an amendment and that we will now
have a chance to act on it this week. It takes only a quick glance at a
newspaper to see places around the world where people are regularly
attacked because of their religion or the color of their skin or their
sexual orientation. It is important to remember that even though we in
America have made great strides in reducing discrimination, there is
still plenty of work to be done. I am proud we are working toward
ending these crimes once and for all in the memory of Matthew Shepard.
Matthew, as many of my colleagues have stated, was a 21-year-old
college student who was murdered because of his sexual orientation.
That crime was not prosecuted as a hate crime because there was no
applicable State or Federal hate crimes law that covered sexual
orientation. Just this year we were all saddened by a horrific shooting
of a security guard at the Holocaust Museum in Washington, DC, a few
blocks away.
But those are only two examples. And not all of these terrible hate
crimes make headlines. In 2007, the last year for which the FBI has
statistics, there were over 9,000 hate crime offenses. The thousands of
people who have been victimized by hate crimes each receive inadequate
protection under the law, and that is simply unconscionable. That is
why this amendment we are considering this afternoon is long overdue.
This amendment would strengthen our existing laws by providing the
Justice Department with additional tools to investigate and prosecute
crimes that were committed based on a victim's race, color, national
origin, religion, sexual orientation, gender identity, or disability.
Communities across the country have been working to respond to hate
crimes, and State and local law enforcement continues to bear the
responsibility for prosecuting the bulk of these crimes. This is not a
Federal takeover. However, States and localities would greatly benefit
from the help the Federal Government can provide. If a State or local
community is unable to prosecute a hate crime, this amendment would
mean the Federal Government could lend a hand.
This amendment would provide a number of other tools to help end hate
crimes. It would provide States and local governments with grants
designed for hate crime prevention. It would expand data collection
about hate crimes so that law enforcement will have more information to
help prevent prejudicial crimes committed

[[Page S7608]]

against women. It would expand the legal definition of what a hate
crime is, allowing for stronger prosecution and more cases for a
violent crime that is clearly motivated by hatred.
In that way, this amendment would put into law what we already know,
that crimes are different when they are motivated by discrimination.
Burning down a building is a horrible crime. But that crime takes on a
new character when that building is a church or a synagogue or a
mosque.
It is wrong when one person attacks another person on the street, for
sure. But it has a different meaning when violence occurs because the
victim is a different race, or religion, or sexual orientation.
We cannot stand idly by while Americans are subjected to
discrimination, violence, and even death, simply because of who they
are. Passage of this amendment would be another major victory for equal
rights in our country.
I come to the floor this afternoon simply to urge our colleagues to
support this amendment when it comes to a vote later this afternoon.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas is recognized.
Mr. ROBERTS. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Medicare Reimbursements

Mr. ROBERTS. Mr. President, I find myself in a rather unique position
here. If you look in the bio sections of all of the outfits that keep
herd on us, they will record me as a journalist. That is an unemployed
newspaper man, by the way.
But I have a great family tradition in journalism, three generations,
four generations, actually, of the Roberts family and the State's
second oldest newspaper in Kansas. I still carry around my reporter's
notebook, have great respect for those of the fourth estate. We shine
the light of truth with our own individual flashlight.
I do not think I have ever done this in 28 years of public service,
but I am irritated. I am more than irritated. I rise today to clear up
some recent flagrant mischaracterizations about Medicare payments,
especially since the Medicare payments are now being used as a target
as a pay-for for the health care reform, the alleged health care reform
that Senator Enzi was talking about, specifically the statements made
on the front page of today's Washington Post, the fountain of all
knowledge here in Washington, in an article entitled ``Obama Eyes the
Purse Strings for Medicare.''
I would describe this article--I read it. I read it again. I was a
relatively happy person, watching the weather--I do not watch the news
much--had my cup of coffee, was going to turn to the sports pages. Then
I happened to glance at this, read it, and ruined my whole morning. I
came in, I was mean with the staff and everything else. So I thought I
better get it off my chest.
This article is patronizing. It is condescending. The bad part about
it is it is egregious in nature and effect at a crucial time in the
health care debate, and that is most unfortunate.
The author of this article describes what she sees as ``one of the
most effective and lucrative forms of constituent service,'' i.e.
setting reimbursement rates for local hospitals, doctors, home health
care centers, and other health care providers.
Oh, I wish I had that power, as opposed to CMS, which is the
subagency, the acronym agency for the Department of Health and Human
Services, that does set reimbursement rates for all health care
providers in the United States.
The author continues, accusing ``longtime Members of Congress'' of
such atrocities as ``championing New York City's teaching hospitals''
and making sure ``rural health services are amply funded.'' In this
author's mind, these hospitals and other providers are ``flush.'' Flush
with Medicare cash as a result.
I must admit in my 28 years in Congress, I have absolutely been one
of those dastardly Members intent on making darn sure that the rural
health care delivery system can remain alive and serve our people, even
if it has to be kept on life support, which is the true
characterization of what we face.
I wonder, since it never appears anywhere in the person's article, in
her article, if the author of this piece is aware that the average
Medicare reimbursement rate for doctors is about 80 percent of what the
commercial market pays or that Medicare only pays about 70 percent of
the market rates for hospitals. That is why we have hospital after
hospital after hospital for decades in Kansas passing bond issues just
to keep their doors open. These are not flush places. These are not
posh places in regard to hospitals.
Then I go back to the fact that doctors get paid 80 percent. That is
why doctors, many of them, are refusing to take--in regard to
Medicare--patients. And that is that terrible word that people say is
too scary, that is called rationing, that when we set a reimbursement
rate, we, meaning the CMS--no, not individual Members of Congress, as
the article infers--but these agencies cannot reimburse doctors enough
so they can make a living, or other health care providers, that they
cease providing Medicare to seniors.
What does the senior do then? Well, they are in a very difficult
situation. How do you think these providers survive? The answer is that
they shift that loss onto the private market to the tune of nearly $90
billion a year.
Let me repeat that. Everybody who goes to the hospital, everybody who
goes to a doctor and has private insurance, you are paying $90 billion
a year in a hidden tax in regard to the people who basically are not
covered by Medicare and by Medicaid, if, in fact, you would do what the
President has suggested, and maybe take some money--``eyes the purse
strings for Medicare,'' Medicare being a target, Medicare being the
service for seniors. Wake up, seniors. Wake up, AARP. Wake up, everyone
else in the health care field. We are targeting Medicare.
My word, if any Senator had come down here except during these last 6
months and said: Let's cut Medicare by 10 percent, they would have been
excoriated by this newspaper for hurting senior citizens.
Well, in my State of Kansas and in other rural States across the
country, we do not have a private market to shift those losses to. Our
rural areas do not have the population base to support such a cost
shift as $90 billion as happens in the rest of the country. In
addition, the folks in these towns are much more likely to depend on
Medicare or Medicaid or to simply be uninsured. In short, without some
sort of special payment from Medicare, these hospitals would not
survive.
You tell me, Washington Post, what you would say to the residents of
Smith Center here, top center in Kansas. What would you say to the
residents of Smith Center if their hospital closed?
Smith Center is a great town, close to the geographic center of the
lower 48 States, has a population of a little less than 2,000 people.
They have a great football team, high school football program, Smith
Center Redmen, the pride of north central Kansas, one of the greatest
small town football teams in America.
The town is served by the Smith County Memorial Hospital, a critical
access hospital with 25 beds. For those of you who are unfamiliar with
the terminology, a critical access hospital is a rural hospital with 25
beds or less which is at least 35 miles away from another hospital and
which provides 24-hour emergency services.
Critical access hospitals get special treatment under Medicare. They
get paid 101 percent of their costs for inpatient, outpatient, and
swing-bed services. I probably should not mention that or this reporter
might run out to Smith Center and say: My goodness, you are getting 101
percent. Sure. She should go out and take a look, and talk to the
hospital administrator and the people in that hospital.
In other words, they do not get the usual 70 percent of the market
rate reimbursement for Medicare, for a very good reason, because of the
distances they would have to travel. Without the critical access
hospital program, the closest hospital for the residents of Smith
Center would be all the way in Hays, KS, America, right down here 90
miles away. You tell me what a person's chances of survival are after a
car accident or a tractor accident if they have to be driven 90 miles
away for emergency care.

[[Page S7609]]

Smith County Memorial is just one of 83 critical access hospitals in
Kansas. They are absolutely essential to the very lives of the people
in rural America. Indeed, they are essential to the very existence of
rural America at all.
I have the privilege of being the cochairman of the Rural Health Care
Caucus, along with Tom Harkin of Iowa. We are fighting tooth and nail,
holding on by our fingernails to exist, to provide care to the people
who live in these small communities.
I am happy to admit it, I am happy to admit to this reporter--I hope
she comes in for a cup of coffee. I would be happy to give her a cup of
coffee, no cream or sugar; there might be a little vinegar in it. But
at any rate, please come in for a cup of coffee and visit about this. I
am happy to admit it. I will bend over backward to preserve the payment
rates that allow these hospitals to stay open and to continue to serve
the people in Smith Center, KS, and elsewhere all throughout rural
America.
I believe this position is completely justified. I sleep just fine at
night knowing that I have used my so-called influence through
legislation, through the rural health care coalition, through the
Finance Committee, through the HELP Committee, to ensure that Medicare
pays these hospitals just enough to average a 1-percent Medicare
margin, 1 percent, when these hospitals are still fighting for their
lives.
I would like to personally invite the author of this article or any
other member of the Washington Post editorial board, God love them, to
visit some of the rural hospitals in Kansas with me. The reporter's
name--I hope I get it right; I apologize if I do not. I really sort of
apologize. I am picking on her--is Shailagh Murray.
Shailagh, why don't you come to Kansas with me and let us go out to
Smith Center. Here is the hospital. This is this posh resort that you
apparently think we finance with Medicare.
It is true, you know, you go through the doors, there are two-inch
thick carpets, you go in, there is--let's see, I think there is
Mozart's piano concert 21, piano concert No. 21, and they call you by
your first name, and you get immediate treatment. Then there are
massage facilities and a spa in the back. And that is a lot of what we
have in our Dodge City feedlots. That is not the case.
Talk to the CEOs, the doctors, the nurses, and the patients. Walk
around this small hospital and see the equipment and the facilities.
Flush with the Medicare cash? Come on. And flush with Medicare cash
that is somehow influenced by individual Members of Congress? I wish. I
have been fussing and fighting and feuding and pleading and cajoling
with CMS to try at least to get these payments to doctors and hospitals
up to the level that they can continue to exist.
Flush with Medicare cash? I think not.
Look at this hospital. Do you see anything that would lead to a
description of this sort? I am not too sure anybody is going to give up
their vacation. They have the finest people in the world. That is our
best commodity in rural areas. I am not picking on Smith Center. They
are doing a fantastic job with the resources they have. But it just
makes me very angry that a Washington, DC, paper and reporter would
demonize a program that keeps rural America's heart beating. It is a
patronizing and dead-wrong description, and it offends me and the
people I am privileged to represent in rural Kansas.

I want to tell Shailagh, Ms. Murray, I am never going to stop
fighting for these hospitals no matter how many deals the American
Hospital Association cuts with the White House, no matter how many ugly
articles are written here in DC. I am rather amazed at the deal the
American Hospital Association allegedly cut--$155 billion in cuts to
Medicare for senior citizens. Wake up; it is your Medicare. There is
going to be more rationing when doctors say: I am sorry, I just can't
afford to continue.
That is the target now on the Finance Committee--Medicare. I never
thought I would see the day that would happen. But I will not stop
fighting for these hospitals. Here we have the American Hospital
Association, the Kansas Hospital Association, the Missouri Hospital
Association, other hospital associations are not happy with the
national association when you crawl in bed and get fleas with the
administration. What is the old saying? If you go to bed with the
Federal Government, you wake up in the morning and you got something
more than a good night's sleep. And that is exactly what has happened
with the American Hospital Association.
They come through my door and say: Help, help, please get these
reimbursement rates up. Every year, we have done that with Medicare and
the Medicare Programs. We are being cut by 11 percent, and the cost of
inflation in regard to where we try to practice has gone up 7 percent,
and whatever other number they said every year. They blame Republicans.
Once in a while, they blame Democrats and say: Why on Earth did you cut
Medicare? And now we are using Medicare as a target for health care
reform for this bill that is impossible for most people to even
comprehend? It is amazing.
The American Hospital Association bought into it with $155 billion in
cuts. They come through my door every year when they want to keep the
reimbursement rates level. Don't come through my door for at least a
month until I calm down. That is my duty to the people of my State. I
feel comfortable with that.
I have been a little tough here on a reporter I have never met,
obviously. She is spending a lot of her time in the people's house
talking with mucky-mucks on the various committees. Those are people
with the seniority. I used to be one of those. I used to be somebody.
But I urge her to talk to Members who represent rural areas and the
rural health care delivery system and understand that this is not a
question of this hospital having flush payments. They are hanging by
their fingernails just to keep open. It is not true that Members of
Congress, even the distinguished Presiding Officer and anybody else who
might happen to be listening to my remarks, the great Senator Thune
standing to my rear who also represents rural areas and has even a
sparser area than I do--it is just not true. This article comes right
at the apex of the debate of the health care reform debate. It is just
not right.
Let me again say to Shailagh: Why don't you come out to Kansas with
me. We will visit with Tom Bell, president of the Kansas Hospital
Association. We can go out to Smith Center and visit the hospital or as
many hospitals as you want. We will see who is flush in regard to
Medicare payments. That is certainly not the case with them.
I think I have made my point. I must say, as a former journalist,
former newspaperman, I used to check my facts. I would ask that they do
the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. THUNE. Mr. President, the Senator from Kansas made some excellent
points about rural America and rural hospitals, and, as always, he did
it in a most effective way. It should not be lost on anyone in this
Chamber or around the country, when we talk about health care reform,
these decisions we make in Washington have real impacts in the real
world. They impact people in different parts of the country
differently.
The Senator from Kansas was very clear about the hospitals he
represents. I represent hospitals in rural areas. These are not
hospitals out there cutting a fat hog. These are hospitals trying to
provide service, trying to deliver health care in areas that make it
challenging because of geography. Sometimes they don't have the most
up-to-date, modern equipment, but they are out there providing critical
health care services to people. I associate myself with the comments of
the Senator from Kansas.
Anybody who cares about the impact of some of these proposals on
hospitals in rural areas such as Kansas and South Dakota should be
concerned about the CBO discussion that occurred this morning in front
of the Budget Committee. It made it very clear that not only is this
going to cost $1 trillion, probably minimum, in the near term, but in
the long term, the costs for the health care reform plan currently
moving through the Congress explode. When we get into the outyears, it
will be even more expensive.

[[Page S7610]]

It will mean bigger and bigger reductions and cuts from providers, as
the Senator from Kansas so eloquently pointed out, in rural areas that
are already struggling to make ends meet and keep their hospital doors
open.
This report we got today from the Congressional Budget Office is
really pretty stunning, in the context of the debate we are having over
health care reform.
The CBO Director, Doug Elmendorf, was asked pointblank by Senator
Conrad whether the cost curve is bent under the health care reform
legislation currently being considered. Elmendorf says no. Then he goes
on to say:

The way I would put it is that the curve is being raised.

As has been pointed out by President Obama before, he said:

And I've said very clearly: If any bill arrives from
Congress that is not controlling costs, that's not a bill I
can support.

That was the President's own criteria for health care reform. That
only means, based upon the report we got from CBO this morning, that
the administration is going to have a very difficult time embracing the
health care plan moving through the Senate that sees costs not coming
down, not bending the cost curve in a downward direction but, rather,
bending it upward so we will see a spike in health care costs.
Mr. Elmendorf, when he answered that request, to put it in fuller
context, was asked: So the cost curve, in your judgment, is being bent,
but it is being bent in the wrong way; is that correct? His answer is a
long quote, but I want to get it into the Record because it puts into
context the very issue he raises with regard to health care reform and
its costs and when we will see the true effect. Here is what he said:

The way I would put it is that the curve is being raised .
. . As we wrote in our letter to you and Senator Gregg, the
creation of new subsidies for health insurance, which is a
critical part of expanding health insurance coverage, in our
judgment, would by itself increase the federal responsibility
for health care that raises federal spending on health care,
raises the amount of activity that is growing at this
unsustainable rate, and to offset that there would have to be
very substantial reductions in other parts of the federal
commitment to health care, either on the tax revenue side
through changes in the tax exclusion, or on the spending side
through reforms in Medicare and Medicaid. Certainly reforms
of that sort that are included in some of the packages, and
we are still analyzing the reforms in the House package, the
legislation was only released as you know about two days ago,
but the changes that we have looked at so far do not
represent the sort of fundamental change, the order of
magnitude that would be necessary to offset the direct
increase in federal health costs from the insurance coverage
proposals.

What I conclude from having read that and having heard what he said
this morning is that he is very skeptical that there is anything about
the health care plan that is pending in the Senate or the one that
passed the House last week that is going to, in the long term, reduce
cost.
A fundamental principle behind health care reform ought to include
efficiency, streamlining, finding savings. When most Americans think of
reform, they don't think of adding costs or making things more
expensive, they think: How does this reform actually achieve savings by
making us more efficient and streamlining operations and coming up with
new and innovative ways of doing things so that we can do things less
expensively?

That, to me, would be the essence of reform. That is not what is
being talked about here, obviously. Not only do the reforms that have
been proposed, the House version, which has been reported out of the
committee, or at least is being deliberated on in committee over there
but hasn't been reported already but will be on the House floor in the
very near future, a House Democrat aide--this is a news report--said
the total bill would add up to about $1.5 trillion over 10 years. The
aide spoke on condition of anonymity to discuss the private
calculations. You might have a hard time getting used to the concept,
but it is $1.5 trillion in the House-passed version. We know the
Senate-passed version will be a minimum of $1 trillion. There are many
independent analyses and estimates that have been done that suggest
that it could be north of $2 trillion and perhaps well north of $2
trillion when a lot of these changes actually go fully into effect
after the transitional period is over. So we are talking about
trillions of dollars at a minimum in the near term, perhaps multiples
of that, trillions of dollars in the long term.
That doesn't meet any sort of criteria or definition of reform. To
me, reform ought to be: Let's find some savings. Let's see what we can
do to achieve some efficiency.
As I have suggested, we spend already about $2.5 trillion annually on
health care. That represents about 17 percent of our gross domestic
product. That is on its way to 20 percent. Very soon, $1 in $5 in our
entire economy will be spent on health care. I argue that it is not
that we are not spending enough money on health care. It is that we are
not spending wisely and well. We are not spending smart. We need to
spend smarter when it comes to health care. We need to put more of an
emphasis on wellness and prevention. We need to do things that would
allow individuals and small businesses to join larger groups, to get
the benefit of group purchasing power so they can start buying in
volume, driving down cost to create more competition in the marketplace
where individuals can buy insurance across State lines. We need to
address the growing cost of defensive medicine that is a direct result
of lawsuit abuse. There are a lot of remedies that we think make sense
in terms of bending the cost curve down and actually doing something to
reform health care, to gain efficiencies, and to get costs on a more
reasonable and affordable level.
It is pretty clear from the CBO report this morning in front of the
Budget Committee that the current proposal--the House proposal and now
the Senate proposal reported out of the HELP Committee yesterday--does
nothing of the sort. There is no way it can be argued that these are
reforms. It is certainly not reform that leads to savings in the long
term. They will bend the cost curve upward. We will see increased
costs. We will see costs spike in the outyears. That came across
unequivocally in the report that was made by CBO Director Douglas
Elmendorf this morning in front of the Budget Committee.
Where does that leave us? I argue that it certainly ought to sound a
note of caution to people in Washington, DC, that perhaps this is
something we ought to take our time with. Clearly, what has been
proposed so far is going to increase costs significantly. It is going
to lead to the takeover of the health care system by the Federal
Government, which I think most Americans would take issue with. If you
don't believe that, again, there are lots of great independent studies
out there.
One of the criteria the President put forward in a health care bill
he would sign had to do with, if you have insurance today that you
like, you can keep it. That is not true under this bill, either,
because these independent analyses that have been done have also
pointed out that there were going to be about 6 in 10 Americans or
about 118 million total Americans who will be driven into the
government-run program because the private health insurance
marketplace, when it has to compete with the government, will not be
able to do so because the government, due to its very size, is going to
drive a lot of the private insurance coverage out of the marketplace.
A lot of small businesses that currently offer insurance to their
employees are going to say: I am not going to do this anymore. It costs
too much. And they are going to shift everybody into this big
government-run program, which not only, I guess, do I have issue with
the whole notion that we would hand the keys to one-sixth of our entire
economy to the Federal Government, but I think, more importantly than
that, it gets to the very basic issue that most Americans instinctively
agree with, and that is they ought to have freedom, they ought to have
the choice to choose their health care provider, and they ought to make
decisions in consultation with their physicians about what is the best
procedure to use.
The problem with the approach the Democrats on the HELP Committee
have taken--and, incidentally, when it passed yesterday, it was on a
partisan-line vote. All the amendments that were offered by Republicans
to try to change it or make it better or improve

[[Page S7611]]

it or at least have some of their policy ideas incorporated were shot
down on a party-line vote.
But it seems to me, at least, that if we are going to do something
about health care, we should not hand the entire health care system in
this country to the Federal Government and have them imposing
themselves and them making the decisions that historically have been
made by individuals, by consumers, by patients, and their health care
providers. That is a fundamental principle of our American tradition;
that is, that we believe in freedom.
The European model and the Canadian model on health care, which is
often used and touted, is a different one. But that is not the American
way. That has never been the American way. The American way is freedom;
it is choice; it is individual responsibility, all of which should be
emphasized in any health care reforms we pass; I might add again, all
of which ought to lead not to higher costs but to lower costs in our
health care system.
For the record, as well, there are a number of organizations that
have looked very closely at the House bill and are now analyzing the
Senate HELP Committee-passed bill and have concluded it is a bad idea.
It is not just a bad idea for the taxpayers who are going to be stuck
with the higher taxes or the increased borrowing from future
generations to finance it, it is not just a bad idea because it puts
the government in the way and fundamentally interjects it into the
relationship between patients and their health care providers but also
because it would kill jobs in our economy.
We have an economy that is very fragile, that is struggling. We have
unemployment at 9.5 percent. Perhaps it is going to double-digit levels
for the first time in a long time in our country.
So you have the Chamber of Commerce, the National Federation of
Independent Business, and the Business Roundtable that have sent a
letter. This letter came out, I think, yesterday. It was in response to
the House health care reform legislation. But it objects to a number of
provisions in the bill.
Specifically, the letter warns that the pay-or-play provision could
end up killing many jobs. The new Federal health board ``would have
significant power but be highly unaccountable to the American people.''
Then it goes on to say that cost shifting created by the government-run
plan ``would significantly increase costs for every American who
purchases private insurance.''
So the major organizations that represent the job creators in this
country--the Chamber of Commerce, the National Federation of
Independent Business, the Business Roundtable; a number of other
organizations, I would add to that, I think are issuing similar type
statements and letters--have concluded it would kill jobs, it would
reduce the accountability we would have with the American people, and,
finally, it would significantly increase costs to Americans who have to
purchase insurance.
So I guess the bottom line in all this is, there is sort of a big
rush to get this done. The theory is, we have to get this done before
the August recess. The House is supposed to have this bill marked up
next week and on the floor, perhaps, the following week. And the Senate
is trying to figure out a way to wedge this into all the things we have
to do. We have the Defense authorization bill on the floor this week
and next. We have the Sotomayor nomination that will have to come
before the Senate at some point before the August break. But there is
somehow this belief around here that we have to jam through this health
care bill because if we do not seize the moment and do it now, we are
not going to get it done.
Well, I would argue we ought to get it done right rather than do it
fast and do it in haste. The Hippocratic Oath for physicians is: ``Do
no harm.'' That ought to be the oath we, as Members of Congress, take
with regard to this health care debate. From everything I have seen and
read from the experts, from the professionals, from the Congressional
Budget Office, who have analyzed the health care bills--both the one
that is going to be debated in the House and the Senate committee-
passed version--all the analysis that has been done suggests it would
do great harm, great harm to the taxpayers who are going to be footing
that $1 trillion or $2 trillion bill; great harm to the economy, where
it will cost us jobs; and great harm, I believe as well, to the
American consumer, the health care consumer, who is going to have to
pay the cost of this in the form of higher premiums and who will also
deal with what could be rationed health care; that is, fewer choices,
fewer options because the government is going to be deciding which
procedures are covered and which are not.
So we need to take our time. We need to do this right. There are lots
of things, as I mentioned earlier, that I think actually do reform the
health care system in the country, do lower costs, and make it more
affordable to more Americans, and those ought to be what we focus on.
But as was reported this morning by the CBO, a program that will bend
the cost curve upward--not just from the trillion dollars we all know
it is going to cost in the near term but perhaps trillions of dollars
in the long term--is a bad direction to go for health care in this
country, it is a bad direction to go for our economy, and it is a bad
direction to go for the American taxpayer.
I yield the floor.
The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Kansas.
Mr. BROWNBACK. Madam President, I certainly concur with the statement
of my colleague from South Dakota as to what he is saying about the
health insurance issue and the need to do it right rather than fast. I
think it is critically important.
I would like to bring to the body's attention something that was on
the front page of the Washington Post today. It is an article about
``Who Will Succeed Kim Jong Il?'' and the point being: Here is a
country that has recently tested missiles that can reach Hawaii, that
has recently tested a nuclear device. He is gravely ill. Some are
reporting he has pancreatic cancer. We don't know for sure what he has.
But the question is, Who will succeed Kim Jong Il? And what does that
mean to the United States? And what are we doing about it?
In our office, we are working on a piece of legislation to try to
start some planning on our part as to what we should be doing if the
leader in North Korea falls and if the state fails in North Korea,
which is a very real possibility: that the overall state apparatus in
North Korea will fail, that you will have hundreds of thousands,
possibly millions, of people seeking to flee that country or--in a grip
of searching for food--moving around to try to find food, that nuclear
weapons will not be well watched, and the missile capacity that is
there--all in a state that is failing and may fall altogether.
The reason I point this out is, we are on the Defense authorization
bill. It is a very important piece of legislation. It is a key piece of
legislation. It is a piece of legislation we pass every year because it
is so important to the future of this country and so important to the
defense of this country.
Here is a moment where we are looking at a potential nuclear threat,
missile threat, to the United States and we ought to take up this issue
and we ought to deal with the Defense authorization bill and, instead,
we are on hate crimes legislation. The majority party has 60 votes to
be able to move to that on another piece of legislation and should if
they want to bring that up. But why here? And why are we eating up a
couple days to do this on this bill, when we have these sorts of
threats staring us right in the face?
I am going to put forward an amendment on the Defense authorization
bill asking that we relist North Korea as a terrorist country. I think
we ought to look at going at their financial instruments. I think we
clearly need to be planning for the failure of this state, and we ought
to be looking, as a humanitarian issue, at the failure of this state. I
think we ought to be looking, as a security issue, at the failure of
this state.
If North Korea falls, are we rushing in to try to secure the nuclear
sites? Is South Korea? Is China? Is everybody in some sort of agreement
as to what takes place to secure these nuclear sites?
What are we doing on humanitarian issues for 20 million people, many
of whom will be starving during that period of time--where a number of
them are starving now in North Korea?

[[Page S7612]]

This is a very present and pressing issue and instead we are on hate
crimes legislation.
As a nation, we will not tolerate violent crime, and I am appalled by
news stories of individuals being assaulted or even killed because of
their ethnicity, their beliefs, who they are. I am appalled by violence
done to those who choose any sort of lifestyle they may choose. I
believe we must send a strong message through our law enforcement and
judicial system that such attacks would bring the full force of law
upon those who commit such terrible acts.
I do appreciate the good will and sincerity of those who wish to
expand hate crimes legislation. However, I do not believe such
legislation in this body from the Federal Government is the answer. I
do not think that is something we should be doing on a Department of
Defense authorization bill when we are facing such key strategic
threats internationally and we have forces in the field in Iraq and in
Afghanistan today. This is not the place. This is not the time.
First, I believe that the severity of a crime should be based upon
actions committed. If a violent crime is committed, then the
perpetrator should be prosecuted to the fullest extent of the law.
Every violent crime ought to be treated as severe, regardless of why it
was committed. Every life has value, and every murder is an egregious
crime.
Our law enforcement and judicial system should be focused on holding
individuals accountable for what they do, not what they think, feel or
believe. During the passage of the Statute for Establishing Religious
Freedom in 1785, James Madison expressed, ``extinguished for ever the
ambitious hope of making laws for the human mind.'' He clearly opposed
any law that punished the thoughts or motives of people. Laws already
exist to punish crimes themselves.
The Matthew Shepard, hate crimes bill authorizes the prosecution of a
crime motivated by actually or perceived race, color, religion national
origin, sexual orientation, gender identity, or disability of the
victim. This is another example in which a thought or belief becomes an
element of prosecuting crime.
Second, I oppose this bill because I believe it would usurp the power
and jurisdiction of the States. It violates constitutional federalism
by asserting Federal law enforcement power to police local conduct over
which the Constitution has reserved sole authority to the 50 States. No
matter how upset Americans and politicians might be about certain
criminal behavior, every criminal offense and every authorization of
criminal enforcement power should be restricted by the explicit
principles of the Constitution as well as our long-established criminal
law precedents.
Currently, 45 States, as well as the District of Columbia, have hate
crime laws. Many of these State laws carry heavier penalties than those
proposed in this hate crimes bill. During the Judiciary Committee's
hearing on hate crimes, Secretary Holder was asked to prove that there
is evidence that hate crimes cases are not receiving proper prosecution
and sentencing at the State level. He was unable to produce any.
Even members of the U.S. Commission on Civil Rights, the commission
of the U.S. Federal Government charged with the responsibility for
investigating, reporting on, and making recommendations concerning
civil rights issues that face the Nation, oppose this bill. Their
concern is that this law will allow Federal officials to reprosecute
defendants who have already been acquitted by State juries.
Third, all crime victims deserve equal protection under the law. This
is granted to them under the 14th amendment. Hate crime laws create a
multilevel system of justice in which some crime victims' cases are
prosecuted more severely than others.
Recently during the hate crimes debate in the House of
Representatives, amendments to add military personnel, pregnant women,
the elderly, and the homeless to the list of protected classes were all
defeated. It is wrong to attempt to set up the law to favor one class
of Americans over another.
Fourth, during the Judiciary hearing on hate crimes, Michael
Lieberman of the Anti-Defamation League, when referring to hate crimes,
said that ``these are selective prosecutions.'' We have also heard a
lot of talk about wanting the Federal Government to send a message
about the severity of hate crimes. I cannot endorse the idea that
criminal law should be selective or be used to send a message. Its
purpose is to prosecute criminal action, not to make selective
statements.
Finally, I oppose this bill because I am concerned that it could be
used to prosecute against religious leaders and organizations for
speaking out against acts they find morally unacceptable. Hate crime
laws have already been used in foreign countries to silence people of
faith who speak their opinion on homosexuality that is derived from
their faith.
The other side continues to insist that this bill does not prosecute
speech, only criminal actions. Yet there is great concern within
religious communities that the Federal Government could prosecute their
leaders and members criminally based on their speech or other protected
activity. This is a chilling threat to the first amendment right to
free speech for people of faith and freedom of religion. I urge my
colleagues to vote against this amendment.
I wish to point out and say to my colleagues, particularly the
chairman who is on the floor, my hope is, once we get past hate crimes,
we will remain on the Department of Defense authorization and take up
the issue of North Korea. I know some may say: Well, that is not
germane to the Department of Defense bill. I think it is a lot closer
than what we are on right now. I would hope we would bring up this
issue because of the clear and present problems we are facing on this
issue.
I know the chairman of this committee knows this issue very well. I
have worked with him on this issue previously. So we have now a
bipartisan bill to relist them as a terrorist country that we are
bringing forward. I met with our nominee to be Ambassador to China
today, saying we should begin planning with the Chinese Government
today for the failure of the North Korea state taking place in this
successionist order.
The North Koreans are acting peculiarly, even by North Korean
standards, with all the missiles they have launched, the nuclear
weapons they have put in play, the things they have stated lately. They
are normally provocative, but this is an all-out scale of provocation
that is taking place now.
It would be my hope we could bring this up and at least start to
address what clearly is opening to be a major problem. Whether the
Obama administration wants to address it now or the Senate wants to
address it now, we may not have a choice. If he is facing pancreatic
cancer and there is a successionist battle taking place in a nuclear-
armed missile country of North Korea and us having 25,000, 27,000
troops just south in South Korea, we may not have a choice. We need to
get this addressed. So I would hope the chairman of the committee could
take this up at that proper time.
I appreciate this chance and to be able to put this statement into
the Record. I think it is prudent for us to start to address some
things that are right on and in front of us rather than this hate
crimes legislation that does not apply to the Department of Defense
bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, first of all, while my good friend from
Kansas is on the floor, let me say, we look forward to seeing the
language he is going to be offering on North Korea. His description of
North Korea as a threat is an accurate description. I do not know that
the terrorist state list fits them, but surely the threatening state
list fits them very directly. We look forward to seeing that language
and trying to work with him and his colleagues on that amendment.
Nobody should be targeted because of the color of their skin, their
religion, their disability, their gender or their sexual orientation.
For years now, I have joined many colleagues, with the leadership of
Senator Kennedy, in supporting passage of the Matthew Shepard Local Law
Enforcement Hate Crimes Prevention Act.
We have seen hate crimes increase in this country, most recently at
the Holocaust Museum here in Washington.

[[Page S7613]]

According to the FBI, between 1998 and 2007, more than 77,000 hate
crimes incidents were reported. The legislation we are offering that
the majority leader has introduced will help prevent and deter these
crimes.

This language, the Matthew Shepard bill, passed the Senate with
bipartisan support as an amendment to the Defense authorization bill in
September of 2007. This is not new. This language is offered on this
bill. Cloture was invoked then by a vote of 60 to 39. The hate crimes
amendment before us will, for the first time, give the Justice
Department jurisdiction over crimes of violence which are committed not
only because of a person's race, color, religion, and national origin,
which we already have on the books, but also based on gender, sexual
orientation, or disability.
There have been some statements made about restraints on speech. The
language is very clear it only applies to violent acts, and it
emphasizes explicitly in this amendment that it puts no limits or
restraints on constitutionally protected speech, expressive conduct, or
activities, including but not limited to the exercise of religion,
which is protected by the first amendment, or peaceful activities such
as picketing or demonstrations. The law we are proposing will continue
to punish violent acts only, not beliefs. It is crucial that we
understand this legislation only applies to violent, bias-motivated
crimes and does not infringe on any conduct protected by the first
amendment.
The first amendment right to organize, to preach against, or speak
against any way of life, or any person, is left intact with this
legislation.
Again, we are not starting from scratch. The law already prohibits
violent crimes based on race, color, national origin, or religion. This
amendment would add disability, sexual orientation, gender, and gender
identity.
The amendment ensures that State and local law enforcement will
retain primary jurisdiction over investigations and prosecutions. The
amendment has a strong certification provision that authorizes the
Federal Government to step in only when needed. Prior to indicting a
person, the Justice Department must certify that the State in which the
hate crime occurred either does not have the jurisdiction, the State
has asked the Federal Government to assume jurisdiction, or that a
State prosecution has failed to vindicate the Federal interest against
hate-motivated violence, or a Federal prosecution is necessary to
secure substantial justice.
Now, why this bill? Why on this bill? First, it is common practice in
the Senate to offer to bills, although the amendment is of a different
subject. In other words, this is not the first. For 200-plus years,
amendments have been offered to bills which are not relevant to the
bill before us. That is the Senate. It occurs dozens of times every
session.
There are not many subjects that are more important than the subject
of hate crimes. This bill is an available vehicle for an important
subject. We have done this before on this bill.
One other thing that I feel keenly about as chairman of the Armed
Services Committee, this bill embodies values of diversity and freedom
that our men and women in uniform fight to defend.
As Senator Kennedy said in 2007 when we debated this legislation:

We want to be able to have a value system that is worthy
for our brave men and women to defend. They are fighting
overseas for our values. One of the values is that we should
not, in this country, in this democracy, permit the kind of
hatred and bigotry that has stained the history of this
Nation over a considerable period of time. We should not
tolerate it. We keep faith with these men and women who are
serving overseas when we battle that hatred and bigotry and
prejudice at home. So we are taking a few minutes in the
morning to have this debate and discussion.

Those were Senator Kennedy's words.
This is not a long debate by Senate standards. This is a reasonably
long debate to give everybody an opportunity to express their views.
But we have debated this before 2 years ago. We have adopted this
before 2 years ago. It was the right thing to do then for the men and
women of our country, as well as to keep the faith with the men and
women who put on the uniform of this Nation and fight for the values
this Nation represents.
Finally, America has taken many steps throughout our history on a
long road to becoming a more inclusive Nation, and our diversity is one
of our greatest strengths. Our tolerance for each other's differences
is part of the lamp that can help bring light to a world which is
enveloped in bigotry and intolerance. Hopefully, we can take another
step if we adopt this amendment.
So the Matthew Shepard Hate Crimes Prevention Act of 2009 furthers
the goal of protecting our citizens from crimes of hate and deterring
those crimes. I hope we have a resounding cloture vote, and again,
hopefully, that can occur later on this evening.
I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KERRY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KERRY. Madam President, I further ask unanimous consent that I be
permitted to proceed as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Energy and Climate Change

Mr. KERRY. Madam President, earlier today, during the Democratic
policy committee luncheon, we were privileged to hear from the CEOs of
three of America's largest companies: DuPont, Siemens, and Duke Energy.
It seems we are reaching that point in Washington where folks are
starting to line up to argue ideological and nonfactual points of view
with respect to one of the major issues facing our country. This is not
unusual. Every great debate in history--certainly since I have been in
the Senate and well before that--has always been subject to one
interest group's or another interest group's interests. Those are often
conditioned by phony studies, by one particular industry's funded
study, almost inevitably always not peer-reviewed.
So it is that we are beginning to see this kind of a lineup now as a
response to the action taken by the House of Representatives, which
passed climate change legislation, and a response to the schedule that
the majority leader has put us on in the Senate with respect to this
legislation. So I wanted to take just a couple of minutes and come to
the Senate floor, and I intend to do this on a periodic basis over the
course of the next weeks and months as we begin to think about our own
approach in the Senate to this critical issue.
Let me say to the Chair and to my colleagues that I hope we can all
keep open minds so we will look at this in the context that it ought to
be looked at, which is the national security interests, the security
interests of our Nation; i.e, energy independence, the fact that we
send hundreds of billions of dollars every year to parts of the world
that doesn't wind up being invested in American jobs, in America's
direct future and, in many cases, money which winds up in the hands of
jihadists in one country or another and works against American
competitiveness. That is one reason to think about this issue
seriously.
Another is that China, India, and other countries are taking this
issue very seriously.
Again, today we heard from the CEO of one of America's largest
corporations. I think DuPont is one of the largest chemical companies
in the world. The CEO said very directly to us that he is concerned
about China's commitment as opposed to our commitment, and the fact
that out of the top 30 solar, wind, and battery companies in the world,
only 5 are in the United States of America.
We are the country that invented many of these technologies, but
because ideology trumped fact and reason in the course of the 1980s,
the guts were pulled from the energy laboratory out in Colorado, and
the United States lost its lead in photovoltaics, alternatives,
renewables, to Japan, to Germany, and other countries.
Ironically, as the Cold War ended and we had invested so heavily in
that victory in the beginning of the 1990s, we saw the countries that
had been locked in by the Communist bloc--the now Czech Republic, then
Czechoslovakia,

[[Page S7614]]

Bulgaria, Romania, other countries that sought to undo the devastation
of the command control policies that had spread ash within 50 miles of
a powerplant so there was no living plant, and you couldn't grow
anything and the rivers were polluted and the lakes and so forth, and
they sought to undo that--where did they go for the technology? They
went to Germany and Japan. We lost hundreds of thousands of jobs,
economists currently estimate, by the blinders we put on that precluded
us from buying into the future, from investing in that future.
So I hope colleagues will look carefully at the economic realities
that are staring at us right now. China is investing $12 million-plus
per hour in a green economy. They are investing six times the amount of
money of the United States of America. The Pew Foundation has found
that from 1996, approximately, until 2007, the greatest job growth in
our country came from the alternative renewable energy sector, from new
technologies--about 9.1 percent, as opposed to the growth of about 3.7
percent or so that we saw in the normal job sector.
In a State such as North Dakota, for instance, I think they have had
about 30 percent growth in the alternative renewable energy sector, and
they rank today 24th in the Nation in terms of wind power production.
But the Wind Institute tells us they could be No. 1 because they have
the best wind in the world--in the United States, at any rate--and they
could produce 10,000 times the entire electricity needs of the State of
North Dakota just from wind power alone. That is a huge amount of jobs
to be created and a huge amount of money to be gained, a lowering of
cost for their consumers, and we could go to other States around the
country and find similar patterns, where there are very significant
increases in the economic base of the alternative renewable energy
sector to the exclusion of a very flat level--if not no growth--with
respect to normal sectors of our economy. What is critical is that
China--I just spent a week there about a month ago, purposefully going
there to meet with Chinese leaders about global climate change.

Obviously, I am as committed as any colleague in the Senate to
creating an agreement with other nations that holds everybody
accountable. Obviously, if the United States does this all by itself,
it is not going to work. But China is sitting there saying the same
thing: If we do this and the United States doesn't do it, it is not
going to work.
The problem is that the U.S. bona fides on this aren't very good. The
fact is, we have been deniers of the existence of the problem, while
other countries are proceeding to try to deal with it. The fact is, we
were, until last year, the world's major emitter of global greenhouse
gases. It is very difficult to go to other countries and say, you have
to do this and that, and they look at us and say, what have you done
about it?
For countries in Africa and in the less developed world--Indonesia,
parts of South Asia, and other places--they look at us and say: Listen,
for the last 50 years, you guys have been creating this problem. We
have not been able to develop, we are not a developed nation, and you
are sitting there telling us we have to make up for the problem you
have created, and now we have to spend a lot of money for it.
The fact is, they are willing to be part of it, they are willing to
be part of the solution, but the United States has to step up and show
leadership and take action. The bottom line is this: If the United
States doesn't step up and take action and show leadership, we are not
going to get an agreement in Copenhagen and things will get worse. Some
people will say: So what; maybe we will do it down the road. I have
news for you--and this is absolutely substantiated in science, as well
as in technology and economic modeling--if we don't do it now, every
year we delay, it gets harder and more expensive and it gets more
dangerous.
If you really want to look out for the citizens in your States, do it
now because it will be less expensive to do it now than it will be in
the future. The real taxpayer protection effort here is to do climate
change now. That is why, as I said, CEOs of major corporations in our
country are saying: Give us certainty in the marketplace and give it to
us now so that we know what our investments will be as we go forward
and we can put together a business plan that is intelligent,
thoughtful, and based on the realities of where the economy is going to
go.
Huge fluctuation in natural gas prices or in the price of coal or
what is going to happen with respect to sequestration--all those things
create enormous uncertainty. If you are a coal State, a coal interest--
and we have plenty of them here--you ought to step back and look at
what is happening in the marketplace.
Coal is under pressure now. We had Jim Rogers of Duke Energy tell us
today that they have had a whole bunch of coal plants canceled. They
have had them canceled on them by States that are refusing to proceed
forward using coal. The fact is, a lot of States are turning away from
coal. They are doing that because of the price issues but also because
of the pollution issues.
If you are a coal State and you want a future for coal, the way to
protect that future is not to wait until the EPA regulates on its own,
without coming to the table with help for the transition costs; the way
to protect it is to recognize that you have to develop a clean coal
capacity. The only way to develop a clean coal capacity is to get the
allowances that come through a cap-and-trade system to be able to
provide for a transitional support system that allows those companies
to transition for the future.
The fact is, in the bill that passed in the House--I don't know what
the level in the Senate will be--there is a billion dollars a year for
10 years for clean coal efforts.
So the best way to protect coal and protect America, ultimately--
because we have a lot of coal, and it would be wonderful if we were
able to burn it but do it cleanly--is to commit now to a system where
we are able to provide the support necessary to develop clean coal. The
truth is that we know what happens if you don't make this a mandatory
structure.
In 1992, President George Herbert Walker Bush committed us to a
voluntary protocol in Rio, at what was called the Earth Summit. I went
there, together with other Senators, including Max Baucus, Frank
Lautenberg, Larry Pressler, John Chafee, Tim Wirth, and Al Gore. We
went as a delegation. The President came and gave a speech there, and
we committed to a voluntary framework to deal with global climate
change in 1992.
Here we are, years later, and it hasn't worked. During the last 8
years, America's emissions of global greenhouse gases went up four
times faster than during the 1990s. We have gone backward. While we are
going backward, the science is coming back more and more compelling by
the day.
The Siberian Shelf Study, just released a few months ago, shows
columns of methane rising from the ocean floor because the permafrost
lid of the floor is melting, as it is on dry land in Alaska, where they
voted recently to move the Nutak Village 9 miles inland. There are
dozens of villages in Alaska that are now moving as a consequence of
what is happening to the ice shelf and the rising sea levels. As the
permafrost lid melts, methane is being released in Russia, the Arctic,
and other places where it is exposed. Methane is 20 times more damaging
than carbon dioxide. On the ocean floor, you have the columns of
methane visibly rising through the ocean, and when they burst out into
open air, if you lit a match, it would ignite. That is how potent it
is. That is an uncontrollably dangerous potential threat to everybody
unless we tap into it or learn how to do that or commit to some other
methods of controlling this.
The fact is, a 25-mile ice bridge that has existed for thousands upon
thousands of years, which connected the Wilkins Ice Shelf to
Antarctica, shattered, fell apart a number of months ago as a
consequence of what is happening. A number of Senators have been up to
Greenland and have seen the level of icemelt taking place on the
Greenland ice sheet. That Wilkins ice sheet is floating in the ocean,
and the Greenland ice sheet is on the rock. Many scientists worry that
the river melt that is occurring underneath the ice sheet might, in
fact, create a slide effect for massive amounts of ice that might break
off and fall into the ocean. If the West Antarctic ice sheet melts and
the Greenland ice sheet melts, that represents a 16- to 23-foot sea
level increase. That is beyond comprehension

[[Page S7615]]

in terms of what the impact of that would be. Just a meter of an
increase, which is currently predicted for this century--and we are on
track to actually meet or exceed that--just a meter means the
disappearance of Diego Garcia, the island we use to deploy important
supplies to Afghanistan, Pakistan, and to deal with other issues. That
will disappear. Countries such as Bangladesh and many islands will
disappear, including the coast of Florida. The threat is enormous. The
piers in Norfolk, VA, are all cemented to the ocean floor. If that
rises a meter, that will be a cost. You can run down the list of things
that will begin to happen.
The Arctic ice sheet had previously, a few years ago, been estimated
to disappear by 2030 or so. Scientists are now telling us that we will
have the first ice-free Arctic summer by the year 2013--4 years from
now. That means a lot of different things. It can mean the change of
ocean currents and clearly a change in the ecosystem. It means simple
things like as more ice is melted and the ocean is opened up--the ocean
is dark, the ocean absorbs sunlight. As the sunlight comes down
directly onto the Earth, that is absorbed into the ocean rather than
reflecting back up, as it used to, off the ice and snow. The result is
that the ocean warms even faster, which accelerates what is happening
in the Arctic and what is happening in Greenland. So there is a
boomerang effect to all of this.
It is ultimately what scientists call the ``tipping point.'' That
brings us to the issue of urgency here. Why is this urgent? It is
urgent because for years scientists have been telling us that you have
to hold down the level of greenhouse gases to--originally, they said
550 parts per million. Then they revised that as new science came in
and people realized things were happening faster than we thought. They
revised it to 450 parts per million. Now scientists are revising again,
and they are revising again because the rate at which the science is
coming back tells us this is happening a lot faster than we thought and
to a greater degree. Now they are revising it from 450 parts per
million to 350 parts per million. Not everybody has accepted that, but
that is going on. Why is that alarming? It is alarming because we are
at 385 parts per million today.
With the current rate of coal-fired powerplants coming online, the
rate of increased emissions through new buildings and the lack of
adequate standards on automobiles, and other things, we are pouring
emissions into the atmosphere willy-nilly as if there is no tomorrow.
Well, that could happen, the way we are going.
The fact is, what is up there already--this is scientific fact. There
is nothing that any opponent of global climate change has ever said or
done or produced to indicate that this is not fact: Greenhouse gases
live in the atmosphere for 100 to 1,000 years. As they live in the
atmosphere, they continue to do the warming. So the warming we have
done already has warmed the Earth by .8 degrees centigrade. So we can
absolutely anticipate a compounding of that warming because the same
amount or more is up there, and it is going to continue to do the
damage. We don't know how to take it out of the atmosphere. So we are
looking at a certainty of another .8 degrees. That takes you up to 1.6.
And scientists are telling us the tipping point is at 2 degrees
centigrade.
I ask my colleagues to go look at the modeling that has been done by
countless different groups around the world. This is not an American
conspiracy somehow. This is not a Democratic or Republican thing. It
doesn't have that kind of label on it. There are thousands of
scientists who, for 25 years or more, have been drawing conclusions
based on scientific analyses, and scientists--if you are a good
scientist, you are also conservative, because all of the proclamations
or findings you make are subject to peer review if you are a good
scientist, if you are a legitimate study. The fact is, there are
thousands of legitimate peer-reviewed studies that document what is
happening in terms of the impact of global climate change. There are
zero--not one--peer-reviewed studies that deny those thousands--not
one. For all the industry studies you hear, all the scary tactics, like
Chicken Little, saying the sky is falling, and the numbers that are put
out, no peer-reviewed study supports an analysis that what the
scientists say is not happening. We are looking at the potential here
of catastrophic implications, which is why the United States needs to
move.
The science is one thing; you can put it over here. But what is
happening is that other countries have committed to this. Their
presidents, their prime ministers, their environment ministers, their
finance ministers--all of these people have come together and made a
commitment for those countries. They are moving. They accept the
science. They also accept the dynamics of the marketplace. They want to
be leaders in solar, leaders in wind, leaders in alternatives,
renewable, biofuels--you name it. The fact is, unless the United States
seizes this economic opportunity, we are going to lose the chance to be
leaders in one of the greatest markets in history.

The market that led us to great wealth during the course of the 1990s
in the United States was the Internet and data management systems. That
market was about a trillion-dollar market and about a billion users at
the time during the 1990s, at least when we saw great wealth created.
The energy market is a $6 trillion market with about 4.5 billion
users, many of whom are potential users in places such as India, where
solar could light a small village and run electricity pumps where they
have no water today and no pumps and no development. There are
countless things that could happen as a consequence of this that would
have profound consequences on elimination of poverty, which has
profound implications on eliminating jihadism in places all around the
world.
This is an opportunity to change the paradigm, if you will, into
which we have been locked. The United States needs to lead. I want
those batteries made in Detroit and countless other cities across this
country. I named Detroit because we have the skilled workforce. The
automobile industry is hurting. We should be building the cars for
America's high-speed rail system there. We should be building the
batteries there, not in China. We should be developing these
technologies. These are ongoing jobs that repeat for the future, and
they cannot be exported. What can be exported is the technology itself,
which we have an ability to go out and sell to other countries, which
is good for the American marketplace.
As these weeks go on, we need to talk about this. I want to come back
to one particular component. I want to underscore the national security
implications.
In 2007, 11 former admirals and high-ranking generals issued a report
from the Center for Naval Analysis saying that climate change is a
threat multiplier with a potential to create ``sustained natural and
humanitarian disasters on a scale far beyond those that we see today.''
In 2008, a national intelligence assessment echoed those warnings
from inside our own government. GEN Anthony Zinni, former commander of
our forces in the Middle East, was characteristically blunt in
addressing this threat. He says that without action ``we will pay the
price later in military terms, and that will involve human lives. There
will be a human toll.''
The estimates of the intelligence community and those looking at the
national security implications are that we could have in a few years as
many as 200 million climate refugees. We have an internally displaced
issue today in Pakistan. We have it in Afghanistan, Iraq, and other
countries. We can have environmentally displaced people who are forced
to move because they cannot produce food because they lose water. The
problem of failed states will only be compounded as the instability
that comes with those moving populations and the challenges of
providing for those people grows.
Believe me, American ingenuity, American military capacity, American
lift, American medical capacity, American food aid--all of these things
will be called on. And unless we act now, they will be called on to a
greater degree than is necessary.
So climate change, in fact, injects a major new source of chaos, of
tension, of human insecurity into an already volatile world. It
threatens to bring more famine. I invite my colleagues to talk with the
developmental people in so many of these countries about the

[[Page S7616]]

problems they are having today growing crops, about the change in
rainfall, about the lack of water, about the desertification that is
taking place in places such as Darfur. Time magazine had a headline a
couple years ago: Do you want to prevent the next Darfur? Get serious
about climate change. There are linkages here, and it is essential for
us to understand the costs.
None of the modeling that has been done to date tries to estimate the
cost to the consumer, and that is a concern. In fact, there is an
enormous amount of money being put on the table through the allowances
to cushion this impact so that American citizens are not paying more
for electricity and not paying more as a consequence of these changes.
I believe there is a minimal cost. But the truth is that cost has not
even yet been properly represented because no model to this date shows
the impact of energy efficiencies in America that will reduce the cost
for families. No study properly shows the cost of technology advances
that will reduce the cost for communities and families. And no study
shows the cost to the American consumer of doing nothing.
If the United States does not do this, believe me, that is a tax on
Americans, and it is a lot bigger than the costs that are going to come
affiliated with the transition to a new economy which is sustainable
for the long term for our Nation.
As we go forward, I want to say to colleagues a couple of concerns
people have expressed about cap and trade and other issues. The
marketplace: Will the marketplace abuse this? Can we trust the
marketplace to function? The answer is, all of us have learned some
very tough and bitter lessons as a result of lack of regulatory
oversight of the 1990s and the last 8 years. So we are going to have in
our legislation in the Senate, which is not in the House, some
mechanism by which--I am not going to go into all the details now
because we are not going to lay out all the details of what we are
going to do. But we are going to address this concern of market
regulation in order to adequately guarantee transparency and
accountability as we go forward.
There are other concerns people have expressed. As the next days go
on, we are going to show day for day exactly what the real costs are,
what the real opportunities are, and how we can proceed.
I close by saying that here is the choice, really, for us as
Americans and as human beings. Let's say that the people who have no
peer-reviewed studies at all, that people who want to be in the flat
Earth caucus, or whatever, and argue this is not happening, let's say
they are right and we are wrong and we do the things we are going to do
because we think they are the right things to do. What is the downside?
The downside is that America would have led the world in terms of
technology because every other country is already doing this. Anybody
who sits there today and says: What about China, what about China,
ought to go to China and see what China is doing. China is determined
to be the world's No. 1 producer of electric vehicles, and they are on
the way to doing it. China has tripled its wind power goals and
targets. China is putting in place right now a 20-percent reduction in
energy intensity, and they are ahead of the curve in almost every
sector but one and meeting and exceeding that goal. We are not doing
that. They are doing that. China is the leader in wind and solar
technology. China has a stronger commitment on automobile levels of
emissions than we do, and it is going into effect before ours.
I have talked with a number of well-respected observers, both in
business and in journalism, who have been to China recently, and they
have come back shaking their heads and saying: If we don't get our act
in gear, China is going to clean our clock, and we are going to be
chasing China in 3 or 4 years.
If you are concerned about holding China accountable to a system, we
better put something in place because that is the only way we are going
to get a mechanism in Copenhagen that is going to help hold everybody
in place.
Here is the bottom line. If we don't get that mechanism, the
President is not going to send anything up here, and we are not going
to pass it at that point. We are not going to accept some global system
that does not address this globally. We have been through that with
Kyoto.
The fact is the United States has to do what it has to do in order to
make Copenhagen happen, in order to lead the globe in this effort. I
hope our colleagues will recognize that.
What else will happen if we are wrong and they are right? We will
have cleaned up the air. We will have better health quality in America
because we will have better air quality because we will have reduced
particulates in the air by reducing global emissions.
The largest single cost of children's health care in the course of
the summer in the United States of America is children being committed
to hospitals because of air quality, asthma attacks, in the course of
the summer, and it is rising as a problem in our country.
It will have reduced hospital costs, better quality of air, better
health. What else is a downside of doing this correctly? We will have
created millions of new jobs. We see that happening right now. Think of
what happens when we set a global target and when the United States
sets its own national target and businesses say: Hey, there is money to
be made there.
We have better transmission lines so we can send electricity produced
from solar in Nevada or in Oklahoma or Texas, or somewhere, and you can
sell it to the rest of the country because it can actually be
transported there. The minute we do that, the private sector is going
to say: Wow, that is worth investing in because we can make a return on
our investment.
Look at the size of the market. Today we cannot do that because we
cannot send it around the country because we don't have a transmission
system that allows us to do that.
The worst that would happen is we move down the road to have cheaper
electricity because we can move it from alternatives, renewables all
around the country, have a smarter grid, and have the ability to reduce
costs for Americans.
What is another downside? Another downside is we might actually
reduce poverty around the world because of technology advances. We
might reduce the instability of countries and improve our own security,
and we will reduce energy dependence because we will be able to produce
our own energy at home and not depend on sending hundreds of billions
of dollars to other countries in the Middle East and elsewhere. That is
a downside.
What is the downside if they are wrong? Catastrophe, absolute
catastrophe because we go beyond the tipping point. I cannot stand here
and tell you everything that is going to happen. But I read enough and
have seen enough of what the scientists say are the potential impacts,
and I have seen enough of those impacts already coming true. Just by
evidence and common sense, you say to yourself: I don't want to put
this to the test because there is no way to come back from it. There is
no way to go over that tipping point and turn the clock backwards. That
is the choice for all of us.
I hope in the course of this debate we are going to have the kind of
debate on the facts, on real studies, peer-reviewed studies, on
analyses that make sense so we can make the kinds of judgments that the
Senate deserves and that the American people deserve.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. UDALL of Colorado. Madam President, I ask unanimous consent to
speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. UDALL of Colorado. Madam President, I heard the Senator from
Massachusetts laying out the scenario we face not just as Americans but
as inhabitants of this wonderful planet Earth. I was compelled to come
to the floor and talk about what we are doing in Colorado in seizing
the opportunities that the Senator from Massachusetts points out.
He described ably and eloquently what I have characterized as a ``no
regrets'' policy. We ought to take all of these steps because whether
or not climate change materializes--and I am one who believes the
science is very powerfully pointing in that direction--all of those
steps would result in the benefits he described. Today I want to bring
my home State perspective to

[[Page S7617]]

this debate over cleaner, safer, and more secure energy sources.
When we make this change, we will improve our national security. We
lessen our dependence on foreign oil, we protect our Earth, and we
preserve the air we breathe and the water we drink. Most of all, we
keep faith with our children. I have long believed that we do not
inherit the Earth from our parents; we are actually borrowing it and
all its majesty from our children.
Colorado has a unique perspective on this opportunity, and I think
America can benefit from our experiences.
For many years, we have been a national leader in developing energy
sources that are traditional, such as coal and natural gas. And in
recent years, we have begun to lead the Nation in producing renewable
energy from the Sun, the wind, and from biomass.
In 2004--the Presiding Officer, who is a former Governor, can
understand the symbolism of what we did--I led a campaign along with
the Republican speaker of our State house, Lola Spradley, to create a
renewable electricity standard for our State. We barnstormed together
in our State in that highly partisan 2004 election. We surprised people
that a Democrat and Republican were campaigning together. It was not a
Republican or Democratic issue; it was a Colorado issue and, more
importantly, it was a Colorado opportunity.
There were naysayers who tried to scare our voters by saying the
renewable standard would raise energy costs and harm our economy. But
our voters decided to take up the challenge and to commit to generating
10 percent of our electricity from the Sun and from the wind and other
clean sources of energy. Our clean energy producers went to work after
we passed this measure, and just 3 years later our legislature,
realizing we were soon to reach that goal, said: Let's double the
standard. So we now have a 20-percent standard we are committing to
reach by the year 2020.

We are fortunate to have these ample supplies of clean energy
resources in Colorado. But the real key to this has been releasing the
ingenuity of our people and then setting goals that create a
sustainable future. I wanted to share some examples from Colorado
specifically.
Just last week, Tristate, a Colorado utility, joined with a
subsidiary of Duke Energy and announced plans to build a wind power
facility in Kit Carson, CO, out in our eastern plains.
Vestas--which many are familiar with as the Danish wind turbine
supplier--recently broke ground on two new manufacturing plants in the
city of Brighton that will eventually employ over 1,300 people. It is
also building a $250 million plant in Pueblo that will be the largest
facility of its kind and employ 500 people.
Our Governor, Bill Ritter, has estimated that the solar component--we
had a solar component in our renewable electricity standard,
specifically to generate solar energy activity--has brought over 1,500
new jobs to Colorado.
I think it is fair to say we have wind turbines sprouting and growing
like trees on our eastern plains and we have solar farms that are
covering the entire San Luis Valley, which is one of our agricultural
gems. This is as a direct result of Coloradans setting a goal and
saying we are going to meet that goal. I guess I am optimistic enough
about America to know that America can follow Colorado's lead. For me,
it is when, not if, we commit to a cleaner, more sustainable energy
future, we will lead the world in this next great technological
revolution.
The Senator from Massachusetts spoke to the awe-inspiring numbers
that are potentials--a $6 trillion economy--waiting for us out there if
we will only commit to pursuing it. The Union of Concerned Scientists
has estimated that a 25-percent renewable electricity standard by 2025
will lead to almost 300,000 new jobs in America, $260-plus billion in
new capital investments, $13 billion in income to farmers, ranchers and
rural landowners, and $12 billion in local and State tax revenues.
Consumers would save $64 billion in lower electricity bills by 2025,
while we would reduce the carbon pollution emitted by cars that would
be the equivalent of taking 45 million vehicles off of our roads.
I am talking about jobs, Madam President, but it goes much further
than that. If, and I say when, we develop a clean energy economy, we
will create a new manufacturing base. It will protect our lands and our
water, and it will align a policy compass that helps us navigate toward
a more prosperous future.
I would like to take a minute and emphasize that the clean energy
future I paint doesn't mean the abandonment of traditional sources of
energy. We have coal and oil and natural gas in abundance. Nor should
it shut the door on nuclear power. Quite the opposite. These sources
will remain an essential component of our energy mix for the
foreseeable future. I think, as Colorado's experience shows, a balanced
energy portfolio will work and that we can find that sweet spot in an
energy mix for the future.
We have ample supplies of fossil fuel in Colorado, and we ought to
continue to develop those sources. They are crucial to the livelihood
of tens of thousands of Coloradans and still comprise the majority of
our electric generation. Natural gas, in particular, is a clean and
domestic source of energy, and it will be a crucial bridge fuel to the
future.
We have massive quantities of oil shale potential on our western
slope, and we should continue to research to see if we can produce it
in a commercially viable way and in an environmentally sensitive
manner.
Colorado has been able to bridge the divide, literally, between our
western slope and our eastern plains and between conventional sources
of energy from the last century and the clean sources of the future,
and the rest of America must now do the same.
The bottom line, though, Madam President, is we must have a
comprehensive energy policy that transitions us to cleaner, safer, and
more sustainable sources of energy while making full use of existing
sources in a responsible manner.
In Colorado, we have a very tangible interest in America adopting
broad clean energy sources and therefore limiting our contribution of
carbon into the atmosphere, and I would like to focus on one key
element of life on our planet, and that is water.
Water is the lifeblood of the entire West. When you grow up in the
desert, as I did, you learn to treasure water. You learn that
everything is shaped by it, and it may not always be there when you
need it if you don't husband those resources. My constituents know that
maintaining our water supply is crucial to the health of their families
and to preserving the way of life we so value in the West. We have
suffered through water shortages. We have seen drought.
My father's generation--not that far removed from our generation--
experienced the great Dust Bowl of the 1930s. That was an ecological
disaster that reminds us that while we are smart as a species, and we
are industrious, Mother Nature always bats last.
When scientists look at our part of the country, they predict that
droughts will get worse and precipitation patterns will decrease in
Western States because of our use of and dependence on the traditional
sources over the last century. People in Colorado know we can't ignore
this threat. We have seen acre after acre of our forests devastated by
the mountain pine beetle--an epidemic that was exacerbated by a warming
climate that will get worse in the hotter drier conditions to come.
When they see that, when I see that, we know that doing nothing is not
an option.
The cost of inaction is simply too high, and you see that point of
view in all the States in my region of the country, regardless of the
leadership at the gubernatorial level, at the legislative level. No
matter what part of the country we are from, we have a stake in
crafting a new energy policy. Beyond regional interests, members of
both political parties know we have to meet this challenge because if
we don't, it is not only our economic prosperity that is at stake, our
national security is at stake.
I was inspired this week to see that our former colleague, the highly
respected, now retired, Senator John Warner, is traveling across the
country making the case for a plan to address the threats from climate
change. We can debate the causes of climate change, and we should
continue to have that debate, but we know what we must do.

[[Page S7618]]

First, we must lead the world in a clean energy revolution, and next
we must acknowledge that our reliance on foreign sources of oil and
fossil fuels isn't a sustainable strategy. Third, we must act soon.
I used to think having a discussion about adapting to the changes
being brought about by the emission of carbon was a mistake, and that
by looking at adapting we were giving in to the problem. But I have
come to realize that we have to be realistic and we have to recognize
that the changes that are coming will have real impacts on all of us.
If we don't act now, the changes that are coming at us and bearing down
on us will have a terrible effect on future generations, and we will be
doing those generations a terrible disservice.
The longer we wait, the longer we deny, the longer we spend debating,
the harder and, frankly, the more expensive it will be to deal with
those changes. So the time to act is now. I urge all of our colleagues
to join together to pass a strong, clean energy bill. We can drive
America with clean energy.
Madam President, I yield the floor, 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. MENENDEZ. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MENENDEZ. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Sotomayor Nomination

Mr. MENENDEZ. Madam President, America has been listening to the
confirmation hearings of Judge Sotomayor--the lengthy rounds of
questioning, the probative approach of the members of the committee--
and we have seen an extraordinary jurist in action. We have seen her
responses, witnessed the depth, dignity, and clarity of her thoughtful
observations. We have seen a skilled, dynamic jurist carefully,
thoroughly, calmly engage each member of the committee, showing each
Senator a deference in tone and tenor that speaks directly to her
temperament and what she will bring to the debate in the hallowed halls
of the United States Supreme Court.
I believe most Americans watching these hearings, though deeply
concerned about the substance of the issues raised fundamentally--at
the heart of it--care more about the person. They care about honor and
decency and dignity and fairness. They care about her experience. They
care about who Judge Sotomayor is and what she has accomplished in her
long judicial career. They care about the record. And the record is
clear.
They care that the leaders of prominent legal and law enforcement
organizations, who know her best and have actually seen her work, say
she is an exemplary, fair, and highly qualified judge. They care about
her work fighting crime, and that as a prosecutor she put the Tarzan
murderer behind bars. They care that as a judge she upheld the
convictions of drug dealers, sexual predators, and other violent
criminals. They care that she respects their liberties and protections
granted by the Constitution, including the first amendment rights of
those with whom she strongly disagrees.
Judge Sotomayor's credentials are impeccable. Set aside for a moment
the fact that she graduated at the top of her class at Princeton. Set
aside her tenure as editor of the Yale Law Review. Set aside her work
for Robert Morgenthau in the Manhattan District Attorney's Office; set
aside her successful prosecution of child abusers, murderers, and
white-collar criminals; set aside her string of victories along the
way, not to mention her courtroom experience and practical hands-on
knowledge of all sides of the legal system. Set aside her appointment
by George H.W. Bush to the U.S. District Court in New York and her
appointment by Bill Clinton to the U.S. Court of Appeals; and the fact
that she was confirmed by a Democratic majority Senate and a Republican
majority Senate which alone tells this Senator--if she was good enough
twice, she must be good enough a third time.
Set all that aside, and you are left with someone who would bring
more judicial experience to the Supreme Court than any Justice in the
last 70 years and more Federal judicial experience than anyone
nominated to the Court in the last century.
Her record is clearly proof that someone so skilled, so committed, so
focused on the details of the law can be both an impartial arbiter and
still understand the deep and profound effect her decisions will have
on the day-to-day lives of everyday people.
Senators should focus on Judge Sotomayor's full 17-year record on the
bench as well as her career as a prosecutor and corporate attorney.
She has been clear and consistent in her answers, despite repeated
questions and efforts to trip her up. She has been consistently more
forthcoming than any other recent Supreme Court nominee.
Almost every Republican Senator has asked Judge Sotomayor, in total
more than a dozen times, about the same comment made in a 2001 speech,
a single speech over 8 years ago at Berkeley. She has continued to say,
frankly, openly, honestly, that her comment ``fell flat,'' that she
never intended that any person would have an advantage in judging. She
has given the same answer each time and each time made clear that ``her
personal experience does not compel a particular result and prejudice
never has a role in her judging.''
She said again yesterday: ``I do not believe that any racial, ethnic
or gender group has an advantage in sound judging. I do believe that
every person has an equal opportunity to be a good and wise judge,
regardless of their background or life experiences.''
I know no Senator here has ever made a speech in which their quote
fell flat or their comments fell flat or what they intended to say was
somehow misconstrued. I know that has not happened among the 100
Members of the Senate.
On gun rights, Judge Sotomayor has consistently followed precedent in
second-amendment cases. Yesterday and today she has reaffirmed her view
that the second amendment includes the individual right to bear arms.
She reaffirmed, again, today her statement from yesterday, when asked
if she would be open to considering whether the second amendment
creates an individual right applicable to the States, saying:

I have an open mind on the question. . . . I would not
prejudge any question that came before me if I was a Justice
on the Supreme Court.

Consistent with her judicial philosophy, she has strictly adhered to
the precedent in considering gun rights and on her commitment to the
rule of law Judge Sotomayor has repeatedly stated over and over that
she is committed to precedent and the rule of law in every case, a
commitment reflected not just in words but in her 17-year record as a
fair, moderate judge.
She said, ``As a judge, I don't make law.''
That is exactly the approach we should expect and demand from any
nominee for the Supreme Court.
I implore my colleagues to look at her record, listen to her answers;
they are clear, focused, respectful, forthright. She has answered every
question directly, honestly, thoughtfully, and without equivocation.
She has held nothing back.
But I, personally, as I have watched these hearings, am beginning to
wonder: Are we truly in search of answers or are we badgering the
witness? I know that all of America is watching this hearing, but I
have to tell you Hispanic Americans are watching it with great
interest. Attempts at distorting a record that has been committed to
the Constitution, to the rule of law, by suggesting that her ethnicity
or heritage would be a driving force of her decisions as a Justice of
the Supreme Court is demeaning to women and to Latinos, it is demeaning
especially in light of a 17-year record that reflects totally the
opposite.
Maybe some of my colleagues think that by repeating that statement
time and time again they will generate some opportunity to create an
image that is simply not true--that they will create an image that is
simply not true. For many of us who come from the Hispanic community
within this great country, we have seen the efforts to have a class of
people painted in a certain way, and I implore my colleagues

[[Page S7619]]

who seem to be traveling down this road that they are running a great
risk--that they are running a great risk. If this judge didn't have the
17-year record of fidelity to the Constitution, fidelity to the rule of
law, fidelity to precedent--even when that precedent binds her in a
way, as in the Ricci case, in which she had sympathy for the White
firefighters, but nonetheless precedent kept her obligated to the
decision that they had--I would say maybe that line of questioning is
legitimate. But I must be honest with you, when it was raised once or
twice or three times--but when it has been raised a dozen times,
sometimes by the same Senator asking the same set of questions despite
having gotten a full answer on the issue, it creates great concern for
some of us who have been down this road in other paths at other times
but with the same tactics.
Clearly, this is one of the most gifted jurists in America, and we as
a nation would be honored to have her serve on the U.S. Supreme Court.
I hope these hearings will come to a conclusion soon. I look forward to
the debate that will take place on the floor and I, as well as the rest
of this country who are riveted on this process, are going to be
looking for equal justice under the law--the template that is before
the mantle on the Supreme Court: ``Equal justice under law.'' Judge
Sotomayor deserved to be treated with equal justice in this process and
this badgering of the witness, particularly in this line of questioning
which has been asked and answered several times, raises serious
concerns for those of us who have lived in this community, understand
the challenges and understand the way in which people try to paint
people in this community.
It is time to end that line of questioning. It is time to have us
have the committee move beyond it.
I yield the floor and 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. WEBB. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WEBB. Madam President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Webb pertaining to the introduction of S. 1468
are printed in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Mr. WEBB. I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Madam President, may I say for the information of my
colleagues, we are working on a unanimous consent agreement so that we
can take up the hate crimes issue, the F-22 amendment, and a Republican
amendment. Both sides are working hard to get that resolved.

Health Care Reform

This is an interesting time in America and in the Congress. We have
the very important Defense authorization bill before us. We have the
hearings for Judge Sotomayor. We have the HELP Committee reporting out
its legislation. There may have been more issues before the Congress,
but I don't recall them in the years I have been in the Senate.
Today we had an event that is in the ``you can't make it up''
category. I read from the CNSNews.com. It is entitled ``Joe Biden: `We
Have to Go Spend Money to Keep From Going Bankrupt.' ''
I quote completely from the news report from CNSNews.com:

Vice President Joe Biden told people attending an AARP town
hall meeting that unless the Democrat-supported health care
plan becomes law the nation will go bankrupt and that the
only way to avoid that fate is for the government to spend
more money.
``And folks look, AARP knows and the people working here
today know, the president knows, and I know, that the status
quo is simply not acceptable,'' Biden said at the event on
Thursday in Alexandria, Va. ``It's totally unacceptable. And
it's completely unsustainable. Even if we wanted to keep it
the way we have it. It can't do it financially.''
``We're going to go bankrupt as a nation,'' Biden said.
``Well, people that I say that to say, `What are you
talking about, you're telling me we have to go spend money to
keep from going bankrupt?' '' Biden said. ``The answer is
yes, I'm telling you.''

That is a very interesting story. The thing that probably makes it
more interesting is the Washington Post story today entitled ``CBO
Chief Criticizes Democrats' Health Reform Measures.''
I quote from the Washington Post story:

Instead of saving the federal government from fiscal
catastrophe, the health reform measures being drafted by
congressional Democrats would worsen an already bleak budget
outlook, increasing deficit projections and driving the
nation more deeply into debt, the director of the nonpartisan
Congressional Budget Office said this morning.
Under questioning by members of the Senate Budget
Committee, CBO director Douglas Elmendorf said bills crafted
by House leaders and the Senate health committee do not
propose ``the sort of fundamental changes that would be
necessary to reduce the trajectory of federal health spending
by a significant amount.''
``On the contrary,'' Elmendorf said, ``the legislation
significantly expands the federal responsibility for health-
care costs.''

Here we have on the one hand the Vice President today telling the
American people that we have to spend money, we have to go spend money
to keep from going bankrupt, and yet the Congressional Budget Office
says that the proposed changes would weaken our economy and expand the
Federal responsibility for health care costs.
Continuing from the article:

The chairman of the Senate Budget Committee, Kent Conrad
[Democrat from North Dakota] has taken a leading role in that
effort. This morning, after receiving Elmendorf's testimony
on the nation's long-term budget outlook, Conrad turned
immediately to questions about the emerging health care
measures.
``I'm going to really put you on the spot,'' Conrad told
Elmendorf. ``From what you have seen from the products of the
committees that have reported, do you see a successful effort
being mounted to bend the long-term cost curve?''
Elmendorf responded: ``No, Mr. Chairman.''
Asked what provisions would be needed to slow the growth in
federal health spending, Elmendorf urged lawmakers to end or
limit the tax-free treatment of employer-provided health
benefits . . .

That has a little echo associated with it. I don't know where that
idea came from.

. . . calling it a Federal ``subsidy'' that encourages
spending on ever more expensive health packages. Key
Senators, including Conrad, have been pressing to tax
employer-provided benefits, but Senate leaders last week
objected, saying the idea does not have enough support among
Senate Democrats to win passage.
Elmendorf also suggested changing the way Medicare
reimburses providers to create incentives for reducing costs.
``Certain reforms of that sort are included in some of the
packages,'' Elmendorf said. ``But the changes that we have
looked at so far do not represent the sort of fundamental
change, the order of magnitude that would be necessary to
offset the direct increase in federal health costs that would
result from the insurance coverage proposals.''

Then incredibly:

Senate Majority Leader Harry M. Reid [of Nevada] dismissed
Elmendorf's push for the benefits tax. ``What he should do is
maybe run for Congress,'' Reid said.

I have disagreed from time to time with the Congressional Budget
Office. I have agreed from time to time with the Congressional Budget
Office. But I don't think it is appropriate to use that kind of
language from the majority leader of the Senate about these hard-
working people. This wasn't just Mr. Elmendorf's product. This was the
product of endless nights and days of work on the part of the
Congressional Budget Office. If you disagree with them, as I have in
the past, disagree and give your reasons for doing so. But for the
majority leader to say that what he should do is ``maybe run for
Congress,'' frankly, I don't think is an appropriate response to the
incredible work that these individuals are doing.
Continuing from the article:

But Senate Finance Committee Chairman Max Baucus . . .
expressed frustration that the tax on employer-funded
benefits had fallen out of favor, in part because the White
House opposes the idea.
Critics of the proposal say it would target police and
firefighters who receive generous benefits packages. And if
the tax is trimmed to apply to only upper income
beneficiaries, it would lose its effectiveness as a cost-
containment measure.
``Basically the president is not helping,'' Baucus said.
``He does not want the exclusion, and that's making it
difficult.''
But he added, ``We are clearly going to find ways to bend
the cost curve in the right direction, including provisions
that will actually lower the rate of increase in health care
costs.''

*   *   *   *   *

[[Page S7620]]

Ideas under consideration include health-care delivery
system reform; health insurance market reform; and empowering
an independent agency to set Medicare reimbursement rates, an
idea the White House is shopping aggressively on Capitol
Hill.
But Baucus is not giving up on the benefits tax. ``It is
not off the table, there's still a lot of interest in it,''
Baucus said.

Well, what this is all about--what this is really all about--is
heading in the wrong direction with the wrong fundamentals of what the
problems with health care in America are--a fundamental
misunderstanding. The health care in America is the highest quality in
the world. I went to M.D. Anderson with the Republican leader and the
Senator from Texas, Mr. Cornyn. At M.D. Anderson--one of the great,
premier institutions in America, where cancer treatment is incredible--
there were people there from 90 countries around the world. Most of
those people were wealthy people. They had the choice of going anywhere
in the world to get the treatment they felt they needed. They came to
the United States of America. That is true of the Mayo Clinic. That is
true of many other medical facilities and institutions in America.
So the problem with health care in America is not the quality of
care. The problem with health care in America is affordability and
availability. The cost of health care continues to increase--inflation
of nearly double digits. We cannot afford it.
The Vice President is right when he says it is unsustainable. But
when the President says that we want to do nothing, obviously, that is
not the view of Republicans. We believe you have to do a lot. We
believe you have to do a lot, and that is increase competition in
America so people will have choices, affordability, and availability,
and not a government-run health care system.
So the architects of the legislation passed through the HELP
Committee and being considered by the Finance Committee and that came
through the House were fundamentally wrong to start with. They were not
attacking the problem of health care in America, and that is the cost.
And the quality of health care in America is what needs to be
preserved.
How do you install competition? You install competition by letting
people go across State lines to shop for the health insurance policy
they want. That is prohibited now. Why is that? Why is that?
The other is wellness and fitness. We are in agreement, I want to
say, on a lot of issues that have not been highlighted in debate on the
floor--Republicans and Democrats. Wellness and fitness, insurance
policies that will encourage such things; rewards by employers for
people who practice wellness and fitness. In fact, probably one of the
best known individuals in America today is the CEO of Safeway. They
have had an incredibly successful program for their employees, where if
they practice wellness and fitness--they do not smoke, they regularly
engage in exercise, including membership in health clubs--guess what.
They are rewarded for doing so. And the overall costs of health care in
Safeway have gone down. They have told every insurer: Come, if you want
to insure our employees, encourage wellness and fitness and let them
make a choice. Do so.
That is the essence of what we have to do. The problem in America
with health care is that too often there are fixed costs. There is no
competition, and there are incentives to drive up the costs of health
care. We all know that. We all know there are certain procedures which
are more rewarding than others, and the system is gamed, and that there
are billions--tens of billions--of dollars of fraud, abuse, and waste
in the Medicare system that have been identified on numerous occasions.
We also know that medical malpractice is a problem, and we need to
reform it. Some years ago, the State of California--not known as a
conservative State, to say the least--enacted fundamental medical
liability practice reform. And guess what. It has resulted in cost
savings. It is well known that physicians practice defensive medicine,
which many times accounts for a 10-, 15-percent increase in those costs
for fear of being sued. And the new technology, which has made such
tremendous advances, then, indeed, increases costs because they are
overused because that physician knows, in some States, in some cases
and places, unless every kind of test is administered--whether that
physician thinks it is needed or not, it is going to be administered
and prescribed in order to avert the eventuality of appearing in court
and not having administered all the necessary, or what the plaintiff's
lawyers believe is necessary, tests and procedures.
So look, we know now--we know now--from the Congressional Budget
Office, for the second time, that this proposal is not going to cure
the health care issues of America. It is time we went back to the
drawing board. It is time Republicans and Democrats sat down at the
negotiating table--not calling one or two Senators down to the White
House, not trying to pick off one Republican or two Republicans, not
doing that.
I know that with this plan the Democrats and the administration may
be able to pick off a couple Republicans and get 60 votes and enact
this massive movement of the government takeover--eventual takeover--of
the health care system in America, or we can sit down together for the
first time with incredibly knowledgeable people. There is nobody who
knows more about health care than our two doctors, Drs. Coburn and
Barrasso. There is nobody who knows more about health care than Senator
Enzi, who has been our leader in the HELP Committee--Senator Alexander.
There is a lot of knowledge on health care issues. We could sit down
together, scrap this idea, scrap this ``spend money to keep from going
bankrupt,'' scrap this proposal where the Congressional Budget Office
says ``the legislation significantly expands the federal responsibility
for health-care costs,'' that the measures would ``worsen an already
bleak budget outlook, increasing deficit projections and driving the
nation more deeply into debt.'' That is not the proposal the American
people want to pay the penalty for.
So events today have been very interesting. The fact is, what we need
to do now is sit down together for a change. I have done it in the
past, I will admit, on issues that are not of this magnitude. I do not
know if there has been an issue that consumes one-sixth of the gross
domestic product of this country that I have been involved in.
Certainly other major issues, certainly working together with my friend
and colleague from Michigan on the Defense authorization and other
measures to preserve our Nation's security. But this issue, I must say,
causes all others to pale in magnitude. But that is also the reason why
we should sit down together and not pass legislation that is purely on
a partisan basis.
Let's listen to the experts. Let's listen to the Congressional Budget
Office. I know of no one who believes there is bias in the
Congressional Budget Office. As I say, sometimes I have been very
disappointed or disagreed with them. But I know of no one who thinks
they are not doing the very best they can under the intense pressures
of getting out these numbers.
I want to take this moment to salute the Congressional Budget Office,
whether I agree with or disagree with them, for the incredible work
they have done in the past. I hope at some point to be able, when this
health care debate is over, to enter into the Record the thousands of
hours that have been put in by the Congressional Budget Office and the
staff there in trying to come up with their best assessment so we can
legislate with the benefit of the knowledge that, frankly, only they
possess.
So let's listen to them. Let's listen to other outside experts. Let's
recognize the fact that this issue has badly divided this Congress. But
let's also listen to the fact that the American people are becoming
more and more skeptical of the proposals we are considering or that
have been reported out by both the House and the Senate HELP Committee
and maybe start over and do something the American people can believe
in and for which we can tell the American people we put their interest
first.
I note my friend, the Senator from Michigan, is on the floor. I hope
we can give a ray of hope to our colleagues and let them know how they
are going to be able to spend the rest of the evening.
I yield the floor.

[[Page S7621]]

The PRESIDING OFFICER (Mr. Begich). The Senator from Michigan.
Mr. LEVIN. Mr. President, let me thank my good friend from Arizona,
first of all, for all the effort he has made today with his staff. Our
staffs have been working hard. There is a lot of progress on the
unanimous consent request which will set out the path forward, not just
for tonight. We, obviously, expect votes tonight--a number of votes
tonight--but also for the coming days, when we come back here for votes
on Monday.
But there is progress being made, and the staffs are working very
hard. We can actually see them in the back of the Chamber at times
going back and forth with different ideas. But we are close. We are
confident. We are optimistic we will fairly soon have a unanimous
consent agreement.
I again thank my friend from Arizona for all he has done to help
facilitate this, and our staffs, because they are working hard and I am
optimistic they are going to succeed.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. CARPER. Mr. President, I was going to talk about aircraft and
aircraft procurement, and I will do that. But before I do that, I feel
compelled to respond to the comments of our colleague from Arizona with
respect to health care.
It turns out, literally, as we gather here on the Senate floor today,
negotiations are underway between Democrats and Republicans, led by
Senator Max Baucus, the chairman of the Senate Finance Committee, and
Senator Chuck Grassley, the ranking Republican on the Senate Finance
Committee, to try to find common ground with respect to health care.
In a day and age when we spend more money on health care than any
other nation on Earth, we do not get better results. I think we have
14,000 people who are likely to lose their health care in our country
today--in a country where we have 47 million folks who do not have
health care coverage. We can do better than that. There is a strong
bipartisan effort, led by two very good people--Senator Grassley and
Senator Baucus--to find common ground.
As it turns out, I like to use the words of a friend of mine, Senator
Mike Enzi of Wyoming, who talks a lot about the 80-20 rule and why he
and Senator Kennedy have gotten so much accomplished--legislation
coming out of the Health, Education, Labor, and Pensions Committee. It
is because they agree on 80 percent of the stuff, disagree on 20
percent of the stuff, and they focus on the 80 percent on which they
agree.
I think the same could be said about the legislation that is being
negotiated today, again, in a bipartisan way. The President has said he
wants a bipartisan bill. Our leaders on the Finance Committee want a
bipartisan bill. I want a bipartisan bill. I think in order for us to
actually get something good, something done that improves the quality
of health care that is provided in this country, that slows the growth
of health care costs, and bends that cost curve down, and makes it
possible for us to extend coverage to a lot of people who do not have
it, it is enhanced by having bipartisan legislation.
I will not go further into that at this time. But I felt compelled to
say I have not given up hope. My hope is that the efforts that are
underway as I speak will bear fruit and maybe provide a roadmap to a
plan we can agree to here in the Senate and in the House to build on
the good work the Health, Education, Labor, and Pensions Committee has
already done here in the Senate, and to enable us to find common ground
with the House and, hopefully, with the Obama administration.
Having said that--I know this might be a good segue--we are spending
a ton of money on health care in this country. If you look at the size
of our budget deficits, if you look at how much we spend in the country
for health care--I am told it is about one-sixth of GDP--that is not
sustainable. Medicare is likely to run out of money in about 7 years
from now. That is not acceptable. We end up, meanwhile, not getting
necessarily better results, and a lot of other countries are spending
substantially less.
We have great models for health care delivery in this country. I will
mention a few of them that are showing the way to provide better
outcomes at less money. They include the Mayo in Minnesota and in
Florida; an outfit called Geisinger in Hershey, PA; Intermountain
Health in Utah, Kaiser Permanente in northern California; a cooperative
called Puget Sound in Washington State; Cleveland Clinic in Cleveland,
OH. There are a number of them. For the most part, they are nonprofits
or cooperatives that have shown it is possible to provide better care,
better outcomes, for less money than what we are getting in this fee-
for-service operation that we now call a health care delivery system.
We can do better. My hope is we will keep working at it and not give
up and that we will continue to try to work across the aisle until we
come up with a product we can bring to the floor and negotiate, debate
it on the floor, and then go to conference with the House.
In terms of things that we spend a lot of money on--not just health
care--we spend a lot of money on the defense of our country. That is a
major priority for our Nation. If we go back to 1990s, 1980s, 1970s, we
went for a long time without balancing our budgets. In fact, it was not
until, I think, fiscal year 1999, under the Clinton administration,
that we actually balanced our budget for the first time, I think, since
1968. It was roughly 30 years, three decades that we went without
balancing the budget. I think we did it again in 2000, and then when we
had the handover from President Clinton to President Bush, we left the
new President with a budget that was, I believe, balanced once more.
We sort of went from that point in time, kind of a high-water mark in
terms of fiscal responsibility, and over the last 8 years we turned
around and we went in the opposite direction. We ended up running up
more new debt in the last 8 years than we ran up in our first 208 years
as a nation. I will say that again. We ran up more new debt in the last
8 years than we did in the first 208 as a nation. The debt for the new
fiscal year, as we go through this worst recession since the Great
Depression and trying to fight two wars, one in Iraq and one in
Afghanistan, the meltdown in revenues, very high health care costs; we
are looking at a budget deficit which, I am told for this year, may
have already exceeded $1 trillion, which is the highest on record.
I chair a subcommittee of the Homeland Security and Government
Affairs Committee in the Senate. One of our responsibilities is to
help, along with our colleagues, to scrub spending. One of the things
we do is we look for spending that doesn't make much sense or where
there is waste, fraud or abuse. I might say, in response to my friend,
Senator McCain's comments on waste in the Medicare system, one of the
encouraging things in the last 3 years is we have gone out and done
what we call postaudit cost recoveries in three States for Medicare. In
California, Texas, and Florida, we have actually gone out to see where
money has been wastefully spent and to see if we can recover that
money. The first year we discovered almost nothing, the second year we
found a little bit, and last year we found $700 million. In just three
States we did that, and now we are going to be doing the same kind of
thing in 47 States, hopefully recovering a lot more money for the
Medicare system and maybe taking our lessons learned from recovering
moneys misspent, inappropriately spent for Medicare, and do the same
kind of thing for Medicaid, and that will put a lot of money back into
the Treasury.
My subcommittee focuses on, among other things, wasteful spending,
and one of the things we have looked at is cost overruns for major new
weapons systems. With the help of the Government Accountability Office,
we went back to, I think it was 2001, and we looked for cost overruns
for major new weapons systems. In 2001, I think it was about $45
billion. We have seen it ramp up from about $45 billion in cost
overruns for major new weapons systems, GAO tells us by last year, or
maybe it was 2007 or 2008, this number had grown to almost $300
billion--from $245 billion in 2001 over the next 6 or 7 years to almost
$300 billion in cost overruns.
Unacceptable. I think we have finally leveled off the increase. Not
only is that kind of trend unacceptable, but the level of that enormous
cost overrun in weapons systems is unacceptable as well.

[[Page S7622]]

In a day and age when our Nation is awash in red ink and in a day and
age when we are involved in wars in Iraq and in Afghanistan, it is
critically important that we spend every dollar--defense dollar and,
frankly, nondefense dollars--as wisely as we can, to get the most out
of that money, whether it is health care to make sure that the dollars
we are investing there are spent cost-effectively or whether it is for
defense to make sure that the money we are spending there is spent
cost-effectively.
Senator McCain is a Vietnam veteran, and he is a real hero, for me.
But we have people who have served here--I think one or two might have
been around in World War II. Senator Inouye won the Medal of Honor
during World War II. We have had people who served in the Korean war,
the Vietnam war, and other times of peace, as well as in times of war.
I spent about 23 years, 5 Active, 18 years Ready Reserve as a naval
flight officer and much of that as a mission commander of a Navy P-3
aircraft built by Lockheed. We used the P-3 for years for ocean
surveillance, tracking submarines during the Cold War so we would know
where they were, and whenever we went up, we would know where to go
find them and destroy them if we had to. The strategy was called
mutually assured destruction. We, fortunately, never had to do that. We
used them in the Vietnam war for a lot of coastal surveillance; low-
level flights off the coast of Vietnam and Cambodia. The P-3 was
introduced into the fleet in 1960s, and it was introduced as a--
formerly used as a commercial airplane, a four-engine turboprop. We had
problems with the P-3's wings. We used to say we were afraid they would
fall off. I don't know if it was quite that bad, but we had real
problems with the P-3s performing reliably as a naval aircraft and
bouncing around the skies in all kinds of weather. A lot of work had to
be done on the P-3 wing and, within a couple of years, we finally
figured out the problem.
They are still flying. We are still using them in Iraq--not to track
submarines but all kinds of missions. We have used them for electronic
surveillance over the years and we have used them for drug interdiction
and now they are doing some special work over in Iraq and that part of
the world. It is an airplane which started badly as a military
aircraft, but it got a lot better.
You can find the C-5As built in the 1960s, C-5Bs in the 1970s and
1980s--rough startup, rough rampup on the aircraft. We had problems
with the aircraft, and we are now overhauling the C-5Bs. We call them
C-5Ms. And they are flying 85 percent mission capable. So that is very
encouraging. It took a long while to work out the wrinkles, but I think
we have now, and we are going to have a plane we will be able to fly
for another 30, 40 years, getting a lot of good use out of it, meeting
our military needs around the world.
The F-22 has been around for a number of years--not as long as the P-
3, not as long as the C-5, but it has been around for quite a few
years. We have, I think, close to maybe 200 of them that either have
been built or we are planning to build.
One of the things I find troubling--and I stand in support of the
amendment offered by Senators Levin and McCain and ask unanimous
consent to be added as a cosponsor of the legislation.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARPER. Built, I think, largely by Lockheed, and a lot of the
contractual work is being done in maybe close to 40, 45 States. But
Lockheed does some great work. This particular aircraft, I am troubled
by a number of things, as are the sponsors of the legislation. It is
not just that they are troubled, and it is not just that I am troubled,
but some other folks are troubled too. Let me see if we have a list of
some of the people who are calling and maybe suggesting that the F-22s
we have ordered are enough.

Among the people who say, in this case, 187 F-22s, fighter aircraft--
not an aircraft that is used for a lot--a plane mainly built and
designed to use for dogfights with aircraft from other nations in an
earlier day; the Soviets or maybe the Chinese or some other country.
But among the leaders of our country, they are saying, maybe 187 is
enough. Not maybe but saying 187 is enough. Two Presidents, former
President George Bush and our current President Barack Obama, they have
said that not just in giving speeches, but they have actually said that
with the budgets they submit to us, and in this case President Obama's
first budget and the last budget, or maybe several budgets from
President Bush.
Who else has said 187 is enough? Well, Secretaries of Defense; not
only the current Secretary of Defense, who is Bob Gates, but the
previous Secretary of Defense, who was also Bob Gates, and I think his
predecessor as well said 187 should do us.
We have had three Chairs of the Joint Chiefs of Staff who have said
187 F-22s is enough; we think that should do it.
We have had the current members of the Joint Chiefs of Staff who have
said 187 is plenty when it comes to F-22 fighter aircraft.
Finally, two of the most respected Members of the Senate, Senators
McCain and Levin, as leaders of this committee, have said: Well, this
is enough. Given our other demands and our other aircraft we have
available to meet this need, 187 F-22s is plenty.
Let me take a look at the next chart, if we could, and see what we
have. One of the reasons why all the folks I mentioned have said 187 F-
22s is enough, we think of some of the other aircraft we used, fixed
wing as well as nonfixed wing aircraft; the F-15 fighter, a number of
hours flown in Iraq and Afghanistan--these are rough numbers but about
40,000 flight hours. We have a couple UAVs here, unmanned aerial
vehicles, one called the ScanEagle, the other is called the Predator.
The Predator is better known. But so far the ScanEagle has flown in
Iraq and Afghanistan about 150 flight hours. The Predator has flown
about a half million flight hours in Iraq and Afghanistan. One of our
helicopters, I think the H-60, generally we think of as the Black Hawk,
but Black Hawks have flown 900,000 flight hours in Iraq and
Afghanistan. Down here at the bottom, the number of flight hours, as
far as we can tell, flown in Iraq and Afghanistan, I am pretty sure
this is correct: Zero for the F-22. That is a stark number, a stark
contrast.
Sometimes we tend to order weapons systems, build weapons systems,
maintain weapons systems to fight wars such as the last war we fought,
not thinking so much about maybe the weapons systems we need for the
current war or we will likely to need for a future war. One of the
reasons why this administration, the last administration, why this
President, this Secretary of Defense and previous ones have said we
don't think we want to do any more F-22s is because they believe that,
for awhile, we are going to be fighting wars such as unfortunately we
fought in Iraq and especially Afghanistan. That is going to be more the
modus operandi. We are going to be fighting counterinsurgencies, and
what we need are weapons systems and men and women who are trained to
fight in those wars. The F-22, frankly, does not lend itself to that
kind of war.
I led a congressional delegation with four of my colleagues back at
the end of May into Afghanistan and Pakistan, including our Presiding
Officer. We learned a lot. It was wonderful, and we came home feeling
very much encouraged about our strategy in Afghanistan, the men and
women who are implementing that strategy, both on the military and the
civilian side. One of the things we learned going into Pakistan is
that, for years, the Pakistanis have been preparing to fight the next
war not against the Taliban, not against al-Qaida, which happened in
the northwestern province, but they have been preparing to fight the
next war forever--I guess since 1947--against the Indians, against the
country of India. They may have a weapons system to work just fine in
that particular altercation if that were to occur. But their real
threat, frankly, isn't as much India anymore; their real threat is the
Taliban and the al-Qaida folks hanging out in those northwestern
provinces on the border of Afghanistan. While India and Pakistan may
have plenty of fighter aircraft, unfortunately, they don't have any
helicopters. They need mobility and they need helicopters to be able to
move their counterinsurgency forces. They don't have them. Frankly, we
are sort of guilty in a way of the same thing with the F-22.

[[Page S7623]]

Let's see what we have on the next chart. I will come to this in a
bit. One of the things we think about when we think of aircraft we use
is, first of all, the missions we need the aircraft for and the kind of
wars and threats we are likely to face. That helps us make that
decision.
Occasionally, we look at how much it costs to fly an aircraft. We
look at the dollars we spend to put an aircraft or helicopter into the
air for an hour. I have seen a wide range of flight hour costs for the
F-22--that it might be $22,000 per flight hour or as high as $40,000 or
$42,000 per flight hour. I don't have that at my fingertips, the flight
hour costs for other aircraft. But that is a lot of money for a flight
hour for any aircraft, especially a fighter aircraft. Whether it is
$19,000 or $20,000 or $40,000 an hour, that is a lot of money for the
kind of job we are looking for the aircraft to do.
We also look at who are we preparing to fight or what threat we are
preparing to counter. Some people say just in case the Chinese ever
give us trouble, to take them on we need the F-22s, or we may need 200
more. At one time, General Corley said we needed about another 200. As
it turns out, we have other aircraft to meet that kind of threat. I
hope that is not going to ever materialize, because China is a major
trading partner. I hope we don't ever get in a shooting war with them,
nor with the Russians.
We have other fighter aircraft. We have the F-15, F-16, and the F-18.
We are in the process of building another new fighter aircraft that
will be a joint aircraft that will be able to do fights in the air and
other things, including air-to-ground attacks, which the F-22 doesn't
lend itself to do. I think we are going to build about 2,500 F-35s. It
has broad support. We have built about 50 so far. The cost per aircraft
for the F-35 is about $80 million. I think the cost for building a new
F-22 is roughly $190 million. So the F-35 may be $80 million a copy,
and the F-22, which doesn't have the capability or the viability of the
F-35, costs about $190 million--over twice as much. That makes me
pause, and I hope it makes some of my colleagues pause as well.
Last, everybody knows we are wrestling through a tough economic time
in our country. We have lost a lot of jobs. We had a housing bubble and
meltdown, a loss of jobs in banking and financial services, and a lot
of manufacturing jobs. Chrysler and GM have gone into bankruptcy. They
are coming out of that, and they have a new product line coming through
the pipeline. The banks are stabilized and are lending money again, and
some are starting to pay back to the government the money they
borrowed.
I am bullish about where we are. It will take a while before jobs
come back, but I think there are encouraging signs about our economy.
Having said that, a lot of people would like to have a job who don't
have one. If we build another 190 or so F-22s, that would save some
25,000 manufacturing, good-paying jobs. We cannot just sniff at that.
Those are real numbers, and it is important for us in the States where
the jobs are. If we think about it, if we are talking about building
another almost 200 F-22s, and they cost roughly $190 million a copy,
and we are talking about saving 25,000 jobs, if we multiply $191
million by 194 aircraft, we come up with a total price of about $37
billion for building those extra 194 F-22 aircraft.
If the numbers are correct, that is about $37 billion. If we divide
that by 25,000 jobs, that turns out to be almost $1.5 million per job.
I nearly fell over when I saw that number--$1.5 million per job. We
have passed a stimulus package, and the Presiding Officer and I voted
for it. It was passed with bipartisan support, and I hope it will save
a couple million jobs. Jobs make sense. But this is a lot of money for
jobs.
You can look at what we say we are going to spend in the stimulus
package, the recovery bill, per job. I am not quick enough to run the
numbers, but these are expensive jobs.
I hope if we don't build another 200 F-22s, some of the folks who can
build them at Lockheed Martin--hopefully, some of them will be able to
build F-35s. They cost half as much to build, and they do more things.
Hopefully, some of them will be bought by other countries. I am not
aware that other countries have bought the F-22, but I think a lot
would be interested in buying the F-35, given the variety of missions,
the versatility, and the much lower cost.
There you have it, Mr. President. I don't know if I have made a
compelling case, but I appreciate the chance to share this with my
colleagues and anybody else who is interested at a time when we are
wrestling with enormous budget deficits, after 8 years where we
literally doubled our Nation's debt, and when we are expected to run up
the highest budget deficit in the history of our country, at a time
when we have major cost overruns and a new weapon system, and when we
have had literally two administrations, two Presidents, two Secretaries
of State, and all kinds of Joint Chiefs saying: You know, we have a
bunch of these F-22s. We have enough. It is not that we are going to
stop spending money on national defense. We are going to spend a fair
amount of money in Afghanistan, and even though we are drawing down the
troops in Iraq, we are going to continue spending money in that country
as well. The war in Afghanistan is the right war, and we need to stay
with it and crush the Taliban, help the Pakistanis crush al-Qaida, and
stay with the folks in Afghanistan until they can help defend
themselves and go on to a better economy and a better life. That is the
important thing to do.
We don't need the F-22 to do that. To the folks who have spent a
number of years, and a lot of our money building it, we say thank you.
But I think we have enough. We have plenty of other challenges to face.
I appreciate this opportunity to speak.
As I look around the Chamber, obviously, nobody listened with baited
breath to what I had to say. Hopefully, they are in their offices and
are tuned into C-SPAN II.
With that, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.

Amendment No. 1511

Mr. LAUTENBERG. Mr. President, today we are being asked to defend the
very core of our American democracy; that is, the right of people to
live freely, to move freely, to do what they would like to do as long
as they do not bring harm to others. People want to be free from
violence, free from fear, free from intimidation. And all too often we
hear of crimes committed against innocent people based almost solely on
bigotry and hatred. This Senate needs to send a message, a message that
this is unacceptable conduct in our society, that these crimes are
especially heinous, that these crimes must be severely punished,
because it tears at the basic fiber of being freedom-loving Americans.
An example of the horror that accompanies this kind of hatred is that
on a day last month, someone turned killer because of religious hatred.
This individual walked through the doors of the U.S. Holocaust Memorial
Museum, which was then filled with visitors from all around the world,
many of them children. His name: James Von Brunn. He raised a rifle and
opened fire, killing Steven Johns, a security guard who was simply
doing his duty, and wounding others before the individual was shot and
subdued. Not only did Mr. Von Brunn take a man's life and terrorize
bystanders, but he wanted to destroy this vivid reminder of how vicious
man's hatred and bias could be against an entire group of people. Over
6 million Jews died as a result of the Holocaust. Millions of others
died also as a result of the Holocaust, stemmed primarily by prejudice
and hate.
The tragic fact is that our history is replete with examples of
terrible hate crimes. In October of 1998, two men attacked and savagely
beat Matthew Shepard, a student who was gay and was there at the
University of Wyoming. Shepard died of his wounds a few days later,
simply because he was a gay person. In June of the same year, who can
forget that a Black man, James Byrd, Jr., was chained to a pickup
truck, dragged along a Texas road, and was killed by declared racists.
More recently, we have seen vulgar acts committed in the wake of a
historic happening in America. President Barack Obama, an African
American, won the Presidential election. In my

[[Page S7624]]

home State of New Jersey, after the November election, a cross was
placed and set afire on the front lawn of a couple, Alina and Gary
Grewal. The cross was wrapped in a homemade banner that the Grewals had
hung outside their home that simply read ``President Obama, Victory
'08''--pride filled, honoring this incredible accomplishment that took
place within America.
At a time when our Nation should be celebrating the progress we have
made, we must bring the full weight of the law to bear on those who
commit such atrocious crimes. Unfortunately, existing Federal law
hampers prosecutors from trying hate crimes effectively. Right now,
current Federal hate crimes law applies only when a victim is involved
in particular activities, such as serving on a jury or attending a
public school. This legislation would protect victims of hate crimes in
all situations, not just when a victim is involved in certain federally
protected ones. This amendment would also finally expand Federal hate
crimes protection to those victimized based on sexual orientation or
disability. Some 15 percent of all reported hate crimes are linked to
sexual orientation. Gay Americans should not be afraid to walk about
freely, and violent individuals should know that the Federal Government
will prosecute you if you commit a crime with hatred as the principal
motivator. Hate crimes are the ultimate expression of ignorance and
hate, and we must strengthen our Federal laws to protect people against
them.
Senator Kennedy first introduced this legislation in 1997, a year
before Matthew Shepard and James Byrd were killed because of bigotry.
It is time to pass this critical amendment and stand up for Americans
who are victims of vulgar and senseless acts of violence that should
not be happening in America without severe punishment, without the
reminder that we are a nation comprised of many different ethnicities,
different religions, different habits. It should not go without severe
penalty if someone is attacked because their habit, their face, their
color, their religion is different from the ones most popular.
I yield the floor, 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.
Ms. STABENOW. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so
ordered.
Ms. STABENOW. Thank you. Madam President, I also ask unanimous
consent to speak as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Michigan.
Ms. STABENOW. Madam President, thank you, very much.
First, I want to congratulate, actually, on the underlying bill, my
friend and colleague and the leader of the Armed Services Committee for
all of his hard work on the bill that is in front of us. It is so
important for the troops. I thank him for his leadership in such a
strong way on behalf of the men and women who are serving us every
single day and for all the things they need to be able to be supported,
along with their families. So this is a very important bill, and I am
hopeful we are going to be able to move through this very quickly.

Health Care

Madam President, I did want to take a moment, though, tonight to talk
about health care, about the specifics of the bill we have been working
on now for about a year. We have had forums and meetings and drafts and
proposals and working sessions for about a year now, I believe. I
commend Senator Baucus for the incredible amount of time he has put in,
as has his staff, with he and Senator Grassley, working, as they always
do, so well together.
There has been a tremendous amount of effort that has gone into this,
and we will speak more as the process moves along about the specifics
of the health care legislation. But tonight I want to take just a
moment to talk about why it is so important to do it.
If the system worked well now for everyone in the country, if
everyone could find and afford health insurance, we would not be having
this discussion. We would not have had this debate. This would not be
something that would be a top priority for the President of the United
States.
But the reality is, the current system does not work for everyone.
Even if you are part of the majority that has health insurance, you are
probably seeing your copays go up, your premiums go up. You may be
worried about whether you will lose your insurance if you lose your job
or your spouse loses his or her job. You may be in a situation where
you cannot find insurance because you have a preexisting condition that
the insurance companies will not cover.
There are many reasons why people today, even though they have some
kind of insurance, are incredibly worried about the future, about what
happens when they get sick or what happens when the kids get sick.
Then, for those who do not have any health insurance, of course, it
is an even more challenging story. We know there are millions of
Americans--47 million and counting, in my home State of Michigan alone
over 1 million people--who have no insurance at all. What happens to
them when they get sick or when the kids get sick?
So this is a huge issue, and the time has come to decide that health
care is a right, not a privilege, in the greatest country in the world.
We have been working for years. It has been 90 years--ever since
President Roosevelt wanted to have a health care system that all
Americans would be able to use as part of the Social Security Program--
that we have been trying to do this, trying to get it right. At that
time, 90 years ago, there were not the votes to do that. Since then,
Harry Truman wanted to have health care reform. It did not get done.
President Johnson initially wanted to have a system that every
American would be able to benefit from. That did not get done. But I am
very proud that a first major step was taken with President Johnson and
a Democratic majority and some Republican colleagues joining with them.
I hope we are going to see that kind of bipartisan effort now. But we
ended up with something called Medicare.
If seniors or people with disabilities could have been able to get
health insurance that they could find and afford at the time, Medicare
would not have passed in 1965. It passed, along with Medicaid for low-
income seniors and families, because people could not find insurance.
They could not afford it. That is why it passed.
We are now in the same situation. Since that time in 1965, there have
been a number of different efforts. A very important effort, one that
there was bipartisan support to do, children's health insurance, was
put in place--but still, not a system in America where everyone would
be able to afford to buy insurance, to be able to get health care for
themselves and their families.
So here we are today. It is time to finish the job that was started
years ago, to finally say: OK, we understand that health insurance is
not like other kinds of insurance. You can choose not to buy a car if
you do not want to, and you do not have to have car insurance. You can
choose not to buy a house and not have homeowners insurance. You cannot
choose not to be a human being and to get sick. So it is different.
So the question for all of us is not whether people will ever need to
use the health care system or whether they ever, in fact, will get
health care; it is when and how and how expensive it will be.
One of the major reasons today that the health care system is so
expensive--and, in fact, we spend twice as much as any other country on
health care. When you think about that, how crazy is that? We spend
twice as much as any other country on health care and have over 47
million people with no health insurance. Any economist would kind of
look at that and say that is crazy.
But we have a system now where the people who are uninsured or
underinsured--or have their premiums and copays going up too much where
they cannot afford to use their insurance--go to the emergency room,
moms and dads going to the emergency room with their children.
I have had the opportunity to visit emergency rooms, both when I have
been in an emergency but also just there with emergency room
physicians, with the nurses, to watch what happens. Anytime you have
seen that, you

[[Page S7625]]

know there are lots of moms and dads who have no other choice for their
children than to take them to the emergency room.
We also have more and more people who, because of dental problems--
the inability to get basic dental coverage--end up in the emergency
room of the hospital. When that happens, people are served. That is the
job of the hospitals, and I believe we should be focusing on emergency
rooms and emergency room physicians and giving them extra support
because of what they do. But the reality is, they are served. Then who
pays for it? Well, everybody who has insurance pays for it because the
hospital then takes the uncompensated care and rolls it over into the
costs of those with insurance. That is the system today. People get
care.
They walk in the emergency room sicker than they otherwise would be--
maybe waiting until late Friday night to have something happen, hoping
they were not going to have to go to the doctor because they could not
afford it, and they end up in the emergency room on the weekend.
The reality is, we have now institutionalized the system that is the
most expensive way possible to provide health care in this country. So
that is a huge issue.
We know if everybody is in it, if everybody is part of the system,
and we spread all the different ages and health conditions and
geographic disparities and all of the different pieces and variables in
the system, and we have everybody in some way covered--everybody in--
costs actually go down, which is also different than other kinds of
goods and services. So health care is, in fact, different.
But we now have a system where we are paying for this and providing
for this in the most expensive way possible. So there are many
reasons--many reasons--why we need to have a sense of urgency about
health care and what we are doing here. We need to remind ourselves
daily that this does not go away just because we are not paying
attention. When we are not paying attention, the prices go up. When we
are not paying attention, people get sick. When we are not paying
attention, businesses continue either not to be able to cover their
employees or drop coverage because of what is happening on the costs.
The only question we have is, when are we going to act? That is the
only question for us--not whether we are going to pay for it but it is
how we are going to pay for it. Are we going to create a system that
over time actually lowers costs by doing the right thing and having a
system that incentivizes the right things or are we going to continue
to do what we do now: costs going up, exploding, and the availability
of care going down? That is the system now.

As we discuss all of these issues, it is very complicated. All of us
involved in this wish it were not. This is an incredibly complicated
issue. As we have been working our way through this very hard, we have
heard from lots of people in this discussion, those who operate as a
business, who make a profit off this current health care system, those
who are involved in it in various capacities. But I don't think we hear
enough from those who are affected, from people in Michigan, people in
North Carolina, people around the country who are trying to take care
of their families, trying to be healthy, trying to get the care they
need when they are sick, operating under this system.
Because of that, I set up on my Web site something I am calling my
Health Care People's Lobby. We have lots of lobbyists here. I have
invited people from Michigan to be a part of my Health Care People's
Lobby and share their stories about what is happening for them. I wish
to share a few of those comments with my colleagues this evening, from
thousands of people who are now a part of my Health Care People's
Lobby.
Tricia Kersten from Bloomfield Hills, MI, says she doesn't understand
why some Senators don't seem to understand the ``unbelievable,
daunting, and debilitating effect the cost of health care causes their
voters.''
She is right. We all need to be paying attention to that. The cost of
health care today, as I mentioned, is crushing our families and
businesses, large and small, and that has to be part of--and it is, it
is--part of the goal. In fact, it is at the top of the list in terms of
our goals--lowering the cost.
Janet Rodriguez, St. Joseph, MI, wrote that her health care premiums
for her family of three are over $700 a month. Because her employer
pays a portion of her premium, and because those premiums are going up
and up every year, she hasn't gotten a raise in 3 years.
This is a very common situation for workers who get their insurance
through their employer. More and more people are having to trade off
getting a wage increase that would help pay the mortgage and food and
clothes and send the kids to college for a health care cost increase
that is occurring, and their employers having to pay more of that or
their having to pay more of that.
Cheryl Crandall of Pontiac, MI, is about to lose her COBRA benefits
next month and has been shopping for personal insurance. Within 2
weeks, the price had already jumped from $22 a month to $667 a month.
So it was $22, and it jumped to $667 a month. That is $150 more than
her house payment. She says: ``We are very, very frugal people. No big
vacations, no expensive toys, and we are not impoverished yet. But
premiums like this for mediocre coverage, large deductibles, large
copays, can break even the most stable family.''
We know that is what is happening. Her story is shared by thousands
and thousands of people I know across Michigan.
Our current health care system is bankrupting too many families. We
know that over 60 percent of bankruptcies are linked to medical
expenses. Seventy-five percent of families who file for bankruptcy
actually have health insurance, and those who have insurance on average
have medical expenses of over $18,000 when they file, even though they
have a health insurance policy. It is even worse for those without
insurance.
Sandra Marczewski from Waterford, MI, wrote to me that she and her
husband have been without insurance for 7 months. She writes: ``You
have no idea the fear I walk around with every day.''
This is a fear faced by millions of Americans, tens of millions of
Americans, hard-working Americans, people who have done the right thing
their whole life and now find themselves struggling in this economy and
facing that fear. After they put the kids to bed at night they say a
little prayer: Please don't let the kids get sick. They stay up
worrying about what is going to happen if they do get sick; avoiding
that cancer screening because they don't want to hear it if it comes
back positive, because they don't think they can do anything about it.
It is a fear that grips the heart of too many Americans, and it is so
critical that we move forward in a way that will allow us to address
what is happening with American families.
Lee Harshbarger of Ypsilanti lived with that fear. He had no health
insurance for 9 years. Thankfully, his wife's job now covers him, but
they worry every day: What will happen if she loses her job or if her
employer has to cut back on insurance or drop insurance? What will
happen then?
It is not just families who are hurting either. We know it is our
businesses, large and small. I have had so many small business people
come up to me and say: You have to do something. I want to cover my 10
employees, my 5 employees. I can't even find insurance for myself at a
reasonable rate, let alone the small group of people who work for me.
A.J. Deeds from Ann Arbor, MI, used to operate a small business in
Birmingham. They had 12 employees and they offered them health
insurance, but they soon found their competitors didn't offer these
benefits and they were left behind competitively, so they faced what
many businesses and families face, which is a race to the bottom. You
can't compete if you offer health insurance or a good wage, so you drop
the health insurance and you push down the wage.
By 1997, he wrote, they had to stop providing health insurance
because they couldn't afford it anymore and be competitive with the
other companies that didn't offer insurance. That same year, A.J.'s
first child was born and his monthly insurance premium shot up to over
$800 a month for three people.

[[Page S7626]]

Some have argued that a public health insurance plan would put
bureaucrats between you and your doctor. How many times have we heard
that? But right now, we have a bureaucrat between you and your doctor,
and it is an insurance company bureaucrat. This notion that the doctor
can offer whatever tests or procedure he or she feels they should for
you is just that; it is not in the real world. It is not real that an
individual who has insurance can go out and see a doctor or see any
doctor they want, get any procedure, any treatment they want. They
first have to look through mounds of paperwork in the insurance policy
to see if it is covered, and then the first call the doctor makes is to
the insurance company to determine whether they will pay for it.
I believe it is incredibly important that we create a system--this is
what we are working to do--that is much more about doctors and
patients, much more about that. A critical part of this--and I
appreciate that the industry is supportive of this--is changing the
system so that someone can get insurance if they have a preexisting
condition, that we change the rating bands to make it more affordable
and do a number of other insurance regulation reforms. This is
incredibly important. But it is also true that right now, your
decisions about health care depend upon, A, whether you have health
insurance; and B, what it will cover, what the copays are, what the
premiums are. You are in a box that is dependent on whatever that
insurance policy is and what it will cover. The worst thing is when
someone pays in for years and believes something is covered, and it
should be covered, and finds out it is not or finds out they are ill
and are then dropped. So there are a number of changes that need to
take place there as well.
I have to put a plug in because in Michigan we have, by State
statute, established BlueCross BlueShield as a nonprofit to insure
everyone in the State, the insurer of last resort, and that has worked
very well for us, and I am very appreciative of the great work they do.
That is not true everywhere. I think we have some serious issues around
the for-profit insurance companies that we need to take a look at as
relates to the costs that people are paying.
Robert Balmes from Negaunee, MI, up in the Upper Peninsula, had to
jump through hoops with his insurance company to get a medical device
he needed. He was forced to deal with the company's in-network sellers,
even though he could have gotten the same device much cheaper from a
different supplier. His 20 percent copay would have been much lower if
he could have gotten the device from the seller of his choice. If he
could have gone where he wanted to go, it would have been cheaper, but
he wasn't given the choice by the insurance company. He had to pay what
the insurance company said or pay the whole thing on his own.
Bea Stachiw from Rochester Hills is also fed up with her insurance
company. She has an individual policy, which is one of the most
expensive ways you can get insurance, that costs her $400 a month as an
individual, which she describes as ``sketchy, at the least, where I
have to pay $2,500 up front as a deductible.'' She is limited to two
doctors' visits a year. So two doctors' visits. Talk about coming
between you and your doctor--two doctors' visits a year, and she has a
copay. She needed a routine medical procedure and had to pay over $700
out of her pocket. For people struggling to make ends meet, those kinds
of costs are not acceptable. People can't afford this.
Again, this whole process of health insurance reform is about
supporting doctors and nurses to be able to do what they were trained
and want to do, and to be able to make health care available to
Americans, young and old, with families, without, small businesses and
large. That is what this is all about.
I am very pleased we are working on an approach that would give
people choice, that would allow people to keep their insurance if they
wish to, and I think that many people--again, my own family would say,
we want to keep ours. Well, we are not in the Federal system, so we
know that many people would say they are satisfied, that they like what
they have. I say, great, to that. We want to make sure, No. 1, that
people can keep what they have, but if the system is broken for you, we
want to fix it. That is what health reform is about. Keep what you have
if you like it. Let us fix what is broken so everyone has the
opportunity to have the health care they need.
There are a number of ways in which we are working to do that. I
mentioned earlier making sure that everyone is covered, a part of
lowering the costs so we don't have too many people using the emergency
rooms inappropriately. We know that payments to providers drive the
system, and the proposal we are all working on would focus on quality,
not quantity, of tests; would focus on health and wellness, not
sickness, so we are incentivizing those things that allow people to be
healthy, that encourage and support primary care doctors as the first
line of defense, and nurses as a first line of defense so that people
being able to get the care and the funding they need, the screenings,
the prevention they need, that is all part of this very important
change.
The long-term savings in the system come from changing the system to
health care rather than sick care and quality rather than quantity. We
also know that, as I said before, insurance reform is an incredibly
important part of it, so everyone can get the insurance they need, that
it is affordable, and that they know they won't be dropped if they get
sick.
Finally, it is very important that we have the right mix of choices,
that we have private sector options but that there also be a public
health care option that is consumer driven, that is a benchmark on the
true cost of providing health care, so there can be competition. It
needs to be level and fair competition. I believe we need that
competition.
Madam President, we have a lot of work to do in the coming weeks. It
is very important work. The American people have waited long enough for
us to get this done. We know it is complicated. People of good will are
working to come together on an approach, but we need to get it done
because people in each of our States--my great State of Michigan and
across the country--are counting on us because the system doesn't work
now for too many people. It is not acceptable. Getting sick is not a
choice. Worrying about your children, your family, your moms and dads,
your friends and neighbors, and what will happen to them when they do
get sick is a fear or a worry we need to be able to address. We need to
take that worry off of the American people and say that we get it.
Health care should be a right, not a privilege, in the greatest
country in the world. That is what this work we are doing is all about.
I very much hope we are going to have a product that will be widely
supported and that we can move it on to the President as soon as
possible.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DODD. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DODD. Madam President, what is the business before the Senate?
The PRESIDING OFFICER. The Senate is considering S. 1390.
Mr. DODD. And that is the Defense authorization bill; is that
correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. DODD. Madam President, I wish to spend a couple of minutes
talking about one of the issues we are going to be debating and voting
on in the next number of days, and that is the consideration of the F-
22 Raptor.
I, first of all, want to inform my colleagues, as I have on previous
times, of my interest in the subject matter. I am not a member of the
Armed Services Committee. I have great respect for Carl Levin, one of
my dearest friends, chairman of the committee, and John McCain, who is
the ranking Republican on the committee, and my colleague Joe Lieberman
serves on this committee, and many others who worked hard, I know, on
the Defense authorization bill.
One of the matters that is going to be the subject of some debate, as
I mentioned, is the consideration of the additional F-22 fighters that
were voted on by the committee, in a narrow vote, a

[[Page S7627]]

13-to-11 vote, I am told. Now Senator Levin and Senator McCain have
offered an amendment that would strike the $1.75 billion for these
additional aircraft. I want to address that subject matter.
My State is going to be adversely affected. Somewhere between 2,000
and 3,000 jobs will be jeopardized if this amendment carries.
Obviously, that is of great concern to us in Connecticut. It is an
argument I hope will have some weight with our colleagues as we are all
faced with these matters from time to time. I know just making a
Connecticut argument to 99 Senators is not necessarily going to
prevail. I hope my colleagues will consider what we are doing.
Our Nation leads the world in aerospace. There is no one even close
to our ability to produce the most sophisticated aircraft in the world.
The F-22, without any doubt, is the most sophisticated aircraft in the
world. But we are told the Chinese and the Russians are quickly
developing fifth generation technology to compete with our F-22.
My concern is, if we end up doing what the Levin-McCain amendment
does--and that is to terminate this program prematurely--we end up with
a number of F-22s that will hardly provide the kind of security that
will be required. And for that $1.75 billion in this budget, we help
sustain 25,000 jobs nationwide.
I cannot help but notice that over the last few months the federal
government provided $65 billion to prop up a failing automobile
industry. Chrysler and GM have gone through bankruptcy. A lot of people
lost their jobs. I was supportive of the effort to try and make a
difference there. The industry had failed in many ways. They had not
modernized and had fallen behind world competition. So taxpayers
provided $65 billion and acquired significant equity stakes in the
companies to prop up our domestic automobile industry.
Here we are talking about $1.75 billion to support an important
segment of the aerospace industry that helps to provide jobs to
thousands of American workers. And we are about to say to our workers
that the resulting production gap is acceptable, at a time when
unemployment rates are expected to exceed 10 percent. But for some
reason, some of my colleagues insist that we should not sustain part of
the most sophisticated and advanced aerospace industrial base in the
world for $1.75 billion. In contrast, as I mentioned we are devoting
$65 billion to the automobile industry, which to many is a different
matter.
I don't understand that logic. This is the very same government that
says our domestic auto industry is worth saving, and I joined with my
colleagues on that issue. As chairman of the Banking Committee, I led
the fight to help save that industry in the Senate, an industry run
into the ground by shoddy management and no business plan whatsoever.
While the government is picking winners and losers, I have to ask my
colleagues: Do we truly believe that the domestic auto industry is more
worth saving than a critical portion of America's aerospace industry?
Because that is what we are talking about.
A government-mandated commission on the future of the U.S. aerospace
industry recently recommended that ``the Nation immediately reverse the
decline in and promote the growth of a scientifically and
technologically trained U.S. aerospace workforce,'' adding, ``the
breakdown of America's intellectual and industrial capacity is a threat
to national security and our capability to continue as a world
leader.'' Here we are with unemployment rates going through the
ceiling, and for $1.75 billion--and it is expensive; I am not saying it
is not--but we are not in any situation to allow any more American jobs
to be lost. These job losses are entirely preventable; it is within our
power to protect the jobs of thousands of workers across the country.

And if the Levin-McCain amendment prevails, I am afraid that some day
people will look back, and say: What in the world were we thinking?
What in the world were we thinking of, with jobs at risk and talented
people--engineers, machinists--whom we rely on every day to maintain
our superiority in this area.
Madam President and my colleagues, we are about to face a 3-year
production gap between the F-22 and F-35. During that time, we will see
many of our most skilled and experienced industry workers walk away.
And it will be incredibly difficult, in fact I am not sure it is
possible, to reconstitute this type of workforce.
So either today or sometime next week we are going to, once again,
consider legislation to strip this provision of the bill--the provision
that would keep the most advanced fighter jet production lines humming.
Before that vote, I hope my colleagues will ask themselves a very
simple question: At a time of heightened security concerns and economic
uncertainty, is it in our interest to cancel this program? According to
the F-22's prime contractor, Lockheed Martin, the F-22 directly employs
25,000 people across the Nation and an additional 70,000 in indirect
jobs. With over 1,000 suppliers in 44 States, it has an economic impact
of over $12 billion.
The decision to kill the F-22 will have further ramifications. With
this decision, America's production lines of advanced tactical aircraft
will grind to a halt, and we are not expected to ramp up again for
another 3 years. What happens to that workforce? I know what happens to
it. If my colleagues vote for this amendment, they will be voting
against our tactical aircraft industry. They will be saying that the
government can no longer support these 95,000 skilled workers across
our Nation. And to me, it doesn't add up.
The other day I went through a chart explaining the capabilities of
this aircraft versus those that exist in nations around the world. We
are going to put ourselves at some risk, I would say to my colleagues.
And that is not my conclusion alone. Listen to General Corley, who
heads up the Air Combat Command, and listen to General Wyatt, the
director of the Air National Guard. They have warned us about this very
issue. This is a very critical and dangerous decision we are making.
We have spent billions of dollars to develop this plane--billions. We
were supposed to build 381 of them. Now we have reduced that number to
187. In doing so, we are committing ourselves to ending the production
line. Terminating the program will eliminate the opportunity for us to
explore the merits of developing an export model of the F-22. We have
allies that would benefit from purchasing a modified version of this
technology. By offering them this capability, we would enhance our
shared commitment to protecting global security. But this option will
not be available if we adopt the Levin-McCain amendment.
I urge my colleagues to consider this issue. I know Members are
facing a great deal of pressure from all sides of this issue. But I
think, as Members, we have an obligation, obviously, to respond to the
calls we get, but I would argue that we have a higher responsibility to
analyze the implications of a vote such as this.
The implications of this vote, I think, are profound and serious for
our country in terms of not only the economic and national security
impact, but, for the thousands of American jobs that are sustained by
the F-22. $1.75 billion is small in comparison to the $65 billion we
have spent already to prop-up an industry that, frankly, should have
shown far more leadership. The industries involved in this are not
failing. These are solid, sound businesses. Yet they are going to be
damaged as a result of a vote that is quite frankly, not in the
interest of our national security or our economy.
I would urge my colleagues, over the next several days, to think
through this issue, to examine some of these facts before coming here
to cast a ballot that will jeopardize both American jobs and our
position as the global leader in aerospace industry.
With that, I yield the floor.

Amendment No. 1511

Ms. MIKULSKI. Madam President, I rise in strong support of the Smith
amendment on hate crimes. This amendment mirrors the Local Law
Enforcement Enhancement Act, which I have been proud to cosponsor. This
amendment puts America's values of equality and freedom into action.
Hate crimes are one of the most shocking types of violence against
individuals. They are motivated by hatred and bigotry. But hate crimes
target more than just one person--they are crimes against a community
because of who they are--because of their race, gender, sexual
orientation, religion or disability.

[[Page S7628]]

We are a nation that cherishes our freedom. All Americans must be
free to go to church, walk through their communities, attend school
without the fear that they will be the target of hate violence. We are
nation that is built on a foundation of tolerance and equality. Yet no
American can be free from discrimination and have true equality unless
they are free from hate crimes. That is why hate crimes are so
destructive. They tear at our Nation's greatest strength--our
diversity.
This amendment does two things--it helps communities fight these
crimes and it makes sure that those who are most often the target of
hate motivated violence have the full protection of our Federal laws.
The amendment strengthens current law to help local law enforcement
investigate and prosecute hate crimes. It does this by closing a
loophole that prevented the Federal Government from assisting local and
State police at any stage of the investigative process. Simply put--
this bill authorizes Federal law enforcement officers to get involved
if State or local governments want their help. That means local
communities, which often have very limited resources for pursuing these
types of crimes, will have the resources of the FBI and other Federal
law enforcement agencies at their disposal to help them more
effectively prosecution incidents of hate violence.
This amendment also improves current law so it protects more
Americans. It broadens the definition of hate crimes to include gender,
sexual orientation and disability. Today, gay and lesbian Americans,
women and those with disabilities are often targets of hate motivated
violence, but existing Federal laws offer these communities no
safeguards. That is the weakness in our current law. And that is what
this legislation will fix. By passing this legislation today, the
Senate says to all Americans that you deserve the full protection of
the law and you deserve to be free from hate violence.
Hate crimes are crimes against more than one person--these crimes
affect whole communities and create fear and terror in these
communities and among all Americans. We need look no further than the
horrific killings of James Byrd and Matthew Shepard to know the anger
and grief that families and communities experience because of hatred
and bigotry. Hate crimes attack the fundamental values of our Nation--
freedom and equality. This bill is another step in the fight to make
sure that in a nation that treasures these values these crimes do not
occur.
So today I rise to support and urge my colleagues to pass this much
needed and timely legislation. It is time that we put these American
values into action and pass this hate crimes bill. The Local Law
Enforcement Enhancement Act says that all Americans are valued and
protected--regardless of race, religion, gender, sexual orientation or
disability.
Mr. UDALL of Colorado. Madam President, I rise today in support of
amendment No. 1511 to S. 1390.
In the midst of my first campaign for Congress in 1998, the Nation
was shocked by the tragic death of Matthew Shepard.
We all know well the story of Matthew--a 21-year-old University of
Wyoming student who was brutally murdered simply for being gay. He was
beaten severely, tied to a fence, and left to die in freezing
temperatures. Matthew was taken to a hospital in Fort Collins, CO,
where he never regained consciousness.
I was elected to Congress a month after Matthew's murder. And for
every year thereafter, I have supported Federal hate crimes legislation
that would later be renamed for him--The Matthew Shepard Hate Crimes
Prevention Act.
Ten years later, in 2008, I asked my fellow Coloradans to entrust me
with the honor of representing them in the Senate. During that
campaign, I was deeply saddened to learn about another tragic murder
this time in my home State of Colorado.
In July of last year, 18-year-old Angie Zapata was beaten to death in
the living room of her Greeley apartment. According to press accounts,
Angie's attacker claims that he brutally went after her with a fire
extinguisher, pummeling her until she could not fight back because of
his hatred for transgender and gay people. This case is a sobering
reminder that 10 years after Matthew Shepard's murder, vile prejudice
based on sexual orientation and gender identity still plagues our
society.
Unlike Federal law, Colorado has a strong hate crimes statute. The
man accused of killing Angie was the first person in the Nation to be
tried and eventually convicted under any State's hate crime law for
killing a person because of transgender orientation. I hope that the
successful prosecution of Angie's killer in Colorado will be an example
for other States and demonstrate to Members of Congress that it is time
for the country as a whole to follow our lead.
President Obama has promised to sign into law the expansion of hate
crimes statute to include sexual identity, gender identity and
disability, which is what the amendment before us today would do. I am
a cosponsor and ardent supporter of this amendment because I believe
now is the time in remembrance of Matthew and Angie and all other
Americans who have been a victim of violent crimes motivated by hate to
get this done. It is the right thing to do.
Mr. KYL. Madam President, the Hate Crimes Prevention Act, which my
colleague from Vermont has offered as an amendment to the Defense
authorization bill, should not be attached to such an important piece
of legislation. The Defense authorization bill authorizes nearly $680
billion for national defense programs, most notably the ongoing
operations in Iraq, Afghanistan, and the war on terror. It authorizes
funding for such crucial programs as missile defense and foreign
military aid for Afghanistan and Pakistan, as well as a 3.4-percent
across-the-board pay raise for the men and women in the military. With
such important issues at stake, we should not attach a controversial
piece of unrelated legislation that puts passage of the entire bill at
risk.
Last month, members of the Judiciary Committee received a letter from
the U.S. Commission on Civil Rights strongly urging us to vote against
the proposed Hate Crimes Prevention Act.
The Commission states this bill ``will do little good and a great
deal of harm.'' Those are very strong words from the Federal body
charged with investigating, reporting on, and making recommendations
related to civil rights issues. The Commission's letter details a
number of specific concerns, including that the bill would permit
Federal authorities to prosecute defendants who have been previously
acquitted by State juries--a result that it describes as contrary to
the spirit of the double jeopardy clause of the Constitution. Like the
Commission, I believe that hate crimes legislation poses significant
constitutional problems and risks undermining important principles of
federalism.
No less than 45 States and the District of Columbia already have hate
crimes laws. I am not aware of evidence that any State has been
reluctant to aggressively prosecute hate crimes. Furthermore, Federal
sentencing guidelines already provide for enhancements for hate crimes
based on race, color, religion, natural origin, ethnicity, gender,
disability, or sexual orientation. In fact, in the case of Matthew
Shepard, for whom this bill is named, his killers are appropriately
serving life sentences in prison for felony murder.
The trend to try at the Federal level crimes that traditionally have
been handled in State courts not only is taxing the judiciary's
resources and affecting its budget needs but also threatens to change
the nature of our Federal system. The pressure in Congress to appear
responsive to every highly publicized societal ill or sensational crime
needs to be balanced with an inquiry into whether States are doing an
adequate job in these particular areas and, ultimately, whether we want
most of our legal relationships decided at the national rather than
local level.
Federal courts were not created to adjudicate local crimes, no matter
how heinous they may be. State courts handle such problems. While there
certainly are areas in criminal law in which the Federal Government
must act, the vast majority of local criminal cases should be decided
in the State courts which are equipped for such matters. Matters that
can be handled adequately by the States should be left

[[Page S7629]]

to them; matters that cannot be so handled should be undertaken by the
Federal Government. Neither Senator Leahy nor other supporters of this
bill have demonstrated that there is an epidemic of hate-based violence
that State and local authorities can't or won't prosecute, therefore
justifying the need for a hate crimes bill.
For these reasons, I strongly urge my colleagues to vote against the
Hate Crimes Prevention Act amendment.
Mr. LEAHY. Madam President, the Senate is considering the bipartisan
Matthew Shepard Hate Crimes Prevention Act of 2009 as an amendment to
the pending the pending National Defense Authorization Act. This
important civil rights bill has been pending for more than a decade and
has passed the Senate numerous times--in 2007, 2004, 2000, and 1999. It
also has the support of the Attorney General, and the President has
asked Congress to take swift action on this bill.
I thank Senator Collins, Senator Snowe, and the 33 other bipartisan
cosponsors for their support for my amendment, which contains the full
text of the Matthew Shepard Hate Crimes Prevention Act introduced by
Senator Kennedy.
I wish my friend could be here with us today. I commend the senior
Senator from Massachusetts for his steadfast leadership over the last
decade in working to expand our Federal hate crimes laws.
I thank the majority leader for offering this amendment on my behalf
while I chaired the hearing on Judge Sonia Sotomayor to be an Associate
Justice on the Supreme Court. I had hoped that we would reach a time
agreement or at least an agreement to proceed to this bipartisan
amendment. Yet some have sought to further delay passage of this
critical measure.
The hate crimes amendment would improve existing law by making it
easier for Federal authorities to investigate and prosecute crimes of
racial, ethnic, or religious violence. Victims will no longer have to
engage in a narrow range of activities, such as serving as a juror, to
be protected under Federal law.
In addition, the hate crimes amendment will provide assistance and
resources to State, local and tribal law enforcement to address hate
crimes. It also focuses the attention and resources of the Federal
Government on the problem of crimes committed against people because of
their sexual orientation, gender, gender identity, or disability, which
is a long-overdue protection.
As a former State prosecutor, respect for local and State law
enforcement is important to me. This amendment was carefully crafted to
strike a proper balance between Federal and local interests by allowing
the Federal Government to appropriately support, but not to substitute
for, State and local law enforcement.
I come from a State that passed a law almost a decade ago to expand
protections for victims of violence motivated by sexual orientation and
gender identity and to increase penalties for hate crimes to deter such
violence.
Unfortunately, not all States offer these protections--protections
that all Americans deserve. We need a strong Federal law to serve as a
backstop to prevent hate motivated violence in America.
The recent tragic events at the Holocaust museum have made clear that
these vicious crimes continue to haunt our country. This bipartisan
legislation is carefully designed to help law enforcement most
effectively respond to this problem.
We stand to make real progress toward expanding Federal protections
for victims of bias-motivated violence when we vote for cloture to end
debate on the motion to proceed to this amendment.
Senators from both sides of the aisle support this amendment. I call
on all my fellow Senators to join me in support of this amendment and
to vote to end the delay of Senate consideration of this important
measure because expanding hate crimes protections and providing support
to State, local, and tribal enforcement efforts are long overdue. That
is why a vote for this amendment is necessary.
Mr. HATCH. Madam President, I rise to speak about the Hatch amendment
which will be called up later.
As we have had the debate in this Chamber over hate crimes
legislation, one obvious fact is revealed again and again. The
proponents of the Matthew Shepard Hate Crimes Prevention Act have not
taken the time to answer what should have been a threshold question: Is
it necessary?
Just a few short weeks ago, Attorney General Eric Holder was gracious
enough to testify before the Senate Judiciary Committee on this
legislation. During that hearing, I asked him specifically whether
there was any evidence of crimes motivated by bias and prejudice that
are not being adequately addressed at the State level; whether there
was a specific trend indicating that, with regard to hate crimes,
justice is not being served in State courts. His answer was not
surprising to anyone who has been following this debate for these many
years. But if your only knowledge of this issue came from the
statements made by the Democrats in support of this legislation, you
would probably be very surprised.
His answer was: No. There is not any statistical evidence indicating
that the States are not up to the task of investigating, prosecuting,
and punishing crimes motivated by bias and prejudice. None. None
whatsoever. The Attorney General said quite openly, in fact, that the
States were doing a fine job addressing these crimes.
This is not a new revelation. In the years Congress has been debating
hate crimes legislation, many of us have been asking similar questions,
and we have received similar answers. But in light of the Democratic
Attorney General's own testimony regarding the States' laudable efforts
to punish hate crimes, it is even more clear that the supporters of
this legislation have not answered what would be a threshold question:
Is it necessary?
The truth is that the vast majority of States have hate crimes
statutes on the books. The acts associated with this legislation--
murder, assault, et cetera--are punishable in every jurisdiction in the
United States. Under our legal system, defendants will, at times,
receive penalties that many believe are not sufficient given the nature
of their crimes. In addition, because our criminal justice system is
designed to protect defendants and place the heaviest burdens on the
government, some guilty parties undoubtedly go unpunished. But I have
seen no evidence whatsoever proving that these inevitable occurrences
happen more often in cases involving bias-motivated violence and, to
date, no such evidence has been provided.
My amendment is similar to legislation I have introduced in the past.
Instead of expanding the powers of the Federal Government, it would
mandate a study that would provide us with the information we should
have before we even consider taking such an approach. Specifically, my
alternative would require a study to compare over a 12-month period the
investigations, prosecutions, and sentencing in States that have
differing laws with regard to hate crimes. In addition, it would
require a report on the extent of those crimes throughout the United
States and the success rate of State and local officials in combating
them.
The amendment would also provide a mechanism for the Department of
Justice to provide technical, forensic, prosecutorial or any other
assistance in the criminal investigation or prosecution of any crime
``motivated by animus against the victim by reason of the membership of
the victim in a particular class or group.'' And it would authorize the
Attorney General to make grants to States that lack the necessary
resources to prosecute these crimes.

Contrary to what some of my colleagues may believe, Congress does not
have the power to act in any manner that it chooses. There are a number
of constitutional issues raised by this legislation, including the
extent of Congress's power under the commerce clause and prohibitions
that could chill free speech in certain sectors of this country. Most
apparently, this legislation would impede on grounds that are
traditionally left to the States. Worst of all, it would do so when, if
the Attorney General is to be believed, the States are by and large
doing a fine job at addressing these crimes.
No one in this Chamber wants to see bias-motivated crimes go
unpunished. That is not the question we are facing today. The question
is whether, given the current state of affairs in most

[[Page S7630]]

States and the limitations on Congress's power, this measure is
appropriate.
It seems to me before we even consider such a broad and sweeping
change in the Federal criminal law we should at the very least have
enough information before us to determine whether such law is
necessary. My amendment would have us get that information and, in
addition, establish a role for the Federal Government that is more
appropriate respecting the sovereignty of the States and the limits on
Federal power established under the Constitution.
It should be noted that this bill that has been called up is named
the Matthew Shepard bill. What happened to Mr. Shepard was brutal,
heinous, awful, unforgivable. But the fact is, the perpetrators are now
spending the rest of their lives in prison because the local judiciary
and system tried and convicted them. There is a real question whether
we should put into law this hate crimes bill that I believe is going to
cause a lot more problems than it will help, especially since there is
no basic evidence that the State and local governments are incapable or
unable to take care of these types of crimes.
I think there is a lot of beating of the breasts and acting like we
are doing something when in fact all we are doing is gumming up the law
if we pass this bill, and I think doing so unconstitutionally, in the
end, basically is making it possible to bring hate crimes actions all
over the country in a multiplicity of ways that will cost the Federal
Government untold amounts of money that should not be spent.
All of us are against hate crimes. Every one of us would do
everything we possibly can to get rid of them. But until there is
evidence that the State and local governments are not doing the job--
and that evidence we have asked for, for years now, and they have never
been able to produce any. Until that is produced we should not go ahead
and pass legislation like this.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas is recognized.
Mr. BROWNBACK. Madam President, there is soon to be an announced
agreement. In that there will be an amendment I am putting forward to
protect free speech. I hope all my colleagues would join me in
supporting the amendment I am putting forward on the hate crimes bill.
I think it is very important that we protect free speech. It has been
one of the things my colleagues who support the hate crimes legislation
are saying: Look, we are protective of free speech. We are protective
of religious expression.
If that is the case, I hope they will vote for the amendment I am
putting forward.
I think it is important we be very clear on the protection of free
speech and religious protection as protected in the first amendment in
this bill as a way for it to be clear these things are to be protected.
I want to read the amendment I am putting forward. It is a paragraph
long, and I think by reading it, it will help explain some of this to
my colleagues:

Nothing in this section or an amendment made by this
section shall be construed or applied in a manner that
infringes any rights under the First Amendment to the U.S.
Constitution, or substantially burdens any exercise of
religion (regardless of whether compelled by, or central to,
a system of religious belief), speech, expression,
association, if such exercise of religion, speech,
expression, or association was not intended to--(1) plan or
prepare for an act of physical violence; or (2) incite an
imminent act of physical violence against another.

There is some lawyerese in that, but what it says is you have free
speech unless it is intended to plan or prepare for an act of physical
violence or incite an imminent act of physical violence against
another.
In other words, if you are saying this to try to incite people to
physical violence or an imminent act of physical violence, that is not
protected. But everything else is free speech and may be seen by some
as religious expression.
What we are trying to do is narrow this, tying it into the actual act
that takes place and not be an act that intimidates people's expression
of their ideas or expression of their religious convictions that they
may hold.
I hope my colleagues will look at this and say, yes, that is what we
mean to do, and not to sort of have a chilling effect on all free
speech, all free expression, on all free expression within a religious
organization or group that may have some differing views.
Frankly, I don't think, if we have a bill that intimidates or chills
first amendment free speech or religious expression, that it is going
to stand constitutional challenge. That is why I am putting forward
this amendment.
The current language of this bill attempts to project the free
exercise of religion solely to a first amendment constitutional
framework. I think this is problematic because the Supreme Court has
severely limited those first amendment rights, particularly regarding
free religious expression as a result of a decision in an Employment
Division, Department of Human Resources of Oregon v. Smith. It was a
Ninth Circuit Court opinion.
The Congress, after that opinion was issued, was quick to recognize
the damage done to religious freedom in Smith and in response passed
the Religious Freedom Restoration Act. This act serves as a framework
created by Congress to protect religious free speech in other contexts.
That is what this amendment is taking from, this bill that has already
passed this Congress by a wide margin, the Religious Freedom
Restoration Act.
My amendment adopts language from that bill in contrast to the free
exercise jurisprudence of the Supreme Court. Courts have noted that the
congressionally created Religious Freedom Restoration Act model
possesses clarity and ease of construction. In fact, numerous claims
that were unsuccessful under the first exercise clause jurisprudence of
the Supreme Court have either prevailed or were entitled to remand for
more favorable review under the Religious Freedom Restoration Act. My
amendment seeks to protect religious motivated speech but it protects
speech.
What it says is, if you are in a narrow category of where you are
intending this speech to cause somebody bodily harm, then you are not
protected, and you should not be protected. But, if otherwise, you are
exercising your right of free speech or religious association, you are
entitled to the protection under the Constitution.
It would be my hope that my colleagues would look at this amendment
and they would say that what we are putting forward is an amendment
which has passed this body previously, passed this body in a strong
bipartisan vote, is one that we want to stick with--that definition and
not this broader one that can be interpreted as limiting first
amendment freedom of expression or religious association.
That is a simple amendment I have put forward. I ask my colleagues to
look at the amendment itself. It is one paragraph long. I ask they
support this amendment.
I yield the floor and 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. REID. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER (Mr. Begich). Without objection, it is so
ordered.
Mr. REID. Mr. President, Senator McConnell and I appreciate
everyone's patience.
I now ask unanimous consent that upon disposition of the Hatch
amendment, Leahy alternative to Brownback amendment and Brownback
amendments specified below, the Senate proceed to vote on the motion to
invoke cloture on the Leahy amendment No. 1511; further, that when this
agreement is entered, amendment No. 1539 be withdrawn, and that the
following list of amendments be the only amendments on the subject of
hate crimes remaining in order during the pendency of S. 1390: Hatch
amendment regarding alternative; Leahy or designee alternative to
Brownback amendment; Brownback amendment regarding first amendment
protections, Leahy or designee alternative to Sessions death penalty;
Sessions amendment regarding death penalty; Sessions amendment
regarding servicemembers; Sessions amendment regarding attorney general
regulations; that all of the above amendments be first-degree
amendments except the Hatch, Brownback and Leahy alternative to
Brownback

[[Page S7631]]

amendment which are second-degree amendments to the Leahy amendment No.
1511; and that debate on any of the amendments listed above be limited
to 40 minutes each, prior to a vote in relation thereto, except the
Hatch, Leahy alternative and Brownback amendments; and the cloture vote
debate time be limited to up to 4 minutes each, equally divided and
controlled in the usual form, with the time equally divided and
controlled in the usual form; that if there is a sequence of votes,
then any subsequent votes after the first would be limited to 10
minutes each; that upon disposition of the listed amendments, all
postcloture time be yielded back; further, that the Hatch, Leahy
alternative to Brownback and Brownback amendments be first debated and
voted tonight, that upon disposition of those amendments, the Senate
proceed to vote on the motion to invoke cloture on amendment No. 1511;
that if cloture is invoked, then amendment No. 1511, as amended, if
amended, be agreed to and the motion to reconsider be laid upon the
table; further, that notwithstanding adoption of amendment No. 1511, as
amended, if amended, the remaining amendments relating to hate crimes
still be in order; further, that if cloture is not invoked on the Leahy
amendment, then the motion to reconsider be considered entered and the
part of the agreement relating to the amendments with respect to hate
crimes be null and void; provided further that if upon reconsideration,
and cloture is invoked, then the remaining amendments not disposed of
prior to the cloture vote remain in order; further, that the next
first-degree amendment in order to S. 1390 be a Republican amendment,
with no amendment in order to the amendment during today's session,
with the amendment being offered tonight and debate commencing on the
amendment when the Senate resumes consideration of the bill on Monday,
following disposition of the Leahy alternative and Sessions amendments
listed above; that upon disposition of the Republican amendment
specified above, Senator Levin be recognized to offer the Levin-McCain
amendment relating to the F-22, with debate on that amendment limited
to 2 hours, with the time equally divided and controlled between
Senators Levin and Chambliss or their designees; that upon the use or
yielding back of that debate time, the Senate proceed to vote on the
amendment, with no amendment in order to the Levin-McCain amendment.
The PRESIDING OFFICER. Is there objection?
Mr. McCONNELL. Reserving the right to object, and I will not object,
I ask my friend the majority leader, am I correct that after the four
votes tonight, the next vote will be on Monday at roughly what time?
Mr. REID. Probably around 3 o'clock. We are going to come in Monday
at 1 and work through these amendments we have remaining on hate
crimes, and then we would go to the matter that will be offered by the
Republicans tonight. When we complete that, we will finish the work in
2 hours on the F-22 amendment.
So next week, everybody, we will start early on Monday, as I have
indicated, and we will have, perhaps, some long days. This is an
important piece of legislation.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. We appreciate everyone's cooperation. It has been very
difficult to get this, but I think it will move to get the Defense bill
done at an earlier time.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KERRY. Will these votes be 10-minute votes?
Mr. REID. We have already indicated the first one will be 15. We hope
to do some by voice. That is possible.
Mr. KERRY. I thank the leader.
The PRESIDING OFFICER. The Senator from Kansas.

Amendment No. 1610 to Amendment No. 1511

Mr. BROWNBACK. Mr. President, I call up my amendment No. 1610 and ask
that it be brought before the body.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Kansas [Mr. Brownback] proposes an
amendment numbered 1610 to amendment No. 1511.

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

(Purpose: To clarify that the amendment shall not be construed or
applied to infringe on First Amendment rights)

Strike page 16, line 24 through page 17, line 7 and insert
the following:

SEC. ___. CONSTRUCTION AND APPLICATION.

Nothing in this division, or an amendment made by this
division, shall be construed or applied in a manner that
infringes on any rights under the first amendment to the
Constitution of the United States, or substantially burdens
any exercise of religion (regardless of whether compelled by,
or central to, a system of religious belief), speech,
expression, association, if such exercise of religion,
speech, expression, or association was not intended to--
(1) plan or prepare for an act of physical violence; or
(2) incite an imminent act of physical violence against
another.

Mr. BROWNBACK. Mr. President, this is part of the agreement we had
for votes on side-by-sides.
What this amendment does is put forward and into this bill language
that this body has already passed by a vote of 97 to 3. It is language
that was in the Religious Freedom Restoration Act. It is to protect
individuals' religious freedom, their freedom of expression. It has
passed this body overwhelmingly. It narrows the definition and it says
that if you intend to incite somebody to do physical harm to another
individual, that is not protected speech. If you plan to prepare for an
act of physical violence or incite an imminent act of physical violence
against another, it is not protected, that is not protected speech;
otherwise, you have free speech and the right to free speech expression
and religious freedom expression.
It is important that we have a very clear definition--a narrow
definition but a very clear definition--of what is protected and what
is not protected speech in this very critical area of first amendment
rights and limitations we are putting in here.
It is a very short amendment, a very important amendment on the hate
crimes legislation. I ask my colleagues for their support again, as
many of my colleagues have already voted for it in an overwhelming
number.
I thank my colleagues for their review of this amendment. I hope they
can vote for it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, once this amendment of the Senator from
Kansas is disposed of, I will then offer an amendment. My amendment
would preserve the first amendment protections in the hate crimes bill
and add language to clarify that nothing in this act diminishes the
protections of the first amendment. Of course, we could not pass a
bill, as I am sure the Senator from Kansas knows, Congress could not
pass legislation that would diminish the protections of the first
amendment, the first amendment being in the Constitution, the first
amendment protecting our right to practice whatever religion we want or
none if we want and protecting our right of free speech.
At the appropriate time, I will have an amendment which would
preserve first amendment protections in the hate crimes bill and add
language to clarify that nothing in this act diminishes the protections
of the first amendment. I would assume the Senator from Kansas would
have no objection to that.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. I certainly don't have an objection to an amendment
being brought up. I would note that this is a very important area we
are treading on, limitation of people's free speech and religious
association they have. What I am offering is language that has passed
this body by a large margin before, 97 to 3. I hope to see the language
the Senator from Vermont is putting forward. If it is the language that
is currently in the bill, this is quite untested language in a very
limited area. I read his language to be quite expansive. I think it
would be questionable, going into constitutional territory. But the
bigger point on this being that I believe my colleagues who want to
pass the hate speech legislation have been saying all along this does
not limit somebody's right of free

[[Page S7632]]

speech. It doesn't limit anybody's right of religious expression, if
they have different views. It is just about a violent act and
association that would reflect hate. So what I have done in two
sentences is say let's be specific about that rather than very general
about that in its interpretation or leaving that to the court.
If I have the language correct that he is putting forward in
reinstating this, I really hope my colleagues would look at both of
these and say they do want a very narrow, specific definition put
forward.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I have no objection to just accepting by
voice vote his amendment if the language was previously voted on in the
last Congress and has been pending for some time.
Mine is very short. I call on any Senator to tell me if there is
anything they disagree with. It says:

Nothing in this division, or amendment made by this
division, shall be construed to diminish any rights under the
first amendment to the Constitution of the United States.
Nothing in this division shall be construed to prohibit any
constitutionally protected speech, expressive conduct or
activities (regardless of whether compelled by, or central
to, a system of religious belief), including the exercise of
religion protected by the first amendment to the Constitution
of the United States and peaceful picketing or demonstration.
The Constitution does not protect speech, conduct or
activities consisting of planning for, conspiring to commit,
or committing an act of violence.

Does any Member of this body, Republican or Democratic, disagree with
that language? Basically, it says the Constitution is the Constitution.
We follow the Constitution. Does anyone disagree with that language?
Mr. DURBIN. Will the Senator yield for a question?
Mr. LEAHY. Yes.
Mr. DURBIN. Does the Senator from Vermont recall that when Attorney
General Holder appeared before the Judiciary Committee, he was asked
pointblank if, in the course of a religious ceremony or religious
observance, a person gave a sermon, made a speech that was negative
toward people of different sexual orientation and someone in the
congregation, after hearing the sermon, committed an act of violence,
the Attorney General was asked, would the person who gave the sermon,
gave the speech, be held responsible under the hate crimes act and the
Attorney General responded no because the hate crimes act requires a
physical act of violence in order for there to be a prosecution? Does
the Senator from Vermont recall that?
Mr. LEAHY. I recall that very well. I also note that every single
Republican, every single Democratic member on the committee agreed with
Attorney General Holder on that.
My amendment simply says that the Constitution of the United States
controls. That is the ultimate law of the land. I can't imagine anybody
in this body disagreeing with that, especially as every single Member
of this body has taken an oath to uphold the Constitution of the United
States.
Mr. LEVIN. Will the Senator yield for a question?
Mr. LEAHY. Of course.
Mr. LEVIN. The amendment of the Senator from Vermont makes it very
clear that included in first amendment rights are the rights to
peaceful picketing or demonstration. That is not included in the
Brownback amendment. Would the Senator from Vermont agree, however,
that we don't need to choose between the two amendments? They both
state important truths and make very important contributions. Is it not
the Senator's understanding that both amendments can be adopted, that
they are not at all inconsistent with each other?
Mr. LEAHY. I agree with that. And speaking as the chairman of the
Senate Judiciary Committee, I am perfectly willing to accept both of
them. I would be surprised if my friend from Kansas feels otherwise.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Thank you very much, Mr. President.
I thank my colleagues, and I thank the chairman of the Armed Services
Committee for his comment on this issue.
I guess the conferees will have to deal with a difficult issue
outside the jurisdiction of the committee, particularly on something
like hate crimes, which I really have great question as to why on Earth
we would do this on a DOD authorization bill.
But I would like to point out that my colleague, the chairman of the
Judiciary Committee, has been in that committee for a long period of
time, and he knows these issues very well. What his amendment puts
forward is something that will be interpreted then by the courts. It
will have to be interpreted by the courts, and it has broader language.
What I am putting forward is very specific language that puts a clear
intent of the Congress not to limit certain types of speech but to
limit speech that is associated with physical harm or the incitement of
physical harm. That seems to me to be clearly appropriate for us to do,
probably a better thing to do on the hate crimes legislation--for us to
be very specific and narrow in this area where we are treading into
first amendment religious expression areas.
I would like to read my language, if I could, to my colleague. It
says--and this is the operative part of this--``if such exercise of
religion, speech, expression, or association was not intended to''--so
it protects every area except what is ``not intended to plan or prepare
for an act of physical violence; or incite an imminent act of physical
violence against another.''
So we are trying to get into the category and the area, and a lot of
people are very concerned about this, about being able to have their
rights for religious expression and freedom. I think this is a much
tighter focus. I believe my colleague would agree, as a lawyer----
The PRESIDING OFFICER. The time on the amendment has expired.
Mr. BROWNBACK. Mr. President, I ask for the yeas and nays on the
Brownback amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, parliamentary inquiry: I understand the
first vote under the unanimous consent agreement will be on the Leahy
amendment; is that correct?
The PRESIDING OFFICER. Hatch.
Mr. LEVIN. In terms of these two amendments?
The PRESIDING OFFICER. Hatch. And then after Hatch, Leahy, then
Brownback.
Mr. LEVIN. All right. So that after the disposition of the Hatch
amendment, the first amendment to be disposed of between these two
would be the Leahy amendment?
The PRESIDING OFFICER. That is correct.
Mr. LEVIN. I would hope that to expedite things the Senator from
Vermont would consider a voice vote because I think both of these
amendments will pass, and should pass, and we can save the body's time.
But I would like to suggest that even though the Senator from Kansas
wants a rollcall, both amendments should be adopted, and if the Senator
from Vermont can accept a voice vote when it comes his turn, I think
that will indicate the clear will of the body, and then we would
proceed to another clear will of the body on the amendment of the
Senator from Kansas.
Mr. LEAHY. Mr. President, to answer the Senator from Michigan, I am
perfectly willing to voice vote both of them. I intend to vote for both
of them. We are saying that you have a freedom of religion, and the
courts cannot undermine the first amendment.
This is hornbook law. This is your first week of law school. No court
is going to disagree with that. I am perfectly willing to accept both
by a voice vote.

Amendment No. 1613 to Amendment No. 1511

So, Mr. President, I offer my amendment and send it to the desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from Vermont [Mr. Leahy] proposes an amendment
numbered 1613 to amendment No. 1511.

The amendment is as follows:

At the end of the amendment, insert the following:

[[Page S7633]]

(b) First amendment.--Nothing in this division, or an
amendment made by this division, shall be construed to
diminish any rights under the first amendment to the
Constitution of the United States.
(c) Constitutional protections.--Nothing in this division
shall be construed to prohibit any constitutionally protected
speech, expressive conduct or activities (regardless of
whether compelled by, or central to, a system of religious
belief), including the exercise of religion protected by the
first amendment to the Constitution of the United States and
peaceful picketing or demonstration. The Constitution does
not protect speech, conduct or activities consisting of
planning for, conspiring to commit, or committing an act of
violence.

The PRESIDING OFFICER. The Senator from Utah.

Amendment No. 1611 to Amendment No. 1511

Mr. HATCH. Mr. President, I call up amendment No. 1611 and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Utah [Mr. Hatch] proposes an amendment
numbered 1611 to amendment No. 1511.

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

(Purpose: To prevent duplication in the Federal government)

At the appropriate place, insert the following:

SEC. __. COMPREHENSIVE STUDY AND SUPPORT FOR CRIMINAL
INVESTIGATIONS AND PROSECUTIONS BY STATE AND
LOCAL LAW ENFORCEMENT OFFICIALS.

(a) In General.--Notwithstanding any other provision of
this Act, division E of this Act (relating to hate crimes),
and the amendments made by that division, shall have no force
or effect.
(b) Studies.--
(1) Collection of data.--
(A) Definition of relevant offense.--In this paragraph, the
term ``relevant offense'' means a crime described in
subsection (b)(1) of the first section of Public Law 101-275
(28 U.S.C. 534 note) and a crime that manifests evidence of
prejudice based on gender or age.
(B) Collection from cross section of states.--Not later
than 120 days after the date of enactment of this Act, the
Comptroller General of the United States, in consultation
with the National Governors' Association, shall, if possible,
select 10 jurisdictions with laws classifying certain types
of offenses as relevant offenses and 10 jurisdictions without
such laws from which to collect the data described in
subparagraph (C) over a 12-month period.
(C) Data to be collected.--The data described in this
paragraph are--
(i) the number of relevant offenses that are reported and
investigated in the jurisdiction;
(ii) the percentage of relevant offenses that are
prosecuted and the percentage that result in conviction;
(iii) the duration of the sentences imposed for crimes
classified as relevant offenses in the jurisdiction, compared
with the length of sentences imposed for similar crimes
committed in jurisdictions with no laws relating to relevant
offenses; and
(iv) references to and descriptions of the laws under which
the offenders were punished.
(D) Costs.--Participating jurisdictions shall be reimbursed
for the reasonable and necessary costs of compiling data
collected under this paragraph.
(2) Study of relevant offense activity.--
(A) In general.--Not later than 18 months after the date of
enactment of this Act, the Comptroller General of the United
States shall complete a study and submit to Congress a report
that analyzes the data collected under paragraph (1) and
under section 534 of title 28, United States Code, to
determine the extent of relevant offense activity throughout
the United States and the success of State and local
officials in combating that activity.
(B) Identification of trends.--In the study conducted under
subparagraph (A), the Comptroller General of the United
States shall identify any trends in the commission of
relevant offenses specifically by--
(i) geographic region;
(ii) type of crime committed; and
(iii) the number and percentage of relevant offenses that
are prosecuted and the number for which convictions are
obtained.
(c) Assistance Other Than Financial Assistance.--At the
request of a law enforcement official of a State or a
political subdivision of a State, the Attorney General,
acting through the Director of the Federal Bureau of
Investigation and in cases where the Attorney General
determines special circumstances exist, may provide
technical, forensic, prosecutorial, or any other assistance
in the criminal investigation or prosecution of any crime
that--
(1) constitutes a crime of violence (as defined in section
16 of title 18, United States Code);
(2) constitutes a felony under the laws of the State; and
(3) is motivated by animus against the victim by reason of
the membership of the victim in a particular class or group.
(d) Grants.--
(1) In general.--The Attorney General may, in cases where
the Attorney General determines special circumstances exist,
make grants to States and local subdivisions of States to
assist those entities in the investigation and prosecution of
crimes motivated by animus against the victim by reason of
the membership of the victim in a particular class or group.
(2) Eligibility.--A State or political subdivision of a
State applying for assistance under this subsection shall--
(A) describe the purposes for which the grant is needed;
and
(B) certify that the State or political subdivision lacks
the resources necessary to investigate or prosecute a crime
motivated by animus against the victim by reason of the
membership of the victim in a particular class or group.
(3) Deadline.--An application for a grant under this
subsection shall be approved or disapproved by the Attorney
General not later than 10 days after the application is
submitted.
(4) Grant amount.--A grant under this subsection shall not
exceed $100,000 for any single case.
(5) Report and audit.--Not later than December 31, 2010,
the Attorney General, in consultation with the National
Governors' Association, shall--
(A) submit to Congress a report describing the applications
made for grants under this subsection, the award of such
grants, and the effectiveness of the grant funds awarded; and
(B) conduct an audit of the grants awarded under this
subsection to ensure that such grants are used for the
purposes provided in this subsection.
(e) Authorization of Appropriations.--There is authorized
to be appropriated $5,000,000 for each of the fiscal years
2010 and 2011 to carry out this section.

Mr. HATCH. Mr. President, the purpose behind this amendment is
simple. The proponents of the Matthew Shepard Hate Crimes Prevention
Act have yet to answer what should have been the threshold question: Is
it really necessary?
My amendment would mandate a study to determine whether the States
are adequately addressing bias-motivated violence. To date, we have
seen no evidence that they are not. In fact, we have asked the Attorney
General, for years now, to come up with any evidence they can. In the
hearing before the Judiciary Committee recently, he specifically stated
the States are doing a good job at addressing hate crimes.
It would also authorize the Justice Department to provide limited aid
and assistance in State prosecutions of bias-motivated crimes.
In almost every case raised by the proponents of a horrific act of
violence motivated by prejudice, the perpetrators have been dealt with
adequately at the State level.
In the Matthew Shepard case, the two perpetrators are spending life
in prison. In other cases, some have had the death penalty, and others
have spent life in prison.
Before we start overriding State efforts, I believe we should at
least make an effort to determine whether there is a legitimate Federal
role in the prosecution of hate crimes. That is what my amendment would
do, and I hope our colleagues will consider voting for it.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I know the hour is late. The matter is very
simple. The Hatch amendment kills the hate crimes legislation. If you
want to kill the hate crimes legislation, vote for the Hatch amendment.
If you do not want to kill the hate crimes legislation, if you want a
chance to vote on something the Senate has voted for time and time
again, then vote against the Hatch amendment.
The Attorney General testified at the request of the Republicans. He
testified before the Senate Judiciary Committee and endorsed the
legislation before us. The Hatch amendment--perhaps well-meaning; I
assume it is--would, in effect, eviscerate the hate crimes legislation.
It would kill the hate crimes legislation.
The question is very simple: Vote for Hatch; you kill the hate crimes
legislation. Vote against it, we have a chance to vote for the hate
crimes legislation--something the Senate has voted for several times
before and something the Attorney General supports based on a hearing
we had at the request of the Republicans within the past month.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, do I have any time remaining?

[[Page S7634]]

The PRESIDING OFFICER. The Senator from Utah has 40 seconds
remaining.
Mr. HATCH. Mr. President, my amendment does not kill the hate crimes
opportunity. It says, let's do a study. Let's know what we are talking
about. Let's see if there is a real need for this bill. With all of the
constitutional ramifications this bill has, it says: Let's be cautious.
Let's just not go pell-mell into the maelstrom without knowing what we
are talking about.
Mr. LEVIN. Mr. President, is there any time remaining for the
opponents?
The PRESIDING OFFICER. There is 45 seconds.
Mr. LEVIN. Mr. President, the Hatch amendment is explicit. It is
clear. On lines 6 and 7 on page 1, and lines 1 and 2 on page 2, it
says: ``division E of this Act (relating to hate crimes), and the
amendments made by that division, shall have no force or effect.'' It
is explicit. It says: No hate crimes legislation; instead, a study.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah has 15 seconds.
Mr. HATCH. Mr. President, all it says is, we would go a different
route. We would do the study first, so we do not go off half cocked and
do something that may be unconstitutional and unsound.
Mr. President, I ask for the yeas and nays on the amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
All time has expired on the Hatch amendment.
The question is on agreeing to the amendment.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd)
and the Senator from Massachusetts (Mr. Kennedy) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Tennessee (Mr. Alexander), the Senator from Tennessee (Mr.
Corker), the Senator from Missouri (Mr. Bond), the Senator from New
Hampshire (Mr. Gregg), the Senator from Kentucky (Mr. Bunning), the
Senator from Florida (Mr. Martinez), and the Senator from South
Carolina (Mr. Graham).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``yea,'' the Senator from Tennessee (Mr.
Corker) would have voted ``yea,'' and the Senator from Kentucky (Mr.
Bunning) would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 29, nays 62, as follows:

[Rollcall Vote No. 231 Leg.]

YEAS--29

Barrasso
Bennett
Brownback
Burr
Chambliss
Coburn
Cochran
Cornyn
Crapo
DeMint
Ensign
Enzi
Grassley
Hatch
Hutchison
Inhofe
Isakson
Johanns
Kyl
McCain
McConnell
Murkowski
Risch
Roberts
Sessions
Shelby
Thune
Vitter
Wicker

NAYS--62

Akaka
Baucus
Bayh
Begich
Bennet
Bingaman
Boxer
Brown
Burris
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Franken
Gillibrand
Hagan
Harkin
Inouye
Johnson
Kaufman
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
McCaskill
Menendez
Merkley
Mikulski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Snowe
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Voinovich
Warner
Webb
Whitehouse
Wyden

NOT VOTING--9

Alexander
Bond
Bunning
Byrd
Corker
Graham
Gregg
Kennedy
Martinez
The amendment (No. 1611) was rejected.
Mr. LEAHY. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 1613

The PRESIDING OFFICER. The pending question is the amendment of the
Senator from Vermont.
The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, this amendment is very simple. Anybody can
read it in about a minute. It says that nothing shall add to or detract
from the first amendment to the Constitution. No court in the country
would rule otherwise. It simply says that regarding the right of free
speech in this country, nothing can be taken from it and nothing added
to it.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 1613) was agreed to.
Mr. LEAHY. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.

Amendment No. 1610

The PRESIDING OFFICER. The pending question is the amendment of the
Senator from Kansas.
The Senator from Kansas is recognized.
Mr. BROWNBACK. The language we put in the Religious Freedom
Restoration Act passed this body 97 to 3. This language is much more
targeted, so it doesn't leave it all to the interpretation of the
court. It expresses what this body has previously expressed. I think it
is important that we put this forward. It says that if you are speaking
and intending to incite physical violence or imminent threat, that is
not protected speech. But otherwise you have protected speech. It puts
a much finer definition on it that is important for this legislation.
I urge my colleagues to vote for this amendment.
The PRESIDING OFFICER. The yeas and nays have been ordered on the
amendment.
The question is on agreeing to the amendment.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd
and the Senator from Massachusetts (Mr. Kennedy) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Kentucky (Mr. Bunning), the Senator from Tennessee (Mr.
Alexander), the Senator from Tennessee (Mr. Corker), the Senator from
New Hampshire (Mr. Gregg), the Senator from Florida (Mr. Martinez), the
Senator from South Carolina (Mr. Graham), and the Senator from Missouri
(Mr. Bond).
Further, if present and voting, the Senator from Kentucky (Mr.
Bunning) would have voted ``yea,'' the Senator from Tennessee (Mr.
Alexander) would have voted ``yea,'' and the Senator from Tennessee
(Mr. Corker) would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 78, nays 13, as follows:

[Rollcall Vote No. 232 Leg.]

YEAS--78

Barrasso
Baucus
Bayh
Begich
Bennet
Bennett
Bingaman
Boxer
Brownback
Burr
Cantwell
Carper
Casey
Chambliss
Coburn
Cochran
Collins
Conrad
Cornyn
Crapo
DeMint
Dodd
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Franken
Grassley
Hagan
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johanns
Johnson
Kaufman
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Levin
Lieberman
Lincoln
Lugar
McCain
McCaskill
McConnell
Menendez
Merkley
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Risch
Roberts
Rockefeller
Sanders
Sessions
Shaheen
Shelby
Snowe
Specter
Stabenow
Tester
Thune
Udall (CO)
Udall (NM)
Vitter
Voinovich
Warner
Webb
Wicker
Wyden

NAYS--13

Akaka
Brown
Burris
Cardin
Gillibrand
Harkin
Lautenberg
Leahy
Mikulski
Reed
Reid
Schumer
Whitehouse

NOT VOTING--9

Alexander
Bond
Bunning
Byrd
Corker
Graham
Gregg
Kennedy
Martinez
The amendment (No. 1610) was agreed to.

[[Page S7635]]

Mr. BROWNBACK. I move to reconsider the vote, and I move to lay that
motion on the table.
The motion to lay on the table was agreed to.

Cloture Motion

The PRESIDING OFFICER. By unanimous consent, pursuant to rule XXII,
the Chair lays before the Senate the pending cloture motion, which the
clerk will report.
The legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the Leahy amendment
No. 1511 to S. 1390, the National Defense Authorization Act
for Fiscal Year 2010.
Evan Bayh, Roland W. Burris, Benjamin L. Cardin, Patrick
J. Leahy, Sheldon Whitehouse, Jeff Bingaman, Bernard
Sanders, John F. Kerry, Carl Levin, Frank R.
Lautenberg, Dianne Feinstein, Tom Harkin, Robert
Menendez, Richard J. Durbin, Christopher J. Dodd,
Charles E. Schumer, Harry Reid.

The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call is waived.
The question is, Is it the sense of the Senate that debate on
amendment No. 1511 offered by the Senator from Vermont, Mr. Leahy, to
S. 1390, the National Defense Authorization Act for fiscal year 2010,
shall be brought to a close?
The yeas and nays are mandatory under the rule. The clerk will call
the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd)
and the Senator from Massachusetts (Mr. Kennedy) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Tennessee (Mr. Alexander), the Senator from Missouri (Mr. Bond),
the Senator from Kentucky (Mr. Bunning), the Senator from Tennessee
(Mr. Corker), the Senator from South Carolina (Mr. Graham), the Senator
from New Hampshire (Mr. Gregg), and the Senator from Florida (Mr.
Martinez).
Further, if present and voting, the Senator from Tennessee (Mr.
Alexander) would have voted ``nay,'' the Senator from Kentucky (Mr.
Bunning) would have voted ``nay,'' the Senator from South Carolina (Mr.
Graham) would have voted ``nay,'' and the Senator from Tennessee (Mr.
Corker) would have voted ``nay.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 63, nays 28, as follows:

[Rollcall Vote No. 233 Leg.]

YEAS--63

Akaka
Baucus
Bayh
Begich
Bennet
Bingaman
Boxer
Brown
Burris
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Franken
Gillibrand
Hagan
Harkin
Inouye
Johnson
Kaufman
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
McCaskill
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (NE)
Nelson (FL)
Pryor
Reed
Reid
Rockefeller
Sanders
Schumer
Shaheen
Snowe
Specter
Stabenow
Tester
Udall (CO)
Udall (NM)
Voinovich
Warner
Webb
Whitehouse
Wyden

NAYS--28

Barrasso
Bennett
Brownback
Burr
Chambliss
Coburn
Cochran
Cornyn
Crapo
DeMint
Ensign
Enzi
Grassley
Hatch
Hutchison
Inhofe
Isakson
Johanns
Kyl
McCain
McConnell
Risch
Roberts
Sessions
Shelby
Thune
Vitter
Wicker

NOT VOTING--9

Alexander
Bond
Bunning
Byrd
Corker
Graham
Gregg
Kennedy
Martinez
The PRESIDING OFFICER. On this vote, the yeas are 63, the nays are
28. Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
Under the previous order, the Leahy amendment, as amended, is agreed
to.
The motion to reconsider is considered made and laid upon the table.
The Senator from Vermont.
Mr. LEAHY. Mr. President, I thank my colleagues for accepting the
amendment. I also thank the distinguished Senator from Michigan, the
chairman of the committee, and the distinguished majority leader for
their work, as well as my staff, Bruce Cohen, Kristine Lucius, Noah
Bookbinder, and others.
We have made it very clear--the Senate has made it very clear--how we
hold in abhorrence hate crimes. I thank my colleagues for standing up
and so strongly voicing, in a bipartisan way, their opposition to hate
crimes.
I yield the floor, 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. THUNE. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 1618

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

The Senator from South Dakota [Mr. Thune] for himself, Mr.
Vitter, Mr. Enzi, Mr. Barrasso and Mr. Coburn, proposes an
amendment numbered 1618.

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

(Purpose: To amend chapter 44 of title 18, United States Code, to allow
citizens who have concealed carry permits from the State in which they
reside to carry concealed firearms in another State that grants
concealed carry permits, if the individual complies with the laws of
the State)

At the end of subtitle H of title X, add the following:

SEC. 1083. RECIPROCITY FOR THE CARRYING OF CERTAIN CONCEALED
FIREARMS.

(a) Findings.--Congress finds the following:
(1) The second amendment to the Constitution of the United
States protects the right of an individual to keep and bear
arms, including for purposes of individual self-defense.
(2) The right to bear arms includes the right to carry arms
for self-defense and the defense of others.
(3) Congress has previously enacted legislation for
national authorization of the carrying of concealed firearms
by qualified active and retired law enforcement officers.
(4) Forty-eight States provide by statute for the issuance
of permits to carry concealed firearms to individuals, or
allow the carrying of concealed firearms for lawful purposes
without need for a permit.
(5) The overwhelming majority of individuals who exercise
the right to carry firearms in their own States and other
States have proven to be law-abiding, and such carrying has
been demonstrated to provide crime prevention or crime
resistance benefits for the licensees and for others.
(6) Congress finds that the prevention of lawful carrying
by individuals who are traveling outside their home State
interferes with the constitutional right of interstate
travel, and harms interstate commerce.
(7) Among the purposes of this Act is the protection of the
rights, privileges, and immunities guaranteed to a citizen of
the United States by the fourteenth amendment to the
Constitution of the United States.
(8) Congress therefore should provide for the interstate
carrying of firearms by such individuals in all States that
do not prohibit the carrying of concealed firearms by their
own residents.
(b) In General.--Chapter 44 of title 18, United States
Code, is amended by inserting after section 926C the
following:

``Sec. 926D. Reciprocity for the carrying of certain
concealed firearms

``(a) Notwithstanding any provision of the law of any State
or political subdivision thereof--
``(1) a person who is not prohibited by Federal law from
possessing, transporting, shipping, or receiving a firearm,
and who is carrying a government-issued photographic
identification document and a valid license or permit which
is issued pursuant to the law of a State and which permits
the person to carry a concealed firearm, may carry a
concealed firearm in any State other than the State of
residence of the person that--
``(A) has a statue that allows residents of the State to
obtain licenses or permits to carry concealed firearms; or
``(B) does not prohibit the carrying of concealed firearms
by residents of the State for lawful purposes;
``(2) a person who is not prohibited by Federal law from
possessing, transporting, shipping, or receiving a firearm,
and who is carrying a government-issued photographic
identification document and is entitled to carry a concealed
firearm in the State in which the person resides otherwise
than as described in paragraph (1), may carry a concealed
firearm in any State other than the State of residence of the
person that--

[[Page S7636]]

``(A) has a statute that allows residents of the State to
obtain licenses or permits to carry concealed firearms; or
``(B) does not prohibit the carrying of concealed firearms
by residents of the State for lawful purposes.
``(b) A person carrying a concealed firearm under this
section shall--
``(1) in a State that does not prohibit the carrying of a
concealed firearms by residents of the State for lawful
purposes, be entitled to carry such firearm subject to the
same laws and conditions that govern the specific places and
manner in which a firearm may be carried by a resident of the
State; or
``(2) in a State that allows residents of the State to
obtain licenses or permits to carry concealed firearms, be
entitled to carry such a firearm subject to the same laws and
conditions that govern specific places and manner in which a
firearm may be carried by a person issued a permit by the
State in which the firearm is carried.
``(c) In a State that allows the issuing authority for
licenses or permits to carry concealed firearms to impose
restrictions on the carrying of firearms by individual
holders of such licenses or permits, a firearm shall be
carried according to the same terms authorized by an
unrestricted license of or permit issued to a resident of the
State.
``(d) Nothing in this section shall be construed to--
``(1) effect the permitting process for an individual in
the State of residence of the individual; or
``(2) preempt any provision of State law with respect to
the issuance of licenses or permits to carry concealed
firearms.''.
(c) Clerical Amendment.--The table of sections for chapter
44 of title 18 is amended by inserting after the item
relating to section 926C the following:

``926D. Reciprocity for the carrying of certain concealed firearms.''.
(d) Severability.--Notwithstanding any other provision of
this Act, if any provision of this section, or any amendment
made by this section, or the application of such provision or
amendment to any person or circumstance is held to be
unconstitutional, this section and amendments made by this
section and the application of such provision or amendment to
other persons or circumstances shall not be affected thereby.
(e) Effective Date.--The amendments made by this section
shall take effect 90 days after the date of enactment of this
Act.

Mr. THUNE. Mr. President, the amendment that I bring to the Senate
this evening is very simple. It ties into the debate that was just held
about hate crimes legislation. One of the ways you can obviously
prevent crimes from happening is to make sure that people are able to
defend themselves against violent crimes. My amendment would do just
that.
My amendment is simple. It allows individuals the right to carry a
lawfully concealed firearm across State lines, while at the same time
respecting the laws of the host State.
This amendment is similar to my bipartisan stand-alone bill S. 845,
which currently has 22 cosponsors.
The second amendment provides, and the Supreme Court held in Heller
last summer, that law-abiding Americans have a fundamental right to
possess firearms in order to defend themselves and their families.
Studies have shown that there is more defensive gun use by victims
than there are crimes committed with firearms.
As such, I believe that a State's border should not be a limit on
this fundamental right and that law-abiding individuals should be
guaranteed their second amendment rights without complication as they
travel throughout the 48 States that currently permit some form of
conceal and carry.
While some States with concealed carry laws grant reciprocity to
permit-holders from other select States, my amendment would eliminate
the confusing patchwork of laws that currently exists.
This amendment would allow an individual to carry a concealed firearm
across State lines if they either have a valid permit or if, under
their State of residence, they are legally entitled to do so.
After entering another State, an individual must respect the laws of
the host State as they apply to conceal and carry permit holders,
including the specific types of locations in which firearms may not be
carried.
Reliable, empirical research shows that States with concealed carry
laws enjoy significantly lower violent crimes rates than those States
that do not.
For example, for every year a State has a concealed carry law, the
murder rate declines by 3 percent, rape by 2 percent, and robberies by
over 2 percent.
Additionally, research shows that ``minorities and women tend to be
the ones with the most to gain from being allowed to protect
themselves.''
The benefits of conceal and carry extend to more than just the
individuals that actually carry the firearms.
Since criminals are unable to tell who is and who is not carrying a
firearm just by looking at a potential victim, they are less likely to
commit crimes when they fear that they may come in direct contact with
an individual who is armed.
This deterrent is so strong that a Department of Justice study found
that 40 percent of felons had not committed crimes because they feared
the prospective victim was armed.
Additionally, research shows that when unrestrictive conceal and
carry laws are passed, it not only benefits those who are armed, but
also others like children.
My amendment, in comparison to others being debated in the Senate,
would actually empower individuals to protect themselves before they
become victims of a crime, instead of just punishing the perpetrators
afterwards.
A great example of this occurred earlier this month. Stephen
Fleischman is a 62-year-old jewelry salesman from Mobile, AL, who often
travels for business.
On his recent business trip to Memphis a group of four men, two of
whom were armed, confronted him in a parking lot and tried to take his
merchandise.
Instead of becoming a victim, Mr. Fleischman, who was legally
concealing his firearm, was able to pull his weapon and protect himself
and his merchandise from the four attackers.
Who knows what would have happened to Mr. Fleischman or his jewelry
if he was traveling in South Carolina or any of the other 27 States
with which Alabama does not have reciprocity agreements.
My amendment would alleviate this problem, and I hope when we return
next week and we have an opportunity to debate this amendment and to
vote upon it, my colleagues will support it because I believe it is an
important tool for safety, for self-defense, and it is consistent with
our tradition in this country of respect of second amendment rights,
allowing American citizens the opportunity and the right to defend and
protect themselves.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KAUFMAN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________