ADA Amendments Act of 2008

Mr. President, I ask unanimous consent that the Senate now proceed to Calendar No. 927, S. 3406, a bill to restore the intent and protections of the Americans with Disabilities Act of 1990; that the bill be read three times, passed, and the motion to reconsider be laid upon the table, without intervening action or debate; that upon passage, Senator Hatch and I be recognized to speak for a period not to exceed 40 minutes total.

Mr. President, I ask unanimous consent that the Statement of Managers to Accompany S. 3406, the Americans With Disabilities Act Amendments Act of 2008, be printed in the Record.

Madam President, I am extremely proud to be the chief sponsor of the ADA Amendments Act of 2008, along with the distinguished senior Senator from Utah, Senator Orrin Hatch. This bipartisan legislation will allow us to advance and fulfill the original promise of the Americans With Disabilities Act, which was signed into law 18 years ago.

I am especially grateful to Senator Hatch for his leadership and for his friendship through all these years in helping to craft and move this bill here in the Senate. Senator Hatch was one of the key players in helping get through the original ADA back in 1989 and 1990 when we passed it. And in this effort we have here today, he has become a true partner. I deeply appreciate his willingness to take on this critical role. I think it is safe to say that without the help and intense interest of Senator Hatch on this issue, and especially on the whole ADA process, the bill would not be here today. Again, I am so grateful to Senator Hatch for his friendship and his support through all of this long process.

And it has been a long process. We are not here today because we just met the other day to put this together. It has been a couple of years or more in the making, and at least over a year of very intense negotiations with the business community, the disability community, and others to get to where we are today.

This bill is similar to legislation that was introduced in the other body by the majority leader, Steny Hoyer, and Congressman Jim Sensenbrenner of Wisconsin. That bill passed by a 402-to-17 margin in June, and of course the bill we have here today is going to pass unanimously.

I am also grateful that from the outset these bills have been conceived and crafted in a spirit of genuine bipartisanship, with Members of both parties coming together to do the right thing for Americans with disabilities. Today, we have nearly 80 Senators cosponsoring this bill. Of course, passage of the original ADA was also a bipartisan effort.

As the chief sponsor of that bill in the Senate, I worked very closely with a great number of people on both sides of the aisle, both here and in the administration--Senator Bob Dole, of course, and others on both sides of the aisle. We received invaluable support from then- President George Herbert Walker Bush and key members of his administration, including White House counsel Boyden Gray, who worked so hard to get the original bill through; and Attorney General Richard Thornburgh, who helped us craft the bill and made sure we did it in the right way. Dick Thornburgh was so instrumental in that initial passage, and ever since then, for the last 18 years, I have kept in contact with Attorney General Thornburgh periodically, talking about the ADA, what it was doing, how it was being implemented, and of course because of the recent court decisions, discussing with him how we could get to this point today and have a bill that would overturn those court decisions. Former Transportation Secretary Sam Skinner was very involved in this also.

But I would be remiss if I didn't state forthrightly the one person through all these years who was the key mover of the Americans With Disabilities Act of 1990, without whose leadership we could not have gotten it done, and who enabled this Senator to be the chairman of the Disability Policy Subcommittee and to get this bill moved through both subcommittee and committee. He was there from the very beginning to the end and has never let up in all his years on his interest in and support of legislation that would fully incorporate people with disabilities in all aspects of American life. Of course I speak of Senator Ted Kennedy, the chairman of the HELP Committee, who can't be here with us today. He is at home in Massachusetts recuperating and getting better so he can be here with us next year when we take up

health care reform. But if Senator Kennedy is watching, I wish to say: Ted, this one is for you. We finally got here. We finally got the bill up.

I thank Senator Kennedy for all of his help in the last 2 to 3 years in pulling everything together, and I am going to have more to say about that at the end when I thank all those wonderful staff members who helped. But Senator Kennedy has been there from the beginning, in the 1980s, when we were doing this, and all through the 1990s, to now, and I am sorry he can't be here with us today. I know he is here with us in spirit, and that spirit has been strong to get us to this point today.

I also thank Senator Enzi. Prior to a couple of years ago, he was chairman of the HELP Committee and was also very interested in helping to move this legislation along. Since he has been ranking member, he has also been involved, and his staff involved, in making sure we could get this bill here today.

The fact is that Americans from all walks of life take enormous pride in what we have done in the last 18 years since the passage of ADA. No one wants to go backwards. The ADA was one of the landmark civil rights statutes of the 20th century, a long overdue emancipation proclamation for Americans with disabilities. Thanks to that law, we have removed most physical barriers to movement and access for Americans with disabilities. We required employers to provide reasonable accommodations so people with disabilities could have equal opportunity in the workplace. We have greatly advanced the four goals of the ADA: equality of opportunity, full participation, independent living, and economic self-sufficiency.

I think the triumph of the ADA revolution is all around us. I remember a couple of years ago attending a Washington convention of several hundred disability rights advocates, many with significant disabilities. They arrived in Washington on trains and airplanes and buses built to accommodate people with mobility impairments. They came to the hotel on Metro and on regular buses, all seamlessly accessible by wheelchair. They navigated the city streets equipped with curb cuts and ramps. The hotel where the convention took place was equipped in countless ways to accommodate all manner of people with all kinds of disabilities. There were sign language interpreters on the dais so the people with hearing disabilities could be full participants. And the list goes on and on. In other words, a kind of seamless approach to making sure that anyone could participate regardless of their disability.

For many Americans, these many changes are kind of invisible. We kind of take them for granted. We take curb cuts for granted and ramps, and widened doorways for granted. The fact is, every building--think about this--every building being built in America today is fully accessible, with a universal design. A universal design. Now, these changes may be invisible to most people, but for people with disabilities, they are transforming and liberating. The provisions in the ADA outlawed discrimination against qualified individuals with disabilities in the workplace, requiring employers to provide reasonable accommodations. Again, these are liberating and transforming for people with disabilities.

But despite all this progress over the last 18 years, we have a problem. We have a big problem. And the problem arises because of a series of Supreme Court decisions that have greatly narrowed the scope of who is protected by the ADA. As a consequence, people with conditions that common sense would tell us are disabilities are being told by the courts that they are not in fact disabled and, therefore, not eligible for the protections of the law. For example, in a ruling last year, the 11th Circuit Court concluded that a person with an intellectual disability was not ``disabled'' under the ADA.

When I try to explain to people what the Supreme Court has done, they are shocked. Impairments that the Court says are not to be considered disabilities under the law--at least in some cases--include amputation, intellectual disabilities, epilepsy, multiple sclerosis, diabetes, muscular dystrophy, cancer, and others.

In three decisions on the same day in June of 1999--what we now know as the Sutton trilogy--the Supreme Court held that corrective and mitigating measures must be considered in determining whether an individual has a disability under the ADA. This is in complete contradiction to congressional intent as we expressed in our committee reports.

When we pass laws around here, we don't put every single little thing in the law; we would have huge bills. What we do is we have committee reports and findings to instruct the courts as to what our intent is. We expect the courts to follow them.

In the Senate committee report, here is what we said:

Whether a person has a disability should be assessed

without regard to the availability of mitigating measures,

such as reasonable accommodations or auxiliary aids.

You cannot get much clearer than that. The House report said basically the same thing. It said:

For example, a person who is hard of hearing is

substantially limited in the major life activity of hearing,

even though the loss may be corrected through the use of a

hearing aid. Likewise, persons with impairments, such as

epilepsy or diabetes, which substantially limit a major life

activity are covered under . . . the definition of

disability, even if the effects of the impairment are

controlled by medication.

That was in our report 18 years ago. The Supreme Court ignored that. They ignored it.

In the Sutton case, Sutton v. United Airlines, the Supreme Court held that for persons taking corrective measures to mitigate a physical or mental impairment, the effect of those measures must be taken into account when judging whether a person is ``disabled''--and therefore covered under the law.

That could include anything from visual aids to prostheses.

In Murphy v. the United Parcel Service, the Court applied the same analysis to medication used to treat hypertension, and concluded an employee who was fired because he had high blood pressure and hypertension was not covered because he took medication to alleviate the symptoms. But, again, in our report, as we said before, that should not be taken into account.

In the case of Albertsons v. Kirkingburg--we call it the Kirkingburg case--the Supreme Court went further and declared mitigating measures to be considered in the determination of whether someone is disabled included not only artificial aids such as devices and medications but also subconscious measures that an individual may use to compensate for his or her impairment. What were they talking about? Kirkingburg was an individual who was blind in one eye. Through experience and coping with it, he had been able to compensate for the fact he was blind in one eye. The Court said subconsciously he was able to compensate for that, therefore he must not be disabled. People hear this and they say how could the Supreme Court have decided that?

Last, in another case, the Toyota case, the Court held there must be a ``demanding standing for qualifying as disabled.'' Again, restricted; a demanding standard. We have never said that in the ADA bill. We didn't say that at all.

What has happened is that countless individuals have been excluded from ADA, even though the general rule of all civil rights laws is they should be broadly construed to achieve their remedial purposes, and the ADA is a civil rights statute.

Again, what does all this mean? What this means is the Supreme Court decisions have led to a supreme absurdity, a Catch-22 situation that so many people with disabilities find themselves in today. For example, the more successful a person is at coping with a disability, the more likely it is the Court will find that they are no longer disabled and therefore no longer covered under the ADA. If they are not covered under ADA, then any request that they might make for a reasonable accommodation can be denied. If they do not get the reasonable accommodation, they cannot do their job; and they can get fired and they will not be covered by the ADA and they will not have any recourse.

Let's look at it this way. If you are disabled and you take medication or use an assistive device, then you will be able to do your job, right? If you take the medication, use the assistive device, now you can do your job, but you will not be covered by the ADA.

Therefore, if you ask for a reasonable accommodation, the employer will say: No, you can't do your job, you are fired and, guess what, you go to court and the court will say: You are not disabled, you use an assistive device, you take medication. On the other hand, if you do not take the medication or you do not use an assistive device, you will not be qualified to do the job.

So what is a person with a disability supposed to do? If I use medication or use an assistive device, it enables me to become economically self-sufficient, become independent, become fully integrated in society. If I take medication or use my assistive device I can do that, I can get a job. But then I am no longer covered by ADA, and I can be fired or terminated. I will not get a reasonable accommodation.

You can see what this has done to so many millions of people with disabilities. What am I to do? I want to get a job. But I want the coverage of ADA. But I have to give that up if I use medication or use an assistive device--an absolute absurdity. This is not what I intended. It is not what anyone intended when we passed the ADA 18 years ago.

It boggles the mind that any court would say that multiple sclerosis, muscular dystrophy or epilepsy is not a disability covered by the ADA, but that is where we are today. Think about the troops coming home from Iraq, losing limbs, getting prostheses. The Court might find they are not disabled. If they might need some reasonable accommodations to get a decent job, the Court would find they are not covered by the Americans with Disabilities Act.

As a result, we have to have this bill, and that is what this bill is all about. This bill is about restoring the Americans with Disabilities Act back to where we intended it to be 18 years ago and to give clear directions to the courts about how they should decide these cases. This bill will overturn the so-called Sutton trilogy and Toyota v. Williams and will give clear direction to the courts on exactly what we mean. It will restore the proper balance, it will clarify and broaden the definition of disability, it will increase eligibility for the protections of the ADA.

People who are denied coverage under ADA will now be covered, and we will get rid of that Catch-22 situation that confronts so many people right now with disabilities.

I tell you, this is extremely important in the employment context. According to most recent data, more than 60 percent of individuals with disabilities are not employed. That is shameful, in our society, that we have an unemployment rate among people with disabilities of 60 percent. These are people who want to work, who are capable of work. They want to go out and become fully functioning members of society and contribute to society. All they need is the opportunity.

I can tell you employers find people with disabilities are sometimes the most exemplary of workers. All they need is the opportunity, a reasonable accommodation, and they can do their job. This bill before us today renews our promise to all Americans with disabilities. We basically say we keep the basic language of the original bill, but we also make sure the bill overturns the basis for the reasoning in the Supreme Court decisions--as I said, the Sutton trilogy and Toyota case that has been so problematic.

We clearly state mitigating measures--such as the medication or assistive devices I talked about earlier--are not to be considered in determining whether someone is entitled to the protections of the ADA. No longer is it report language. We put this in bill language so the Supreme Court can't skirt around it again.

The bill will make it easier for people with disabilities to be covered. It expands the definition of disability to include many more life activities, including a new category of major body functions. The latter point is important for people with immune disorders or cancer or kidney disease or liver disease because they no longer need to show what specific activity they are limited in, in order to meet the statutory definition of disability. The bill rejects the current EEOC regulation which says that ``substantially limits'' means ``significantly restricted'' as too high a standard. We indicate Congress's expectation that the regulation be rewritten in a less stringent way and we provide the authority in this bill to do so.

The bill also revives the ``regarded as'' prong of the definition of disability. It makes it easier for those who suffer from discrimination because of a perceived disability to be able to seek relief if they have been fired or subjected to another adverse action. We also say the definition of disability is to be interpreted broadly, to the maximum extent permitted by the ADA.

Again, this bill will give clear direction, of course, as to exactly what we intend: A broad definition, more people covered, and getting rid of that problem of having that Catch-22 situation.

Eighteen years ago, the Americans with Disabilities Act passed with overwhelming bipartisan support, and I am proud to say we have that same level of support today in passing this unanimously. I am grateful for the bipartisan spirit with which we have considered this bill. We have an opportunity to come together to make an important difference for millions of Americans with disabilities.

I might say the bill enjoys strong support in the country. I have a letter I will submit for the Record from over 250 business, faith, disability, labor, and military organizations that support this bill and urge its passage.

Madam President, I ask unanimous consent that letter be printed in the Record at the conclusion of the statements of both mine and Senator Hatch.

The bill is supported by all the national disability organizations as well the U.S. Chamber of Commerce, the National Association of Manufacturers, the Society for Human Resource Management, and the Human Resources Policy Association.

The genesis of the legislation is a result of direct conversations between the disability and business communities that should serve as a model for other legislative efforts.

I wish to say, there were a lot of negotiations that went on between disability groups, the Chamber of Commerce, the Human Resource Policy Association, National Association of Manufacturers, other business groups. They were long. They were involved. They were tough negotiations. There was a lot of give and take. I think that is the way we have to do things.

To those who say we cannot get anything done around here, I point to this bill. We can get things done around here as long as people of good will are willing to work together. It may take a little time. Sometimes good things take a little time. It takes a lot of negotiations, reaching across the aisle, reaching across to one another, and we can reach these kind of agreements. We can move this country forward, and we can make American society more fair and just and accommodating for all.

I have two last things. I wish to take a moment to recognize our veterans with disabilities. This bill we have before us renews our commitment to ensure that all Americans with disabilities, including a new generation of disabled veterans who are just beginning to grapple with the challenges of living to their full potential, despite any limitations imposed by the disabilities, are able to participate to the fullest possible extent in all facets of society, including the workplace. They deserve equality, access, and opportunity.

I would like to submit for the Record a letter from 23 veterans groups supporting this legislation. I ask unanimous consent it be printed in the Record.

I last would like to thank those who helped us get to this day, including those who are no longer with us. My friend, Justin Dart, who was so instrumental in helping us get the ADA passed. We are fortunate that his wife Yoshiko continues to carry on his legacy, day after day, week after week, year after year. Ed Roberts, the father of the Independent Living movement, whose work and vision live on.

And all the disability advocates and people with disabilities who have been so dedicated to the goals of the ADA, without whose hard work and dedicated efforts today would not have been possible--people such as Jim Ward and his family, who dedicated almost 2 years of their lives traveling on a bus around the country to every State, showing people about the importance of restoring the protections of ADA. Bob Kafka of ADAPT, who was so instrumental in passage of the ADA, and who has dedicated his life to fulfilling the goals of the ADA.

I wish to say a special thank-you to Jennifer Mathis of the Bazelon Center for her practical and practiced advice; Sandy Finucane of the Epilepsy Foundation; of course to Andy Imparato of the American Association of People With Disabilities for always being there in that leadership position--for his level-headed leadership, for bringing different groups together, and sometimes that is like herding cats to get all of us together. Andy did a great job in making sure we were always there and making sure we had our conferences and negotiations and keeping us all headed in the same direction. So to Andy Imparato I give my highest thanks and my deepest thanks for all of his helpfulness.

Thanks to Nanzy Zirkin of the Leadership Conference on Civil Rights; and to Professor Chai Feldblum of the Georgetown Law Center for creative and innovative thinking, for always being willing to testify before our committee.

Thanks to Randy Johnson and Mike Eastman of the U.S. Chamber of Commerce; to Mike Peterson of the H.R. Policy Association; to Jeri Gillespie of the National Association of Manufacturers; and to Mike Aitken of the Society of Human Resource Management.

Thanks to our key staff members: Tom Jipping and Chris Campbell of Senator Hatch's staff--great to work with--and Lee Perselay, Beth Stein, and Pam Smith of my own staff. Again, they have worked tirelessly on this day after day.

I wish to thank the House committee staff, Sharon Lewis and Heather Sawyer, and Leader Hoyer's staff, Keith Abouchar and Michelle Stockwell, as well as a wish for them to make quick work of passing this bill when it gets over to the House.

Of course, I also thank the staff of the HELP Committee, the chairman's staff, Michael Myers, Connie Garner, and Charlotte Burrows, and Brian Hayes with Ranking Member Enzi.

I thank my colleagues on both sides of the aisle who have supported this bill in overwhelming numbers and made it possible to pass the bill and hopefully get it signed into law and advance the original intent of the original Americans with Disabilities Act.

You know, there may not be a lot of people here on the floor of the Senate today, but I can tell you, though, throughout the country there are millions of Americans with disabilities who know what we are doing here. They have been told. They know what we have done over the last couple or 3 years to overturn those Supreme Court decisions. They are waiting anxiously for this bill to be passed, for the House to pass it, and for President Bush to sign it into law so that once again they can go out with full knowledge that they are covered by this civil rights bill, that they can go out and seek employment, that they can travel, that they can seek the accommodations that will make them fully functioning members of our society and knowing that they are covered by the law. So there are millions of Americans with disabilities and their families all over this country today who I know are expressing thanks to all the people who have been involved in getting this done. Again, so many are not here with us today. They know what we are doing, and they are anxiously waiting for this to pass and to get it to the President, and hopefully we will get that done--hopefully by next week.

The last thing was--I thanked a lot of people, but I would be remiss if I did not thank the one person who more than any other set my feet on this course many years ago, who taught me a lot about being disabled, and who taught me a lot about discrimination against people with disabilities. And, of course, I speak of my brother, Frank.

He was here when we passed the original ADA, but he has since passed on. But it was my brother who first said to me many years ago when he was sent to the Iowa School for the Deaf--they called it the Iowa School for the Deaf and Dumb--he said, ``I may be deaf, but I am not dumb.'' It was also my brother who one time said to me that the only thing deaf people cannot do is hear. He wanted to do a lot of things in his life, but because of prejudices, because of discrimination, he was held back and discriminated against. I saw it time after time after time. He was able to persevere and carve out a life of independence and dignity for himself, but I often thought, why did he have to do that? I mean, why did it require an extraordinary effort on his part just to be a contributing member of our society, just to enjoy a lot of things we take for granted?

So I thought so much about that. I thought, you know, if I ever got in a position to do anything about it, I was going to do something. Well, as fortune would have it, I was elected to the House and then later elected to the

Senate and found myself as chairman of the Disability Policy Subcommittee under the tutelage of Senator Kennedy. We were able to get the first ADA act passed.

I have to tell you a story here, just talking about discrimination. I was sworn into the Senate in January of 1985. I had my brother, Frank; he along with my whole family was here sitting up there in the gallery right back here. I had provided for an interpreter to interpret for my brother as he was watching the proceedings here on the floor of the Senate. Well, then a policeman came out. Actually, one of my brothers said: The policemen are up there and asked the interpreter to leave because she could not be there. I went up to the gallery. I am about to get sworn into the Senate.

I went up to find out what was going on.

The officer said: We cannot let people up in the gallery stand up and do this interpreting.

I said: Why not?

He said: It is against the rules.

What rules?

Well, it is against the rules.

Well, I was furious. So I came down on the floor, and in 1985, you might remember the Senate majority leader was Senator Bob Dole. So I went right to Dole and I said: Senator Dole, here is my problem. I got my brother up there, and they won't let an interpreter interpret.

He said: Really? Well, I will take care of that.

And he took care of it. He took care of it. So we got an interpreter. Of course, now we have closed captioning and all kinds of things now for Senate activities. But, again, it is just that attitude people have. This was in 1985. That would not happen today. Of course, we have access for people who have mobility disabilities to come in, and we have made the Capitol accessible for people with all kinds of disabilities.

But I relate that story as a way of again thanking my brother, Frank, for setting my feet on this path so many years ago. For me, it has been a labor of love, not without its frustrations, not without saying--one day at the Supreme Court, with Bob Dole by my side, listening to the Supreme Court hand down one of these decisions, I said: What could they possibly be thinking? We went out and talked to the press after, Senator Dole and I did. So it has had its frustrations.

We are not to the promised land yet with 60 percent unemployment among people with disabilities. We have a long way to go. But this, the Americans with Disabilities Act, is the civil rights statute that says to people: You cannot discriminate. Just as we passed the civil rights bills that said: You cannot discriminate on the basis of race or sex or national origin or religion, now you cannot discriminate on the basis of disability either, plus you have to take some other steps; we have to have reasonable accommodations. So this is the civil rights statute that emancipates and frees people with disabilities so they can be fully contributing members of our society.

I close my remarks by thanking the President for her indulgence, the indulgence of other Senators for permitting me to speak for so long. As I said, this, for me, for all of my adult life, is a cause to which I have committed myself, much of my staff, much of our time and effort. I am grateful to the leadership of the Senate, both on the Republican and Democratic side, and again to my great friend and partner Senator Hatch for making it possible for us to bring up this bill today and get it passed unanimously. Unanimously. That is even better than what we did with the ADA. We only had six votes against it in 1990. This is unanimous. I think it sends a clear signal that whether you are Republican or Democratic, it does not make any difference--it does not make any difference, we are going to stand behind people with disabilities. We are going to make sure the ADA takes its rightful place once again as the umbrella civil rights statute for all Americans with disabilities.

I thank all of my colleagues. I look forward to the passage of this bill in the House. I look forward to the President hopefully signing it as early as next week.

August 21, 2008

Exhibit 1

Re: The ADA Amendments Act of 2008

Hon. Tom Harkin,

U.S. Senate,

Washington, DC.

Dear Senator Harkin: The undersigned groups, representing a

broad range of interests, write in support of the ADA

Amendments Act of 2008 (S. 3406). This bill introduced on

July 31, 2008, had 64 cosponsors as of August 1, with 55 of

those joining as original cosponsors.

S. 3406, the ADA Amendments Act, would revise the ADA, in a

manner designed to work for both people with disabilities and

for entities governed under the law. The bill is a result of

sustained efforts between Senators from both sides of the

aisle and intensive and thoughtful talks between

representatives of the disability community and entities

governed by the law. For that reason, we believe that S. 3406

strikes a delicate balance between the needs of individuals

with disabilities and the realities experienced by entities

including employers and public accommodations, which are

covered under the law.

We urge your support in making enactment of S. 3406, the

ADA Amendments Act, a reality as soon as Congress returns to

work in September. We stand ready to work with you towards

that end.

Sincerely,

ABC Business Services, Illinois; Abilities in Motion,

Pennsylvania; ADA Watch/National Coalition for

Disability Rights; ADA Help, Inc., Florida; Air Force

Association; Air Force Sergeants Association; Air Force

Women Officers; Associated Alliance of Disability

Advocates Center for Independent Living, North

Carolina; Alpha-1 Association; Alpha-1 Foundation; ALS

Association; Alzheimer's Association; American

Association for Affirmative Action; American

Association for Respiratory Care; American Academy of

Nursing; American Association of Diabetes Educators;

American Association of People with Disabilities

(AAPD); American Association of University Women;

American Autoimmune Related Diseases Association;

American Bakers Association; American Cancer Society

Cancer Action Network; American Civil Liberties Union

(ACLU); American Composites Manufacturers Association;

American Council of the Blind; American Diabetes

Association; American Federation of Government

Employees--Veterans Council.

American Federation of Labor--Congress of Industrial

Unions (AFL-CIO); I American Federation of State,

County & Municipal Employees (AFSCME); American

Federation of Teachers (AFT); American Foundation for

the Blind; American Foundry Society; American GI Forum;

American Islamic Congress; American Jewish Committee;

American Kidney Fund; American Liver Foundation;

American Lung Association; American Medical Rehabilitation

Providers Association; American Mental Health Counselors

Association; American Physical Therapy Association;

American Psychological Association; American Society of

Employers; AMVETS; ANCOR; Anixter Center, Illinois; Anti-

Defamation League; APEERS (Alternative Peer Edu/Enrichment

Recovery Society), West Virginia; APSE: The Network on

Employment; Arab Anti-Discrimination Committee; The Arc of

Tucson, Arizona; The Arc of the United States.

The Arc of Utah; Arthritis Foundation; ARISE, New York;

Asian American Justice Center; Associated Builders and

Contractors, Inc.; Association of Jewish Family &

Children's Agencies; Association of Programs for Rural

Independent Living (APRIL); Association of University

Centers on Disabilities (AUCD); Asthma and Allergy

Foundation of America; Autism Society of America; The

Autistic Self-Advocacy Network; AZ Bridge to

Independent Living; Bazelon Center for Mental Health

Law; BH Electronics, Inc.; Bimba Manufacturing; B'nai

B'rith International; Brain Injury Association of

America; Breast Cancer Network of Strength; Business

and Institutional Furniture; Manufacturers Association;

Capital Associated Industries, Inc.; Care4Dystonia,

Inc.; Central Conference of American Rabbis; Center for

Women Policy Studies; Children and Adults with

AttentionDeficit/Hyperactivity Disorder; Christopher

and Dana Reeve Foundation.

The Christian Church (Disciples of Christ) in the United

States and Canada; CIGNA Corporation; Coastal Health

District, Georgia; Coleman Global Telecommunications,

LLC; Community Action Partnership; Community Health

Charities of America; Community Resources for

Independent Living, California; Control Technology,

Inc.; COPD Foundation; Council of Parent Attorneys and

Advocates; Council of State Administrators of

Vocational Rehabilitation (CSAVR); Crohn's and Colitis

Foundation of America; Disabled American Veterans;

Disability Policy Consortium, Inc.; Disability Rights

Wisconsin (WI P&A); DTE Energy Company; Easter Seals;

Eastman Chemical; Ellwood Group Inc.; Enlisted

Association of the National Guard of the United States;

Epilepsy Foundation; Evangelical Lutheran Church in

America; Freedom Resource Center for Independent

Living, Minnesota; Freedom Resource Center for

Independent Living, North Dakota; Friends Committee on

National Legislation;

Friends of the National Institute of Dental, and

Craniofacial Research.

Georgia Voice That Count; Granite State Independent

Living; Guide Dog Foundation for the Blind, Inc.;

Hearing Loss Association of America; Hearing Loss

Association of America, Manhattan Chapter; Hearing Loss

Association of America, Mid Hudson Chapter; Hearing

Loss Association of America, North Shore Chapter of

Long Island; Hearing Loss Association of America,

Queens at Lexington; Hearing Loss Association of

America, Western New York Chapter; Heat Transfer

Equipment Company; Higher Education Consortium for

Special Education; Hindu American Foundation; HR Policy

Association; Human Rights Campaign; Huntington's

Disease Society of America; Hydrocephalus Association;

Idaho State Independent Living Council; Illinois

Manufacturers' Association; International Association of

Official Human Rights Agencies; International Franchise

Association; International Paper Company; Iraq &

Afghanistan Veterans of America; Islamic Society of North

America; Japanese American Citizens League; Jewish Council

for Public Affairs.

Jewish Reconstructionist Federation; J.T. Fennell Co.;

Koller-Craft Plastic Products; Lakeside Equipment

Corporation; The LAM Foundation; Lambda Legal; Lawyers'

Committee for Civil Rights Under Law; Leadership

Conference on Civil Rights (LCCR); Learning

Disabilities Association of America (LDA); The Leukemia

& Lymphoma Society; Life, Inc., Georgia; Liz Thurber

Slipcovers; Lupus Foundation of America; The Management

Association of Illinois; Manufacturer & Business

Association (Erie, PA); March of Dimes; Mental Health

America; Michigan Alliance of State Employees with

Disabilities (Michigan ASED); Michigan Chapter of

Paralyzed Veterans; Michigan Rehabilitation

Association; Military Officers Association of America;

Molded Fiber Glass Companies; Monadnock Paper Mills,

Inc.; Motorola; Mullinix Packages, Inc.

Muslim Public Affairs Council; Myasthenia Gravis

Foundation of America; NAACP Legal Defense &

Educational Fund, Inc.; National Advocacy Center of the

Sisters of the Good Shepard; National Alliance on

Mental Illness (NAMI); National Alopecia Areata

Foundation; National Association for the Advancement of

Colored People (NAACP). National Association for Black

Veterans; National Association for Employment of People

who are Blind (NAEPB); National Association for

Uniformed Services; National Association of Councils on

Developmental Disabilities; National Association of

County Behavioral Health and Developmental Disability

Directors; National Association of Governors'

Committees on People with Disabilities (NAGC); National

Association of Human Rights Workers; National

Association of Manufacturers; National Association of

the Physically Handicapped (Manistee County Chapter);

National Association of Social Workers; National

Association of State Directors of Special Education;

National Association of State Head Injury

Administrators; National Association of the Deaf;

National Center for Learning Disabilities (NCLD);

National Congress of Black Women, Inc.; National

Council for Community Behavioral Healthcare; National

Council of Churches in the USA.

National Council of Jewish Women; National Council of La

Raza (NCLR); National Council on Independent Living

(NCIL); National Disability Rights Network (NDRN);

National Down Syndrome Congress; National Down Syndrome

Society; National Education Association (NEA); National

Employment Lawyers Association; National Fair Housing

Alliance; National Family Caregivers Association;

National Federation of Filipino American Associations

(NaFFAA); The National Foundation for Ectodermal

Dysplasias; National Health Council; National Health

Law Program; National Industries for the Blind (NIB);

National Kidney Foundation; National Legal Aid and

Defender Association; National Marfan Foundation; National

Multiple Sclerosis Society; National MS Society, Hawaii

Chapter; National Organization for Women; National

Organization on Fetal Alcohol Syndrome (NOFAS); National

Psoriasis Foundation; National Women's Law Center; Naval

Reserve Association; NCEP Brain Injury Rehabilitation

Program, Nevada.

NETWORK: A National Catholic Social Justice Lobby;

Nevadans for Equal Access, Inc.; New Jersey Protection

and Advocacy; NISH; Non-Commissioned Officers

Association; Northeast Pennsylvania Manufacturers and

Employers Association; Northwestern Mutual; Ohio

Disability Action Coalition; Oregon Family Support

Network; Organization of Chinese Americans;

Osteogenesis Imperfecta Foundation; Our Children Left

Behind; The Paget Foundation; Paralyzed Veterans of

America; Parent Project Muscular Dystrophy; People

Escaping Poverty Project, Minnesota; People First of

Nevada; Portland General Electric; PPG Industries;

Precision Metalforming Association; Presbyterian Church

(USA), Washington Office; Prevent Blindness America;

Reserve Enlisted Association; RESOLVE: The National

Infertility Association.

RTC Paratransit Evaluation Services, Nevada; Roaring

Spring Blank Book Co.; Ryder System, Inc.; SEIU--

Service Employees International Union; Self-Advocacy

Association of New York State, Inc.; Services for

Independent Living, Missouri; Sikh American Legal

Defense and Education Fund (SALDEF); Sjogren's Syndrome

Foundation; Society for Human Resource Management;

Southeast Kansas Independent Living Resource Center,

Inc. (SKIL); Southern Champion Tray LP; Spina Bifida

Association; State of Nevada TBI Advisory Council;

Stuller, Inc.; The Taylor-Winfield Corporation; Teacher

Education Division of the Council for Exceptional

Children; Texas Association of the Deaf; Textile Rental

Services Association of America; Ultra Tech Machinery

Inc.; United Cerebral Palsy; United Cerebral Palsy of

Central Ohio; United Church of Christ, Justice and

Witness Ministries; United Food and Commercial Workers

International Union; United Methodist Church, General

Board of Church and Society.

Union for Reform Judaism; Unitarian Universalist

Association of Congregations; United Jewish

Communities; United Spinal Association; Uniweld

Products Inc.; U.S. Chamber of Commerce; U.S.

Conference of Catholic Bishops; U.S. Psychiatric

Association; U.S. Psychiatric Rehabilitation

Association; US TOO International; Vanamatic Company;

Veterans of Foreign Wars of the United States; Veterans

of Modern Warfare; Vietnam Veterans of America; West

Suburban Access News Association; Wisconsin

Manufacturers & Commerce; Women of Reform Judaism; The

Workmen's Circle/Arbeter Ring; World Institute on

Disability.

I suggest the absence of a quorum.

I thank the chairman for his remarks. And I thank Mr. McKeon for his leadership and willingness to work together on a difficult issue.

I certainly want to acknowledge and thank my friend Jim Sensenbrenner, Congressman Sensenbrenner, who has been chairman of the committee, the Judiciary Committee, who has been a leader in this Congress, and his wife, Cheryl. Cheryl, like the young man we just saw speak, Congressman Jim Langevin, has shown great courage, but also has shown that disability is not disabling; that we ought to look at the ability people have, what they can do, not what they can't do. All of us can't do certain things. I urge people to look at what people can do. And that's what this bill was about in 1990. That's what this bill is about today.

And I am very pleased to be here to speak on behalf of this bill. I think this bill may well pass unanimously, and the public might conclude, therefore, that this was not contentious and difficult, it was both--not contentious in terms of enabling those with disabilities to be fully included in our society, but how to do that; how to do that in the context of making sure that the business community could live with this, that the disabilities community could live with this, and that we did, in fact, accomplish the objectives that we intended.

I want to thank as well the Chamber of Commerce, the National Association of Manufacturers and other business groups who came together with the disabilities community with a common objective. Randy Johnson worked on behalf of the Chamber of Commerce. And Randy Johnson, at a press conference that was held when the Senate passed this bill just a few days ago, said that he was a staffer here in 1988 and '89 and '90 when we passed the Americans with Disabilities Act. And he made the observation that--he sat on the floor, he worked with the leadership on the Republican side and the Democratic side, worked particularly with my friend, Steve Bartlett, Congressman Steve Bartlett from Texas, who was intimately involved in fashioning and working out the compromises necessary to overwhelmingly pass the ADA in 1990. And he said it was clear then that the intent of Congress had been misconstrued by the Supreme Court--this is Randy Johnson, Republican staffer, leader now in the Chamber of Commerce of the United States who helped fashion this bill. And this bill really says, yes, we agree with that in a bipartisan way. The Supreme Court misinterpreted what our intent was. And our intent was to be inclusive.

Civil rights bills are intended to be interpreted broadly. Why? Because we want to make sure that every American has the benefits that America has to offer, the opportunities that America has to offer, and to empower them to help America be a better country, to bring their talents and their skills and their motivation to bear in the public and private sectors.

I want to thank as well Nancy Zirkin, Andy Imperato, my--as I call him my lawyer, Chai Feldblum, who has worked so hard on this for now 20-plus years. It's been 18 years since we passed the ADA, but as Mr. Miller knows, it's been 20-plus years--25 years really--that we've been working on getting to this point.

I also want to thank Mike Peterson of H.R. Policy and Jerry Gillespie of the National Association of Manufacturers.

There are so many people that I could spend the next 5 or 10 minutes mentioning just name after name after name who made this happen. I won't do that, not to diminish them in any way, but to say that this is the result of the efforts of many--not of me, but of many; not of Mr. Miller alone or the ranking member alone or Mr. Sensenbrenner, but many dedicated to this cause.

We are here to build on the accomplishments of the landmark Disabilities Act of 1990. We wouldn't be here at all, however, without the hard work, frankly, of a very close friend of mine, former Member of Congress, Tony Coelho. Tony Coelho had a vision. Tony Coelho suffers from epilepsy. There is nobody who knows Tony Coelho that thinks he is not able to do anything, everything, and all things. Tony Coelho empowered all of us to think larger, to understand how to bring about real change for those with disabilities.

Tony Coelho, an epileptic, was asked to leave the seminary because he had epilepsy because the church concluded he really couldn't do the job. It was the church's loss and our gain. He made a tremendous contribution to this institution. But much more importantly, in

the last some 20 years that he has not been a Member of this institution he continued to make an extraordinary contribution, not just to those with disabilities, but to our society, in expanding our consciousness and inclusion.

And I mention his name, but I also want to thank my friend, Steve Bartlett. Steve Bartlett, Congressman, then the Mayor of Dallas, now in the private sector, but engaged in the eighties and nineties and engaged in the passage of this bill today, was extraordinarily helpful to us. In 1990, the original ADA was the product of the vision of so many.

I also want to thank my former staffer, Melissa Schulman, who worked indefatigably as we passed the ADA in 1990.

When the first President Bush signed the Americans with Disabilities Act 18 years ago, America became the world's leader on this central test of human rights. The ADA was a project in keeping with our oldest principles and founding ideals. As President Bush the first, as I call him, put it at the signing ceremony, and I quote, ``Today's legislation,'' he said, ``brings us closer to that day when no Americans will ever again be deprived of their basic guarantee of life, liberty and the pursuit of happiness.''

Thanks to the ADA, that day became closer on July 26, 1990. Thanks to the passage of this bill today and the signatures Mr. Miller indicated next week, and the expected signatures of the President, with hopefully the first President Bush present, tens of millions of Americans with disabilities will now enjoy even fuller rights, and the rights that we intended them to enjoy when we passed the ADA--the right to use the same streets, theaters, restrooms or offices, the right to prove themselves in the workplace, to succeed on their talent and drive alone.

We've accomplished much in terms of public accommodations, in terms of reasonable accommodations. I was sitting there with Michele Stockwell, my policy director, as we watched Jim Langevin give his speech. What a wonderful accommodation he has in that chair that stands up. Weren't all of you impressed when he said, ``I rise to support this legislation?'' ``I rise.'' And he does rise. Why? Because he has a reasonable accommodation which, notwithstanding the failure of his legs to work the way he would like them to work, his chair reasonably accommodates and has him rise to speak to this body as a testimony to the consciousness of having been raised to make sure that a person like Jim Langevin--of great ability, of great ability, not disability, but of great ability--can come here, having been shot at the age of 16 inadvertently, by accident, disabled, graduated from high school, graduated from college, elected to the Rhode Island House, elected to Secretary of State of his State, and now a Member of this body. What a testimony to making sure that we made sure Jim Langevin could get through the door; we made sure Jim Langevin could get the kind of education he wanted and have access to that education. What a testimony to what this Congress has done, but more importantly, what so many courageous people with a disability have shown us all, that a disability is not disabling. It may rob us of a single or maybe even multiple ways that some people do things, but not of all things.

Sadly, as a result of the Supreme Court's decision, we have yet to live up to our promise fully. That's what we're trying to do today. We've made progress on access, we've made progress on listening devices, a lot of progress. One of the places we haven't made the progress we wanted to was employment. So many people want to work, want to be self-sufficient, want to be enterprising, want to have the self- respect of earning their own way, but have been shut out. And the Supreme Court didn't help us. That's what this bill is about.

Over the last 18 years, the Court has chipped away at that promise and at Congress' clear original intent. We said we wanted broad coverage for people with disabilities and people regarded as disabled. Important phrase, ``regarded as disabled.'' What the Supreme Court really said, well, if you can make sure that your disability does not disable you. Tony Coelho takes medicine for his epilepsy, and so he functions. And if you saw him, you would say he's functioning fine. But if I said, but I won't hire you, Tony, because you have epilepsy, the Court said that was okay. Nobody on this floor believed that was the case. If he was discriminated against because he had a disability but could do the job, we said that's wrong. The Court did not agree with us, and we're now changing that and making sure that our intent will be lived out.

We never expected that the people with disabilities who work to mitigate their conditions would have their efforts held against them, but the courts did exactly that. Those narrow rulings, which will be changed by this legislation, have closed the door of opportunity for millions of Americans. We're here today to bring those millions of our fellow citizens back to where they belong--where we want them, where we need them, under the protection of the ADA.

By voting for final passage of the ADA Amendment Act, we ensure that the definition of disability will henceforth be construed broadly and fairly. We make it clear that those who manage to mitigate their disabilities can still be subject to discrimination; we know that intuitively and practically. This legislation says we know it legislatively. And we recognize that those regarded as having a disability are equally at risk and deserve to be equally protected.

This bill, which was approved by the Senate last week unanimously, has come so close to a signature thanks to the tireless work of the members of the disability community, leaders from both parties and business groups, a coalition as broad and deep as the one that created the original ADA.

I want to recognize the cosponsor of this bill, as I said earlier, Jim Sensenbrenner, tireless in his advocacy, and his wife, Cheryl. I want to thank my good friend Tony Coelho. As I said at a press conference last week, I have served in the Congress for 28 years. There will be a time when I will retire. And I will look back on my career. And one of the proudest achievements I will have is the work that I have done at Tony's insistence and request on behalf of the Americans with Disabilities Act and those who are challenged by being shut out of our society.

Finally, it is my honor to dedicate this bill to a pioneering disability advocate and an inspiration behind the ADA. He is listening to us. He died some years ago. His name was Justin Dart. Justin Dart, like Jim Langevin, was in a wheelchair. It didn't disable him. Indeed, it empowered him. It empowered him to educate all of us. It empowered him to educate those with disabilities as to what they could do and accomplish by their efforts to join together, to educate us and to educate the country. His bride, Yoshiko Dart, carries on that torch.

When Justin Dart spoke last that I heard him at the White House, he said I may not be with you for a long time. But I want you to keep on keeping on. Justin, that is what we do today.

Madam Speaker, Mr. Sensenbrenner and I submit the following regarding S. 3406:

For over a decade, courts have narrowed the scope of the

ADA and have thereby excluded many individuals whom Congress

intended to cover under the law. The unfortunate impact of

too narrow an interpretation has been to erode the promise of

the ADA.

With the passage of the ADA Amendments Act (ADAAA) today,

we ensure that the ADA's promise for people with disabilities

will be finally fulfilled. Our expectation is that this law

will afford people with disabilities the freedom to

participate in our community, free from discrimination and

its segregating effects, that we sought to achieve with the

original ADA.

The House of Representatives passed the ADA Amendments Act,

H.R. 3195, on June 25, 2008, by an overwhelming vote of 402-

17. The purpose of this legislation was to restore the intent

of Congress to cover a broad group of individuals with

disabilities under the ADA and to eliminate the problem of

courts focusing too heavily on whether individuals were

covered by the law rather than on whether discrimination

occurred.

That commitment has now been echoed by passage in the

Senate of the ADA Amendments Act, S. 3406, by unanimous

consent. We welcome the opportunity to pass today the version

of the ADA Amendments Act passed by the Senate, here in the

chamber where it began its journey on July 26th, 2007.

We are particularly pleased with the alliance of business

and disability representatives who came together to work with

us on this bill and support its passage throughout both

houses of Congress. Last January, we personally encouraged

these groups to work together to reach an agreement that

would work well for both people with disabilities and for

entities covered under the law. We are pleased that they have

been able to do so throughout this bill's legislative

process.

H.R. 3195, the ADA Amendments Act passed by the House, and

S. 3406, the ADA Amendments Act passed by the Senate, are

identical in most important respects.

Both H.R. 3195 and S. 3406 contain identical language

concerning mitigating measures, episodic conditions, major

life activities including major bodily functions, treatment

of claims under the ``regarded as'' prong, ensuring

regulatory authority over the definition of disability, and

conforming Section 504 of the Rehabilitation Act to be

consistent with the changes made by the ADAAA.

Hence, the Report of the House Committee on Education and

Labor and the Report of the House Committee on the Judiciary,

as well as our Joint Statement introduced into the

Congressional Record on June 25, 2008, continue to accurately

convey our intent with regard to the bill we are passing

today.

While the intent is the same, as discussed more fully

below, S. 3406 takes a slightly different approach than H.R.

3195. Consequently, we want to make it clear that where the

House Committee Reports and our joint statement used the term

``materially restricts'' to establish points in various

examples, those examples should be read to convey the same

points, and the term ``materially restricts'' should be

understood to refer to the less demanding standard for the

term ``substantially limits'' prescribed by both H.R. 3195

and S. 3406. For example, the statement in the House

Education and Labor Report that ``the Committee expects that

a plaintiff such as Littleton could provide evidence of

material restriction in the major life activities of

thinking, learning, communicating and interacting with

others'' should be understood to mean that the Committee

expects that a plaintiff such as Littleton could provide

evidence of substantial limitation in thinking, communicating

and interacting with others. (See Littleton v. Wal-Mart

Stores, Inc., 231 Fed. Appx. 874 (11th Cir. 2007)).

The key difference between the two bills is that S. 3406

uses a different means to achieve

the same goal that we achieved with H.R. 3195. As we explain

below, we are comfortable accepting this approach.

In H.R. 3195, we achieved this goal by redefining the term

``substantially limits'' to mean ``materially restricts'' in

order to indicate to the courts that they had incorrectly

interpreted the term ``substantially limits'' in Toyota Motor

Mfg. of Kentucky, Inc. v. Williams, and to convey to the

courts our expectation that they would apply a less demanding

standard of severity than had been applied by the Supreme

Court.

Our colleagues in the Senate, however, were uncomfortable

with creating a new term in the statute. Hence, they achieved

the same goal through a different means.

Instead of redefining the term ``substantially limits,'' S.

3406 states that such term ``shall be interpreted

consistently with the findings and purposes'' of the ADA

Amendments Act. This is a textual provision that will legally

guide the agencies and courts in properly interpreting the

term ``substantially limits.'' With regard to the findings

and purposes that the textual provision requires the agencies

and court to use, S. 3406 incorporates all of the findings

and purposes of H.R. 3195, including statements that Congress

intended for the ADA to provide broad coverage and that this

legislation rejects the Supreme Court's decisions in Sutton

and Williams that inappropriately narrowed the scope of

protection of the ADA.

In order to explain how it intended the definition of

``substantially limits'' to be interpreted, the Senate added

findings which highlighted the fact that the Williams

decision placed a too high threshold on the definition of

substantially limits and that the EEOC's interpretative

regulations were similarly drafted or interpreted to create a

burden not contemplated by the Congress. Consistent with

these findings, the Senate added two purposes which directed

the EEOC to amend its regulations to reflect the purposes of

the ADA as amended by the ADAAA and which noted that the

thrust of ADA inquiry should be directed to the compliance

obligations of the covered entities rather than the scope of

the disability experienced by the individual asserting

coverage under the Act.

While we believe that the approach we adopted in H.R. 3195

would have been workable for the courts--i.e., providing a

new definition of ``substantially limits'' in order to convey

to courts our intention that they should apply a lower

standard of severity than they previously had--we accept the

considered judgment of our colleagues in the Senate that

their approach achieves the same end, but in a manner more

suitable to their interests.

S. 3406 also modifies the rule of construction that we had

placed in H.R. 3195. Under the Senate's construction, the

definition of disability ``shall be construed in favor of

broad coverage of individuals under this Act, to the maximum

extent permitted by the terms of this Act.'' We understand

that this provision will have the same meaning as the rule of

construction that we had included in H.R. 3195, but with a

clarification that the courts may not interpret the

definition of disability in a manner inconsistent with the

terms of the ADA. That, of course, is true.

In addition, the changes made by S. 3406 will send an

important signal to the courts. We expect that courts

interpreting the ADA after these amendments are enacted will

not demand such an extensive analysis over whether a person's

physical or mental impairment constitutes a disability. Our

goal throughout this process has been to simplify that

analysis.

With the passage of the ADA Amendments Act today, we

finally fulfill our promise to tear down the barriers of

ignorance and misinterpretation that make up an unpardonable

``wall of exclusion'' against people with disabilities. See

George H. W. Bush, Remarks on Signing the Americans with

Disabilities Act of 1990 (July 26, 1990).

We are grateful to the individuals and advocates who have

worked tirelessly to ensure the civil rights and inclusion of

people with disabilities in every aspect of life. This

includes work during various stages of the bill to bring it

to a successful conclusion.

A large group of individuals worked closely with us as we

developed the second ADA Restoration Act that was introduced

on July 26, 2007:

Tony Coelho, Immediate Past Board Chair of the Epilepsy

Foundation and Former U.S. Representative; Cheryl

Sensenbrenner, Board Chair of the American Association of

People with Disabilities (AAPD); Andy Imparato, AAPD; Sandy

Finucane, Epilepsy Foundation and her lawyers at the

Georgetown Federal Legislation and Administrative Clinic:

Heather Sawyer, Kevin Barry and Chai Feldblum; Jennifer

Mathis, Bazelon Center for Mental Health Law; Abby Bownas and

Shereen Arent, American Diabetes Association (ADA); Curt

Decker and Ken Shiotani, National Disability Rights Network

(NDRN); Arlene Mayerson and Marilyn Golden, Disability Rights

Education and Defense Fund (DREDF); Claudia Center, Legal Aid

Society of CA; Janna Starr, Paul Marchand and Erika Hagensen

of The Arc/UCP Public Policy Collaboration; Denise Rozell,

Easter Seals; Lee Page, Paralyzed Veterans Association; Bobby

Silverstein, Center for the Study and Advancement of

Disability Policy, and John Lancaster, National Council on

Independent Living (NCIL).

In January 2008, we urged representatives from both

communities to sit down with each other and to understand

each other's needs and concerns. We appreciate the leadership

role displayed in these conversations by the following

individuals on behalf of the disability community: Sandy

Finucane, Epilepsy Foundation; Professor Chai Feldblum,

Georgetown Law; Andy Imparato, AAPD; Jennifer Mathis, Bazelon

Center for Mental Health Law; Curt Decker, NDRN; John

Lancaster, NCIL.

We appreciate the leadership role displayed in these

conversations by the following individuals on behalf of the

business community: Randy Johnson and Michael Eastman, U.S.

Chamber of Commerce; Mike Peterson, HR Policy Association;

Jeri Gillespie, National Association of Manufacturers; Mike

Aitken and Mike Layman, Society for Human Resource

Management.

We appreciate the intensive work done by the core legal

team in these discussions, led by Professor Chai Feldblum and

Jennifer Mathis for the disability negotiators, ably assisted

by Kevin Barry, Jim Flug, John Muller and Emily Benfer, and

led by Mike Eastman, Lawrence Lorber, Proskauer Rose, LLP,

and Mike Peterson. We know that this group greatly

appreciated the wise counsel of lawyers from each of their

respective communities as they went through this process,

including Camille A. Olson, Seyfarth Shaw; HR Policy

Association's Employment Rights Committee, chaired by Susan

Lueger of Northwestern Mutual; Kevin McGuiness; and David

Fram, who provided wise counsel for the business community

and Professor Sam Bagenstos; Brian East, Advocacy, Inc.;

Claudia Center, Legal Aid of CA; Shereen Arent, ADA, Arlene

Mayerson, DREDF and JoAnne Simon, who provided wise counsel

for the disability community.

We benefited greatly from the fact that former colleagues

in both Congress and the Administration lent their support to

this effort, including former U.S. Representative Steve

Bartlett, former U.S. Representative Tony Coelho, former

Senator Robert Dole, and former Attorney General Richard

Thornburgh.

We appreciate the personal leadership role taken by Nancy

Zirkin and Lisa Bornstein of the Leadership Conference in

Civil Rights in making this a priority for the civil rights

community.

Finally, at the risk of leaving out some individuals, we

want to recognize some of the additional countless

individuals who helped with educating Members of Congress,

doing important coalition and media work, and providing legal

input on the bill as it progressed through Congress, from its

first stages through the final vote today: Anne Sommers,

AAPD; Angela Ostrom, Donna Meltzer, Hans Friedhoff, Ken

Lowenberg, Kimberli Meadows, and Lisa Boylan, Epilepsy

Foundation; Day Al Mohamed, American Psychological

Association; Deb Cotter, NCIL; Joan Magagna and Ron Hager,

NDRN; Mistique Cano, Maggie Kao and Robyn Kurland, Leadership

Conference for Civil Rights; Peggy Hathaway and Jim Wiseman,

United Spinal Association; Annie Acosta, The Arc/UCP

Disability Policy Collaboration; Lewis Bossing, Bazelon

Center for Mental Health Law; John Kemp, U.S. International

Council on Disabilities; Bebe Anderson, Lambda Legal Defense

Fund; Robert Burgdorf, UDC law professor; Rosaline Crawford,

National Association of the Deaf (NAD); Mark Richert,

American Foundation for the Blind; Eric Bridges, American

Council for the Blind; Jessica Butler, Council of Parent

Attorneys and Advocates; Michael Collins, Julie Carroll and

Jeff Rosen, NCD; Steve Bennett, UCP, Lise Hamlin, Hard of

Hearing Association of America; Laura Kaloi, National Center

for Learning Disabilities; Donna Lenhoff and Gary Phelan,

National Employment Lawyers Association (NELA); Darrin Brown

and Evelyn Morton, AARP; Dan Kohrman, AARP Foundation and

NELA; Katy Beh Neas, Easter Seals; Andrew Sperling, National

Alliance on Mental Illness; Toby Olson, Washington State

Governor's Committee on Disability Issues and Employment;

Myrna Mandlawitz, Learning Disabilities Association; Ari

Ne'eman, Autistic Self Advocacy Network; Shawn O'Neail,

National Multiple Sclerosis Society; Laura Owens; APSE: The

Network on Employment; Cindy Smith, CHADD; Jim Ward, ADA

Watch/National Council on Disability Rights; Nathan Vafaie,

National Health Council; David Webbert, Johnson & Webbert;

Joanne Lin, Michelle Richardson, and Deborah Vagins, ACLU

Washington Legislative Office; Lynne Landsberg and Kate

Bigam, Religious Action Center of Reform Judaism, Amy Rosen,

United Jewish Communities; Elissa Froman, National Council of

Jewish Women; Jayne Mardock, National Kidney Foundation; Jack

Clark and Mark Freedman, U.S. Chamber of Commerce; Tim Bartl,

HR Policy Association; Recardo Gibson, SHRM; Bo Bryant,

McDonald's; Keith Smith, Ryan Modlin and Bob Shepler,

National Association of Manufacturers; Ty Kelley, Food

Marketing Institute; and Jason Straczewski, International

Franchise Association.

Regardless of the work done by advocates, however, it is

ultimately we in Congress who must get the job done. We

applaud the commitment of Congressman George Miller, Chair,

and Congressman Buck McKeon, Ranking Member, Committee on

Education and Labor; Congressman John Conyers, Chair, and

Congressman Lamar Smith, Ranking Member, Committee on

Judiciary; Congressman Jerry Nadler, Chair, and Congressman

Trent Franks, Ranking Member, Subcommittee on the

Constitution, Civil Rights, and Civil Liberties; Congressman

John Dingell, Chair, and Congressman Joe

Barton, Ranking Member, Committee on Energy and Commerce;

Congressman James Oberstar, Chair, and Congressman John Mica,

Ranking Member, Committee on Transportation and

Infrastructure for bringing this bill successfully through

their committees. We applaud our 400 colleagues who voted

with us to pass the ADA Amendments Act this past June and

we applaud the Senate that unanimously passed the ADA

Amendments Act last week.

And, of course, there is no way we could have done all the

work that we did on this bill without the dedicated

assistance of our staff and the staff of the committees. So,

we would particularly like to thank Michele Stockwell, Keith

Abouchar, Michael Lenn, Sharon Lewis, Heather Sawyer, Mark

Zuckerman, Jim Paretti, Ed Gilroy, Brian Kennedy, Paul

Taylor, David Lachmann, Alex, Nock, Thomas Webb, Jody

Calemine, Tico Almeida, Chris Brown, and Ken Serafin.

What really matters, when all is said and done, is the work

done by people with disabilities every day across this great

nation. The passage of the ADA Amendments Act today is

intended to ensure that they receive the simple, basic

opportunity to participate fully in all aspects of society.

We are grateful to have played a role in helping to make that

happen,

Mr. President, I am proud to join my colleagues in introducing the Medical Device Safety Act. This legislation reverses the Supreme Court's erroneous decision in Riegel v. Medtronic. There, the Court misread a statute designed to protect consumers by giving the Food and Drug Administration the authority to approve medical devices as preempting state tort claims when a medical device causes harm. Riegel prevents consumers from receiving fair compensation for injuries sustained, medical expenses incurred and lost wages, and it must be reversed.

Congressional action should be unnecessary. When Congress passed the Medical Device Amendments, or MDA, in 1976, it did so ``[t]o provide for the safety and effectiveness of medical devices intended for human use.'' In other words, Congress passed the MDA precisely to protect consumers from dangerous medical devices. Toward that end, Congress gave the FDA the authority to approve, prior to a product entering the market, certain medical devices. For over 30 years the MDA has been in effect, and over that period FDA regulation and tort liability have complemented each other in protecting consumers.

Given the MDA's purpose, and the fact it has operated successfully for 30 years, I was disheartened to find the Court twist the meaning of the statute to strip from consumers all remedies when a medical device fails. In contorted logic, the Court found that the FDA's requirements in approving a medical device preempted state laws designed to ensure that manufacturers marketed safe devices. In other words, the Court believes that a company's responsibility to its patients ends when it receives FDA approval. I strenuously disagree.

In fact, there is absolutely no evidence that Congress intended that under the MDA, consumers would lose their only avenue for receiving compensation for injuries caused by negligent or inadequately labeled devices. Not a single member or committee report articulated the view that the statute would preempt state tort law.

Nevertheless, because of the Court's decision, it is imperative that Congress act to ensure that those harmed by flawed medical devices can seek compensation. The bill introduced today addresses the Court's action by explicitly stating that actions for damages under state law are preserved. Specifically, it amends section 521 of the Federal Food, Drug, and Cosmetic Act to state that the section shall not be construed to modify or otherwise affect any action for damages or the liability

of any person under the law of any State. And, the bill applies retroactively to the date of the enactment of the MDA, consistent with Congress's intent when it passed that act over 30 years ago. Practically, that means that it applies to cases pending on the date of enactment of this legislation or claims for injuries sustained prior to enactment.

The harm from Riegel, unless Congress acts, cannot be more real. Take Riegel itself. In 1996, Charles Riegel had an angioplasty performed on his right coronary artery. During the procedure, Mr. Reigel's surgeon used Medtronic's Evergreen Balloon Catheter. The catheter burst inside Mr. Reigel's artery, causing him severe and permanent injuries and disabilities.

Under our system of law, when someone is injured, he or she can normally seek redress from the entity that caused him or her harm. Yet, because of the Court's decision, Mr. Riegel and his wife will receive no compensation for the defective design and inadequate warning.

It is not just Mr. Riegel. In 2002, Gary Despain was implanted with a defective hearing aid Soundtec manufactured. While working as a welder, he suffered damage to his right ear, apparently as a result of interference between a magnet in his hearing device and some electronic welding equipment being used in the plant. The device caused severe ringing in his ear, but the labeling for the device failed to warn of this potential risk. Mr. Despain had to have the device surgically removed and he remains unemployed and disabled as a result of the device.

Nevertheless, two weeks after the Court's Riegel decision, Mr. Despain's lawsuit against Soundtec was dismissed and Mr. Despain has no ability to seek remedies for his injuries.

The result of Riegel, therefore, is that in the event the FDA does an inadequate job of inspecting and assuring the safety of medical devices--and because tort actions are now precluded--then consumers are left at extreme risk.

While FDA approval of medical devices, moreover, is important, it cannot be the sole protection for consumers. FDA approval is simply inadequate to replace the long-standing safety incentives and consumer protections that state tort law provides.

As a senior member of the Health, Education, Labor and Pension Committee, which has oversight over FDA, I have worked hard to ensure that the FDA performs its job. No matter how effective the FDA is, however, the FDA simply cannot guarantee that no defective, dangerous and deadly medical device will reach consumers. As the former Director of the FDA's Center for Devices and Radiological Health acknowledged, the FDA's ``system of approving devices isn't perfect, and that unexpected problems [with approved devices] do arise.'' In 1993, a House report identified a ``number of cases in which the FDA [had] approved devices that proved unsafe in use.''

The fact is, the FDA conducts the approval process with minimal resources and simply does not have adequate funds to genuinely ensure that devices are safe or to properly and effectively reevaluate approvals as new information becomes available.

Further, the FDA approval process is based on partial information. A principal shortcoming is that the device's manufacturer compiles the studies and data supporting an application, and the data is often unreliable. And, the FDA does not conduct independent investigations into a device's safety. A manufacturer, moreover, is not required to submit information about development of the device, including alternative designs, manufacturing methods and labeling possibilities that the manufacturer considered, but rejected.

In 1993, an FDA committee found flaws in the design, conduct and analysis of the clinical studies used to support applications that were ``sufficiently serious to impede the agency's ability to make the necessary judgments about [device] safety and effectiveness.'' It added, ``[o]ne of the main reasons [problems arise after approval] is that the data upon which we base our safety and effectiveness decisions isn't perfect.'' Likewise, in 1996, the Inspector General of the Department of Health and Human Services reported ``serious deficiencies . . . in the clinical data submitted as part of pre-market applications.''

FDA review, moreover, is a one-time event with no reevaluation and very little FDA oversight once a device reaches doctors and patients. In fact, even the best-designed and most reliable clinical studies by their very nature cannot duplicate all aspects and hazards of everyday use. Moreover, while manufacturers are supposed to report defects and injuries, the FDA has admitted that there is ``severe underreporting'' of defects and injuries.

Given the FDA's limitations, it is crucial that an individual have a right to seek redress. When defective medical devices reach the market, whether or not approved by the FDA, patients are often injured. Those injured are often left temporarily unable to work or to enjoy normal lives, and in many cases never fully recover. State tort law provides the only relief for patients injured by defective medical devices and should not be foreclosed.

Not only does access to State court mean that a person injured can receive fair compensation, but there are other advantages. Such suits aid in exposing dangers and serve as a catalyst to address their consequences. Through discovery, litigation can help uncover previously unavailable information on adverse effects of products that might not have been caught during the regulatory system. Litigants can demand documents and information on product risks that might not have been shared with the FDA. In this way, the public as a whole is alerted to dangers in medical products.

Finally, providing the ability to sue when injured provides an important incentive to manufacturers to use the utmost care. Additionally, threat of product liability suits creates continuing incentives for product manufacturers to improve the safety of their device, even after FDA approval.

The Court fundamentally misread Congress's intent in passing the Medical Device Amendments in 1976, and Reigel represents yet another victory by big business over consumers. Those injured, however, deserve to have their day in court and are entitled to compensation when they are injured by faulty medical devices, have medical expenses to pay and lost wages, regardless of whether FDA approved a device or not. We must reverse this erroneous decision and ensure that those who have suffered serious injury at the hands of others receive justice.

Mr. President, I am pleased to join with Senators Hatch, Obama, and McCain in introducing the ADA Amendments Act of 2008. This bipartisan legislation will allow us to advance and fulfill the original promise of the Americans with Disabilities Act, which was signed into law 18 years ago this month.

I am especially grateful to the distinguished senior Senator from Utah, Senator Hatch, for his partnership and leadership in helping to craft our bill here in the Senate and to Senator Kennedy for his career-long leadership in fighting for the rights of people with disabilities. Senator Kennedy has worked from the beginning to help craft this bill.

This bill is similar to bipartisan legislation introduced in the other body by House Majority Leader Steny Hoyer and Congressman Jim Sensenbrenner. That bill passed by a 402-17 margin last month.

I am also grateful that, from the outset, these bills have been conceived and crafted in a spirit of genuine bipartisanship, with members of both parties coming together to do the right thing for all Americans with disabilities.

Of course, passage of the Americans with Disabilities Act was also a bipartisan effort. As chief sponsor in the Senate, I worked very closely with Senator Bob Dole and others on both sides of the aisle. We received invaluable support from President George Herbert Walker Bush and key members of his administration, including White House Counsel Boyden Gray, Attorney General Richard Thornburgh, and Transportation Secretary Sam Skinner.

The fact is that Americans of all walks of life take enormous pride in the progress we have made since the ADA was passed 18 years ago. Nobody wants to go backward.

The Americans with Disabilities Act was one of the landmark civil rights laws of the 20th century--a long-overdue emancipation proclamation for Americans with disabilities. Thanks to that law, we have removed most physical barriers to movement and access for more than 50 million Americans with disabilities. We have required employers to provide reasonable accommodations so that people with disabilities can have equal opportunity in the workplace. And we have advanced the four goals of the ADA--equality of opportunity, full participation, independent living, and economic self-sufficiency.

The reach--the triumph--of the ADA revolution struck home to me, some time back, when I attended a Washington convention of several hundred disability rights advocates, many with significant disabilities. They arrived in Washington on trains and airplanes built to accommodate people with mobility impairments. They came to the hotel on Metro and in regular busses, all seamlessly accessible by wheelchair. They navigated city streets equipped with curb cuts and ramps. The hotel where the convention took place was equipped in countless ways to accommodate people with disabilities. There was a sign language interpreter on the dais so that people with hearing disabilities could be full participants.

For those of us who do not have disabilities, these many changes are all but invisible. But for individuals with disabilities, they are transforming and liberating. So are provisions in the ADA outlawing discrimination against qualified individuals with disabilities in the workplace, and requiring employers to provide ``reasonable accommodations.''

But despite this progress, we face a challenge. In recent years, the courts have narrowed the definition of who qualifies as an ``individual with a disability.'' As a consequence, people with conditions that common sense tells us are disabilities are being told by courts that they are not in fact disabled, and are not eligible for the protections of the law. In a ruling last year, the 11th Circuit Court even concluded that a person with an intellectual disability was not ``disabled'' under the ADA.

When I explain to people what the Supreme Court has done, they are shocked. Impairments that the Court says are not to be considered disabilities under the law include amputation, intellectual disabilities, epilepsy, diabetes, muscular dystrophy, and multiple sclerosis.

In three rulings in 1999--Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertson's v. Kirkingburg--the Court held that corrective and mitigating measures must be considered in determining whether an individual has a disability under the ADA.

In Sutton, the Supreme Court held that if a person is taking corrective

measures to mitigate a physical or mental impairment, the effects of those measures must be taken into account when judging whether a person is ``disabled.'' Corrective measures could include anything from visual aids to a prosthesis. The Court went on to say that the approach adopted by the Equal Employment Opportunity Commission--that persons are to be evaluated in their hypothetical uncorrected state--was an impermissible interpretation of the ADA.

In Murphy, the Court applied the same analysis to medication used to treat hypertension, and concluded that an employee who was fired because he had hypertension was not protected under the ADA, because medication alleviated some of his symptoms.

In Kirkingburg, the Supreme Court went further and declared that mitigating measures to be included in the determination of whether someone is disabled included not only artificial aids such as devices and medications, but also subconscious measures an individual may use to compensate for his or her impairment. Kirkingburg was an individual who was blind in one eye, and the court found that he was not ``disabled'' under the ADA.

Moreover, in another Supreme Court case, Toyota v. Williams 2002, the Court held that there must be a ``demanding standard for qualifying as disabled.'' This too, has resulted in a much more restrictive requirement than Congress intended. It has had the effect of excluding countless individuals with disabilities from the protections of the law.

Together, these Supreme Court cases have created a supreme absurdity: The more successful a person is at coping with a disability, the more likely it is for a court to find that they are no longer sufficiently disabled to be protected by the ADA. And if these individuals are no longer protected under the ADA, then their requests for a reasonable accommodation at work can be denied. Or they can be fired--without recourse.

Think about it this way: Imagine that you are an individual with a disability who has a job. Due to your disability, you take some medication or maybe you use an assistive device. The use of the medication or the assistive device allows you to be qualified to do your job. It's a job that you really love. At some point, you need to request a reasonable accommodation from your employer--maybe, if you have diabetes, it is 10 minutes a day to take your insulin and check your blood levels.

Or perhaps you use a prosthesis. Your employer says no, they don't want to give you an accommodation. Eventually you get fired as a result. When you go to court, your employer argues that you aren't really a person with a disability so you aren't entitled to the protections of the ADA. Then, under these Supreme Court cases, the employer prevails by convincing the court that because of the mitigating measure--the prosthesis--you can't meet the test of being ``disabled'' under the law.

So what are you supposed to do in these cases? If you don't take the medication or use the assistive device, then you are not qualified to do the job. On the other hand, if you stop taking the medication, or stop using your prosthesis, you will be considered a person with a disability under the ADA, but you will be unable to do your job.

What would you do? This is the Catch 22 situation that, today, confronts countless people with disabilities. This is clearly not what I intended, or what Congress intended, when we passed the ADA in 1990.

It boggles the mind that any court would rule that, for instance, multiple sclerosis or muscular dystrophy, is not a disability covered by the ADA. But that is where we are today. And that is why we are introducing this bill today.

This Senate bill builds on the success of the House bill. However, it seeks to broaden the definition of disability in a way that maximizes bipartisan consensus and minimizes unintended consequences.

Our bill leaves the ADA's familiar disability definition language intact: A person with a disability is one who has a physical or mental impairment that ``substantially limits'' one or more of the major life activities of the individual. It does not substitute the term ``materially restricts'' as in the House bill. Instead, the bill takes several specific and general steps that, individually and in combination, direct courts toward a more generous meaning and application of the definition.

This bill will overturn the basis for the reasoning in the Supreme Court decisions--the Sutton trilogy and the Toyota case--that have been so problematic for so many people with very real disabilities.

This bill fixes the ``mitigating measures'' problem by clearly stating that mitigating measures--like the medication or assistive devices I talked about earlier--are not to be considered in determining whether someone is entitled to the protections of the ADA.

This bill will make it easier for people with disabilities to be covered by the ADA because it effectively expands the definition of disability to include many more major life activities, as well as a new category of major bodily functions. This latter point is important for those with immune disorders, or cancer, or kidney disease, or liver disease, because they no longer need to show what specific activity they are limited in, in order to meet the statutory definition of disability.

This bill rejects the current EEOC regulation which says that ``substantially limits'' means ``significantly restricted'' as too high a standard. We indicate Congress's expectation that the regulation be rewritten in a less stringent way, and we provide the authority to do so.

This bill revives the ``regarded as'' prong of the definition of disability, and makes it easier for those with physical or mental impairments to be able to seek relief if they have been subjected to an adverse action because of their disability.

This bill has a broad construction provision which instructs the courts and the agencies that the definition of disability is to be interpreted broadly, to the maximum extent permitted by the ADA.

Mr. President, 18 years ago, the Americans with Disabilities Act passed with overwhelming bipartisan support. Likewise, today, with the introduction of this bill, we are building a strong bicameral, bipartisan majority to support the ADA Amendments Act of 2008.

Let me say, again, that I am grateful for the bipartisan spirit with which we are approaching this legislation. We have an opportunity to come together and make an important difference for millions of Americans with disabilities.

This bill also enjoys strong support out in the country. It is supported by most national disability organizations, as well as the U.S. Chamber of Commerce, the National Association of Manufacturers, the Society for Human Resource Management, and the Human Resources Policy Association.

I look forward to working with my colleagues on both sides of the aisle to pass this bill, and to advance and fulfill the original promise of the Americans with Disabilities Act.

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

Mr. President, today I rise to introduce the FDA Food Safety Modernization Act.

Yesterday, the Food and Drug Administration, which is responsible for ensuring the safety of about 80 percent of our food supply, announced that it was one step closer to pinpointing the source of the current Salmonella Saintpaul outbreak. At first we were told tomatoes were the culprit. Then tomatoes were exonerated and jalapeno

peppers in south Texas were to blame. Now FDA is saying it has discovered a strain of the bacteria in Serrano peppers from a farm in Tamaulipas, Mexico.

In the meantime, over three months have passed since the first reported case. At least 255 people have been hospitalized and two have died because of the outbreak. The tomato industry faces tens of millions of dollars in losses and a loss in consumer confidence. Some estimate that the economic impact may be as much as $100 to $500 million.

Over the last couple of years we have seen news headlines about E. coli in spinach, pet food spiked with melamine, Salmonella-tainted peanut butter, and now contaminated peppers. It's clear that these are not isolated cases but the product of a food safety system that is outdated, under-funded, and overwhelmed. Some of our most important food safety statutes date back to the early 1900s. Standards have not been updated. The budgets of the agencies that act as watchdogs over the system have eroded. We import more of our food than ever but we don't have the systems in place to make sure this food is as safe as it could be. All these shortcomings put consumers at unnecessary risk.

FDA is struggling to keep up. There are holes in its ability to protect consumers from unsafe foods. For example, the Consumer Protection Safety Commission, the EPA, and even FDA with respect to infant formula all have recall authority. But FDA is unable to pull any other contaminated food off the shelf when the company that makes it will not. FDA can suggest a recall and most of the time companies comply. But there are always bad actors and sometimes companies choose not to recall their products because they are afraid of upsetting consumer confidence or losing market share. In this case, FDA's hands are tied.

These are significant gaps in our food safety system that need to be addressed. We can and should do better.

That is why I am pleased to introduce The FDA Food Safety Modernization Act, along with Senators Gregg, Dodd, Burr, Harkin, and Alexander. This bill is a comprehensive, bipartisan effort that addresses some of the weaknesses in FDA's authorities and resources and updates food safety standards to make important improvements in our current food safety system. The bill includes a number of important preventive measures, such as increasing the frequency of FDA inspections of food facilities, especially high-risk facilities; directing FDA to set standards for fresh produce; and requiring the food industry to control hazards in the food supply chain. It also enables FDA to more effectively respond to an outbreak by giving the agency new authorities to order recalls, shut down tainted facilities, and access records to track and trace food.

The food industry is one of the most important sectors of our economy, generating more than $1 trillion annually in economic activity and employing millions of American workers. Food is also a deeply personal experience, a part of our daily lives and our traditions and culture. For far too long Congress has gone without a comprehensive review of our food safety laws. As long as we continue to do nothing, we will pay the price for an outdated and ill-equipped food safety system.

I thank Senators Gregg, Dodd, Burr, Harkin, and Alexander for joining me in crafting this bill and urge my colleagues to support.

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

Mr. President, I rise today to introduce the Student Voter Opportunity to Encourage Registration Act of 2008--the Student VOTER Act.

The success of America's experiment in democracy lies in broad participation and deep civic engagement. From the Reconstruction Amendments, to women's suffrage, to the abolition of the poll tax, and finally the ratification of the 26th amendment, we have witnessed a steady but difficult march toward a more inclusive nation.

To realize the full potential of these great strides, the Student VOTER Act provides a pathway to participation for America's youth.

The need for this bill is clear. Despite a small rise in youth voting in the current Presidential election cycle, the larger trend is unmistakable. Young voters--historically independent-minded--are far less likely to cast a ballot than older voters. In the 2004 Presidential election, only 47 percent of 18 to 24-year-old citizens voted, compared to 66 percent of citizens 25 and older. This marked the eighth straight Presidential contest in which less than half of these young Americans actually participated. In fact, the percentage of young Americans who vote today is lower than it was in the first Presidential election following the 26th amendment's ratification.

Several obstacles stand in the way of youth voting. Because so many students are first-time voters, they often are unfamiliar with how to register. In some States, first-time voters must register in person in order to cast an absentee ballot. For students who attend college outside of their home State or who do not have access to transportation, these requirements can be cumbersome, confusing, and insurmountable.

Of course, apathy contributes to the fact that young voters tend to stay home on election day. But studies show that when an effort is made to reach out to young voters, they will cast a ballot. If we fail to reach out to the youth, we may lose a generation of civically minded Americans.

Congress already tried to encourage youth voting with a provision in the Higher Education Act of 1998, which requires colleges and universities to make a ``good faith effort'' to register students to vote. Many universities fulfill that obligation. For example, even before orientation begins, Brown University in Providence provides its students with voter registration materials not only for Rhode Island but also for each student's home State.

Unfortunately, too many colleges and universities have failed to follow Brown's lead. According to a 2004 Harvard University study, only 17 percent of colleges and universities nationwide fully comply with the Higher Education Act. The health of our democracy suffers as a result.

The Student VOTER Act offers a straightforward solution: it requires colleges and universities that receive Federal funds to offer voter registration services to students. The Student VOTER Act simply amends the National Voter Registration Act of 1993, popularly known as the Motor Voter Act, to designate colleges and universities that receive Federal funds as voter registration agencies.

That designation is fitting. Our institutions of higher education are among the wealthiest in the world, and they lead the globe in producing Nobel laureates and scientific breakthroughs. But colleges and universities also have a special obligation to educate an active, informed citizenry.

The act does not impose a heavy burden on colleges and universities. We know this because the Student VOTER Act builds on the successful model of the Motor Voter Act, which brought voter registration to DMV offices across the country, adding 5 million voters--mainly independents--to the rolls in the 8 months after its passage. While some DMV offices simply mail completed registration forms to the appropriate clerk or registrar, others now use efficient, easy-to-use computer software to submit registrations electronically.

This means that the price tag of the Student VOTER Act to colleges and universities is at most a 42-cent stamp for each student. I know most of my fellow Senators would agree that this is not too high a price to pay for a lifetime of civic engagement.

In reality, costs should be even lower. Colleges and universities can provide voter registration services at student orientation or during class registration using the same technology that DMV offices already have implemented.

Like the Motor Voter Act, this bill should pass with broad bipartisan support. It is a low-cost, commonsense solution to the very real problem of low youth voter turnout. It represents a natural but modest extension of the Higher Education Act and the Motor Voter Act without changing or amending any other State or Federal voting regulations in any way.

The bill may also serve to depoliticize voter registration efforts on college campuses. Polls consistently show that young voters are less likely to identify with a political party than older voters. Polls generally show that more than 4 in 10 young voters identify as independents, with roughly 3 in 10 young voters identifying with each of the two major political parties. In a July 30, 2008 letter sent to Congress in support of this bill, the U.S. Student Association explained that under the present system, ``partisan student groups often become the main voter registrants, which can alienate undecided and independent voters. The Student VOTER Bill of 2008 seeks to institutionalize the dissemination of voting procedure and register more young people in a systematic and non-partisan capacity.''

In addition to the U.S. Student Association, this bill is supported by U.S. PIRG and the Student Association for Voter Empowerment, SAVE. In particular, I would like to recognize Matthew Segal, SAVE's founder and a Chicago native, with whom my office worked closely to prepare this bill.

I would also like to applaud the efforts of Representative Jan Schakowsky, a Democrat, and Representative Steven LaTourette, a Republican, who will introduce a companion bill today in the House of Representatives. The Student VOTER Bill of 2008 is a bipartisan effort that is an important step toward empowering our Nation's youth. I look forward to working with my Democratic and Republican colleagues in Congress to ensure its enactment into law.

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

Prescription drugs can restore health, prevent illness, and extend lives. But deciding whether to prescribe a drug, and which one, requires a careful balancing of potential benefits, risks, and costs.

Prescribing should not be determined by how heavily a drug is promoted by a pharmaceutical company. Sadly, this is largely what happens today.

Our health care system does not generate objective, easy-to-access information for doctors to guide them when it comes to prescribing options.

New drugs are constantly entering the marketplace, but there's very little objective information about what drug might be marginally safer or more effective than existing drugs.

Even the most vigilant doctors would be challenged to monitor the dozens of medical journals that could contain a helpful study comparing the safety and effectiveness of drugs.

The pharmaceutical industry has taken advantage of this information void.

It spends about $7 billion a year marketing to physicians and sends over 90,000 sales representatives, called detailers, to pitch their company's latest and most expensive drugs.

What the drug industry is doing is not education. It is promotion. And there's a big difference between the two.

The drug company sales representatives are hired more for their charisma than their scientific knowledge, and they provide doctors with information skewed to portray their company's product in the most favorable light.

The sales representatives arrive with free lunches and free drug samples. Lucrative speaking and consulting fees are possible for doctors who change their prescribing to the liking of a drug company.

The consequence of such a system is clear: an over-reliance on prescribing the latest, most expensive drugs even when existing drugs are as effective, as safe, or cost less.

The pain-reliever Vioxx provides a cautionary tale of what can happen when marketing prowess trumps evidence-based medicine.

Heavy marketing quickly made Vioxx a blockbuster drug with $3 billion a year in sales, despite a lack of evidence that it could provide any greater pain relief for most patients than Advil and despite early indications that it increased the risk of heart attacks. Many Americans needlessly paid more and placed themselves at risk because the benefits of Vioxx were oversold and the risks minimized.

Another example is the marketing of calcium-channel blockers in 1990s. Heavy marketing increased the sales of the new patent-protected calcium-channel blockers but decreased sales of other blood-pressure drugs, such as thiazide diuretics and betablockers, that were cheaper and often more effective.

A more recent example is the cholesterol drug Vytorin. The new drug has been heavily marketed since it was introduced in 2004. But a study released earlier this year did not find that Vytorin was any better at limiting plaque buildup in the arteries than Zocor, an older cholesterol drug that recently came out in a lower-priced generic form.

We have to find a better way to educate physicians about prescription drug options and fill the void of medical information that the drug industry is now taking advantage of.

Part of the solution is academic detailing, an idea first developed by Jerry Avorn, a physician at Harvard Medical School and Brigham and Women's Hospital in Boston.

Academic detailing programs use some of the marketing tools that the drug industry has used so effectively, such as office visits to physicians and easy-to-read materials, but employs them to promote appropriate prescribing, based on an objective analysis of the medical literature.

These programs--which send trained nurses and pharmacists, armed with unbiased information, to doctors' office--have been shown to generate $2 in savings for every $1 that it costs to implement them.

Pennsylvania's PACE program is the State's pharmacy assistance program for low- and moderate-income seniors, and it runs the most notable publicly funded academic detailing program.

The PACE academic detailing program has reduced costs associated with the overuse of Nexium, an acid-reflux drug for which there are similar lower-cost alternatives, and reduced the use of Cox-2 inhibitors such as Vioxx.

Today, I am joining Senator Kohl and Senators Kennedy and Casey in introducing legislation that would promote additional academic detailing programs.

The Independent Drug Education and Outreach Act would provide funds to medical schools, schools of pharmacies, and others for the development of educational materials based on what unbiased, peer- reviewed medical literature says about appropriate prescribing for a particular condition.

The bill also would provide funds to ten governmental or non-profit groups to train nurses and pharmacists and to send them to physician offices to present and discuss this information directly with physicians.

The bill includes protections against financial conflicts of interest and calls on the Agency for Health Care Research and Quality to review the accuracy of the information provided to doctors.

The Independent Drug Education and Outreach Act would begin to fix one of the glaring shortcomings of our current health care system: the lack of a systematic way of disseminating information on the relative benefits, risks, and costs of various treatment options directly to doctors.

When it comes to prescription drugs, newer isn't necessarily better. In many cases, they are not.

We can no longer afford to rely on drug company salespersons to be doctors' primary source of information about new drugs.

I urge my colleagues to support this bill.

Mr. President, today I rise with my good friend Senator Ensign to introduce the Carson City Vital Community Act of 2008.

The origins of this legislation can be found in Carson City's collaborative master planning effort, ``Envision Carson City.'' In 2004, the elected officials in Carson City started a dialogue with their citizens to determine how the city should grow and change over the next 20 years. At the end of a 2-year public process, city leaders had a clear message from their residents. The community wants to keep growth compact, maintain the integrity of the Bureau of Land Management (BLM) and Forest Service lands surrounding the town, enhance open space opportunities and maintain easy access to public lands. The Carson City Vital Community Act of 2008 was developed in close partnership with Carson City and other key stakeholders to help fulfill these goals.

Before I describe this legislation and its importance, it might be helpful for me to explain that Carson City is both a city and a county. It wasn't always this way. For over a hundred years the town of Carson City was the county seat of Ormsby County. But in 1969 the county dissolved and the government functions were consolidated into what we now simply call Carson City.

Like all but one of our counties in Nevada, Carson City is mostly Federal land. The town of Carson City is bounded on the west by Forest Service lands that stretch to the shores of Lake Tahoe and by BLM lands on the east. These open landscapes create a dramatic western backdrop for Nevada's State capital but also mean that the Federal Government is intimately involved in what would normally be local community decisions.

This legislation makes much needed adjustments to the pattern of Federal land ownership in Carson City. We have strived to make changes that will improve the ability of the Federal land management agencies to focus on their core goals. All too often, the BLM and the Forest Service are distracted from proper forest and range management by urban encroachment issues. We have a unique situation in Carson City where the community has offered to take on the responsibilities of managing the wildland-urban interface, while also offering to convey a major inholding to the Forest Service for incorporation into the Humboldt- Toiyabe National Forest. This is a major step in the right direction and hopefully will serve as a model for other communities around the west.

Our legislation also provides lands to the Washoe Tribe, strengthening the Tribe's conservation and commercial efforts in Carson City. Additionally, nearly 20,000 acres of BLM lands surrounding Carson City will be permanently withdrawn from future develop to protect local viewsheds and public access. All of these actions will move Carson City one step closer to realizing the vision that it worked hard to develop through a public process that has now spanned over four years.

Title I of this legislation aims to create a sensible land ownership pattern in Carson City, aligned with the community's vision of keeping growth compact and maintaining the integrity of the surrounding public lands. It also addresses two serious concerns facing the community: wildfires in the foothills of the Sierras and flooding along the Carson River.

Under this title, roughly 2,200 acres of Carson City land will be transferred to the Forest Service. This prime, forested land is far removed from Carson City and is surrounded by state park lands and the Humboldt-Toiyabe National Forest. Incorporating this large inholding into the Humboldt-Toiyabe will allow for improved management for wildlife habitat, watershed protection, and other important uses. It will also ensure that the land remains undeveloped and open for public access.

This title also makes important adjustments to the pattern of city and Federal lands on the west side of the town. Roughly 1,000 acres of Forest Service land bordering urban areas will be conveyed to Carson City as protected open space. This conveyance will let both Carson City and the Forest Service do what they do best. Carson City can more actively manage urban interface uses and the Forest Service can focus on their core responsibilities of resource protection and forest health.

Proper management of this buffer area between Carson City's neighborhoods and businesses and the broader public lands is an issue of great concern to the community. On July 14, 2004, thirty-one homes and three businesses were destroyed or damaged in the Waterfall Fire which spanned nearly 9,000 acres of public and private land. Through our legislation, the Forest Service land that currently borders neighborhoods will be conveyed to Carson City, allowing the city to take a more prominent role in managing fuel loads in this critical area.

There is a different threat on the east side of Carson Valley. The Carson River has a long history of dramatic flooding. Over the last 150 years the river has flooded over 30 times, with half of those floods causing extensive damage. Two 100-year flood events have struck just in the last decade, one of which caused over $5 million in damage. In a show of real vision and leadership, Carson City has started an aggressive campaign to acquire land along the Carson River, recognizing the value of protecting the natural function of the local floodplains.

Our legislation will enhance Carson City's efforts to acquire lands in the river corridor by conveying the 3,500-acre Silver Saddle Ranch and Prison Hill area from BLM to the city. Transferring these properties to Carson City will help create a large regional park along the Carson River, support the community's flood control efforts and address the community's call for open space. The city has been a key partner in the management of the Silver Saddle Ranch for over a decade. Along with the Friends of Silver Saddle, Carson City has taken the lead on the day-to-day management of the property, including providing law enforcement patrols and caring for facilities.

It is important to note that when this land is conveyed to the city it will come with conditions. The Federal Government will hold a conservation easement on these parcels to ensure that the scenic and natural qualities of the Silver Saddle Ranch and Prison Hill are protected in perpetuity. The details of the conservation easement, which will focus on protecting the river corridor and the important wildlife habitat associated with the property, will be worked out by BLM, Carson City and key stakeholders like Friends of Silver Saddle and The Nature Conservancy.

In addition to supporting Carson City's forward-looking plans for the Carson River and its floodplain, conveying the Silver Saddle and Prison Hill area to Carson City also makes sense from a resource management perspective. BLM's Carson City District Office manages over 5 million acres of public land in western Nevada and eastern California. Their strength is managing Nevada's wide open spaces--not urban interface. Carson City, on the other hand, has far more resources to bring to bear in managing the Silver Saddle Ranch and Prison Hill area. Carson City has over 20 employees working on parks and open space, including two park rangers. They also have contracts in place with some of Nevada's most respected natural resource experts. The BLM will also keep a light hand in the management of this property by virtue of the conservation easement.

There is one unique provision related to the Silver Saddle Ranch and Prison Hill conveyance that deserves special mention. A small section of this land was once owned by Carson City. This 62-acre property, known as the Bernhard parcel, was slated to be subdivided into 35 home sites in 2001. The BLM and Carson City both recognized that the acquisition of this land was a priority for the protection of the Carson River corridor. Carson City responded quickly and acquired the parcel for open space before it could be developed. Their purchase price in 2001 was roughly $1 million. Later, in 2006, the BLM purchased the Bernhard parcel from Carson City for fair market value, which by that time had reached $2.5 million.

Under this legislation, we transfer the Bernhard parcel back to Carson City as part of the Silver Saddle Ranch and Carson River Area. We feel it is important that Carson City pay back 25 percent of the $1.5 million profit they made on their transaction with the

BLM. Why just 25 percent? The 25 percent reflects the remaining value of the land that is being conveyed back to Carson City after the conservation easement is taken into account. In western Nevada, conservation easements restricting development typically reduce property values by anywhere from 75 percent to 90 percent. We have required Carson City to come up with 25 percent, the most generous estimate of remaining value for the Bernhard parcel. When received, these funds will be placed into an endowment account for the BLM to use for the monitoring and enforcement of the conservation easement on the Silver Saddle Ranch and Prison Hill Area.

Our legislation also conveys roughly 1,700 acres of BLM land to Carson City for recreation and public purposes and open space. These are scattered parcels of BLM land in and around Carson City that would be used for primarily for parks, but also for flood control structures, municipal infrastructure like water tanks, and to give residents room to roam. Carson City already controls roughly a third of these acres through Recreation and Public Purpose Act leases. This bill would quickly and efficiently transfer these lands to the city.

Another provision of Title I deals with 53 acres of land that Carson City acquired from BLM years ago, under the Recreation and Public Purposes Act. The city now believes the land is better suited for commercial development. Although Carson City already owns these lands, by statute, if the city uses the land for something other than public purposes, the land reverts back to the BLM. Our legislation would remove the reversionary interest on these 50 acres so that Carson City can sell the land at an appropriate time. If the City decides to sell the land, we require that it be auctioned, with proceeds returning to the Carson City special account which provides funding for federal acquisition of sensitive lands and protection of noted cultural resources.

One of the parcels where the federal interest would be released is home to the Carson City Gun Club. Once on the edge of town, the shooting range is now surrounded by commercial development and the Eagle Valley Golf Course. Although our legislation would allow Carson City to sell this land, we have asked for and received a commitment that Carson City will not sell this property until the shooting facility has been relocated to another, more appropriate location.

The first title of our legislation also transfers 50 acres of Forest Service land to the BLM. The Forest Service is also authorized to develop and implement, in partnership with Carson City, a plan for managing its land in a way that minimizes the impact of flood events on nearby residential areas.

Under Title II, 150 acres of federal lands would be made available for sale through an open and competitive process. This includes the 50 acres transferred from the Forest Service to the BLM in Title 1. All of the lands identified for sale in our legislation are isolated or seriously impacted by nearby commercial or residential development. Both agencies have concluded that these parcels should be disposed of and that this action is consistent with their respective management plans.

Similar to past Nevada land bills, this legislation directs the Secretary of Interior to reinvest the proceeds of these limited land sales back into important public projects. Ninety-five percent of the proceeds will be used to acquire environmentally sensitive lands in Carson City and to protect archaeological resources. The remaining five percent of the proceeds will go to Nevada's general education program.

This title also permanently withdraws nearly 20,000 acres of BLM lands in Carson City from land sales and mineral development. These same lands, located north and east of Carson City are already administratively withdrawn by the BLM. This bill would make the withdrawal permanent, preserving foothill views, open space and access to public lands, in line with ``Envision Carson City.''

Our bill also provides guidance that Off-Highway Vehicle (OHV) use on BLM lands in Carson City should be restricted to existing roads and trails until the BLM completes their travel management planning process. The Pine Nut Mountains east of Carson City are a favorite destination for local and visiting OHV enthusiasts. This provision will better protect this area until routes can be designated.

Finally, the second title of the bill opens a new avenue for Carson City to continue their conservation efforts along the Carson River. The Southern Nevada Public Land Management Act (SNPLMA) will be amended to authorize funds for Carson City to acquire land for parks and trails along the Carson River and to authorize conservation initiatives, also along the Carson River. In addition, we make a small change to SNPLMA which will only affect Washoe County. In the White Pine County bill of 2006 (P. L. 109-432), Washoe County was given access to SNPLMA through 2011 to acquire part of the Ballardini Ranch. The county has made good progress towards this acquisition, but may not make the 2011 deadline. We are pleased to extend the authorization to 2015.

Title III addresses the Washoe Tribe's pressing need for more land for residential and commercial development. Tribal lands adjacent to both of the colonies in Carson City, Stewart and Carson, would be expanded by this legislation. Carson Colony tribal lands would grow by over 280 acres. On this parcel, the lands located below the 5,200-foot elevation contour would be available for residential or commercial development. The lands above the 5,200-foot contour would only be available for traditional tribal uses, like ceremonial gatherings, hunting and plant collecting. Tribal lands at the Stewart Colony would grow by only 5 acres, all of which would be available for commercial and residential development.

In 2003, Senator Ensign and I passed legislation that conveyed 25 acres of Forest Service land at Skunk Harbor, on the shores of Lake Tahoe, to the Washoe Tribe. Unfortunately, the parcel was not accurately described in the legislation and consequently the land that was conveyed did not fully reflect our commitment to the Tribe. This bill includes a technical correction that will provide a long overdue fix to the Washoe Indian Tribe Trust Land Conveyance (P. L. 108-67).

Lastly, this bill directs the Forest Service to develop a cooperative agreement with the Washoe Tribe to ensure the Tribe's access across Forest Service land for their traditional ``lifeway'' walk to Lake Tahoe. For centuries the Washoe people have moved from the Pine Nut Mountains east of Carson City in the fall to Lake Tahoe in the summer. Our legislation ensures that they are able to continue this important tradition.

This bill, is built on years of public input. We believe it is a model piece of legislation and appreciate the support of our colleagues in this effort. We look forward to working with Chairman Bingaman, Ranking Member Domenici and the other distinguished members of the Energy and Natural Resources Committee to move this bill forward during the time we have remaining in this legislative session.

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