Equal Justice for United States Military Personnel Act of 2007

Mr. President, this month millions of American schoolchildren are returning to classrooms to begin the new school year, making this a time of hope and possibilities. Students in my State of Wisconsin and around the country are meeting new teachers, getting reacquainted with old friends, joining clubs or athletic teams, and embarking on the next step in their educational careers. Teachers and administrators around the country are starting a new school year with fresh lesson plans and high goals for all the students in their schools. And many educators, parents, and school officials are continuing to work diligently toward the goal of closing the achievement gap that continues to exist throughout many communities across the country.

These students, teachers, and administrators will also face their sixth year under the Federal No Child Left Behind Act, NCLB, the centerpiece of President Bush's domestic agenda. NCLB, which is 2001- 2002 reauthorization of the Elementary and Secondary Education Act, ESEA, requires that students be tested annually in reading and math, and starting this school year, in science. The law is up for reauthorization this year and it remains unknown how much change students, teachers, parents, and administrators can expect as Congress works to reauthorize the law.

I voted against No Child Left Behind in 2001 in large part because of the law's new Federal testing mandate. The comments that I heard from Wisconsinites during the 2001 debate and that I continue to hear 6 years later have been almost universally negative. While Wisconsinites support holding their schools accountable for results and closing the achievement gap, they are concerned about the Federal law's primary focus on standardized testing.

Let me make clear at the outset that this country has a long way to go toward ensuring that all students, regardless of their backgrounds, have a chance to get a good education. I remain troubled by the inequality in funding and resources provided to our Nation's schools and by the persistent segregation that schools around the country, including those in Wisconsin, continue to face. Moreover, I am deeply concerned that NCLB's testing and sanctions approach has forced some schools, particularly those in our inner cities and rural areas, to become places where students are not taught, but are drilled with workbooks and test-taking strategies, while in wealthy suburban schools, these tests do not greatly impact school curriculums rich in social studies, civics, arts, music, and other important subjects.

All levels of government--local, State, and Federal--need to act to ensure that equal educational opportunities are afforded to every student in our country.

I do not necessarily oppose the use of standardized testing in our Nation's schools. I agree that some tests are needed to ensure that our children are keeping pace and that schools, districts, and States are held accountable for closing the persistent achievement gap that continues to exist among different groups of students, including among students in Wisconsin. But the Federal one-size-fits-all testing-and- punishment approach that NCLB takes is not providing an equal education for all, eradicating the achievement gap that exists in our country or ensuring that each student reaches his or her full potential.

Rather, the reauthorized ESEA needs to recognize that States and local communities have the primary responsibility for providing a good public education to our students. The reauthorized ESEA should also encourage States and local districts to pursue innovative reform efforts including utilizing more robust accountability systems that can measure student academic growth from year to year and measure student academic growth using multiple forms of assessment, rather than just standardized tests.

Today, I am introducing the Improving Student Testing Act to overhaul the Federal testing mandate and provide States and local districts flexibility to determine the frequency and use of standardized testing in their accountability systems. My legislation is fully offset, while providing approximately $200 million in deficit reduction over the next 5 years.

Nothing in my legislation would force States to alter their accountability systems in recognition of the fact that different States are at different stages of their education reform efforts and may wish to maintain their current assessment systems. However, my legislation says that for Federal accountability purposes, States can choose to test once in grades 3 to 5, 6 to 9, and 10 to 12 rather than the current Federal requirement for annual testing in grades 3 through 8 and once in high school.

For States that choose to test in grade spans instead of annually, my

legislation encourages them to use more than high-stakes standardized tests in their accountability systems. By removing the Federal requirement to test annually, Congress can encourage States and local districts to lead innovative school reform efforts, including developing more robust assessment systems that use a range of academic assessments, such as valid and reliable performance-based assessments, formative assessments that provide meaningful and timely feedback to both students and teachers, and portfolio assessments that allow students to accumulate a broad range of student work and assess their own learning as they progress through school.

I have heard from a number of teachers and administrators who are concerned about the testing burden NCLB imposed on our Nation's educational system. The Federal mandate to test annually has strapped State and local districts' financial resources. Congress promised States specific funding levels for Title I, part A in NCLB, but Congress has failed to live up to those promised resources every year since NCLB was enacted. Despite the lack of adequate resources, our schools continue to be forced to test and to ratchet up the consequences associated with these tests.

NCLB's testing mandates have also led to a substantial demand for increased numbers of standardized tests and I have heard from some Wisconsinites concerned that the testing industry cannot keep up with this demand. There have been stories coming in from around the country documenting the burden faced by the testing industry, including incorrectly scored tests, test scores arriving much later than expected, and schools given incorrect testing booklets and supplies by the testing companies.

My legislation would help alleviate this testing burden by providing States with the option to reduce the number of grades tested for Federal accountability purposes. Eighteen States would then be able to dedicate more of their critical Title I dollars toward efforts that will help close the achievement including improving teacher quality through professional development and providing more targeted instruction to disadvantaged students in critical subject areas.

Some may say that with a Federal requirement to test in grade spans and not every year, the students in the nontested years will be ignored. I have more faith in Wisconsin's teachers and other dedicated teachers around the country than to assume that because there is no external, federally required test, teachers will not teach their kids or ensure that their students make academic progress. Effective schools contain teachers who work collaboratively within grade levels and across grades to raise the academic achievement of every student. Good teachers know that they are responsible for ensuring all their students make substantial academic progress in a given year regardless of whether those students must take a federally imposed standardized test.

My legislation also provides States with the flexibility and resources to develop high-quality assessments that can be used to give a more accurate picture of student achievement. I have heard a number of criticisms of the standardized tests used in Wisconsin and around the country--namely, that they may not measure higher-order thinking skills and that the results are returned to teachers too late in the school year, preventing teachers from receiving feedback that could help inform their instructional techniques to increase student learning. It is important that Congress listen to the feedback provided by teachers and administrators from around the country and provide States and local districts with the flexibility to develop and use other types of assessments in their accountability systems.

My bill authorizes a competitive grant program to help States and local districts develop multiple forms of high-quality assessments, including formative assessments, performance-based assessments, and portfolio assessments. These assessments can give a more accurate and detailed picture of student achievement than a single standardized test. These assessments can also be designed to provide more immediate feedback to teachers and students than the statewide standardized tests used for Federal accountability purposes. By incorporating these richer assessments, teachers can better assess student learning throughout the school year and continuously modify their instruction to ensure all students continue to learn.

These high-quality, multiple measures can be more expensive for States to develop and my bill recognizes that cost by authorizing a competitive grant program to assist States in developing these assessments. States and local districts can use these funds for a variety of purposes, including training teachers in how to use these assessments, creating the assessments, aligning the assessments with State standards, and collaborating with other States to share information about assessment creation.

My legislation makes clear that these funds are not to be used for the purchase of additional test preparation materials. I have long been concerned that NCLB could result in a generation of students who know how to take tests, but who do not have the skills necessary to become successful adults. This grant program will help innovative States develop higher quality assessments to better ensure that the students in their State are prepared for careers in the 21st century, including the ability to think critically, analyze new situations, and work collaboratively with others.

My legislation also makes clear that these multiple forms of assessment are not a loophole for States and local districts to avoid accountability. Rather, my legislation recognizes that these multiple measures can provide a more accurate and more complete picture of student achievement. My legislation makes clear that these assessments must: be aligned with States' academic and content standards, be peer reviewed by the Federal Department of Education, produce timely evidence about student learning and achievement, and provide teachers with meaningful feedback so that teachers can modify and improve their classroom instruction to address specific student needs.

Congress also needs to reform NCLB's accountability provisions during the reauthorization process, including providing credit to schools that demonstrate their students have made substantial growth from year to year. Right now, NCLB measures students' achievement based primarily on reading and math tests, and students either achieve the cut score on the NCLB tests or they do not. A number of teachers and parents in Wisconsin have expressed concerned that NCLB's current approach leads schools to focus on students who are closest to achieving the cut score on tests so as to continue to boost the number of kids passing the test each year. As a result, parents and teachers are concern that the lowest achieving students who are not yet proficient and the highest performing students who are already proficient may be ignored in the effort to meet AYP each year.

My legislation seeks to address this concern by providing flexibility for States that maintain annual testing to develop accountability models capable of tracking student growth from year to year to better ensure that every student, regardless of his or her current academic level, continues to make academic progress. States seeking to use growth models in their accountability systems would have to prove that such growth models meet a number of minimum technical requirements, including ensuring the growth model: is of sufficient technical capacity to function fairly and accurately for all students, uses valid, reliable, and accurate measures, has a statewide privacy- protected data system capable of tracking student growth, does not set performance measures based on a student's background, and is capable of tracking student progress in at least reading and math. I am pleased there is substantial agreement in Congress that growth models should be part of a reauthorized ESEA, and I will work with my colleagues to ensure that any growth models included in the ESEA can be fairly implemented and are flexible enough for States and local districts to utilize in their accountability systems.

NCLB set the ambitious goal that all children will be proficient on State reading and math tests by the year 2014. I have heard from a number of

educators and administrators in Wisconsin and around the country who are concerned that very few States will be able to meet NCLB's 2014 deadline. I understand their concern, particularly in light of the fact that Congress has failed to provide the promised financial resources to meet NCLB's mandates. Our Nation needs to have high academic expectations for all of our students, but if Congress is going to set such ambitious goals for our schools to meet, we need to provide our schools with the resources to meet those goals.

So far, the Federal Government has not lived up to the funding promises it made when Congess passed NCLB in late 2001. The appropriated levels for title I, part A have failed to match the authorized levels for title I, part A every year from 2002 to 2007, resulting in an underfunding of title I, part A by over $40 billion since 2002. It is one thing to set ambitious targets for our Nation's schools with adequate resources provided to reach those targets. It is something entirely different to hold our schools accountable for ensuring all students are proficient by 2014 and providing our schools with less resources than were promised to them when NCLB passed. My legislation includes a funding trigger that will waive the 2014 deadline unless Congress fully funds title I, part A from now until 2014. If Congress maintains the 2014 deadline and does not provide additional resources to our Nation's schools, we are only setting our schools up for further failure as we approach 2014.

My legislation also reforms the peer-review provisions of NCLB to ensure that there is more transparency and consistency in the peer- review process. States are currently required to submit their State plans for approval by the Department of Education, and I have heard a number of concerns from my State and others that States do not receive consistent or timely information from the Department of Education during peer review. States have also voiced concern about their inability to speak directly with peer reviewers during the peer-review process in order to clarify reviewers' comments made about their State plans.

My bill would amend the peer-review language to ensure that the peer- review teams contain balanced representation from State education agencies, local education agencies, and practicing educators. My legislation also includes language that requires the Secretary to provide consistency in peer-review decisions among the States and requires the Department's inspector general to conduct independent evaluations every 2 years to ensure consistency of approval and denial decisions by the Department of Education from State to State. My bill would also require the Secretary to ensure that States are given the opportunity to receive timely feedback from peer-review teams as well as directly interact with peer-review panels on issues that need clarification during the peer-review process.

Despite my concerns regarding the testing provisions of NCLB, there are other provisions of the law that I continue to support. I have consistently heard from educators and other interested parties in my State of Wisconsin in favor of NCLB's requirement to disaggregate data by specific groups of children, including students from major racial and ethnic groups, students with disabilities, economically disadvantaged students, and English language learners. Teachers have told me that these provisions have added more transparency to school data and help to ensure that schools continue to remain focused on closing the achievement gap among these various groups of students and remain attentive to the academic needs of all students. My legislation builds on the requirement to disaggregate data by also requiring States to disaggregate high school graduation rates on the State report cards required under NCLB.

Justice Louis Brandeis once said, ``sunlight is said to be the best of disinfectants,'' and I think his statement can be properly applied to NCLB's requirement to disaggregate and report academic data by student subgroups. Information about the achievement gaps that exist throughout our Nation's schools, whether they are gaps in academic achievement or graduation rates, can help parents, educators, local school board members, and others continue to advocate for education reform at the local level. Some States already have the ability to disaggregate graduation rates by NCLB's subgroups, and my legislation provides funding to all States to comply with this public reporting requirement.

Tracking students' achievement and disaggregating student data are fundamental components of No Child Left Behind and require States to maintain large data systems containing detailed information about students. The bill that I am introducing will also ensure that these data systems are maintained in a way that safeguards individual privacy. Use of the data by educational entities, as well as disclosures of student-level data to third parties, will be carefully limited, and individuals will have a right to know who is inspecting their information and for what purpose.

My legislation also provides additional funding for States to build additional infrastructure at the State and local level in order to improve their educational accountability systems. States and local districts will have to secure additional resources in order to implement growth models or utilize multiple forms of assessment in their accountability systems. My bill creates a competitive and flexible grant program to help ensure the Federal Government does its part in assisting States in accessing these resourses.

States have varying capacity needs and funds under this program can help States build their privacy-protected educational databases, train individuals in how to use multiple measures of student achievement in State accountability systems, and provide additional professional development opportunities for both state education agency and local education agency staff members. I have heard from a number of State and local administrators who are trying diligently to reconcile increased Federal and State mandates with less financial resources. Providing additional resources will help build State and local educational infrastructure and will help encourage States to move to accountability systems that can measure student growth and use more than standardized test scores when making decisions about students and schools.

There are a number of other issues that we need to address in the NCLB reauthorization. My bill seeks to address some of the top concerns I have heard about from constituents around the State related to testing. During the reauthorization process, we need to examine and modify NCLB sanctions structure to address implementation problems that rural and large urban districts have faced. We also need to recognize that every school and every school district is different and the rigid sanctions of NCLB may not allow States and local districts the opportunity to implement a variety of other innvative school reform efforts.

We also need to address the diverse learning needs of students with disabilities and English language learners. We need to ensure that NCLB works in concert with the Individuals with Disabilities Education Act, IDEA, and that students with disabilities are provided with proper modifications on assessments without holding lower academic expectations for these students. I have long supported full funding for IDEA and strongly support high academic expectations for students with disabilities. I was disappointed the final NCLB conference report in 2001 dropped the Senate language on full funding of the Federal share of IDEA, and I hope we can be successful during this reauthorization process in efforts to fully fund IDEA.

The number of English language learners is growing around the country, including in my State of Wisconsin. I have heard concerns from educators around Wisconsin that NCLB does not properly address the unique learning needs of English language learners. Teachers are concerned about the lack of valid and reliable assessments for English language learners and the unfairness of testing these students when they may not yet have learned English well enough to take standardized tests in English. During the reauthorization, we need to ensure that additional resources are provided to develop valid and reliable assessments for English language learners so that these students are fairly assessed while learning the English language.

There are many issues that need to be addressed during the reauthorization process, and my bill seeks to address some of the issues related to testing under NCLB. I am pleased this bill is cosponsored by my friend and colleague, Senator Patrick Leahy, and that it has the support of the American Association of School Administrators, the National Education Association, the National Association of Elementary School Principals, the School Social Work Association of America, the Wisconsin Department of Public Instruction, the Wisconsin Education Association Council, the Milwaukee Teachers Education Association, the Wisconsin National Board Network of Wisconsin National Board Certified Teachers, and the Wisconsin School Administrator's Alliance, which includes the Association of Wisconsin School Administrators, the Wisconsin Association of School District Administrators, the Wisconsin Association of School Business Officials, and the Wisconsin Council of Administrators of Special Services.

The Elementary and Secondary Education Act of 1965 is the key Federal law impacting our nation's schools, and I have long supported the law's commitment to improving the quality of education provided to our Nation's most disadvantaged students. I strongly support holding schools accountable for both providing equal educational opportunities to all our students and for continuing to work to close the achievement gaps that exist in our Nation's schools.

I also strongly support ensuring that classroom teachers, local school districts, and States have the primary responsibility for making decisions regarding day-to-day classroom instruction. Unfortunately, under NCLB, too much of the activity in classrooms is being dictated by the Federal one-size- fits-all testing mandates and accountability provisions. The Federal Government should leave decisions about the frequency of standardized testing up to the States and local school districts that a bear the responsibility for educating our children. While standardized testing does have a role to play in measuring and improving student achievement, one high-stakes test alone cannot accurately or responsibly measure our students or our schools.

NCLB was based on a flawed premise--that the way to hold schools accountable and close the achievement gap was for the Federal Government to pile on more tests and use the tests as the primary tool to evaluate schools. Now, 5 years into the law's implementation, we have evidence showing the need to reduce NCLB's burden on schools, by providing real support for students and teachers and by providing flexibility to Sates to use more than standardized tests to measure the achievement of students. This country has a long way to go before the opportunity for an equal education is afforded to all of America's students and Congress can take a step toward helping to ensure that opportunity by substantially reforming the mandates of NCLB. It is time to fix No Child Left Behind, and to get back to learning--not just testing--in all of our Nation's public schools.

Mr. President, today I am introducing the Close the Enron Loophole Act to help prevent price manipulation and dampen the excessive speculation that have unfairly increased the cost of energy in the U.S.

This legislation is the product of more than 4 years of work examining U.S. energy commodity markets by the Senate Permanent Subcommittee on Investigations, which I chair. That work has shown that U.S. market prices for crude oil, natural gas, jet fuel, diesel fuel and other energy commodities are more unpredictable and variable than ever before, and too often are imposing huge cost increases on the backs of working American families and businesses. The legislation I am introducing today is essential to help ensure that our energy markets provide prices that reflect the fundamentals of supply and demand for energy instead of prices boosted by manipulation or excessive speculation. It is also essential to close an egregious loophole in the law that was championed by Enron and other large energy traders in the heyday of deregulation and that continues to haunt our energy markets and harm American consumers through inflated and distorted energy prices.

The ``Enron loophole'' is a provision that was inserted at the last- minute, without opportunity for debate, into commodity legislation that was attached to an omnibus appropriations bill and passed by Congress in late December 2000, in the waning hours of the 106 Congress. This loophole exempted from U.S. Government regulation the electronic trading of energy commodities by large traders. The loophole has helped foster the explosive growth of trading on unregulated electronic energy exchanges. It has also rendered U.S. energy markets more vulnerable to price manipulation and excessive speculation with resulting price distortions. This legislation is necessary to close the Enron loophole and reduce our vulnerability to manipulation and excessive speculation by providing for regulation of the electronic trading of energy commodities by large traders.

A stable and affordable supply of energy is vital to the national and economic security of the United States. We need energy to heat and cool our homes and offices, to generate electricity for lighting, manufacturing, and vital services, and to power our transportation sector--automobiles, trucks, boats, and airplanes.

Over 80 percent of our energy comes from fossil fuels--oil, natural gas, and coal. About 50 percent is from oil and natural gas. The U.S. consumes around 20 million barrels of crude oil each day, over half of which is imported. About 90 percent of this oil is refined into products such as gasoline, home heating oil, jet fuel, and diesel fuel.

The crude oil market is the largest commodity market in the world, and hundreds of millions of barrels are traded daily in the various crude oil futures, over-the-counter, and spot markets. The world's leading exchanges for crude oil futures contracts are the New York Mercantile Exchange, NYMEX, and the Intercontinental Exchange, known as ICE Futures in London. Futures contracts for gasoline, heating oil, and diesel fuel are also traded on these exchanges. Presently, regulatory authority over the U.S. crude oil market is split between British and U.S. regulators.

Natural gas heats the majority of American homes, is used to harvest crops, powers 20 percent of our electrical plants, and plays a critical role in many industries, including manufacturers of fertilizers, paints, medicines, and chemicals. It is one of the cleanest fuels we have, and we produce most of it ourselves with only 15 percent being imported, primarily from Canada. In 2005 alone, U.S. consumers and businesses spent about $200 billion on natural gas.

Only part of the natural gas futures market is regulated. Natural gas produced in the United States is traded on NYMEX and on an unregulated ICE electronic trading platform located in Georgia. The price of natural gas in both the futures market and in the spot or physical market depends on the prices on both of these U.S. exchanges.

Trading abuses plague existing energy markets. The key federal regulator, the Commodity Futures Trading Commission, CFTC, reports that overall in recent years it has issued several hundred million dollars in fines for trading abuses in the energy markets. Several major enforcement actions are pending.

Since 2001, the Senate Permanent Subcommittee on Investigations has been examining the vulnerability of U.S. energy markets to price manipulation and excessive speculation due to the lack of regulation of electronic energy exchanges under the so called ``Enron loophole.'' Although the CFTC and Federal Energy Regulatory Commission have brought a number of enforcement cases against energy traders, the CFTC's ability to prevent abuses before they occur is severely hampered by its lack of regulatory authority over key energy markets.

The Subcommittee first documented the weaknesses in the regulation of our energy markets in a 2003 staff report I initiated called, ``U.S. Strategic Petroleum Reserve: Recent Policy Has Increased Costs to Consumers But Not Overall U.S. Energy Security.'' The report found that crude oil prices were ``affected by trading not only regulated exchanges like the NYMEX, but also on unregulated `over-the-counter', OTC, markets which have become major trading centers for energy contracts and derivatives. The lack of information on prices and large positions in these OTC markets makes it difficult in many instances, if not impossible in practice, to determine whether traders have manipulated crude oil prices.''

In June 2006, the Subcommittee issued a staff report entitled, ``The Role of Market Speculation in Rising Oil and Gas Prices: A Need To Put the Cop Back on the Beat.'' This bipartisan staff report analyzed the extent to which the increasing amount of financial speculation in energy markets had contributed to the steep rise in energy prices over the past few years. The report concluded that ``[s]peculation has contributed to rising U.S. energy prices,'' and endorsed the estimate of various analysts that the influx of speculative investments into crude oil futures accounted for approximately $20 of the then- prevailing crude oil price of approximately $70 per barrel.

The 2006 report recommended that the CFTC be provided with the same authority to regulate and monitor electronic energy exchanges, such as ICE, as it has with respect to the fully regulated futures markets, such as NYMEX, to ensure that excessive speculation in the energy markets did not adversely effect the availability and affordability of vital energy commodities through unwarranted price increases.

In June 2007, the Subcommittee released another report, ``Excessive Speculation in the Natural Gas Market.'' Our report found that a single hedge fund named Amaranth dominated the natural gas market during the spring and summer of 2006, and Amaranth's large-scale trading significantly distorted natural gas prices from their fundamental values based on supply and demand.

The report concluded that the current regulatory system was unable to prevent these distortions because much of Amaranth's trading took place on an unregulated electronic market. The report recommended that Congress close the ``Enron loophole'' that exempted such markets from regulation.

The Subcommittee's Report describes how Amaranth used the major unregulated electronic market, ICE, to amass huge positions in natural gas contracts, outside regulatory scrutiny, and beyond any regulatory authority. During the spring and summer of 2006, Amaranth held by far the largest positions of any trader in the natural gas market. According to traders interviewed by the Subcommittee, during this period natural gas prices for the following winter were ``clearly out of whack,'' at ``ridiculous levels,'' and unrelated to supply and demand. At the

Subcommittee's hearing in June of this year, natural gas purchasers, such as the American Public Gas Association and the Industrial Energy Consumers of America, explained how these price distortions increased the cost of hedging for natural gas consumers, which ultimately led to increased costs for American industries and households. The Municipal Gas Authority of Georgia calculated that Amaranth's excesses increased the cost of their winter gas purchases by $18 million.

Finally, when Amaranth's positions on the regulated futures market, NYMEX, became so large that NYMEX directed Amaranth to reduce the size of its positions on NYMEX, Amaranth simply switched those positions to ICE, an unregulated market that is beyond the reach of the CFTC. In other words, in response to NYMEX's order, Amaranth did not reduce its size; it merely moved it from a regulated market to an unregulated market.

This regulatory system makes no sense. It is as if a cop on the beat tells a liquor store owner that he must obey the law and stop selling liquor to minors, yet the store owner is allowed to move his store across the street and sell to whomever he wants because the cop has no jurisdiction on the other side of the street and none of the same laws apply. The Amaranth case history shows it is clearly time to put the cop on the beat in all of our energy exchanges.

The Subcommittee held two days of hearings relating to issues covered in its 2007 report. Both of the major energy exchanges, NYMEX and ICE, testified that they would support a change in the law that would eliminate the current exemption from regulation for electronic energy markets, in order to reduce the potential for manipulation and excessive speculation. Consumers and users of natural gas and other energy commodities--the American Public Gas Association, the New England Fuel Institute, the Petroleum Marketers Association of America, and the Industrial Energy Consumers of America--also testified in favor of closing the Enron loophole.

The legislation I am introducing today is intended to end the exemption from regulation that electronic energy trading facilities now have. The bill includes suggestions made by the exchanges, the CFTC, and natural gas users, and I will continue to seek their input as the legislative process moves forward.

Essentially, this bill would restore the CFTC's ability to police all U.S. energy exchanges to prevent price manipulation and excessive speculation from hiking energy prices. In particular, it would restore CFTC oversight of large-trader energy exchanges that were exempted from regulation in the 2000 Commodity Futures Modernization Act by means of the Enron loophole. The bill would require the CFTC to oversee these facilities in the same manner and according to the same standards that currently apply to futures exchanges like NYMEX. Because these energy exchanges currently restrict trading to large traders, however, the bill would not require them to comply with rules applicable to retail trading or trading by brokers on behalf of smaller traders. In all other respects, however, including the rules that create position limits and accountability levels to stop price manipulation and excessive speculation, the bill would apply the same rules to energy exchanges like ICE as currently apply to futures exchanges like NYMEX.

The bill also would require large trades in U.S. energy commodities conducted from within the United States on a foreign board of trade to be reported to the CFTC. This provision is intended to ensure that the CFTC has a more complete view of the positions of U.S. energy traders buying or selling energy commodities for delivery in the United States. This provision could be waived by the CFTC if the CFTC reaches agreement with the foreign board of trade to obtain the same information.

Preventing price manipulation and excessive speculation in U.S. energy markets is not an easy undertaking. I welcome good-faith comments on how this bill can be improved. I want to make it clear, however, that in my opinion the Enron loophole has got to be closed. Recent cases have shown us that market abuses and failures did not stop with the fall of Enron. They are still with us. We cannot afford to let the current situation continue, allowing energy traders to use unregulated markets to avoid regulated markets. It's time to put the cop back on the beat in all U.S. energy markets. The stakes for our energy security and for competition in the market place are too high to do otherwise.

I ask unanimous consent that the text of the bill, a bill summary, and a section-by-section analysis be printed in the Record.

Mr. President, I rise today with Senators Kyl and McCaskill, as well as 12 original cosponsors, to introduce an important piece of legislation, the Medicare Teaching Anesthesiology Funding Restoration Act of 2007. This legislation would restore equitable Medicare reimbursement for teaching anesthesiologists and address our nation's growing shortage of trained anesthesiologists.

As many of my colleagues are aware, in 1991, the Centers for Medicare & Medicaid Services, CMS, rolled out a new rule that singled out academic anesthesiology programs for a 50 percent reduction in Medicare reimbursement when teaching anesthesiologists supervise residents in two concurrent cases. The rule took effect in 1994. No other medical specialties or nonphysician providers were affected by this policy change. In fact, payments to nonanesthesiology teaching physicians continue to be paid using the conventional Medicare Physician Fee Schedule. All teaching physicians, except anesthesiologists, can collect the full Medicare fee for working with one resident and also collect an additional full Medicare fee for working with a second resident on an overlapping case as long as the teaching physician is present during the ``critical and key'' portions of each procedure and is immediately available to return to a case when not physically present.

This arbitrary and unfair payment reduction has had a devastating impact on the training of anesthesiologists across the country, anesthesiologists who we rely on daily for safe surgical procedures, cesarean deliveries during childbirth, emergency and critical care procedures, pain management, and care of our wounded warriors. Because of this policy change, teaching hospitals

receive only half the cost of anesthesiology treatment for Medicare patients. This shortchanges academic anesthesiology programs an average of $400,000 annually, with some programs losing more than $1 million per year. As a result, academic anesthesiology programs have experienced increased difficulty filling faculty appointments and sustaining vital research and development programs. But even more disturbing is the fact that this inconsistent and arbitrary payment policy has forced 28 academic anesthesiology programs to close since 1994, leaving only 129 programs nationwide.

In my home State, we have only one academic anesthesiology program, at the West Virginia University in Morgantown. This program is losing nearly $700,000 per year because of this unfair Medicare payment policy. When you take into account the fact that many private insurance companies follow Medicare's lead on reimbursement, the final dollar impact is even greater. Other departments within the medical school are being called upon to subsidize these losses instead of using their resources to advance important research initiatives or recruit highly qualified faculty.

West Virginia students interested in studying anesthesiology are also at risk. Because this is the only academic anesthesiology program in the State, far fewer West Virginians will have the opportunity to enter the specialty of anesthesiology if this program is forced to close. This will have a direct impact on our State's health care infrastructure because the majority of graduates from West Virginia University's anesthesiology residency program stay in West Virginia. If this program closes, the number of qualified anesthesiologists in West Virginia could plummet, leaving residents with severe access problems for surgery, emergency care, and other high risk procedures.

This is not just a West Virginia problem. This is a national problem with severe implications in every community. Academic anesthesiology programs treat the sickest of the sick, patients with multiple diagnoses, unusual conditions and/or in need of highly complex and sophisticated surgeries. The arbitrary Medicare payment reductions for teaching anesthesiologists could mean that patients of all ages and in all communities could see increased anesthesiology shortages in operating rooms, pain clinics, the military, critical care units, labor and delivery rooms, and emergency rooms.

In order to address this problem, the Medicare Anesthesiology Teaching Funding Restoration Act eliminates the Medicare payment inequity for physicians who teach anesthesiology. It restores Medicare reimbursement for academic anesthesiology programs to the level in existence before 1994 and subjects teaching anesthesiologists to the same ``critical and key'' portion rule as other physicians under Medicare. This payment restoration will provide physician residents with sufficient opportunities to pursue the specialty of anesthesiology. It will also provide patients, especially high risk patients, with continued access to quality anesthesia care when they need it. And, finally, this vital legislation will allow academic anesthesiology programs to continue making advances in patient safety through research and development.

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

Mr. President, today I am pleased to join with Senators Specter and Feingold in introducing the Equal Justice for U.S. Service Members Act. The act would eliminate an inequity in current law by allowing all court-martialed U.S. service-members who face dismissal, discharge or confinement for a year or more to petition the U.S. Supreme Court for discretionary review through a writ of certiorari.

The bill is a simple one, and would do the following: It would allow a writ of certiorari to be filed in any case in which the U.S. Court of Appeals for the Armed Forces has denied review; and it would allow a writ of certiorari to be filed in any case in which the U.S. Court of Appeals for the Armed Forces has denied a petition for extraordinary relief.

All persons convicted of a crime in U.S. civilian courts today, including illegal aliens, and regardless of the crime they may have committed, have an absolute right to petition the U.S. Supreme Court for discretionary review if they lose in the court of appeals. By contrast, however, our men and women in uniform do not share this same right as their civilian counterparts. Our military personnel can apply to our highest court on direct appeal for a writ of certiorari only if the U.S. Court of Appeals for the Armed Forces actually conducts a review of their case, or grants a petition for extraordinary relief. That happens only about 10 percent of the time.

In other words, the other 90 percent of the time, our U.S. servicemembers are precluded from ever seeking or obtaining direct review from the highest court of the country that they fight and die for.

A disparity not only exists between our civilian and military court systems. A similar disparity exists even within our military court system itself. The Government routinely has

the opportunity to petition the Supreme Court for review of adverse court-martial rulings in any case where the charges are severe enough to make a punitive discharge possible. But our military personnel do not share these same rights to petition the Supreme Court as their opponents, even on the other side of the same case.

That is wrong, and this inequity was recently noted by the American Bar Association. At its annual meeting in August 2006, the ABA House of Delegates passed a resolution calling on Congress to fix this long- standing ``disparity in our laws governing procedural due process.''

That is perhaps reason enough to fix this problem, but I also must note that this existing disparity has only become more acute now that Congress has enacted the Military Commission Act. Section 950g(d) of that law, which Congress passed last September, gives the Supreme Court the ability to review by writ of certiorari any final judgment issued by the U.S. Court of Appeals for the D.C. Circuit, in an appeal filed by terrorists and war criminals who get convicted by U.S. military commissions.

So the worst of the worst at Guantanamo will have a right to petition our Supreme Court to hear their case. Yet unless we act, those same Supreme Court doors will continue to be closed to almost all of our U.S. service personnel who would seek direct review in their own highest Court. Even service-members who apprehended those same terrorists, or served in judgment on their military commissions, or who guard them at Guantanamo, will continue to be treated as second-class citizens, deprived of the opportunity to seek Supreme Court review if they ever need it themselves.

Our U.S. service personnel regularly place their lives on the line in defense of American rights. It is simply unacceptable for us to continue to routinely deprive our men and women in uniform of one of those basic rights, the ability to petition their Nation's highest court for direct relief, that is given to all convicted persons in our civilian courts, that is given to their prosecutorial adversaries in our military courts, and that we have now given even to the terrorists we expect to prosecute as war criminals in our upcoming military commission process.

It is time to give equal justice to our U.S. servicemembers. That is what this act does.

I urge my colleagues to support this legislation.

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

Mr. President, today I am pleased to join with Senators Specter and Feingold in introducing the Equal Justice for U.S. Service Members Act. The act would eliminate an inequity in current law by allowing all court-martialed U.S. service-members who face dismissal, discharge or confinement for a year or more to petition the U.S. Supreme Court for discretionary review through a writ of certiorari.

The bill is a simple one, and would do the following: It would allow a writ of certiorari to be filed in any case in which the U.S. Court of Appeals for the Armed Forces has denied review; and it would allow a writ of certiorari to be filed in any case in which the U.S. Court of Appeals for the Armed Forces has denied a petition for extraordinary relief.

All persons convicted of a crime in U.S. civilian courts today, including illegal aliens, and regardless of the crime they may have committed, have an absolute right to petition the U.S. Supreme Court for discretionary review if they lose in the court of appeals. By contrast, however, our men and women in uniform do not share this same right as their civilian counterparts. Our military personnel can apply to our highest court on direct appeal for a writ of certiorari only if the U.S. Court of Appeals for the Armed Forces actually conducts a review of their case, or grants a petition for extraordinary relief. That happens only about 10 percent of the time.

In other words, the other 90 percent of the time, our U.S. servicemembers are precluded from ever seeking or obtaining direct review from the highest court of the country that they fight and die for.

A disparity not only exists between our civilian and military court systems. A similar disparity exists even within our military court system itself. The Government routinely has

the opportunity to petition the Supreme Court for review of adverse court-martial rulings in any case where the charges are severe enough to make a punitive discharge possible. But our military personnel do not share these same rights to petition the Supreme Court as their opponents, even on the other side of the same case.

That is wrong, and this inequity was recently noted by the American Bar Association. At its annual meeting in August 2006, the ABA House of Delegates passed a resolution calling on Congress to fix this long- standing ``disparity in our laws governing procedural due process.''

That is perhaps reason enough to fix this problem, but I also must note that this existing disparity has only become more acute now that Congress has enacted the Military Commission Act. Section 950g(d) of that law, which Congress passed last September, gives the Supreme Court the ability to review by writ of certiorari any final judgment issued by the U.S. Court of Appeals for the D.C. Circuit, in an appeal filed by terrorists and war criminals who get convicted by U.S. military commissions.

So the worst of the worst at Guantanamo will have a right to petition our Supreme Court to hear their case. Yet unless we act, those same Supreme Court doors will continue to be closed to almost all of our U.S. service personnel who would seek direct review in their own highest Court. Even service-members who apprehended those same terrorists, or served in judgment on their military commissions, or who guard them at Guantanamo, will continue to be treated as second-class citizens, deprived of the opportunity to seek Supreme Court review if they ever need it themselves.

Our U.S. service personnel regularly place their lives on the line in defense of American rights. It is simply unacceptable for us to continue to routinely deprive our men and women in uniform of one of those basic rights, the ability to petition their Nation's highest court for direct relief, that is given to all convicted persons in our civilian courts, that is given to their prosecutorial adversaries in our military courts, and that we have now given even to the terrorists we expect to prosecute as war criminals in our upcoming military commission process.

It is time to give equal justice to our U.S. servicemembers. That is what this act does.

I urge my colleagues to support this legislation.

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