Rape Kits and DNA Evidence Backlog Elimination Act of 2003

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, first of all, I want to thank a number of people. I thank Senator DeWine for his dynamic and great leadership on the issue of FDA regulation of tobacco products. He has been in the forefront of this fight for a long time. I thank him for his leadership, working again with Senator Kennedy on this issue and so many others on both sides of the aisle to get that position established by the Senate, which we did, and that was that we would have a tobacco buyout but also FDA regulation of tobacco, finally. We spoke on that, but, of course, the House didn't go along, and we find ourselves now with this great big tax bill of around 630 pages we have on our desk. Guess what. No FDA regulation of tobacco.

I thank Senator DeWine and I thank Senator Landrieu for her strong and dynamic leadership in being here on a Saturday night to continue to make the point about what happened to our guardsmen and reservists in the United States. It is unconscionable what the House and the President did on this issue. We ought to put the blame where it really lies; it is at the White House. That is where it lies. I might say the House, but they are just doing what the White House wants them to do. They

are just a rubberstamp for the White House. It is the White House that called the shots on that one.

I thank Senator Landrieu for sticking up for our people in uniform, for those all over the country who have been shortchanged by this so- called tax bill.

Mr. President, I want to take some time here to speak about tobacco and how unconscionable it is that this bill does not have FDA regulation of tobacco included. Over the last several days, we have heard a great deal about the dangers of smoking and the devastation caused to millions of families every year. With the results of the conference report on Wednesday, I fear colleagues have not been listening to the details of the public health crisis our Nation faces regarding tobacco and smoking.

Let me repeat them loudly and clearly so Members understand what they are opposing and why we so urgently need FDA regulation of tobacco.

One, smoking kills more than 450,000 Americans every year.

Over the last 10 years, smoking has claimed more than 4.4 million lives.

Smoking is the leading cause of preventable death in this country.

Smoking causes heart disease, cancer, emphysema, and a host of other related illnesses.

Two-thousand kids start smoking every day, and, ultimately, one in three will die of smoking-related causes.

Smoking-related medical expenditures have indirect costs resulting from lost work activity.

There are 250 chemicals in tobacco smoke that are toxic or cause cancer in humans.

Tobacco use accounts for at least 30 percent of all cancer deaths.

Smoking causes nearly 87 percent of all lung cancers, which is the leading cause of cancer deaths.

Last year, nearly 70,000 women died from lung cancer in the United States. That is more deaths than from breast cancer and all gynecological cancers combined--70,000 women.

If these facts don't paint a stark picture of the urgency for FDA regulation of tobacco, I don't know what will. You know, when there is an outbreak of food poisoning in a local school, we move Heaven and Earth to find the source and take appropriate action to make sure our kids don't get sick again. But somehow, when it comes to protecting our kids from a known toxin--tobacco--we find our hands tied. Why? Well, it is because of big tobacco. There is too much at stake in terms of profit loss for tobacco companies to allow this regulation to go through. They have been fighting it for years.

I introduced the first-ever comprehensive bipartisan FDA regulation with, I might say, Senator Bob Graham and former Senator John Chafee of Rhode Island.

That bill was introduced almost 6 years ago. I heard the same reasons then that I do now on how unnecessary FDA regulation is. Quite frankly, our bill went much further and was much tougher than this one. Creating a more sensible policy for tobacco has been a goal of mine for many years. It was in 1977, in my second term in the House of Representatives, over 21 years ago, that I first introduced legislation calling for repeal of the tax deductibility of tobacco advertising and marketing.

Unfortunately, victories in the tobacco wars for consumers and for our kids have come few and far between. Tobacco wins every time.

With the mounting evidence we have today about the absolute dangers of smoking, it is paramount we pass a comprehensive plan that would once and for all change how this Nation deals with tobacco and dramatically cut the number of our kids addicted to this deadly product.

That said, I am afraid the power of big tobacco has once again superseded the need to protect public health. The fact is we know now that 90 percent of current smokers became hooked on tobacco as kids. That should sound alarms that something needs to be done to stop this from happening, and to prevent senseless disease and death that is linked with this addiction. This is a drug addiction. Tobacco is a drug. It is addictive, just like methamphetamine, cocaine, and heroin. It is addictive and it kills you.

For too long, kids have been getting an unfiltered message from the tobacco industry: Smoking is cool. Smoking is harmless. Smoking is glamorous. Smoking is for active young people and will make you look more attractive.

Today, big tobacco companies spend more than $11.5 billion a year in advertising and marketing their products. Children are exposed to messages that are deliberately designed to attract a new generation to the smoking habit. The motivations are clear: Anything to make more money for big tobacco.

Now we hear from tobacco companies all the time that, oh, no, their advertising is to get people to shift brands, go from one brand to the other. Well, I will illustrate here very shortly that is not what they are up to.

Many think regulation is unwarranted after some of the restrictions that were agreed to as part of the master settlement agreement a few years ago. The good old MSA, the master settlement agreement. Yes, there are billboard restrictions and a few things such as that, but now we have much more sophisticated mechanisms.

Let me refresh some memories. Here is Joe Camel, a smooth character, Joe, flying his jet airplane with the afterburners going. He has a beautiful young woman looking over her shoulder, looking at Joe Camel with his Camel cigarette.

Who is this appealing to? Kids.

Now, there is another Joe Camel here. Here is Joe Camel, with Camel Lights, cool Joe. He has his red convertible and black T-shirt and Levi's, and Joe is cool. Joe Camel is a neat guy.

Well, we forced big tobacco to get rid of Joe. They did. We do not see Joe Camel any longer so we can take old Joe down. Joe Camel is gone. I want to refresh memories. I want to refresh memories, because there was a time--and I will repeat this, there was a time--a study was done that kids in America recognized Joe Camel more than they recognized Mickey Mouse. It is true. But we got rid of Joe Camel.

One might ask, what now do you need? I will show my colleagues why we need to have FDA regulation, because tobacco has gotten smart. They are now spending more than ever on predatory marketing since the MSA was agreed to. Big tobacco is spending 60 percent more on marketing than they were before the master settlement agreement.

Again, are they trying to get people to switch? Let us take a look. Here is Liquid Zoo. Now, I had a pack of those with me when we were in conference. I was one of the conferees arguing to keep the FDA regulation that we had in the Senate, and I had strawberry flavor. This was Liquid Zoo, strawberry flavor. When you smell it, why, you would swear you were in a strawberry patch. It smelled wonderful. It smelled like strawberries.

This is the tobacco. Liquid Zoo-flavored cigarettes are an exotic blend of strawberry-flavored tobaccos for a sweet, fresh taste and aroma.

Do they really think they are trying to get someone to switch from Marlboros or Winstons or Camels to that? That is going right to our kids. That is what this is about.

Then we have Kool Rapper here. We have another one. Here is the Kool Rapper. Here is a rapper. He is cool. He has his mike and he is spinning the disk or CD or whatever it is there, and everyone is dancing and that is called Kool Rapper.

Now, do my colleagues think they are trying to go after adults with that? Do my colleagues think they are trying to go after 40 and 50- year-old people to get them to switch from Marlboro or Winston or Camel to that? No. This is for kids. They are getting to young people. They are spending 60 percent more on marketing now than they did before the master settlement agreement, and we took away Joe Camel on billboards, but now they are spending 60 percent more and this is where it is going.

Because what do they know? They know 90 percent of all tobacco smokers today started when they were young. They get them hooked early.

I have another Kool Rapper here. This is just, again, special edition packs. Now, they do not any longer have the little coupons where you can get gear and all that kind of stuff. That is gone, but now they have special edition packs: Celebrate the sound track to the streets. It does not take a genius to figure out who they are targeting with that.

So big tobacco has found tricks and dodges to circumvent the law, and they have been very effective. From the birth of Joe Camel to the birth of Liquid Zoo and Kool Rapper, we have seen broken promises and bad faith again and again from big tobacco.

Giving the FDA the power it needs to end these false messages is exactly what is needed to stop big tobacco's exploitation of our kids. The only message our young kids should hear about tobacco is the truth: Smoking is a killer. It is a drug. It is addictive. It causes cancer. It causes emphysema. It causes a lot of other illnesses. That message needs to come through loudly and clearly. Since industry will not convey that message, we need strong FDA regulation to make it happen.

Instead, what do we do here now with this big tax bill we have? We allow big tobacco to further confuse kids when it comes to the actual safety of cigarettes.

This morning I got up and I had my Cheerios. I actually had a bowl of Cheerios this morning. Now, the bowl of Cheerios I ate this morning had to go through a multistep process set up by the Food and Drug Administration to earn its health claims that it is heart healthy and lowers cholesterol. It had to go through certain steps.

Somehow tobacco, a known health risk, does not have to go through any of those steps whatsoever. In fact, tobacco companies are free to add anything they want to their product without having to inform consumers or without any regard to the health effects of those additives.

For example, tobacco companies have added ammonia to their products. I do not know if my colleagues have ever smelled ammonia, but they get an idea of what it is like. They add ammonia to tobacco products on the ground that it improves ``tobacco satisfaction.'' They add the ammonia in order to create a ``free base'' form of nicotine that creates the highly addictive quick delivery form of nicotine to the brain. It goes from your lungs to your brain in 8 to 10 seconds when they add ammonia. We know this. So tobacco companies add ammonia so that you get a bigger kick right away, in 8 to 10 seconds. Adding ammonia to cigarettes is analogous to what crack cocaine was to cocaine--it just gives you a faster high, it goes to your brain quicker. But guess what. The tobacco companies do not have to tell you that. They just tell you have a Kool Wrapper there. They don't have to tell you anything else.

The industry claims that many of its ingredients are benign flavoring agents like strawberry that are on the FDA GRAS list. That stands for Generally Recognized As Safe. The tobacco companies say we put these ingredients in and they are benign; however, those ingredients such as chocolate, licorice, and other flavors are not safe when they are combusted, and they often create toxic chemicals when they are inhaled by the smoker. So, yes, maybe licorice is safe to eat, but when you combust it, then it creates toxics that you inhale. The industry will not tell you that either.

No other industry in America is allowed to add ingredients to their products without first having them tested and approved by the Federal Drug Administration for safety. For example, Kraft Foods, a subsidiary of Altria Group along with Philip Morris, could not add ammonia to Kraft macaroni and cheese on the grounds that it improves cheese satisfaction for its customers. Why can't they add ammonia to macaroni and cheese? They can't add ammonia to macaroni and cheese because it is not on the FDA list of products that are generally recognized as safe. They can add ammonia to cigarettes; they can't add it to Kraft macaroni and cheese. The FDA has more authority to regulate macaroni and cheese than it does cigarettes. Imagine that.

I have this to show what I mean by that. Here is something called Omni cigarettes. Here is what it reads:

Omni is the first premium cigarette created to

significantly reduce carcinogenic PAHs and nitrous amines,

which are the major causes of lung cancer in smoking.''

That is what they say.

Says who? The tobacco company says that. But we have no way of verifying that. They can make all the claims they want, like low tar, light, less carcinogenic, but we the public have no way to verify that because the Federal Food and Drug Administration has no authority to regulate tobacco or to go in and tell us what is in there or to make the tobacco companies verify what they say.

I have an Eclipse one here, too. Here is an Eclipse. This is interesting:

The best choice for smokers who worry about their health is

to quit. Here is the next best choice. Are you ready for

Eclipse? Get the facts.

I have the support of my wife..if I'm going to smoke, she'd

prefer I smoke Eclipse.

A better way to smoke.

Talk about a warped message:

Omni, there is no better way to smoke.

A better way to smoke? There is a better way to get cancer. There is a better way to get emphysema. This cigarette will give it to you faster. They don't tell you that, but that is what is happening.

During debate in the conference committee, one of my colleagues on the House side mentioned that the Founding Fathers would be shocked if they knew that Congress was trying to regulate an industry that was in part responsible for the early prosperity of our country. It is more likely that they are rolling over in their graves at the fact that we have known for more than 30 years that tobacco kills and that we have not done one thing about it. They didn't know it in the 1700s. They didn't know, but we know now.

The Congress is now considering, one more time, giving immunity to big tobacco and turning a blind eye to their responsibility to protect our kids and the public health. That is what is not in this tax bill. There are tax breaks for all kinds of things. There are tax breaks in here for gamblers who come from foreign countries to gamble here. Imagine that, they need a tax break. There is a tax break in here for people who import ceiling fans from China.

Lord only knows what else is in this tax bill. No one has really read it. No one knows what all these numbers and staff mean. There is a tax break here and a tax gimmick there; a tax break here and a tax gimmick there.

When this bill was before the Senate, this Senate added a provision that did two things. It allowed for a buyout of tobacco farmers' quotas--which I have been in favor of for years, by the way. Coupled with that is FDA regulation of tobacco.

Again, as someone who sits on the Agriculture Committee and also on the HELP Committee, I have been involved in both sides. I have espoused for a long time that we have a tobacco buyout, that we buy out these quotas. Why should we do that? These quotas were put on 60 or 70 years ago. They have been built into the price of the land. I can't go back and undo that. It is a fact of life. Many farmers in tobacco growing States--some of them are small farmers. All they have is that quota. They don't have anything else. The land is really not worth that much. So it is like taking away their income base. So I have always said we need to buy these quotas out and get rid of this tobacco program for once and for all. On the HELP Committee side, I have also said, if we are going to do that, then we ought to have FDA jurisdiction over tobacco.

This debate went on and on for years, and final we agreed. I might say that Philip Morris was one of those who agreed with us. I commend them for that. So we got it through the Senate.

It goes to the House. Guess what the House did. The tobacco buyout that we passed in the Senate, the money that is going to go to those tobacco farmers did not come from the taxpayers. It came from the tobacco companies. Of course, the tobacco companies will pass that on to tobacco smokers, so the smokers were going to pay for the buyout of the quotas. That is as it should be. Why should the taxpayers pay for it? We agreed on that. Philip Morris agreed on that. We agreed that we would have FDA jurisdiction.

Here is what the House did. They broke that agreement. First of all, the House of Representatives, and I am sure with the approval of the Bush White House because they wouldn't have done it unless the White House agreed, they made the buyout of the quotas paid for by the taxpayers of the country. All of you who do not smoke, you are now going to pay to buy out those tobacco farmers. That is what was in the House bill, plus they took away the FDA jurisdiction over tobacco.

In the final analysis, they put back in the companies paying for the buyout, but they left out the FDA regulation of tobacco. So here we are. No FDA regulation. That is what is not in this FSC bill.

It was my understanding the purpose of this bill was to repeal an illegal export subsidy. Now it has morphed into a big special interest giveaway that will help everyone from restaurant owners to makers of bows and arrows, tackle boxes, sonar fishfinders, NASCAR track owners, Alaskan whalers, foreign gamblers, as I mentioned, who win at U.S. horse and dog tracks.

I want to repeat that.

In this bill, there are provisions to give tax breaks to foreign gamblers who win at U.S. horse and dog tracks. Those interests trump the 2,000 kids hooked on smoking every day by the big tobacco companies. Imagine that.

What are our priorities around here? What is the priority of the White House? I am telling you it could never have happened unless the President signed off on it.

You go out there, Mr. President. You have some more days before the election. Go out there and tell the American people how you pulled the rug from underneath FDA regulations of tobacco, how you sided with the big tobacco companies to get our kids hooked on tobacco every day-- 2,000 every day. Go out and look those mothers and fathers in the eye and tell them your priority is the big tobacco companies and not their kids.

Yes. This would never have been done if the White House had not OK'd taking FDA jurisdiction away. Shame on the White House.

We had the opportunity here to pass this legislation once and for all, and to stamp out youth smoking in this country and protect kids from joining the ranks of the 450,000 who die from smoking each year. The tobacco industry has been engaged in a systematic campaign of distortion and deceit to hook kids and hide the facts from the American people for far too long.

I met a fifth grader, Ted Stanton, from Des Moines, IA, a few months ago who reminded me how important regulation is. Ted won a statewide poster contest sponsored by the American Academy of Family Physicians for his efforts to raise awareness about smoking. He is a fifth grader. What happened was Ted has had to watch his dad struggle with the habit of smoking for years. He drew a poster. His poster is an attempt to warn kids about smoking.

Here is his poster and here is why he won the prize. ``Invest in your future.'' He has the date 2054. ``Pay to the order of big tobacco companies $73,000.'' That is $4 a pack every day times 50 years. In other words, you smoke a pack a day for 53 years and you will pay big tobacco companies $73,000.

I thought Ted Stanton, a fifth grader, really pointed it out. That is what you are doing when you start smoking. You are going to smoke for 50 years, if you are a teenager, a pack a day, $73,000.

We do have some kids like Ted and others who realize they are being targeted by big tobacco, but they are defenseless. What are we doing to help them? What we are doing is protecting big tobacco--the same guys who conspired years ago to hide the truth about tobacco and instead pushed their deadly products on our most valued treasure, our kids.

It is disgraceful that this body has not acted yet. It is disgraceful that we are getting half of the deal we had worked on for years, the tobacco buyout of the quotas. Guess what happened. The way they worked this tobacco quota buyout is you are going to buy out the quotas, but now tobacco will be growing cheaper. Now the tobacco companies will be able to buy tobacco cheaper than they had before, making more money, hooking more kids, without FDA authority.

The reason I say that is because when we passed the bill in the Senate, we had a provision that provided for a licensing program that would prohibit more and more people growing tobacco in this country. The House took that out. So we got the worst of all possible worlds--no FDA regulation, a buyout of the quotas, more people will be able to grow tobacco, and the tobacco companies will get it cheaper and make more money to hook our kids. What a deal. Yet we can take care of foreign gamblers who come to bet on horses. But we can't take care of our kids. Shame on us.

(Mr. HATCH assumed the Chair.)

I know the hour is getting late. I see the occupant of the Chair, someone for whom I have great respect, the Senator from Utah.

I will state publicly that the senior Senator from Utah has also been in the forefront of the fight against tobacco. He always has been. I compliment him for that. I know he feels as strongly about antismoking and stopping kids from smoking as I do, or as Senator DeWine does, or Senator Kennedy, or anybody else does. The Senator from Utah has been stalwart in his support for getting FDA regulation of tobacco. I thank him for that. I encourage him to keep up his leadership on that because we have not yet fired the last shot. We are going to be back.

I wish the President of the United States, using the bully pulpit of the White House, had come out in an address to the Nation and said we need FDA regulations for tobacco, we need to stop our kids from getting hooked, and call upon the House and the Senate and say he will not sign this bill, he will veto this bill unless we protect our kids.

Think of what would have happened if the President of the United States had said that. We would have a tax bill here, but we would have FDA regulation of tobacco in here. I am sorry the President missed a golden opportunity and thus we have missed a golden opportunity. Thus, tomorrow and the day after, and next month, and next month, and next year, thousands of kids every day might pick up a pack of Liquid Zoo, because it smells nice. It tastes like strawberries. They will say, There is no harm in that, plus it makes me look glamorous. That is what all the ads say.

Think about it. That is what is going to happen. Shame on us.

I yield the floor and I suggest the absence of a quorum.

I see the occupant of the chair, and I know he wants to go home. But I said to the managers I can be interrupted when they are ready to wrap up. I want the occupant to know I am not holding him here.

I will talk about one other item that is not in this FSC bill that we got stiffed on. We passed it four times in the Senate and twice in the House. I am talking about overturning the regulations that this administration put out that will deny overtime rights to over 6 million people.

Again, just last week, in a replay of what happened a year ago, the Bush administration used the conference to kill my provision to stop the Department of Labor's new rule on overtime pay that if allowed to stand will strip 6 million people of their right to time and a half overtime.

The bill before the Senate today serves the simplest of purposes. This tax bill has everything in it for everyone, but what is not in it is protection for the workers of America, protection for those who make over $23,660 a year. Actually, for some below because of little gimmicks that can be used to deny them their right to overtime.

Again, this is simply a matter of fairness. People believe if they put in more than 40 hours of work a week, they are giving up premium time, time with their family. I had a woman who wrote me and said: Look, I go home from work and my second job starts. I go home, take care of my kids, I get dinner ready, help them with their homework, and then I have to do washing, and this and that. But my time with my family is my premium time. If I am asked to give up my premium time with my family to work on my job, I ought to get premium pay.

What the Bush administration has done is said: No, sorry, we will ask you to work overtime and we will not pay you one cent more.

Again, a little history. It has been sacrosanct since 1938, the Fair Labor Standards Act. If you work over 40 hours a week, you get time- and-a-half pay. It has been that way since 1938. We

have modified it a little bit here, a little bit there, but every single time we have changed the Fair Labor Standards Act, we have enlarged the pool of people who get covered by time and a half. This is the first time where up to 6 million people will lose their right to overtime pay.

Now, some will say but they raised the base to $23,660. In other words, anyone who earns under that is automatically eligible for overtime. Quite frankly, most people working there are already eligible because they are not salaried, they are hourly workers. While that is fine, we should raise the base. The administration then went and took away overtime pay rights for anyone making over $23,660 a year. If you are making $23,661, you are in a separate category. Just barely over-- well, that is poverty wages--and you still are not eligible for time and a half overtime.

I also say every time since 1938 when we have changed the Fair Labor Standards Act, it has come to Congress. We go through the committees, the committees have hearings, we bring in witnesses, they draft a bill, it is debated in the Senate, and it finally goes to the President. That is the way it ought to be. That is transparent; it is open; everyone gets their say. We can debate it and amend it. We, the elected representatives of the people, get to debate and amend it--a strange concept, I guess, to this administration.

What this administration did 1\1/2\ years ago, sort of in the stealth of night without having one public hearing, they promulgated these new rules on overtime.

Some might say: Well, they have had hearings since then. Yes, thanks a lot, after the horse is out of the barn and they closed the door. Fine. But that is not the way it should have been.

So now we have a situation where they finalize the rules on August 23. We have never really debated or amended that in the Senate. I have on four different occasions in the Senate offered amendments to overturn those rules, to go back to square one, to start over. Let's do it the right way. We have passed them here, but the administration says no every time.

I watched the debate last night, and I heard the President talking about domestic policies and jobs and economic growth. And I thought, wait a minute, he even talked about overtime. He said people are working overtime. I heard him say it last night. I thought, they are working overtime, but what the administration wants to do is take away their overtime pay.

That is exactly what is happening. We have facts. We have the data. People are now being denied time and a half overtime for working over 40 hours a week because they are being ``reclassified.'' Guess who is getting hit first. Women. Why do I say that? Many women raise families, start later in life, and start at lower income jobs. Many of these are salaried positions. Because they are on a salary, they will be reclassified. As they get reclassified, they will be exempt from the overtime laws. If overtime is free to the employer, it will be overused.

This chart shows a study by the Center for Women's Work at Rutgers University. The chart shows those who are eligible for overtime, in the green, are protected; the red are not protected. Those protected by overtime work are about 20 percent of workers working 40 hours a week. If they are protected, chances are 20 percent of these people work over 40 hours a week. If they are not protected by overtime, 44 percent of these people work over 40 hours a week--twice as many. So now we will take away this protection from this 20 percent. Then they will be working overtime, and they will not get paid for it.

Right now, if they are covered by overtime protection, only 5 percent work over 50 hours a week. If they are not covered by overtime, 15 percent, three times as many people not covered by overtime laws work over 50 hours a week.

That says it right there. If the employer does not have to pay you time and a half, work them more, and they will not hire any new workers.

It is interesting to note--the occupant of the chair will find this interesting--in 1933, 5 years before the Fair Labor Standards Act was signed into law, the Senate voted 53 to 30 to set a cap on the number of hours in a workweek. Was the cap 50 hours? Was it 40 hours? No, it was 30 hours. Imagine in 1933, this Senate, in this Chamber, voted 53 to 30 to say that the workweek would be 30 hours. You could not pass 60 hours here now. Imagine that. In 1933, this Senate voted 53 to 30 to set a 30-hour workweek. Amazing. The compromise was reached 5 years later at 40 hours a week, and that is what it has been ever since.

Again, we know what the intent of this proposed rule is. The intent of this proposed rule is to allow employers to work employees longer than 40 hours a week and not have to pay them time and a half. And we have a final rule on that, a final rule. These are going to be low- to middle-income workers. They are not organized. They do not have a strong voice. So the administration feels they can run roughshod over their rights.

For the life of me, I cannot understand this. People work hard. Many families are working two jobs where the husband and wife are both working, trying to make ends meet, trying to save a little money to put away for the kid's college education, maybe to buy a better house, move up the ladder a little bit. For those who work overtime, 25 percent of their income comes from overtime.

I see the managers are here to wrap up. I will just conclude by saying that, again, just as it is a shame and a shame on us that we do not have FDA control of tobacco, shame on us also, and shame on this administration, for taking away the overtime rights of 6 million people in this country.

With that, I yield the floor.

Mr. President, I rise today to join my good friend, the senior Senator from Utah, in introducing the PROTECT Act, a bill providing important new tools to fight child pornography. This bill is identical to the measure that Senator Hatch and I worked so hard on in the last Congress. The bill passed the Senate by unanimous consent in the 107th Congress and I am proud to be the lead cosponsor of this legislation for the 108th Congress as well, but unfortunately, it did not become law last year because, even though the Senate was still meeting, considering and passing legislation, the House of Representatives had adjourned. The House would not return to take action on this measure that had passed the Senate unanimously or to work out our differences.

I hope that the full Senate will quickly pass this bill again, and I strongly urge the Republican leadership in the House of Representatives to take this second opportunity to pass this important legislation. I also urge the Administration to support this bipartisan measure, instead of using this debate as an opportunity to push for legislation that strives to make an ideological statement, but which may not withstand Constitutional scrutiny.

I want to take a moment to speak about the history of this important bill and the effort that it took to get to this point. In May of 2002, I came to the Senate floor and joined Senator Hatch in introducing S. 2520, the PROTECT Act, after the Supreme Court's decision in Ashcroft v. Free Speech Coalition, (``Free Speech''). Although there were some others who raised constitutional concerns about specific provisions in that bill, I believed that unlike legislative language proposed by the Administration in the last Congress, it was a good faith effort to work within the First Amendment.

Everyone in the Senate agrees that we should do all we can to protect our children from being victimized by child pornography. That would be an easy debate and vote. The more difficult thing is to write a law that will both do that and will stick. In 1996, when we passed the Child Pornography Prevention Act, (``CPPA''), many warned us that certain provisions of that Act violated the First Amendment. The Supreme Court's recent decision in Free Speech has proven them correct.

We should not sit by and do nothing. It is important that we respond to the Supreme Court decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the 1996 CPPA, this time we should respond with a law that passes constitutional muster. Our children deserve more than a press conference on this issue. They deserve a law that will last.

It is important that we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand First Amendment scrutiny. We need a law with real teeth, not one with false teeth.

After joining Senator Hatch in introducing the PROTECT Act in the 107th Congress, as Chairman of the Judiciary Committee I convened a hearing on October 2, 2002 on the legislation. We heard from the Administration, from the National Center for Missing and Exploited Children, (``NCMEC''), and from experts who came and told us that our bill, as introduced, would pass constitutional muster, but the House- passed bill supported by the Administration would not.

I then placed S. 2520 on the Judiciary Committee's calendar for the October 8, 2002, business meeting. I continued to work with Senator Hatch to improve the bill so that it could be quickly enacted. Senator Hatch circulated a Hatch-Leahy proposed Judiciary Committee substitute that improved the bill before our October 8 business meeting. Unfortunately the Judiciary Committee was unable to consider it because of procedural maneuvering by my colleagues that had nothing to do with this important legislation, including the refusal of Committee members on the other side of the aisle to consider any pending legislation on the Committee's agenda.

I still wanted to get this bill done. That is why, for a full week in October, I worked to clear and have the full Senate pass a substitute to S. 2520 that tracked the Hatch-Leahy proposed committee substitute in nearly every area. Indeed, the substitute I offered even adopted parts of the House bill which would help the NCMEC work with local and state law enforcement on these cases. Twice, I spoke on the Senate floor imploring that we approve such legislation. As I stated then, every single Democratic Senator cleared that measure. I then urged Republicans to work on their side of the aisle to clear this measure-- so similar to the joint Hatch-Leahy substitute--so that we could swiftly enact a law that would pass constitutional muster. Unfortunately, they did not. Facing

the recess before the mid-term elections, we were stymied again.

Even after the last election, however, during our lame duck session, I continued to work with Senator Hatch to pass this legislation through the Senate. As I had stated I would do prior to the election, I called a meeting of the Judiciary Committee on November 14, 2002. In the last meeting of the Judiciary Committee under my Chairmanship in the 107th Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda yet again. At that meeting the Judiciary Committee amended and approved this legislation. We agreed on a substitute and to improvements in the victim shield provision that I authored.

Although I did not agree with two of Senator Hatch's amendments, because I thought that they risked having the bill declared unconstitutional, I nevertheless called both for the Committee to approve the bill and voted for the bill in its amended form. I will discuss these provisions later.

I then sought, that same day, to gain the unanimous consent of the full Senate to pass S. 2520 as reported by the Judiciary Committee, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am pleased that the Senate did pass S. 2520 by unanimous consent. I want to thank Senator Hatch for all he did to help clear the bill for passage in the 107th Congress.

Unfortunately, the House failed to act on this measure last year and the Administration decided not to push for passage. If they had, we could have passed a bill, sent it to the President, and already had a new law on the books.

Instead, I am here again with Senator Hatch asking yet again that this bill be enacted. I am glad to have been able to work hand in hand with Senator Hatch on the PROTECT Act because it is a bill that gives prosecutors and investigators the tools they need to combat child pornography. The Hatch-Leahy PROTECT Act strives to be a serious response to a serious problem.

The provisions of the Hatch-Leahy bill, as we introduce it, are bipartisan and good faith efforts to protect both our children and to honor the Constitution. At our hearing last October, Constitutional and criminal law scholars--one of whom was the same person who warned us last time that the CPPA would be struck down--stated that the PROTECT Act as introduced in the last Congress could withstand Constitutional scrutiny, although there were parts that were very close to the line. Let me outline some of the bill's important provisions:

I would like to emphasize some key provisions of the PROTECT Act. Section 3 of the bill creates two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. Each of these new crimes carry a 15 year maximum prison sentence for a first offense and double that term for repeat offenders. First, the bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court's recent ruling striking down the CPPA's definition of pandering. This provision is narrower than the old ``pandering'' definition for two reasons, both of which respond to specific Court criticisms: First, the new crime only applies to the people who actually pander the child pornography or solicit it, not to all those who possess the material ``downstream.''

The bill also contains a directive to the Sentencing Commission which asks them to distinguish between those who pander or distribute such material who are more culpable than those who solicit the material. Second, the pandering in this provision must be linked to ``obscene'' material, which is totally unprotected speech under Miller. Thus, while I would have liked for the provision to be crafted more narrowly so that ``purported'' material was not included, and I acknowledge that this provision may well be challenged on some of the same grounds as the prior CPPA provision, it responds to some specific concerns raised by the Supreme Court and is significantly narrower than the CPPA's definition of pandering.

Second, the bill creates a new crime to take direct aim at one of the chief evils of child pornography: namely, its use by sexual predators to entice minors either to engage in sexual activity or the production of more child pornography. This was one of the compelling arguments made by the government before the Supreme Court in support of the CPPA, but the Court rejected that argument as an insufficient basis to ban the production, distribution or possession of ``virtual'' child pornography. This bill addresses that same harm in a more targeted manner. It creates a new felony, which applies to both actual and virtual child pornography, for people who use such material to entice minors to participate in illegal activity. This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography--whether the child pornography is virtual or not.

Next, this bill attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children. Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography--i.e. that it was made using computers. At the same time, this provision protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense. As a former prosecutor I suggested this provision because it effects the real way that these important trials are conducted. With the provision, the government can marshal the expert testimony that may be needed to rebut this ``virtual porn'' defense in cases where real children were victimized.

This improved affirmative defense provides important support for the constitutionality of much of this bill after the Free Speech decision. Even Justice Thomas specifically wrote that it would be a key factor for him. This is one reason for making the defense applicable to all non-obscene, child pornography, as defined in 18 U.S.C. Sec. 2256. In the bill's current form, however, the affirmative defense is not available in one of the new proposed classes of virtual child pornography, which would be found at 18 U.S.C. Sec. 2256(8)(D). This omission may render that provision unconstitutional under the First Amendment, and I hope that, as the legislative process continues, we can work with constitutional experts to improve the bill in this and other ways. I do not want to be here again in five years, after yet another Supreme Court decision striking this law down.

The bill also provides needed assistance to prosecutors in rebutting the virtual porn defense by removing a restriction on the use of records of performers portrayed in certain sexually explicit conduct that are required to be maintained under 18 U.S.C. Sec. 2257, and expanding such records to cover computer images. These records, which will be helpful in proving that the material in question is not ``virtual'' child pornography, may be used in federal child pornography and obscenity prosecutions under this Act. The purpose of this provision is to protect real children from exploitation. It is important that prosecutors have access to this information in both child pornography and obscenity prosecutions, since the Supreme Court's recent decision has had the effect of narrowing the child pornography laws, making more likely that the general obscenity statutes will be important tools in protecting children from exploitation. In addition, the Act raises the penalties for not keeping accurate records, further deterring the exploitation of minors and enhancing the reliability of the records.

Next, this bill contains several provisions altering the definition of ``child pornography'' in response to the Free Speech case. One approach would have been simply to add an ``obscenity'' requirement to the child pornography definitions. Outlawing all obscene child pornography real and virtual; minor and `youthful-adult;' simulated and

real--would clearly pass a constitutional challenge because obscene speech enjoys no protection at all. Under the Miller obscenity test, such material (1) ``appeals to the prurient interest,'' (2) is utterly ``offensive'' in any ``community,'' and (3) has absolutely no ``literary, artistic or scientific value.''

Some new provisions of this bill do take this ``obscenity'' approach, like the new Sec. 2256(8)(B). Other provisions, however, take a different approach. Specifically, the CPPA's definition of ``identifiable minor'' has been modified in the bill to include a prong for persons who are ``virtually indistinguishable from an actual minor.'' This adopts language from Justice O'Connor's concurrence in the Free Speech case. Thus, while this language is defensible, I predict that this provision will be the center of much constitutional debate. Although I will explain in more detail later, these new definitional provisions risk crossing the constitutional line.

It does not do America's children any good to write a law that might get struck down by our courts in order to prove an ideological point. These provisions should be fully debated and examined during the legislative process, and I will speak about them in more detail later.

The bill also contains a variety of other measures designed to increase jail sentences in cases where children are victimized by sexual predators. First, it enhances penalties for repeat offenders of child sex offenses by expanding the predicate crimes which trigger tough, mandatory minimum sentences. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across state lines to have sex with a child are not as high as for child pornography. The Commission needs to correct this oversight immediately, so that prosecutors can take these dangerous sexual predators off the street. These are all strong measures designed to protect children and increase prison sentences for child molesters and those who otherwise exploit children.

The Act also has several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. It is important that they not be victimized yet again in the criminal process. This bill provides for the first time ever an explicit shield law that prohibits the name or other non physical identifying information of the child victim, other than the age or approximate age, from being admitted at any child pornography trial. It is also intended that judges will take appropriate steps to ensure that such information as the child's name, address or other identifying information not be publicly disclosed during the pretrial phase of the case or at sentencing. The bill also contains a provision requiring the judge to instruct the jury, upon request of the government, that no inference should be drawn against the United States because of information inadmissible under the new shield law.

The Hatch-Leahy PROTECT Act also amends certain reporting provisions governing child pornography. Specifically, it allows federal authorities to report information they receive from the Center from Missing and Exploited Children, CMEC, to state and local police without a court order. In addition, the bill removes the restrictions under the Electronic Communications Privacy Act, ECPA, for reporting the contents of, and information pertaining to, a subscriber of stored electronic communications to the CMEC when a mandatory child porn report is filed with the CMEC pursuant to 42 U.S.C. Sec. 13032. This change may invite federal, state or local authorities to circumvent all subpoena and court order requirements under ECPA and allow them to obtain subscriber emails and information by triggering the initial report to the CMEC themselves. To the extent that these changes in ECPA may have that unintended effect, as this bill is considered in the Judiciary Committee and on the floor, we should consider mechanisms to guard against subverting the safeguards in ECPA from government officials going on fishing expeditions for stored electronic communications under the rubric of child porn investigations.

I also must express my disappointment in a recent Government Accounting Office, GAO, report that criticizes the Department of Justice information sharing regulations related to the CMEC tip line. Evidently, due to outdated turf mentalities, the Attorney General's regulations exclude both the United States Secret Service and the U.S. Postal Inspection Service from direct access to important tip line information. That is totally unacceptable, especially in the post 9-11 world where the importance of information sharing is greater than ever. How can the Administration justify support of this bill, which allows state and local law enforcement officers such access, when they are simultaneously refusing to allow other federal law enforcement agencies access to the same information? I urge the Attorney General to end this unseemly turf battle and to issue regulations allowing both the Secret Service and the Postal Inspection Service, who both perform valuable work in investigating these cases, to have access to this important information so that they can better protect our nation's children.

This bill also provides for extraterritorial jurisdiction where a defendant induces a child to engage in sexually explicit conduct outside the United States for the purposes of producing child pornography which they intend to transport to the United States. The provision is crafted to require the intent of actual transport of the material into the United States, unlike the House bill from the last Congress, which criminalized even an intent to make such material ``accessible.'' Under that overly broad wording, any material posted on a web site internationally could be covered, whether or not it was ever intended that the material be downloaded in the United States.

Finally, the bill provides also a new private right of action for the victims of child pornography. This provision has teeth, including injunctive relief and punitive damages that will help to put those who produce child pornography out of business for good. I commend Senator Hatch for his leadership on this provision.

These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong.

As to the administration proposal, unfortunately legal experts could not also vouch for the constitutionality of the bill supported by the Administration in the last Congress, which seemed to challenge the Supreme Court's decision, rather than accommodate the restraints spelled out by the Supreme Court. That proposal and the associated House bill from the 107th Congress simply ignored the Supreme Court's decision, reflecting an ideological response rather than a carefully drawn bill that would stand up to scrutiny. Last year, I received letters from other Constitutional scholars and practitioners expressing the same conclusion, which I will place in the record with unanimous consent.

With regard to the potential constitutional issues and suggested improvements, as I mentioned previously, the PROTECT Act is a good faith effort to tackle this problem, but it is not perfect and I would like to see some additional changes to the bill. I hope that we can consider these as the process moves forward.

First, regarding the tip line, I would like to clarify that law enforcement agents cannot ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act. This may include clarifying 42 U.S.C. Sec. 13032 that the initial tip triggering the report may not be generated by the government's investigative agents themselves. A tip line to the CMEC is just that--a way for outsiders to report wrongdoing to the CMEC and the government, not for the government to generate a report to itself without following otherwise required lawful process.

Second, regarding the affirmative defense, I would like to ensure that there is an affirmative defense for the new category of child pornography and for all cases where a defendant can prove in court that a specific, non-obscene image was made using not any child but only actual, identifiable adults.

As a general matter, it is worth repeating that we could be avoiding all these problems were we to take the simple approach of outlawing ``obscene'' child pornography of all types,

which we do in one new provision that I suggested. That approach would produce a law beyond any possible challenge. This approach is also supported by the National Center for Missing and Exploited Children, which we all respect as the true expert in this field.

Following is an excerpt from the Center's answer to written questions submitted after our hearing, which I will place in the Record in its entirety:

Our view is that the vast majority (99-100%) of all child

pornography would be found to be obscene by most judges and

juries, even under a standard of beyond a reasonable doubt in

criminal cases. Even within the reasonable person under

community standards model, it is highly unlikely that any

community would not find child pornography obscene. . . .

In the post Free Speech decision legal climate, the

prosecution of child pornography under an obscenity approach

is a reasonable strategy and sound policy.

Thus, according to the National Center for Missing and Exploited Children, the approach that is least likely to raise constitutional questions--using established obscenity law--is also an effective one. Because that is not the approach we have decided to use, I recognize that the PROTECT Act contains provisions about which some may have legitimate Constitutional questions.

Specifically, in addition to the provisions that I have already discussed, there were two amendments adopted in the Judiciary Committee in the last Congress to which I objected that are included in the bill as we introduce it today. I felt and still feel that these provisions needlessly risked a serious constitutional challenge to a bill that provided prosecutors the tools they needed to do their jobs. Let me discuss my opposition to these two amendments offered by my good friend Senator Hatch last Congress.

As to the expansion of the pandering provision, although I worked with Senator Hatch to write the new pandering provision in the PROTECT Act, I did not support Senator Hatch's amendment extending the provision to cover ``purported'' material, which criminalizes speech even when there is no underlying material at all--whether obscene or non-obscene, virtual or real, child or adult.

The pandering provision is an important tool for prosecutors to punish true child pornographers who for some technical reason are beyond the reach of the normal child porn distribution or production statutes. It is not meant to federally criminalize talking dirty over the internet or the telephone when the person never possesses any material at all. That is speech, and that goes too far.

The original pandering provision in S. 2520 was quite broad, and some argued that it presented constitutional problems as written, but I thought that prosecutors needed a strong tool, so I supported Senator Hatch on that current provision.

I was heartened that Professor Schauer of Harvard, a noted First Amendment expert, testified at our hearing that he thought that the original provision was Constitutional, barely. Unfortunately, Professor Schauer has since written to me stating that this new amendment to include ``purported'' material ``would push well over the constitutional edge a provision that is now up against the edge, but probably barely on the constitutional side of it.'' I will place that letter and other materials in the record with unanimous consent of the Senate.

Because this change endangers the entire pandering provision, because it is unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I hope that we can debate the merits of that provision as the legislative process continues.

And as to the inclusion of 100 percent virtual child pornography in ``Identifiable Minor'' provision, a change to the definition of ``identifiable minor'' would expand the bill to cover ``virtual'' child pornography that is, 100 percent computer generated pictures not involving any real children. For that reason, it also presents constitutional problems. I objected to this amendment when it was added to the bill in the last Congress in Committee and I continue to have serious concerns with it now.

Senator Hatch and I agree that legislation in this area is important. But regardless of our personal views, any law must be within constitutional limits or it does no good at all. This change which would include all ``virtual child pornography'' in the definition of child pornography, in my view, crosses the constitutional line, however, and needlessly risks protracted litigation that could assist child pornographers in escaping punishment. I hope we can work to narrow this provision.

Although I joined Senator Hatch in introducing this bill, even when it was introduced last year I expressed concern over certain provisions. One such provision was the new definition of ``identifiable minor.'' When the bill was introduced, I noted that this provision might ``both confuse the statute unnecessarily and endanger the already upheld 'morphing' section of the CPPA.'' I said I was concerned that it ``could present both overbreadth and vagueness problems in a later constitutional challenge.''

The Supreme Court made it clear that we can only outlaw child pornography in two situations: No. 1, it is obscene, or No. 2, it involves real kids. That is the law as stated by the Supreme Court, whether or not we agree with it.

The original ``identifiable minor'' provision in the PROTECT Act may be used without any link to obscenity doctrine. Therefore, what saved the original version as introduced in the 107th Congress was that it applied to child porn made with real ``persons.'' The provision was designed to cover all sorts of images of real kids that are morphed or altered, but not something entirely made by computer, with no child involved. That is the provision as Senator Hatch and I introduced this bill last year.

The change adopted in the Judiciary Committee last year, however, redefined ``identifiable minor'' by creating a new category of pornography for any ``computer generated image that is virtually indistinguishable from an actual minor'' dislodged, in my view, that sole constitutional anchor. The new provision could be read to include images that never involved real children at all but were 100 percent computer generated.

That was never the goal of this provision and that was the reason it was constitutional. There are other provisions in the bill that deal with obscene virtual child pornography that I support. This provision was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution.

I support the definition of ``identifiable minor'' as we originally wrote and introduced it last Congress. Because this new change seriously weakens the constitutional argument supporting this entire provision, I oppose it and I hope that we can work to further narrow this provision.

These provisions raise legitimate concerns, but in the interest of making progress I support consideration of the measure as introduced. I hope that we can work to debate these issues and improve it and produce a bill with the best chance of withstanding a constitutional challenge.

That is not everyone's view. Others evidently think it is more important to make an ideological statement than to write a law. A media report on this legislation at the end of the last Congress reported the wide consensus that the Hatch-Leahy bill was more likely than the House bill to withstand scrutiny, but quoted a Republican House member as stating: ``Even if it comes back to Congress three times we will have created better legislation.''

To me, that makes no sense. Why not create the ``better legislation'' right now for today's children, instead of inviting more years of litigation and putting at risk any convictions obtained in the interim period before the Supreme Court again reviews the constitutionality of Congress' effort to address this serious problem? That is what the PROTECT Act seeks to accomplish.

Even though this bill is not perfect, I am glad to stand with Senator Hatch to secure its approval by the Senate as I did in the last Congress.

As I have explained, I believe that this issue is so important that I have been willing to compromise and to support a measure even though I do not agree with each and every provision that it contains. That is how legislation is normally passed. I hope that the Administration and the House do not decide to play politics with this issue

this year as I fear they did at the close of the last Congress. I urge swift consideration and passage of this important bill aimed at protecting our nation's children.

Mr. President, I ask unanimous consent that the letters and materials to which I referred be printed in the Record.

Mr. President, I express my strong support for the conference report to accompany the American Jobs Creation Act. In order to protect our domestic manufacturers, strengthen our economy, better help U.S.-based multinational firms compete globally, and honor our trade obligations, the Senate must pass this critically important and overdue legislation before recessing for the elections.

I wish to start by congratulating the chairman of the conference committee on this bill, Congressman Bill Thomas, and the cochairman, Senator Chuck Grassley, for their leadership and exceptional cooperation in finishing the conference on this bill in time to bring it to the House and Senate floor this week. Many thought completion of this task would be difficult or impossible, given the large differences in the Senate and House versions and the time constraints the conference committee faced.

The innovative conference process developed by the chairman and cochairman made success possible. Conferencing a large and diverse pair of tax bills in the usual fashion could have taken many weeks and led to a likely failure to finish this bill before sine die adjournment of the 108th Congress. Again, I recognize the extraordinary achievement of this conference committee and thank its leaders and my fellow conferees for their hard and dedicated work.

This conference report represents what we hope will be the culmination of a very lengthy and fascinating issue that had its genesis decades ago but has festered into a growing problem over the past several years.

I will leave to others to go into detail about the long history of the export subsidies in our tax law that gave rise to this conference report, but the unusual nature of this bill and its difficulty in passing the Congress are reflections of the complexity of this issue.

The crux of the difficulty of the bill is that the rulings of the World Trade Organization on the trade-legality of our export tax subsidies put the Congress in a very tough position. In essence, we found ourselves needing to repeal these export subsidies, known as the Foreign Sales Corporation, FSC, provision and its replacement regime known as the Extraterritorial Income, ET, exclusion.

By repealing these provisions, which we must do in order to honor our trade obligations, we effectively raise taxes by almost $6 billion per year on thousands of U.S. businesses that manufacture goods for export.

Leaving it at this is simply unacceptable. Why should we have to convert a provision designed to help U.S. manufacturers compete in an ever-increasingly difficult global marketplace to a

situation where they suffer a competitive disadvantage?

Yet, this is exactly the problem the Congress faces now that it is forced to repeal the export tax benefits.

When confronted with a similar problem in 2000 after the WTO ruled the FSC provision to be in violation of international trade rules, Congress passed the ETI in its place. With the ETI, we were able largely to replicate the benefits of the FSC regime, so that exporting taxpayers paid few if any extra taxes with the repeal of FSC. Unfortunately, the WTO subsequently ruled that the ETI provision also was an illegal trade subsidy that also must be repealed.

So, the conundrum facing the Congress with this situation was to find a way to enact other tax cut benefits for exporting manufacturers, to offset the increase from repealing ETI, without violating the WTO rules.

Unfortunately, this has proven impossible, so both the Senate and House bills attempted to find rough justice for business taxpayers by finding other ways to deliver tax benefits besides basing them on exports. Such attempts gave rise to the political and practical difficulties of this bill, including the fact that it took many months of hard effort to reach the point we are today.

For example, my own bill to address the FSC/ETI problem was S. 1475, the Promote Growth and Jobs in the USA Act, which I introduced in July 2003. This bill would have delivered rough justice tax relief in two ways.

First, it would simplify and rationalize the international tax rules that currently harm the ability of U.S. firms to compete globally, and second, it would provide incentives for companies to increase their ability to produce goods by acquiring new equipment and engaging in more research and development.

Other FSC/ETI solution bills were also introduced. On the same day I introduced S. 1475, Chairman Thomas introduced H.R. 2896, the American Jobs Creation Act. The two bills were similar in many ways, and both included international tax reforms. The Thomas bill, however, included a number of other provisions designed to help U.S. businesses create jobs and better compete.

Another bill, introduced last year by Congressmen Crane, Rangel, and Manzullo, offered a different direction still. This bill provided a deduction equal to 10 percent of a company's production activities.

In the Senate, Senators Grassley and Baucus introduced a bill that included some of the best elements of all the other bills. Even though I preferred the solution set forth in my bill, I cosponsored the Grassley-Baucus bill because it represents a solid and reasonable solution to the problem. This bill, as modified, became the legislation reported by the Finance Committee and passed by the Senate.

After a great deal of travail and adjustments, the House also passed a FSC/ETI bill, and it was quite similar in many respects to the first Thomas American Jobs Creation Act. These are the bills the conference committee had to combine into one.

The result, as we all know, is a bill that is far from perfect. Its enactment will result in a net tax increase for some exporting companies that now use the ETI provision, and in a net tax cut for many other U.S. manufacturing firms that may have not taken advantage of the ETI exclusion.

And while the bill includes many important other provisions, it leaves out some very important provisions that the Senate conferees agreed with me should be in there. Unfortunately, the House conferees disagreed and they were omitted from the final product.

For example, I am personally very disappointed that the House conferees voted against including the CLEAR ACT in this conference report. This bill, which has passed the Senate at least three times and also has passed the House, would transform our auto industry by granting strong tax incentives for consumers who buy alternative fueled and advance technology vehicles, such as hybrid electric cars.

Moreover, it would move us to a more responsible age of cleaner air and less fuel dependency on the Middle East by simultaneously breaking down the three barriers that keep our nation from adopting the already- existing technology to help us meet these goals--the higher cost of such vehicles, the higher cost of alternative fuel, and the lack of a refueling infrastructure.

From a broader point of view, most of my fellow Senate conferees and I would have liked to see the entire set of energy tax provisions from the Senate-passed bill included in the conference report. It was a mistake to omit these important provisions.

I also very much regret that the House conferees refused to adopt the amendment I offered, accepted by the Senate conferees, which would have bolstered our research tax credit. While it is true that the research credit was extended for a short time in the most recently passed tax bill dealing with individual tax cuts, that legislation left out an important element that was contained in the Senate FSC/ETI bill designed to improve the incentives this provision gives for companies to engage in R&D activities.

Nevertheless, the conference report is worthy of our support. As I mentioned, as a nation we must honor the obligations under the World Trade Organization. Of more immediate importance is the fact that the Europeans are levying an increasing level of trade sanctions against certain of our products exported to the E. U. This level is currently at 12 percent and is growing by one percentage point per month and is definitely having a very serious negative effect on certain U.S. industries.

Moreover, the trade sanctions are authorized to continue to increase until next March, when they will have reached 17 percent. After this, the E. U. may authorize even more serious sanctions against us that would surely harm our economic growth.

As all of my colleagues well know, if we do not succeed in passing this conference report before sine die adjournment of the 108th Congress, we must start the process all over again next year.

Will this result in a better bill?

Perhaps, but such an outcome is far from certain. What is more likely is that the resolution to this issue would be delayed for many more months, giving the trade sanctions more time to damage our economy and harm U.S. businesses.

Now, I take a few minutes to discuss some of the specific provisions that did make it into the conference report and why I believe my colleagues should enthusiastically support them.

First, let me express my satisfaction that this conference report has a good balance to it. In addition to the vital repeal of the ETI provision and the quite reasonable transition relief it provides for current ETI users, the bill offers significant provisions for both small businesses and large multinational firms. Mixed in is a generous portion of important tax relief for business interests of all kinds.

Central among these relief provisions is the manufacturing deduction. This provision is designed to lower the tax burden of any business entity that engages in production activities in the United States. I am happy to see that the Senate provision allowing this deduction to be taken by unincorporated businesses was retained in conference.

Also included in the conference report is a significant section of relief designed specifically for small businesses. Foremost in this category are the five sections that would simplify and reform the taxation of S corporations. These are changes I have long sought. Along with my colleagues, Senators Breaux, Smith, and Lincoln, we have attempted to get these and other S corporation improvements passed for several years now. I am gratified to see them included in the conference report.

Other provisions that are very important to the balance of this bill are those designed to simplify and improve the rules by which this Nation taxes international business transactions. Quite simply, the current state of our international tax rules is appalling. This part of our Tax Code generally dates back to the early 1960s, and was designed for a different world from the one in which we live now.

U.S. businesses, whether large, medium, or smaller, that decide to expand their markets beyond the borders of the United States confront a set of tax rules that are not only mind-numbingly complex, but far worse result in double taxation and often leave them on the down side of a tilted playing board when compared with competitors based in most other industrialized nations.

Our rules governing the foreign tax credit, for example, which are designed to eliminate the double taxation of income, often are ineffective, some blatantly so. A provision added to the Internal Revenue Code in 1986 reduces the foreign tax credit by 10 percent to the extent it reduces the alternative minimum tax. There is little or no justification for this double taxation that I can see, and this conference report repeals this unfair provision.

The bill includes about two dozen provisions that will help improve the tax law for our companies that have expanded their markets overseas. I have long been interested in getting this type of reform passed by the Congress, having introduced bills to do this since the mid-1990s. It is gratifying to finally see this long overdue relief come to pass.

Some of my colleagues have incorrectly concluded that improving our rules on international taxation will give an incentive to U.S. companies to move their jobs overseas. This is unfortunate. Cross- border investing is not only a necessity of our modern world, it is usually beneficial to both nations. Most U.S. companies that invest in expansion into markets in other nations do so to compete effectively with other suppliers in those markets and here at home.

A fact of life of our modern economy is that our U.S.-based business enterprises face competition from all parts of the globe. It is unrealistic to think that an American business can simply focus on markets here at home and thrive. Instead, most of today's businesses must be mindful of both markets and material and labor supplies around the world if they are to stay in business very long.

While no one likes to see U.S. jobs move overseas, we should be more concerned about creating and maintaining in the United States the kind of environment that attracts businesses. Part of that environment is ensuring that our tax system does not drive businesses offshore to other nations that tax them in a more favorable fashion. This bill moves our tax system a big step in that direction, and I am pleased to see these changes finally reach the point where they are about to become law.

I now say a few words about the issues regarding tobacco associated with this conference report. I have not forgotten that at the center of the tobacco buyout is the tobacco farmer. I understand that the tobacco price support and tobacco quota programs have helped to secure a reasonable living for many family farmers.

I have also come to the understanding that breaking the dependency of U.S. citizens and especially children on nicotine requires us to address the dependency of tobacco growers on the tobacco industry and on the government programs. It will not be an easy transition for many tobacco growers, and we need to help these families to survive it.

Contrary to the belief of some, the United States Department of Agriculture, USDA, does not provide a direct subsidy to tobacco growers. However, the USDA does maintain artificially high prices for tobacco leaf by managing the loan, or-price support, program for tobacco growers which serves to maintain artificially high prices for tobacco and cigarettes in this country.

The USDA also manages the tobacco quota system to keep down the amount of tobacco grown each year. This, again, keeps the price of tobacco and cigarettes high. All direct and administrative costs for these two programs are reimbursed to the USDA by tobacco farmers and their trade association. There is no net cost to the government as a result of the tobacco program. In fact, smokers carry most of the burden of the tobacco program through higher costs for the tobacco products they purchase.

Shifting tobacco farming away from tight government management toward the free market has risks for our farmers. This proposal does a good job of getting the government out the farming business while making temporary assistance available to farmers as they adjust to the free market. And, it is at no cost to our government.

As far as the provision requiring the Food and Drug Administration to regulate tobacco, let me say that I fully support measures to end tobacco use in the United States.

I can think of few public health dangers worse than tobacco, and this is especially true for young people.

I have heard from many concerned parents and health advocates in Utah who point out the need to stop the devastating health consequences of tobacco use.

In many aspects, the DeWine/Kennedy language was written to achieve that goal, and in that spirit I supported it in conference. In fact, much of the bill is taken from a measure that I authored several years ago with Senator Dianne Feinstein.

That being said, I am concerned about some aspects of the way the bill was written, and especially the impact of this language on the resources of the Food and Drug Administration.

First, the Committee of jurisdiction, the HELP Committee, should have the opportunity to consider this legislation before it is brought to the full Senate for a vote the next time. Having been the chairman of that committee for several years, I know full well the complexities of the Federal Food, Drug and Cosmetic Act. Three hours of debate on the Senate floor was not enough time to consider legislation that made such dramatic changes to current law.

I also want to make sure that we in the Congress are clear about the impact that such legislation would have on the Food and Drug Administration and whether or not the FDA has adequate resources to regulate tobacco, and, in addition, keep up with its other, extremely important responsibilities, such as the approval of drugs, medical devices, and protecting our food supply.

While I understand that user fees were included in the legislation, I am not convinced that those user fees would have provided the FDA with sufficient resources to regulate tobacco. I am someone who has fought to provide FDA with adequate resources and have led the fight on unifying the FDA campus. I do not want anything to jeopardize the progress we have made in those areas so before we consider similar legislation again. I believe it is imperative to work closely with the FDA to find out exactly how much money is necessary for the agency to regulate tobacco, and whether or not the agency is capable of overseeing the regulation of tobacco.

Again, let me make one thing perfectly clear--I believe that tobacco should be regulated, however, it needs to be a well-thought-out process. Therefore, allowing the proper committees of jurisdiction to review and consider the legislation and consultation with the FDA must take place before similar legislation is voted upon by the full Senate and House of Representatives before we consider another measure.

Finally, I want to touch on some of the revenue offsets included in the conference report. I want to make it clear that I support the principle of keeping this bill revenue neutral, and I congratulate the conferees for doing so. This was a particularly sticky problem with the House Members, so I especially recognize their hard work in bowing to the Senate's demands that this bill be fully offset.

I am very pleased to see that several revenue offset provisions that were in the Senate bill are not part of the conference report. One of these is the codification of the economic substance doctrine. I believe enactment of this provision would have led to a great deal of unnecessary conflicts between taxpayers and the Internal Revenue Service, and would have unfairly penalized companies for engaging in legitimate tax planning techniques.

One provision that did make it into the conference report raises revenue in connection with the donation of used vehicles. In essence, the provision requires that taxpayers wait to take a deduction for the donation of a used vehicle until the donee charity has sold the item in an auction. Then, the deduction is limited to the actual purchase price.

While this may appear to be a reasonable requirement, particularly in light of some of the alleged abuse surrounding the charitable donation of used vehicles, I am concerned that these changes will result in far fewer used vehicles being donated to charities. Some charities, such as the National Kidney Foundation of Utah, rely heavily on such donation programs for a great deal of their funding. A chilling

effect on the donation of these used cars could leave many worthy charities short of vital funds needed to perform their invaluable services to needy citizens in Utah and elsewhere.

I will keep a watchful eye over the implementation of this change in the law, to make certain it does not harm the charities that have relied on donated vehicles for funding. While I agree that we should preclude any real abuse of the law, I do not think we should create a burdensome new requirement that would discourage charitable giving. It may well be that we need to revisit this area of the law in the future.

In conclusion, the conference report before us represents a good bill that deserves our support.

As I have tried to indicate in these remarks, the bill is far from perfect. But given the very difficult political and other circumstances surrounding the issues this bill addresses, it is remarkable we were able to bring to the Senate floor a product that is as good as it is. I urge my colleagues to support the conference agreement.

section 422

Mr. President, I rise to discuss the FSC/ETI conference report. What the Republican Leadership did to this bill in conference is downright shameful.

In July, I supported an amendment Senators DeWine and Kennedy offered to this bill that combined a tobacco buyout with a provision giving the Food and Drug Administration regulatory authority over tobacco.

The Senate passed the FDA amendment by a vote of 78-15. That is a strong show of support.

But something strange happened in conference. The FDA portion disappeared. So in this conference report we have the buyout, but not FDA authority over tobacco products. That is unacceptable.

It is nothing more than a sweetheart deal for tobacco companies. They get cheaper tobacco and continue to avoid FDA regulation.

I have a long history of working on tobacco control. As a former smoker, this is a personal issue to me. And the more I learn about that menace the happier I am for myself and my loved ones.

I have worked hard in the Senate to protect Americans--especially children--from the deadly effects of cigarettes and other tobacco products.

In 1987, long before tobacco control became a mainstream issue, I worked with then Congressman Durbin to author the law banning smoking on airplanes. That law brought about a seachange in our society's attitudes about smoking.

Once non-smokers could experience a smoke-free environment--in this instance, the cabin of an airplane--they began to demand it.

I also wrote the law banning smoking in all federally-funded places that serve children. And I have long supported FDA jurisdiction over this deadly addiction.

I am deeply disappointed that the Republican leadership is putting politics ahead of the health of our children by opposing FDA authority over tobacco.

Make no mistake: tobacco addiction is still a huge problem in America. Tobacco continues to be the number one cause of preventable death and disease in our Nation. Each year, tobacco claims an estimated 440,000 lives prematurely here in the United States.

According to the Centers for Disease Control, if current tobacco use patterns continue in the United States, over five million children alive today will die prematurely from a smoking-related disease. That is because nearly 4,000 young people try cigarettes for the first time each and every day--a statistic I find mind-boggling.

In addition to the terrible human costs, there are massive economic costs to our Nation. It is estimated that direct medical expenditures attributed to smoking now total more than 75 billion dollars per year.

Despite all of this, the FDA has not been able to take actions to reduce tobacco's harm on society.

A pro-tobacco Congressman recently said:

Tobacco faces enough federal regulation.

But that is a joke. Cigarettes are essentially unregulated. When you go in a grocery store, the only consumable product you can't find a listing of the ingredients for is what's in cigarettes.

The Republican leadership is throwing away an historic opportunity to give the FDA the legal authority it needs to protect the public's health.

Today, we have worthless health warnings on cigarettes, no control over what tobacco companies claim about the relative health effects of their products, no authority to curtail marketing tobacco to kids, and no ability

to order the industry to remove especially hazardous ingredients.

The bottom line is: FDA authority will protect kids and save lives.

The 1998 legal settlement between the States and the tobacco companies prohibited the companies from taking ``any action, directly or indirectly, to target youth . . . in the advertising, promotion or marketing of tobacco products.''

But the tobacco companies are ignoring these promises.

Since the settlement, the tobacco companies have actually increased their marketing expenditures by 66 percent. According to the Federal Trade Commission, the tobacco industry spends more than $11.2 billion per year--over $30.7 million a day--marketing its deadly products just in the United States alone, often targeting youth.

For example, in 2002, Brown & Williamson unveiled a new marketing promotion for their Kool brand of cigarettes called Kool Mixx. This advertising campaign was designed with one simple goal: target young African-Americans and addict them to nicotine.

The ``Kool Mixx'' campaign included new cigarette packages with images of young DJs and dancers:

It is an outrageous attempt to addict youth.

Brown & Williamson doesn't even bother to be subtle when it comes to targeting African-American youth in this campaign.

The press release from Brown & Williamson announcing the campaign contained almost comical sentences revealing their racial targeting.

This is what the company's press release said:

Kool understands the vibrant urban world of the

trendsetting, multicultural smoker.

It goes on to say:

Kool keeps it real and remains linked to the latest urban

trends.

This campaign to addict young African Americans to cigarettes doesn't stop at product packaging and slick ads. Kool is sponsoring a nationwide ``DJ Competition'' in cities such as New York, Atlanta, Washington, St. Louis, and Chicago.

It seems that ``Kool Mixx'' is the new ``Joe Camel'' for minority teenagers.

This overt racial targeting of youth shows that the tobacco industry has not really changed its ways since its settlement with the State attorneys general.

The big tobacco companies have reverted back to the same atrocious behavior we all saw before they promised they would become good ``corporate citizens.''

Here is something even more outrageous difficult as that is to believe: one of the tobacco industry's new tactics is the introduction of candy-flavored cigarettes and other sweet-flavored tobacco products.

R.J. Reynolds--the same company that once marketed cigarettes to kids with the infamous cartoon character, Joe Camel has launched a series of flavored cigarettes,

One flavor is a pineapple and coconut cigarette called ``Kauai Kolada''; another is a citrus-flavored cigarette called ``Twista Lime.''

These names sound more like bubble gum flavors than deadly cigarettes--which is the point.

These new marketing techniques aimed at kids are especially troubling, given that over 550,000 children will become regular smokers this year alone.

FDA regulation is critical for many reasons. One reason--as we see with these candy-flavored cigarettes--is to keep kids away from these deadly products. Another reason we need FDA regulation is to make sure that preventable dangers in cigarettes are removed.

There are thousands of products for sale in America that people consume, but tobacco products are the only ones--the only ones--which don't have their ingredients disclosed.

That is amazing when you consider that cigarettes are by far the most deadly product you can buy in a grocery store.

Right now, the FDA can regulate a box of macaroni and cheese, but not a pack of cigarettes. If you wanted to know the ingredients of macaroni and cheese, they're listed on the package. But for cigarettes, there is no information whatsoever on the ingredients, toxins, chemicals, etc. It makes no sense.

When a smoker lights a cigarette, the burning ingredients create other chemicals. Some of these are carcinogenic. But tobacco manufacturers are not required by law to disclose the ingredients of their products to the public, including the toxic and cancer-causing ingredients.

A Surgeon General's report in 1989 reported that cigarettes contain 43 known carcinogens.

I wonder how many smokers realize that one of these chemicals is arsenic. I bet most smokers don't know that.

It boils down to this: by stripping out the FDA regulatory authority over tobacco products, we are failing our children. We are putting their health in jeopardy.

This conference report provides billions of dollars to tobacco farmers and boosts tobacco industry profits, but it does absolutely nothing nothing to reduce tobacco's terrible human and economic toll.

I don't know how any Member of this body who is truly concerned about children's health can, in good conscience, support this bill without the FDA provision.

We had a deal; everyone knew it: the tobacco buyout in exchange for FDA regulation. The Republican leadership broke that deal.

I urge my colleagues to oppose this conference report until we give the FDA the authority it needs to regulate tobacco as it does other products.

Mr. President, I rise this evening to thank----

Mr. President, I thank the Chair and yield the floor.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that I be allowed to

speak for 12 minutes and that immediately after I speak Senator Landrieu be recognized.

Mr. President, several hours ago, Senator Hatch came to the floor to discuss the DNA bill that we have been able to pass. I congratulate him for the fine work on that bill. A number of people have worked on that bill.

I became interested in this issue a number of years ago. I have been interested in the whole area of crime technology, frankly, going back to my work as county prosecuting attorney in Greene County, OH, many years ago.

In those days, we did not have DNA. We did not have a lot of the technology we have today. I have been able to watch over the years, as I know the current occupant of the chair has, the great development of technology which has revolutionized what we can do today in law enforcement to solve crime. It has been one of the things I have worked on since I have been in public office--first, my time in the State legislature, then in the House of Representatives, and when I was Lieutenant Governor of the State of Ohio, and now, in the last decade, in the Senate.

I specifically became interested in what turned out to be this bill we have been talking about today, the DNA bill, several years ago when I met with the BCI back in Ohio, which is our State lab and State bureau, and went out there to find out some of the things that needed to be done. I had a long discussion with them in London, OH, about the real problem we have in Ohio and the problem we have across this country.

It is a problem of what we call rape kits; where there is a rape victim, the police go in, they take evidence from that victim, and then many times, tragically, I have learned--I know my colleague who is in the chair understands this--these rape kits are stored, they are never processed, and that information never gets into any central database. There is a tremendous backlog of this across this country.

Because of this, to try to help clear up this backlog, I introduced S. 149, the Rape Kits and DNA Evidence Backlog Elimination Act of 2003. About the same time, roughly the same time, Senator Biden introduced a bill which had the same intent to deal with this problem. Chairman Hatch asked me later on to combine my bill with his and those of other Members to create the bill we have today. When he asked me to do that, I gladly agreed.

Today, we all proudly stand as cosponsors of this bipartisan legislation. I know my colleague in the chair has worked on this legislation. I think it is a piece of legislation that all Americans can be proud of and that will help Americans be safer. The provisions of my original bill that are included in the legislation we passed today will protect innocent victims and will, in fact, put criminals behind bars. It will do both.

This bill includes my language to authorize over $1 billion to eliminate the backlog of over half a million rape kits that are sitting on the shelves of evidence lockers in police stations across this Nation.

Let me emphasize again that there are over half a million rape kits that have not been tested and therefore have not been put into a central database. How many of these rape kits contain evidence that would take a rapist off the streets? Well, we can't be sure, but we do know statistically that approximately one in eight of all kits currently tested in Ohio do, in fact, result in a match in our DNA database to a rapist. That is an unbelievable figure, one in eight will result in this statistical match.

In fact, approximately the same number will link the rape to another crime scene, giving our law enforcement officers one more piece of critical evidence that may, in fact, lead to the arrest of a criminal and the prevention of future crimes.

If you add these two figures together, you can see that nearly one in four of all rape kits tested will result in key evidence for law enforcement. That is a staggering statistic and demonstrates the power of modern technology when, in fact, it is used to fight crime.

This bill also includes my language that will expand the number of criminals that we put in our Federal DNA database. Very simply, this language will expand the current reporting requirement to include all Federal felons, not just a few specific felons as required under current law. Of course, the more information that goes into the DNA database, the more likely it becomes that we will match evidence from the crime scene to the DNA profile of the criminal in the database.

Additionally, this language will permit States to cross-reference DNA information from people under State indictment with the current Federal database. For example, if a criminal is arrested and indicted in New York, and the New York law enforcement officers enter the DNA information in their State database, this law permits New York to share this information with the Federal database so all participating States can access the information.

This means that a police officer could link DNA evidence from a crime in Ohio to an arrestee in New York. Again, by realizing the full potential of available technology, we will identify more criminals, prevent more crimes, and protect more innocent victims.

Finally, this bill includes my language that will extend the period of time in which law enforcement officers can utilize DNA evidence to solve crimes. Under current law, the statute of limitations for all Federal offenses starts when the crime is committed.

Under my language, if DNA evidence is found at the crime scene, the statute of limitations for most crimes does not start to run until the DNA evidence is matched to a criminal in the database. This means that criminals will not be able to escape justice merely because they were able to avoid capture for a specific period of time.

This bill also contains the Crime Victims Act for which I am an original cosponsor. This act provides victims with the right to be heard and considered during Federal criminal prosecutions.

As I know everyone here agrees, we owe it to rape victims, crime victims in our society as a whole, to do all we can to apprehend violent criminals. This bill takes a significant step in that direction.

I thank Senator Hatch for his excellent leadership, being so steadfast in doggedly pursuing the agreement necessary in the Senate to pass this bill. Passage of this bill is a testament to his leadership as chairman of our committee. I also thank Senators Leahy, Biden, and Feinstein for working tirelessly to achieve this momentous outcome.

I thank Chairman Sensenbrenner, as well as Representative Delahunt in the House for their outstanding leadership that resulted in a nearly unanimous vote of support by that body.

Our great Nation will be safer and our confidence in our standing judicial system will be reinforced as a result of this timely and much needed legislation.

I would also like to thank the many staff who worked on this bill. Specifically, I would like to recognize the Chief Counsels of the Senate and House Judiciary Committees for their commitment to get this bill done: Bruce Artim and Phil Kiko. I also thank Brett Tolman, who crafted a key compromise in the bill that allowed the parties to come together; Katy Crooks, who worked tirelessly to better this bill; Jay Apperson and Mark Agrast, who brought their outstanding wisdom to the process, Julie Katzman, Neil McBride, Jon Meyer, Christine Leonard, Louisa Terrell, Bruce Cohen, Tara Magner, David Brog, Ted Lehman and David Hantman for their strong knowledge of critical issues; and my exceptional legislative team that worked so very hard on this for me and the people of Ohio: Paul Palagyi, Peter Levitas, Robin Blackwell, Ann O'Donnell and my Crime Counsel Robert Steinbuch. And my former Crime Counsel Evelyn Fortier.