Oil Industry Merger Antitrust Enforcement Act

Mr. President, I am pleased to join with Senator Lugar, the principal sponsor, and Senators Dodd, Graham, and Schumer on the introduction of legislation which will codify a reporter's privilege, something that is very necessary. The matter came into sharp focus recently with the contempt citation and the incarceration of New York Times reporter, Judith Miller, for some 85 days. The Judiciary Committee held two hearings on this subject. Senator Lugar, with Congressman Pence in the House, introduced legislation which has formed the nucleus of the bill we are introducing today.

The Branzburg v. Hayes case, 33 years ago, which was a 5-to-4 decision, with a concurring opinion by Justice Powell, has led to what is accurately called a ``crazy quilt'' situation in the circuits--five circuits going one way, four circuits going another way, and laws unsettled in some circuits. This bill, modeled significantly after the Department of Justice regulations, will codify this important issue.

There is an exception on reporter's privilege for national security cases. Keeping in mind the incarceration of Judith Miller, this bill makes a sharp distinction between national security and an inquiry in the grand jury for obstruction of justice or perjury. As a prosecutor in the past, I have great appreciation for the offenses of obstruction of justice and perjury. But in my judgment, they do not rise to the level of importance as a national security case. When a special prosecutor's investigation shifts from the disclosure of a CIA agent, to a question of obstruction of justice, it is a very different situation. This bill would not permit, would not compel the disclosure of a source for obstruction of justice or perjury, but would compel the disclosure of a source for a national security case.

This legislation has the endorsement of 39 of the major media organizations in the United States: The New York Times, the Washington Post, the Associated Press, Time, Hearst Corporation, Philadelphia Inquirer, Newspaper Association of America, ABC, NBC, and CBS. It goes a long way to protecting sources, but it also leaves latitude, in the form of a balancing test, for Federal prosecutors to gain information under limited circumstances for plaintiffs and defendants in civil cases to have access to sources. And, it does not have a shield if a reporter is a witness to some criminal incident.

In recent months, there has been a growing consensus that we need to establish a Federal journalists' privilege to protect the integrity of the newsgathering process--a process that depends on the free flow of information between journalists and whistleblowers, as well as other confidential sources. I do not reach this conclusion lightly. The Judiciary Committee held two separate hearings in which it heard from sixteen witnesses. Included in this number were seven journalists, six attorneys, including current or former prosecutors and some of the Nation's most distinguished experts on the first amendment.

These witnesses demonstrated that there are two vital, competing concerns at stake. On one hand, reporters cite the need to maintain confidentiality in order to ensure that sources will speak openly and freely with the news media. The renowned William Safire, former columnist for the New York Times, testified that ``the essence of news gathering is this: if you don't have sources you trust and who trust you, then you don't have a solid story--and the public suffers for it.'' Reporter Matthew Cooper of Time magazine said this to the Committee: ``As someone who relies on confidential sources all the time, I simply could not do my job reporting stories big and small without being able to speak with officials under varying degrees of anonymity.''

On the other hand, the public has a right to effective law enforcement and fair trials. Our judicial system needs access to information in order to prosecute crime and to guarantee fair administration of the law for plaintiffs and defendants alike. As a Justice Department representative told the committee, prosecutors need to ``maintain the ability, in certain vitally important circumstances, to obtain information identifying a source when a paramount interest is at stake. For example, obtaining source information may be the only available means of preventing a murder, locating a kidnapped child, or identifying a serial arsonist.''

As Federal courts considered such competing interests, they adopted rules that went in several different directions. Rather than a clear, uniform standard for deciding claims of journalist privilege, the Federal courts currently observe a ``crazy quilt'' of different judicial standards.

The current confusion began 33 years ago, when the Supreme Court decided Branzburg v. Hayes. The Court held that the press's first amendment right to publish information does not include a right to keep information secret from a grand jury investigating a criminal matter. The Supreme Court also held that the common law did not exempt reporters from the duty of every citizen to provide information to a grand jury.

The Court reasoned that just as newspapers and journalists are subject to the same laws and restrictions as other citizens, they are also subject to the same duty to provide information to a court as other citizens. However, Justice Powell, who joined the 5-4 majority, wrote a separate concurrence in which he explained that the Court's holding was not an invitation for the government to harass journalists. If a journalist could show that the grand jury investigation was being conducted in bad faith, the journalist could ask the court to quash the subpoena. Justice Powell indicated that courts might assess such claims on a case-by-case basis by balancing the freedom of the press against the obligation to give testimony relevant to criminal conduct.

In attempting to apply Justice Powell's concurring opinion, Federal courts have split on the question of when a journalist is required to testify. In the 33 years since Branzburg, the Federal courts are split in at least three ways in their approaches to Federal criminal and civil cases.

With respect to Federal criminal cases, five circuits--the first, fourth, fifth, sixth, and seventh circuits--have

applied Branzburg so as to not allow journalists to withhold information absent governmental bad faith. Four other circuits--the second, third, ninth, and eleventh circuits--recognize a qualified privilege, which requires courts to balance the freedom of the press against the obligation to provide testimony on a case-by-case basis. The law in the District of Columbia Circuit is unsettled.

With respect to Federal civil cases, nine of the twelve circuits apply a balancing test when deciding whether journalists must disclose confidential sources. One circuit affords journalists no privilege in any context. Two other circuits have yet to decide whether journalists have any privilege in civil cases. Meanwhile, 49 States plus the District of Columbia have recognized a privilege within their own jurisdictions. Thirty-one States plus the District of Columbia have passed some form of reporter's shield statute, and 18 States have recognized a privilege at common law.

There is little wonder that there is a growing consensus concerning the need for a uniform journalists' privilege in Federal courts. This system must be simplified.

Today, we are taking the first step to resolving this problem by introducing the Free Flow of Information Act. This bill draws upon 33 years of experience, as embodied in the Department of Justice's regulations, the law established by the Federal courts of appeals, State statutes, and existing national security provisions. The purpose of this bill is to guarantee the flow of information to the public through a free and active press, while protecting the public's right to effective law enforcement and individuals' rights to the fair administration of justice.

This bill provides ample protection for the Nation's journalists, as demonstrated by the fact that it has been endorsed by 39 news organizations identified in a list I will include at the end of my remarks.

This bill also provides ample protection to the public's interest in law enforcement and fair trials. In drafting this legislation, we started with what works. Both the Department of Justice and the vast majority of journalists with whom we have met--in individual meetings and over the course of two hearings--have generally voiced strong support for the regulations that the Department of Justice currently applies to all of its prosecutors. Moreover, time has proven that these regulations are workable. The Department of Justice has been effectively prosecuting cases under these regulations for 25 years and a majority of State prosecutors carry out their duties under similar statutes.

I have two concerns with the Department's regulations, however. First, under current law, these regulations do not apply to special prosecutors. Special prosecutors are often called upon in cases that are politically sensitive, may potentially be embarrassing to senior government officials, and are high profile--those cases that seem to carry the greatest risk of an overzealous prosecutor needlessly subpoenaing journalists.

Second, the Department regulations are presently enforced by the Attorney General, not a neutral court of law. This places the Attorney General in a difficult position; namely, the primary check on Federal prosecutors' ability to subpoena journalists is the nation's highest Federal prosecutor. Most Americans, I believe, would feel more comfortable having the competing interests weighed by a neutral judge instead of a political appointee who answers to the President. Accordingly, this bill, in large part, codifies the Department of Justice's regulations into law; applies them to all Federal prosecutors, including special prosecutors; and provides that the courts, not a political official, shall decide whether the public's need for information outweighs the interest in allowing a journalist to protect a confidential source.

The Free Flow of Information Act addresses two additional areas of considerable confusion and concern. First, it addresses the situation of a criminal defendant who subpoenas a journalist. To ensure that every criminal defendant has a fair trial, a criminal defendant has less of a burden than a prosecutor does, to show that the journalist's privilege should be waived. This is consistent with our long standing belief as a nation that a criminal defendant must be given ample opportunity to defend himself.

Second, it addresses private civil litigation. This bill provides that before a private party may subpoena a journalist in a civil suit, the court must find that the party is not trying to harass or punish the journalist, and that the public interest requires disclosure. Again, this should help clarify the existing law in federal courts.

Finally, the Free Flow of Information Act adds layers of safeguards for the public. Reporters are not allowed to withhold information if a federal court concludes that the information is important to the defense of our Nation's security or is needed to prevent or stop a crime that could lead to death or physical injury. Also, the bill ensures that both crime victims and criminal defendants will have a fair hearing in court. Under this bill, a journalist who is an eyewitness to a crime or takes part in a crime may not withhold that information. Journalists should not be permitted to hide from the law by writing a story and then claiming a reporter's privilege.

It is time to simplify the patchwork of court decisions and legislation that has grown over the last three decades. It is time for Congress to clear up the ambiguities journalists and the Federal judicial system face in balancing the protections journalists need in providing confidential information to the public with the ability of the courts to conduct fair and accurate trials. I urge my colleagues to support this legislation and help create a fair and efficient means to serve journalists and the news media, prosecutors and the courts, and most importantly the public interest on both ends of the spectrum.

I ask unanimous consent to print the list of organizations and companies that support the legislation in the Record.

Mr. President, I ask unanimous consent that Senator Schumer be recognized for 4 minutes to speak on the Lugar-Specter-Dodd bill.

Mr. President, I rise today to introduce the Oil Industry Merger Antitrust Enforcement Act. This legislation will significantly strengthen the antitrust laws to prevent anticompetitive mergers and acquisitions in oil and gas industry.

We have all seen the suffering felt by consumers and our national economy resulting from rising energy prices. Gasoline prices have now shattered the once unthinkable $3.00 a gallon level, have doubled in the last 5 years, and increased more than 30 percent in the last year alone. And prices for other crucial energy products--such as natural gas and home heating oil--have undergone similar sharp increases.

Industry experts debate the causes of these extraordinarily high prices. Possible culprits are growing worldwide demand, supply disruptions, the actions of the OPEC oil cartel and limits on refinery capacity in the United States. But about one thing there can be no doubt--the substantial rise in concentration and consolidation in the oil industry. Since 1990, the Government Accountability Office has counted over 2,600 mergers, acquisitions and joint ventures in the oil industry. Led by gigantic mergers such as Exxon/Mobil, BP/Arco, Conoco/ Phillips and Chevron/Texaco, by 2004, the five largest U.S. oil refining companies controlled over 56 percent of domestic refining capacity, a greater market share than that controlled by the top 10 companies a decade earlier.

This merger wave has led to substantially less competition in the oil industry. In 2004, the GAO concluded that these mergers have directly caused increases in the price of gasoline. A

study by the independent consumer watchdog Public Citizen found that in the 5 years between 1999 and 2004, U.S. oil refiners increased their average profits on every gallon of gasoline refined from 22.8 cents to 40.8 cents, a 79 percent jump. And the grossly inflated profit numbers of the major oil companies--led by Exxon Mobil's $8.4 billion profit in the first quarter of 2006, which followed its $36 billion profit in 2005, the highest corporate profits ever achieved in U.S. history, are conclusive evidence--if any more was needed--of the lack of competition in the U.S. oil industry. While it is true that the world price of crude oil has substantially increased, the fact that the oil companies can so easily pass along all of these price increases to consumers of gasoline and other refined products--and greatly compound their profits along the way--confirms that that there is a failure of competition in our oil and gas markets.

More than 90 years ago, one of our Nation's basic antitrust laws--the Clayton Act--was written to prevent just such industry concentration harming competition. It makes illegal any merger or acquisition the effect of which ``may be substantially to lessen competition.'' Despite the plain command of this law, the Federal Trade Commission--the Federal agency with responsibility for enforcing antitrust law in the oil and gas industry--has failed to take any effective action to prevent undue concentration in this industry. Instead, it permitted almost all of these 2,600 oil mergers and acquisitions to proceed without challenge. And where the FTC has ordered divestitures, they have been wholly ineffective to restore competition. Consumers have been at the mercy of an increasingly powerful oligopoly of a few giant oil companies, passing along price increases without remorse as the market becomes increasingly concentrated and competition diminishes. It is past time for us in Congress to take action to strengthen our antitrust law so that it will, as intended, stand as a bulwark to protect consumers and prevent any further loss of competition in this essential industry.

Our bill will strengthen merger enforcement under the antitrust law in two respects. First, it will direct that the FTC, in conjunction with the Justice Department, revise its Merger Guidelines to take into account the special conditions prevailing in the oil industry. In reviewing a pending merger or acquisition to determine whether to approve it or take legal action to block it, the FTC follows what are known as ``Merger Guidelines.'' The Merger Guidelines set forth the factors that the agency must examine to determine if a merger or acquisition lessens competition, and sets forth the legal tests the FTC is to follow in deciding whether to approve or challenge a merger. As presently written, the Merger Guidelines fail to direct the FTC, when reviewing an oil industry merger, to pay any heed at all to the special economic conditions prevailing in that industry.

Our bill will correct this deficiency. Many special conditions prevail in the oil and gas marketplace that warrant scrutiny, conditions that do not occur in other industries, and the Merger Guidelines should reflect these conditions. In most industries, when demand rises and existing producers earn ever-increasing profits, new producers enter the market and new supply expands, reducing the pressure on price. However, in the oil industry, there are severe limitations on supply and environmental and regulatory difficulty in opening new refineries, so this normal market mechanism cannot work. Additionally, in most industries, consumers shift to alternative products in the face of sharp price increases, leading to a reduction in demand and a corresponding reduction in the pressure to increase prices. But for such an essential commodity as gasoline, consumers have no such option--they must continue to consume gasoline to get to work, to go to school, and to shop. These factors all mean that antitrust enforcers should be especially cautious about permitting increases in concentration in the oil industry.

Accordingly, our bill directs the FTC and Justice Department to revise its Merger Guidelines to take into account the special conditions prevailing in the oil industry--including the high inelasticity of demand for oil and petroleum-related products; the ease of gaining market power; supply and refining capacity limits; difficulties of market entry; and unique regulatory requirements applying to the oil industry. This revision of the Merger Guidelines must be completed within 6 months of enactment of this legislation.

The second manner in which this legislation will strengthen antitrust enforcement will be to shift the burden of proof in Clayton Act challenges to oil industry mergers and acquisitions. In such cases, the burden will be placed on the merging parties to establish, by a preponderance of evidence, that their transaction does not substantially lessen competition. This provision would reverse the usual rule that the government or private plaintiff challenging the merger must prove that the transaction harms competition. As the parties seeking to effect a merger with a competitor in an already concentrated industry, and possessing all the relevant data regarding the transaction, it is entirely appropriate that the merging parties bear this burden. This provision does not forbid all mergers in the oil industry if the merging parties can establish that their merger does not substantially harm competition, it may proceed. However, shifting the burden of proof in this manner will undoubtedly make it more difficult for oil mergers and acquisition to survive court challenge, thereby enhancing the law's ability to block truly anticompetitive transactions and deterring companies from even attempting such transactions. In today's concentrated oil industry and with consumers suffering record high prices, mergers and acquisitions that even the merging parties cannot justify should not be tolerated.

As ranking member on the Senate Antitrust Subcommittee, I believe that this bill is a crucial step to ending this unprecedented move towards industry concentration and to begin to restore competitive balance to the oil and gas industry. Since the days of the break-up of the Standard Oil trust 100 years ago, antitrust enforcement has been essential to prevent undue concentration in this industry. This bill is an essential step to ensure that our antitrust laws are sufficiently strong to ensure a competitive oil industry in the 21st century. I urge my colleagues to support the Oil Industry Merger Antitrust Enforcement Act.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the Oil Industry Merger Antitrust Enforcement Act. This legislation will significantly strengthen the antitrust laws to prevent anticompetitive mergers and acquisitions in oil and gas industry.

We have all seen the suffering felt by consumers and our national economy resulting from rising energy prices. Gasoline prices have now shattered the once unthinkable $3.00 a gallon level, have doubled in the last 5 years, and increased more than 30 percent in the last year alone. And prices for other crucial energy products--such as natural gas and home heating oil--have undergone similar sharp increases.

Industry experts debate the causes of these extraordinarily high prices. Possible culprits are growing worldwide demand, supply disruptions, the actions of the OPEC oil cartel and limits on refinery capacity in the United States. But about one thing there can be no doubt--the substantial rise in concentration and consolidation in the oil industry. Since 1990, the Government Accountability Office has counted over 2,600 mergers, acquisitions and joint ventures in the oil industry. Led by gigantic mergers such as Exxon/Mobil, BP/Arco, Conoco/ Phillips and Chevron/Texaco, by 2004, the five largest U.S. oil refining companies controlled over 56 percent of domestic refining capacity, a greater market share than that controlled by the top 10 companies a decade earlier.

This merger wave has led to substantially less competition in the oil industry. In 2004, the GAO concluded that these mergers have directly caused increases in the price of gasoline. A

study by the independent consumer watchdog Public Citizen found that in the 5 years between 1999 and 2004, U.S. oil refiners increased their average profits on every gallon of gasoline refined from 22.8 cents to 40.8 cents, a 79 percent jump. And the grossly inflated profit numbers of the major oil companies--led by Exxon Mobil's $8.4 billion profit in the first quarter of 2006, which followed its $36 billion profit in 2005, the highest corporate profits ever achieved in U.S. history, are conclusive evidence--if any more was needed--of the lack of competition in the U.S. oil industry. While it is true that the world price of crude oil has substantially increased, the fact that the oil companies can so easily pass along all of these price increases to consumers of gasoline and other refined products--and greatly compound their profits along the way--confirms that that there is a failure of competition in our oil and gas markets.

More than 90 years ago, one of our Nation's basic antitrust laws--the Clayton Act--was written to prevent just such industry concentration harming competition. It makes illegal any merger or acquisition the effect of which ``may be substantially to lessen competition.'' Despite the plain command of this law, the Federal Trade Commission--the Federal agency with responsibility for enforcing antitrust law in the oil and gas industry--has failed to take any effective action to prevent undue concentration in this industry. Instead, it permitted almost all of these 2,600 oil mergers and acquisitions to proceed without challenge. And where the FTC has ordered divestitures, they have been wholly ineffective to restore competition. Consumers have been at the mercy of an increasingly powerful oligopoly of a few giant oil companies, passing along price increases without remorse as the market becomes increasingly concentrated and competition diminishes. It is past time for us in Congress to take action to strengthen our antitrust law so that it will, as intended, stand as a bulwark to protect consumers and prevent any further loss of competition in this essential industry.

Our bill will strengthen merger enforcement under the antitrust law in two respects. First, it will direct that the FTC, in conjunction with the Justice Department, revise its Merger Guidelines to take into account the special conditions prevailing in the oil industry. In reviewing a pending merger or acquisition to determine whether to approve it or take legal action to block it, the FTC follows what are known as ``Merger Guidelines.'' The Merger Guidelines set forth the factors that the agency must examine to determine if a merger or acquisition lessens competition, and sets forth the legal tests the FTC is to follow in deciding whether to approve or challenge a merger. As presently written, the Merger Guidelines fail to direct the FTC, when reviewing an oil industry merger, to pay any heed at all to the special economic conditions prevailing in that industry.

Our bill will correct this deficiency. Many special conditions prevail in the oil and gas marketplace that warrant scrutiny, conditions that do not occur in other industries, and the Merger Guidelines should reflect these conditions. In most industries, when demand rises and existing producers earn ever-increasing profits, new producers enter the market and new supply expands, reducing the pressure on price. However, in the oil industry, there are severe limitations on supply and environmental and regulatory difficulty in opening new refineries, so this normal market mechanism cannot work. Additionally, in most industries, consumers shift to alternative products in the face of sharp price increases, leading to a reduction in demand and a corresponding reduction in the pressure to increase prices. But for such an essential commodity as gasoline, consumers have no such option--they must continue to consume gasoline to get to work, to go to school, and to shop. These factors all mean that antitrust enforcers should be especially cautious about permitting increases in concentration in the oil industry.

Accordingly, our bill directs the FTC and Justice Department to revise its Merger Guidelines to take into account the special conditions prevailing in the oil industry--including the high inelasticity of demand for oil and petroleum-related products; the ease of gaining market power; supply and refining capacity limits; difficulties of market entry; and unique regulatory requirements applying to the oil industry. This revision of the Merger Guidelines must be completed within 6 months of enactment of this legislation.

The second manner in which this legislation will strengthen antitrust enforcement will be to shift the burden of proof in Clayton Act challenges to oil industry mergers and acquisitions. In such cases, the burden will be placed on the merging parties to establish, by a preponderance of evidence, that their transaction does not substantially lessen competition. This provision would reverse the usual rule that the government or private plaintiff challenging the merger must prove that the transaction harms competition. As the parties seeking to effect a merger with a competitor in an already concentrated industry, and possessing all the relevant data regarding the transaction, it is entirely appropriate that the merging parties bear this burden. This provision does not forbid all mergers in the oil industry if the merging parties can establish that their merger does not substantially harm competition, it may proceed. However, shifting the burden of proof in this manner will undoubtedly make it more difficult for oil mergers and acquisition to survive court challenge, thereby enhancing the law's ability to block truly anticompetitive transactions and deterring companies from even attempting such transactions. In today's concentrated oil industry and with consumers suffering record high prices, mergers and acquisitions that even the merging parties cannot justify should not be tolerated.

As ranking member on the Senate Antitrust Subcommittee, I believe that this bill is a crucial step to ending this unprecedented move towards industry concentration and to begin to restore competitive balance to the oil and gas industry. Since the days of the break-up of the Standard Oil trust 100 years ago, antitrust enforcement has been essential to prevent undue concentration in this industry. This bill is an essential step to ensure that our antitrust laws are sufficiently strong to ensure a competitive oil industry in the 21st century. I urge my colleagues to support the Oil Industry Merger Antitrust Enforcement Act.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the Community Water Treatment Hazards Reduction Act of 2006. This legislation would completely eliminate a known security risk to millions of Americans across the United States by facilitating the transfer to safer technologies from deadly toxic chemicals at our Nation's water treatment facilities.

Across our Nation, there are thousands of water treatment facilities that utilize gaseous toxic chemicals to treat drinking and wastewater. Approximately 2,850 facilities are currently regulated under the Clean Air Act because they store large quantities of these dangerous chemicals. In fact, 98 of these facilities threaten over 100,000 citizens. For example, the Fiveash Water Treatment Plant in Fort Lauderdale, FL, threatens 1,526,000 citizens. The Bachman Water Treatment in Dallas, TX, threatens up to 2 million citizens. And there are similar examples in communities throughout the Nation. If these facilities--and the 95 other facilities that threaten over 100,000 citizens--switched from the use of toxic chemicals to safer technologies that are widely used within the industry we could completely eliminate a known threat to nearly 50 million Americans.

Many facilities have already made the prudent decision to switch without intervention by the government. The Middlesex County Utilities Authority in Sayreville, NJ, switched to safer technologies and eliminated the risk to 10.7 million people. The Nottingham Water Treatment Plant in Cleveland, OH, switched and eliminated the risk to 1.1 million citizens. The Blue Plains Wastewater Treatment Plant switched and eliminated the risk to 1.7 million people. In my hometown of Wilmington, DE, the Wilmington Water Pollution Control Facility switched from using chlorine gas to liquid bleach. This commendable decision has eliminated the risk to 560,000 citizens, including the entire city of Wilmington. In fact, this facility no longer has to submit risk management plans to the Environmental Protection Agency required by the Clean Air Act because the threat has been completely eliminated. There are many other examples of facilities that have done the right thing and eliminated the use of these dangerous, gaseous chemicals.

The bottom line is that if we can eliminate a known risk, we should. The legislation I am introducing today will do just that. It will require the Administrator of the Environmental Protection Agency, in consultation with the Secretary of Homeland Security, to do a few simple things. First, water facilities will be prioritized based upon the risk that they pose to citizens and critical infrastructure. These facilities--beginning with the most dangerous ones--will be required to submit a report on the feasibility of utilizing safer technologies and the anticipated costs to transition. If grant funding is available, the Administrator will issue a grant and order the facility to transition to the safer technology chosen by the owner of the facility. I believe that this approach will allow us to use Federal funds responsibly while reducing risk to our citizens.

Once the transition is complete, the facility will be required to track all cost-savings related to the switch, such as decreased security costs, costs saving by eliminating administrative requirements under the EPA risk management plan, lower insurance premiums, and others. If savings are ultimately realized by the facility, it will be required to return one half of these savings, not to exceed the grant amount, back to the EPA. In turn, the EPA will utilize any returned savings to help facilitate the transition of more water facilities.

A 2005 report by the Government Accountability Office found that providing grants to assist water facilities to transition to safer technologies was an appropriate use of Federal funds. The costs for an individual facility to transition will vary, but the cost is very cheap when you consider the security benefits. For example, the Wilmington facility invested approximately $160,000 to transition and eliminated the risk to nearly 600,000 people. Similarly, the Blue Plains facility spent $500,000 to transition after 9-11 and eliminated the risk to 1.2 million citizens immediately. This, in my view, is a sound use of funds. And, this legislation will provide sufficient funding to transition all of our high-priority facilities throughout Nation.

Finally, I would like to point out that facilities making the decision to transition after 9-11, but before the enactment date of this legislation will be eligible to participate in the program authorized by this legislation. I have included this provision because I believe that the Federal Government should acknowledge--and promote-- local decisions that enhance our homeland security. In addition, we don't want to create a situation where water facilities wait for Federal funding, before doing the right thing and eliminating those dangerous gaseous chemicals.

Last December the 9-11 Discourse Project released its report card for the

administration and Congress on efforts to implement the 9-11 Commission recommendations. It was replete with D's and F's demonstrating that we have been going in the wrong direction with respect to homeland security. One of the most troubling findings made by the 9-11 Commission is that with respect to our Nation's critical infrastructure that ``no risk and vulnerability assessments actually made; no national priorities established; no recommendations made on allocations of scarce resources. All key decisions are at least a year away. It is time that we stop talking about priorities and actually set some.'' While much remains to be done, the Community Water Treatment Hazards Reduction Act of 2006 sets an important priority for our homeland security and it affirmatively addresses it. I urge my colleagues to support this important legislation.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, let me express my gratitude to my colleague from Indiana, Senator Lugar, and his colleague from Indiana, Congressman Pence, and his colleague, Congressman Boucher of Virginia, who are drafting similar legislation and propose similar legislation in the other body and, of course, Senator Specter, the chairman of the Judiciary Committee, my colleague from New York, Senator Schumer, and the Presiding Officer for their work on pulling together this bill which is a very sound proposal. As the Senator from Pennsylvania has explained, it deals with an issue that many were concerned about, and that is the national security question.

The point I would like to make is that while this is about journalists and the collection of information and revealing stories that might otherwise not be told, the real winners of this proposal are not journalists or news media outlets, television stations, or the like. The real winners are the people we represent, our constituents, and the consumers of information. This is most important for them. It is really not that significant. If it were only about journalists, frankly, we might have second questions about it.

Jefferson, of course, said it better than anyone many years ago when he said if he had to choose between a free country and a free press, he would select the latter. Madison, on the same

subject, talking about freedom of information, freedom of the press, had this quote:

Popular government without popular information or the means

of acquiring it is but a prologue to a farce, or tragedy, or

perhaps both.

Today, that fundamental principle--that a well-informed citizenry is the cornerstone of self-government--is at risk in a manner in which it has not been at risk previously.

In the past year alone, some two dozen reporters have been subpoenaed or questioned about their confidential sources. Most of theme face fines or prison time. Seven have already been held in contempt. One has been jailed. Another was found guilty of criminal contempt for refusing to reveal a confidential source and served 6 months under house arrest. Why? Because they received information from confidential sources and pledged to protect the confidentiality of those sources. In other words, they have committed the ``offense'' of being journalists.

These actions by our Government against journalists are having a profound impact on news gathering. For example, in testimony last summer before the Senate Judiciary Committee, Norman Pearlstine, the editor in chief of Time, Inc., said this about the fallout from the Justice Department's efforts to obtain confidential information from a Time reporter:

Valuable sources have insisted that they no longer trusted

the magazine and that they would no longer cooperate on

stories. The chilling effect is obvious.

Confidential evidence may be just the tip of the iceberg. We have no way of knowing for certain the number of journalists who have been ordered or requested to reveal confidential sources. We can only speculate as to how many editors and publishers put the brakes on a story for fear that it could land one of their reporters in a spider web spun by the Federal prosecutors that could include prison. If citizens with knowledge of wrongdoing could not or would not come forward to share what they know in confidence with members of the press, serious journalism would cease to exist, in my view. Serious wrongs would remain unexposed. The scandals known as Watergate, the Enron failure, the Abu Ghraib prison photos--none of these would have been known to the public but for good journalists doing their work.

That scenario is no longer purely hypothetical. It is, in some respects, already a reality. When journalists are hauled into court by prosecutors and threatened with fines and imprisonment if they don't divulge the sources of their information, we are entering a dangerous territory for a democracy. That is when not only journalists, but ordinary citizens, will fear prosecution simply for exposing wrongdoing. When that happens, the information our citizens need to remain sovereign will be degraded, making it more and more difficult to hold accountable those in power. When the public's right to know is threatened, then I suggest to you that all of the liberties we hold dear are threatened, as well.

Again, I thank Senator Specter for working out this compromise, and I emphasize that the issue of national security, which was a very legitimate concern, has been handled by this proposal. The underlying issue is the right of citizens to have access to important information that might otherwise never become available were it not for the ability to have confidential sources share that information and the ability of these journalists to protect the confidentiality of those sources. Thirty-nine States have provisions dealing with the shield law. I think 10 States have regulations regarding the same matter.

I think it is long overdue that the Federal Government have a similar piece of legislation to protect the kind of information we seek. I commend my colleagues for their efforts in this regard. I am happy to join them.