Federal Land REPAIR Act

Mr. President, today, I am proud to introduce the Civil Access to Justice Act of 2009, which will expand and improve vital civil legal services to our most vulnerable Americans.

This is an issue that is very personal with me. Before I was elected to Congress, I practiced law with Polk County legal aid. I know first- hand how crucial legal assistance is to struggling families who have no place else to turn

when they have lost a job and are facing a foreclosure. I know the invaluable assistance that legal aid provides to battered women trying to leave abusive marriages while fearing for their safety and the safety of their children. I know that, without access to an attorney, the poor are often powerless against the injustices they suffer. I can honestly say that the work I did with legal aid is some of the most rewarding work of my career.

The type of assistance I was able to provide needy clients in Iowa occurs throughout the country every day. Much of that assistance is the direct result of a commitment the federal government first made over forty years ago. In 1965, the Office of Economic Opportunity created 269 local legal services programs around the country. Ten years later, in 1974, Congress--with bipartisan support, including that of President Nixon--established the Legal Service Corporation, LSC, to be a major source of funding for civil legal aid in this country. LSC is a private, non-profit corporation, funded by Congress, with the mission to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. LSC distributes 95 percent of its annual Federal appropriations to 137 local legal aid programs, with more than 900 offices serving all 50 states and every congressional district.

These LSC funding programs make a crucial difference to millions of Americans. Recipients help clients secure basic human needs, such as access to wrongly denied benefits including social security, pensions and needed health care. Just in the past decade, families of 9-11 victims, flood victims, and hurricane evacuees have received crucial legal assistance in obtaining permanent housing, unemployment compensation and government benefits. Further, members of our Armed Forces and their families receive help with estate planning, consumer and landlord/tenant problems and family law.

It is LSC-funded attorneys who help parents obtain and keep custody of their children, help family members obtain guardianship for children without parents, assist parents in enforcing child support payments and help women who are victims of domestic violence. In fact, three out of four legal aid clients are women, and legal aid programs identify domestic violence as one of their top priorities. Recent studies confirm, moreover, that the only public service that reduces domestic abuse in the long term is a woman's access to legal assistance.

Unfortunately, as the economy continues to wane, those needing legal assistance increase. Yet, the Federal commitment to legal services and LSC is not as effective as it needs to be. LSC has not been authorized since 1981, and since 1995 Congress has slashed funding for legal services for the poor, from $415 million to $350 million in fiscal year 2008, with only a recent increase to $390 million for fiscal year 2009. Further, severe restrictions on LSC funded attorneys impede the ability of legal aid attorneys to provide the most meaningful legal representation to low-income Americans. The result is that access to justice and quality representation has become far from a reality for too many of our citizens.

In many parts of the country, more than 80 percent of those who need legal representation are unable to obtain it. Nationally, 50 percent of eligible applicants who request legal assistance from LSC funded programs are turned away largely because such programs lack adequate funding. That translates into over one million eligible cases per year.

Bear in mind, to be eligible for Federal legal assistance, one must live at or below 125 percent Federal poverty level--an income of about $25,000 a year for a family of four. This means that we are turning away half of the families in America who need and seek civil legal help who make less than $25,000 a year. That is wrong and it makes a mockery of the principle of equal justice under the law.

Unfortunately, a combination of limited federal funding, state budget cuts and an increased demand for services due to the recession has exacerbated the problem. As the Chief Justice of the Texas Supreme Court recently noted, legal aid programs have reached a ``crisis of epic proportions.'' This year, requests for services have risen by 30 percent or more across the country while cutbacks in staffing are expected to reach 20 percent or more over the coming months. Connecticut Legal Services expects to lose as many as 150 legal positions. Boston's legal aid expects to lay off one-fifth of its lawyers. Two whole offices in New Jersey recently had to shut their doors. When legal aid lawyers lose their jobs and when offices close, unfortunately it is our most vulnerable citizens who suffer as their legal needs go unmet.

The housing crisis highlights this problem. Today, millions of Americans are struggling to meet their housing needs, including making their mortgage payments, in many cases traceable to predatory lending practices. Foreclosures are at a historic high and continue to soar. As more and more people face the devastating prospect of losing their home--their most prized possession--legal assistance is necessary to help renegotiate terms of loans or enforce truth-in-lending protections in court. The result is that many legal aid offices have seen a drastic increase in those seeking help. Between 2007 and 2008, for example, Iowa Legal Aid saw a 300 percent increase in foreclosure related cases. The Legal Aid Society of San Diego saw a 250 percent increase. Yet, legal aid is too often unavailable. A recent study, for example, revealed that in New Jersey, 99 percent of defendants in housing eviction cases go to court without an attorney.

Given these needs, the Civil Access to Justice Act of 2009, which I am proud to introduce today with Senators Kennedy, Leahy, Mikulski, Cardin, Kerry, Durbin, Lautenberg, McCaskill and Merkley, renews our commitment to equal justice for all Americans and will improve both the quantity and quality of legal assistance in this country.

The bill is supported by, among others, the American Bar Association, Brennan Center for Justice, National Legal Aid & Defender Association, National Organization of Legal Service Workers and United Auto Workers.

First, this bill authorizes funding for LSC at $750 million, which is approximately the amount appropriated in 1981, adjusted for inflation, the high water mark for LSC funding. That year, Congress allocated $321.3 million to LSC. At the time, that was seen as the level sufficient to provide a minimum level of access to legal aid in every county. Adjusted for inflation, this ``minimum access'' level of funding would need to be about $750 million in 2009 dollars.

Second, this bill lifts many of the restrictions Congress imposed in 1996 on federally funded attorneys. That year, Congress significantly limited whom federally funded attorneys could represent and the types of legal tools these attorneys could use in representing their clients. Proponents of these restrictions argued that LSC funded lawyers had overreached and were using federal funds to pursue what some considered an ideological political agenda through the courts, while neglecting basic legal work for poor Americans.

I vigorously disagreed with this characterization of legal aid attorneys and opposed the restrictions at the time; and I continue to do so. The restrictions have harmed our neediest Americans and in many instances prevent legal counsel from doing what attorneys are ethically bound to do--provide zealous representation for their clients. Further, the restrictions, by limiting the range of tools that legal aid attorneys can employ compared to other members of the bar, have created a system of second-class legal representation. That is why this legislation lifts limits on the legal tools that LSC-funded attorneys can use to represent their clients--for example, prohibitions on attorneys seeking court-ordered attorneys' fees, lobbying with nonfederal funds or representing clients in class action law suits.

With respect to attorney fees, Congress and state legislatures have recognized that such fees are an important remedy, and are critical in ensuring that civil rights and consumer protection suits are brought. As Congress stated in enacting the Civil Rights Attorneys' Fees Awards Act of 1976, ``fee awards have proved an essential remedy if private citizens are to have a

meaningful opportunity to vindicate the important Congressional policies which these laws contain.'' That is why Congress has enacted nearly 200 statutes, and states have enacted approximately 4,000 statutes, that provide for attorney fees. The current restriction preventing LSC-funded attorneys from receiving attorney fees has the effect of weakening the effectiveness of these statutes.

Lifting the restriction on attorney fees makes sense for additional reasons. First, because of the restriction, defendants who otherwise would pay attorney fees are unjustly enriched because they happen to face LSC-funded attorneys as opposed to a private counsel. Second, the potential for attorney fees is important leverage for attorneys as they negotiate settlements, leverage now not available to LSC-funded attorneys. Finally, by prohibiting collecting attorney fees, Congress has needlessly limited potential resources that can be used to provide legal aid to other clients.

The bill also lifts the restriction on LSC-funded attorneys' ability to lobby with non-federal funds for changes in the law that would benefit disadvantaged clients. Legal service attorneys are immersed in the day-to-day legal issues faced by low-income communities and, as a result, are often most knowledgeable about the true impact of state and Federal laws on low income Americans. Yet, LSC-funded attorneys may not participate legislative and administrative efforts unless they are responding to a written request from a legislator or other official.

When legal aid attorneys' input is requested, the results are telling. For example, Maryland Legal Aid Bureau was recently invited by the legislature to testify on an overhaul of state foreclosure and lending laws. Although the lending, mortgage and banking industries were well represented, the legal aid attorney was the only person there representing borrowers' views. While the attorney's voice was critical in ensuring appropriate consumer protections, it is significant that that voice was only heard because legislators chose to seek input from legal aid. Because of the current restrictions, absent an invitation, the experiences and knowledge of that attorney would be silenced, leaving a one-sided debate.

Let me be clear, I disagree with those who advocated for and enacted the 1996 restrictions. However, in the spirit of compromise and bipartisanship, and with the intent to avoid a repeat of the contentious debates of the 1990s, this legislation does not lift all of the restrictions. Illustrative is the present restriction on LSC-funded attorneys pursuing class action suits. Such cases are often the most efficient and cost-effective lawsuits, not only for clients but for the judicial system. As Congress found in enacting the Class Action Fairness Act in 2005, ``class action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.''

When the procedural requirements of State or Federal law are met, LSC-funded attorneys and their clients, like all others, should be able to utilize this essential litigation tool. That is why the bill lifts the restriction on the ability of legal aid programs to bring such suits. At the same time, again while I disagree, I acknowledge the concern that led to the restriction--that prior to the restriction some felt that LSC-funded attorneys were using class action suits to ``push the envelope'' and have courts establish ``new law.'' To allay this concern, the bill permits only class action suits that are grounded in ``established'' law. This will enable, for example, LSC-funded attorneys to represent as a class multiple families who are victims of predatory lending, but will not permit LSC-funded attorneys to attempt to achieve a novel interpretation of the law that lacks statutory support or judicial precedent.

Moreover, again in the spirit of compromise, the bill maintains many of the limits on who LSC-funded programs can represent, including the current exclusion of illegal immigrants, with limited exceptions, such as victims of domestic violence, prisoners challenging prison conditions, and people charged with illegal drug possession in public housing eviction proceedings. Also, consistent with current law, the legislation prohibits LSC-funded programs from participating in abortion-related cases.

Third, this legislation lifts all the restrictions, except those related to abortion litigation, on the use of state and local funds and private donations to Federal funded legal services programs that Congress also imposed in 1996. That year, Congress determined that for programs that receive federal funds, the same restrictions applicable to federal funds apply to non-federal funds a program receives.

The result is that millions of dollars in non-federal funds are encumbered by the same restrictions that drastically limit the tools available to legal aid attorneys, to the detriment of their clients. Through direct state and local funding, money from state Interest on Lawyers' Trust Accounts, IOLTA, and private sources, over $450 million in non-federal funds currently is provided for civil legal assistance. The restrictions place unnecessary and costly hurdles on the use of these non-federal funds. The only way a program and its donors can free themselves from federal restrictions is by diverting non-federal funds into a separate program--with separate staff members, offices and equipment. This is burdensome and wasteful.

Whatever one thinks of placing conditions on the receipt of federal funds, states, cities and private donors should have the ability to determine for themselves how best to spend their money to ensure access to justice for their citizens. It is one thing to attach conditions on the use of the federal funds, but to impose conditions on the use of non-federal funds is wrong.

Fourth, in addition to providing further tools and support for LSC grantees, better corporate governance--something that is critically needed--is a central feature of this legislation. Last year, the Government Accountability Office, GAO, reported on troubling management practices and lack of oversight by LSC. The reports found that there had been questionable expenditures by LSC management and that LSC lacked a ``properly implemented governance and accountability structure'' needed to prevent problems. GAO included in its report a series of recommendations as to how LSC should address these shortcomings and prevent similar problems in the future.

No one was more upset about the GAO reports than I. That is why I personally made it clear to LSC management, in no uncertain terms, that they needed to act immediately to address the GAO recommendations, and why a central feature of this bill is provisions to ensure better corporate governance. LSC acted quickly to address the issues GAO raised, and both LSC management and its Board of Directors have publicly accepted all of GAO's recommendations and have worked diligently to implement them. Nevertheless, I believe it is important to lock the recommendations into statute.

Finally, the bill authorizes a grant program from the Department of Education to expand law school clinics. A recent study found that students in law school clinics serve approximately 90,000 civil clients every school year, excluding summer semesters, and provide over 1.8 million hours of legal service. These legal clinics are a significant resource for legal services. But they are much more. For many students, these programs are stepping stones towards careers in legal service and public interest law following graduation. Recent studies demonstrate that law students who participate in law school clinics are more likely to work in public service jobs and do more pro bono than their peers who do not.

We need to do all we can to encourage young lawyers to make legal aid a career. One important way of doing this is by exposing them to the challenges, and more importantly the rewards, of representing people who otherwise would not have the legal assistance they deserve.

Our promise of ``equal justice under law'' rings hollow if those who are most vulnerable are denied access to representation. As former Justice Lewis Powell said, ``[e]qual justice under law is not merely a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society . . . it is fundamental that justice should be the same,

in substance and availability, without regard to economic status.'' Legal aid attorneys across the country protect the safety, security, and health of low-income citizens. When a senior citizen is the victim of a financial scam, when a family faces the loss of their home, or, all too often, when a woman seeks protection from abuse, legal aid can help--but only if it has the funds and the tools needed to do so.

As our former colleague Senator Domenici once declared: ``I do not know what is wrong with the United States of America saying to the needy people of this country that the judicial system is not only for the rich. What is wrong with that? . . . That is what America is all about.''

That is the aim of this bill. After years of grossly underfunding this essential program, denying legal representation to millions of low-income citizens, and denying legal aid lawyers the full panoply of tools they need to represent their clients effectively, this bill will fulfill the promise of our Constitution. ``Equal Justice Under Law'' will be more than an ideal chiseled on a marble facade, it will be a concrete reality for millions of our citizens, who, today, are denied it. I urge my colleagues to support this important bill.

I am proud to join Senator Harkin, along with Senator Kennedy, Senator Kerry, Senator Mikulski, Senator Durbin, Senator Lautenberg, Senator McCaskill, and Senator Merkley on this important legislation to reauthorize the Legal Services Corporation, LSC. I thank Senator Harkin for his hard work and dedication to this issue. Along with reauthorizing the funding for the LSC, the bill also removes several restrictions that have encumbered the efforts of legal services providers around the country.

The funding authorization in this legislation will help ensure that in future years, the Legal Services Corporation, and all of the state legal aid organizations it assists, will continue the critical work they do to help lower-income American citizens who need legal assistance. Similar to the Sixth Amendment's requirement that an indigent criminal defendant be provided counsel, the voice that legal aid attorneys give to the less fortunate among us is an indispensable component of a fair justice system. What Justice Hugo Black called the ``noble ideal'' of a fair and impartial trial is extended through the work of those around the country who serve their fellow citizens in our courts. This reauthorization will continue the policy of the Federal Government to provide assistance to those who seek access to the courts in civil matters.

As part of this reauthorization, and in an effort to support the integrity of the LSC, the bill codifies recommendations made by the Government Accountability Office, GAO, related to the LSC's corporate governance. The Senate Judiciary Committee held a hearing in May 2008 in part to shed light on these recommendations, and to give the LSC an opportunity to respond about plans to address the problems identified by the GAO. The LSC's leadership has been open and responsive to making improvements, and including these recommendations in the bill will assist the LSC in strengthening its governance practices for the future.

This legislation also takes the long-overdue step of removing several of the restrictions that have hindered legal aid organizations for too long. But I wish to make clear that the restrictions on both state and Federal funds prohibiting litigation involving reproductive rights remain in place. Several restrictions on Federal funds remain: the use of Federal funds for litigation concerning unlawful immigrants, prison conditions, and certain eviction cases involving the sale of illegal drugs in public housing, will remain prohibited. But many of the restrictions this bill finally lifts are the product of an ideology long since rejected by the American people. It is time for Congress to reconsider the usefulness of these restrictions in providing the services that so many Americans desperately need.

All Americans should understand the effects of these restrictions on the provision of legal services for lower-income citizens. Chief among them is the overarching requirement prohibiting the use of non-Federal funds for enumerated purposes when legal aid organizations accept Federal funding from the LSC. Currently, non-federal funds received by legal aid providers that also accept LSC funding are subject to the same restrictions that Federal funds are. This has resulted in a waste of resources that providers can ill afford. For example, a legal aid provider that wishes to use state, foundation, or other private funding as it sees fit must physically segregate its operations so that funds from the two sources are administered separately through duplicated processes. In this era of economic difficulty, the impact of every Federal and state dollar provided to help Americans must be maximized. This requirement has resulted in little more than wasted resources. Legal aid providers are capable of honoring Federal restrictions without the necessity of such an onerous approach.

The legislation also removes restrictions that currently prohibit legal aid attorneys from receiving attorney's fees, as authorized by law, in cases in which they prevail. Contrary to arguments that claim such a practice would cause legal aid attorneys to act unethically or out of an interest divergent from the legitimate needs of their clients, allowing these fees to be retained would help shift the cost of wrongdoing from the Federal Government to the wrongdoer. Moreover, allowing legal aid attorneys to retain these fees when merited would provide increased assistance to the organizations for which they work. In an effort to monitor the effect of removing this restriction, the legislation requires all fees received to be reported to the LSC.

The bill removes restrictions on class action suits by legal aid providers. Contrary to the popular rhetoric, in some cases class action suits can maximize the benefits provided by legal aid organizations by allowing similarly situated plaintiffs to pursue their rights in a single case. The legislation does restrict class action suits to actions based on established law, and thus is intended to discourage truly frivolous suits. Additionally, the legislation removes the restriction prohibiting legal aid providers from lobbying their elected officials. Allowing legal aid providers to advocate on behalf of those they serve will advance civil justice issues and raise the awareness of lawmakers in matters affecting many Americans. And I would remind those who would disparage this practice on the part of legal aid providers that many of the financial institutions that the American taxpayers have recently bailed out continue to lobby extensively in Washington. If banks that have been bailed out with taxpayer money can freely access their elected officials, so too should those who represent the least politically powerful among us.

I hope all Senators will give serious consideration to reauthorizing the Legal Services Corporation and ending many of the restrictions that have burdened the provision of legal services to so many American citizens. Lawyers across the U.S. have dedicated their lives to helping the least fortunate among us gain access to the courts that serve us all. These lawyers play a critical role in ensuring that justice is carried out in a manner consistent with the Constitution's promise, and when justice is served fairly, it benefits us all. I hope all Senators will join us in support of this legislation.

Mr. President, I come to the floor today to speak on an issue that is of great importance to my home State of Louisiana: disaster recovery from Hurricanes Katrina and Rita of 2005 and Hurricanes Gustav and Ike of 2008. Almost 5 years after these first two devastating storms, our eyes are still fixed on our shores during hurricane season as our communities and businesses in the hardest-hit areas continue to rebuild. As chair of the Senate Committee on Small Business and Entrepreneurship, I remain focused on their ongoing recovery efforts and am here today to introduce a bill that I believe will help these struggling small businesses become successful once again and hire new workers.

Charles R. ``Ray'' Bergeron and his wife's Fleur de Lis Car Care Center in New Orleans, Louisiana, is one of the businesses that need this type of assistance. Small Business Administrator Karen Mills and I toured the Bergerons' business back in June. Pre-Katrina, Fleur de Lis, which opened in 1988, had nine employees. After Hurricane Katrina hit, Mr. and Mrs. Bergeron found themselves having to take out two loans, one for their house and another for their small business. As of our visit in June, the Bergerons were down to two employees, not including themselves, and their business was back at about 40 percent of pre- Katrina sales, due in large measure to the population not returning. Their neighborhood is mostly empty homes, which Mr. Bergeron attributes in part to high flood insurance premiums, high property taxes and high homeowner's insurance.

As of June when I met with them, the Bergerons had a $225,000 SBA disaster loan with a standard 30-year term, which Mr. Bergeron says he will not pay off until he is 101 years old. But just yesterday, Mrs. Bergeron contacted my office requesting SBA assistance with their loan repayment after work to repair the flood-damaged roads surrounding their gas station had cut access to their business for even their most loyal customers. Since the project began, Fleur de Lis' sales have been cut almost in half. This latest challenge comes on the heels of the economic downturn, which caused the station to lay off two employees earlier last year.

The Bergeron's story is one I have heard from countless businesses. Coupled with their recovery from the 2005 and 2008 hurricanes, and more recently, the economic downturn, these businesses--the ones that took the initiative to quickly reopen after the storms--are today struggling with one challenge after another. Yet these ``pioneer'' businesses are the ones rebuilding communities need the most because they serve as anchors. If residents see the Bergeron's gas station, or their favorite restaurant, open, they are more likely to come back to rebuild their homes.

To help ongoing recovery efforts in the Gulf Coast, and to give these struggling businesses immediate assistance, I am introducing today the Southeast Hurricanes Small Business Disaster Relief Act of 2010. I thank my colleague Representative Charlie Melancon for introducing the House companion bill. Our legislation would provide targeted assistance to as many as 22,000 businesses in Louisiana, Mississippi, and Texas. What these particular businesses have in common is that they received SBA disaster loans following the 2005 or 2008 hurricanes. While they have made payments on these loans, I have heard from countless businesses in my State that they could expand operations if they had additional cash flow. This legislation would inject immediate capital into these hardest-hit businesses by giving SBA the authority to waive up to $15,000 of interest payments over 3 years, helping to create or save up to 81,000 jobs.

Under this program, SBA is required to give priority to applications from businesses with 50 employees or less and businesses that re-opened between September 2005 and October 2006 for the 2005 storms or September and December 2008 for the 2008 hurricanes. This ensures that SBA first helps true small businesses and those ``pioneer'' businesses that were the first to re-open after the disaster. The program would end on December 31, 2010.

This program makes a difference because for some businesses, depending on the loan term and loan amount, their total principal/ interest payments could run as high as $1,000 per month. For example, for a $114,000 disaster loan with a 4 percent interest rate and a 25- year term, a business could be paying as much as $400 in monthly interest. In one year, this adds up to $4,800 and almost $14,500 in 3 years. While this is not a lot of money for Wall Street banks or Fortune 500 companies, $15,000 makes a major impact for a gas station with two employees, like Fleur de Lis, or a neighborhood restaurant with 10 employees. These businesses have seen their bottom lines shrink as others on Wall Street received extravagant bonuses. I, for one, believe it is time to help these Main Street businesses, as they are the backbone of our communities.

My legislation also follows legislation approved by a previous Congress. The prior bill came after Hurricane Betsy devastated Florida, Louisiana and Mississippi in September 1965. According to Red Cross reports at the time, between 800,000 and 1 million people were adversely impacted by the hurricane. Before this storm, the only previous disaster of that magnitude was the 1937 Ohio-Mississippi River floods, which forced more than a million people from their homes. In total, Betsy destroyed more than 1,500 homes, damaged more than 150,000, and damaged more than 2,000 trailers. Hurricane Betsy also destroyed 1,400 farm buildings and 2,600 small businesses. At the time, the Senate Committee on Public Works noted in Committee Report 89-917 that, ``The overwhelming magnitude of the vicious storm, surprising even to experienced disaster workers, was more apparent every day as storm victims continued to register for long-term recovery help in rebuilding their lives and homes.''

As part of the review to provide Hurricane Betsy victims appropriate assistance, including a field hearing in Louisiana, Congress determined that the massive scale of this disaster required targeted, disaster- specific programs. In particular, Congress approved the Southeast Hurricane Disaster Relief Act of 1965, Public Law 89-339. This bill authorized various business, homeowner, and agricultural disaster assistance, including loans and temporary rental assistance. In its committee report on the legislation, which is referenced above, the Senate Committee on Public Works wrote, ``This bill contains what the committee believes is needed and necessary to give further aid to the disaster-stricken areas . . . including special measures to help these States in the reconstruction and rehabilitation of devastated areas.'' Among other provisions, Section 3 of the bill authorized SBA to waive interest--for loans above $500--due on the loan over a period of 3 years, but not to exceed $1,800 in interest. The bill was signed into law in November 1965 and Congress later approved $35 million to implement provisions in the Act.

Just as with Hurricane Betsy in 1965, in 2005, Mississippi and Louisiana again saw a catastrophic disaster hit their businesses, farms, and homes. Everyone now knows the impact Hurricanes Katrina and Rita had on the New Orleans area and the southeast part of our State. Images from the devastation following these storms, and the subsequent Federal levee breaks, were transmitted across the country and around the world. Katrina ended up being the deadliest natural disaster in United States history, with 1,800 people killed--1,500 in Louisiana alone. Katrina was also the costliest natural

disaster in U.S. history, with more than $81.2 billion reported in damage.

In Louisiana, we had 18,000 businesses catastrophically destroyed and 81,000 businesses economically impacted. I believe that, across the entire Gulf Coast, some estimates ran as high as 125,000 businesses impacted by Katrina and Rita. Many of these businesses, for various reasons, have not returned or re-opened. By mid-2007, Orleans Parish was still down 2,000 employers, or 23 percent of its pre-Katrina business level. Nearby St. Bernard Parish--which had up to 80 percent of its homes damaged--had the largest percentage decline of 48 percent fewer businesses open, according to Louisiana State University and the Louisiana Recovery Authority. These disasters were followed by the 2008 hurricanes that hit the same areas in Texas and Louisiana. With this in mind, on September 25, 2009, I chaired a committee field hearing in Galveston, Texas. At this hearing, we received a progress report from Federal, State and local officials on the recovery from Hurricane Ike in 2008. We also heard from individual business owners in Galveston who were still struggling a year on from the hurricane.

These Galveston business owners, the Bergeron's Fleur de Lis gas station, and many other ``pioneer'' businesses did choose to re-open and are now struggling to stay alive. As is clear from the Bergerons' story, these businesses have suffered from not one disaster, but three: Hurricane Katrina/Rita in 2005, Hurricane Gustav/Ike in 2008, and the economic downturn. My home State of Louisiana was slow to feel the brunt of the credit crunch and economic meltdown, but last year we began to see the drying up of investments and the shrinking of consumers' pocketbooks. I believe the special program implemented following Hurricane Betsy in 1965 would today greatly benefit businesses in these three states hardest hit by Katrina, Rita, Gustav and Ike. Given the urgent needs of many of these impacted businesses, I will be reaching out to my colleagues in Texas, Louisiana, and Mississippi to hopefully gain their support for quick passage of this assistance. While I recognize that these are the hardest hit states, I am also interested to hear from my other Gulf Coast colleagues on whether this program would benefit their impacted businesses as well.

In closing, I would like to note that Congress has been generous in providing essential recovery funds following the 2005 and 2008 storms. However, as we approach the fifth anniversary of the 2005 disasters, we must now ensure that impacted businesses can make it past this anniversary--preventing thousands more workers from being unemployed or additional defaults on SBA disaster loans. One important way that this Congress can ensure that these workers remain employed and that these businesses survive, and even grow, would be to relieve some of the interest on these SBA disaster loans. For this reason, I urge my Senate colleagues to support this commonsense legislation which would make a difference for up to 22,000 Main Street business owners and their estimated 81,000 employees in the Gulf Coast.

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

Mr. President, I am pleased today to be introducing the Small Business Contracting Improvements Act of 2010, legislation designed to protect the interests of small businesses and boost their opportunities in the Federal marketplace.

As Chair of the Senate Committee on Small Business and Entrepreneurship, I have focused a considerable amount of energy promoting the interests of small businesses in the federal contracting arena. The legislation I am introducing today marks a critical step forward in this process.

As the largest purchaser in the world, the Federal Government is uniquely positioned to offer new and reliable business opportunities for our Main Street businesses. Government contracts are perhaps one of the easiest and most inexpensive ways the government can help immediately increase sales for America's entrepreneurs, giving them the tools they need to keep our economy strong and create jobs. By increasing contracts to small businesses by just 1 percent, we can create more than 100,000 new jobs--and today, we need those jobs more than ever.

But the reality is, small businesses need all the help they can get accessing Federal contracts. In fiscal year 2007, according to the Federal Procurement Data System, the Federal Government missed its 23 percent contracting goal by .992 percent. That .992 percent represents more than $3.74 billion and 93,500 jobs lost for small businesses. The numbers are even worse the next fiscal, in fiscal year 2008 the Federal Procurement Data System reported that the government missed its goal by 1.51 percent--meaning more than $6.51 billion and 162,700 jobs lost. While these numbers tell the stark story of why this legislation is vital for our small businesses and our overall economy, they are still only a part of the story of why this legislation is needed.

Our small businesses have been taking the brunt of this economic downturn. In this past year, small businesses accounted for more than 85 percent of job losses. This fact was vividly illustrated to me this weekend when I met with Louisiana business owners and officials. A small business owner who spoke at our meeting told of how he was down from 20 plus employees to three. He was clear that if he had access to federal work he would begin staffing up tomorrow. That is the reason I am introducing this legislation today. These contracting opportunities represent job creation for small businesses in a way that is unique. When large businesses get new work they

typically spread that work among existing employees. When small businesses get these contracts they must staff up to meet the increased demand.

Furthermore, last night President Obama made the case that small businesses need to be the focus of our recovery. I have heard over and over again that small business is the engine that drives our economy. Well, if that is true, then it is time to give that engine some gas. President Obama set the right tone last night and today our bill looks to act on his words and fill that tank as we consider improvements in four key areas.

The first area I attempt to make improvements in is the area of contract bundling. Although contract bundling may have started out as a good idea, it has now become the prime example of the old saying that too much of a good thing can be very, very bad. The proliferation of bundled contracts coupled with the decimation of contracting professionals within the government threatens to kill small businesses' ability to compete for federal contracts.

Our bill looks to address those issues by ensuring: accountability of senior agency management for all incidents of bundling; timely and accurate reporting of contract bundling information by all federal agencies; and improved oversight of bundling regulation compliance by the Small Business Administration, SBA.

The bill also ensures that contract consolidation decisions made by a department or agency, other than the Defense Department and its agencies, provide small businesses with appropriate opportunities to participate as prime contractors and subcontractors.

Another way that this bill attempts to tackle the issue of bundling is by creating a joint venture and teaming center at the SBA. This center will provide technical support to associations and businesses who are interested in bidding on larger contracts as part of small business teams or joint ventures. The bill will also ease regulations that serve as a disincentive for small businesses who want to enter into teaming relationships with one another.

The second area that this bill attempts to address is subcontracting. The Committee has heard from many businesses about the challenges that some small business subcontractors face when dealing with prime contractors. Business owners have related that the way subcontracting compliance is calculated creates opportunity for abuse. They also related that many small businesses will spend time, money and effort preparing bid proposals to be a part of a bid team and that once the contract is won they never heard from the prime contractor again. Many also complain about a lack of timely payments after they have completed work.

This bill attempts to deal with some of these issues by including provisions designed to prevent misrepresentations in subcontracting by prime contractors. To accomplish this, the bill: provides guidelines and procedures for reviewing and evaluating subcontractor participation in prime contracts and provides for speedier payments to small business subcontractors who have successfully completed work on behalf of the prime contractor.

The third area I intend to update is the acquisition process. This bill aims to increase the number of small business contracting opportunities by including additional provisions to reduce bundled contracts by reserving more contracts for small business concerns. The bill accomplishes this by: authorizing small business set-asides in multiple-award, multi-agency contracting vehicles; directing the Office of Federal Procurement Policy to issue guidelines to analyze the use of government credit cards for the purpose of meeting small business goals; and requiring that agencies include meeting small business contracting goals in the performance evaluation of contracting and program personnel.

The last area that I tackle in this legislation is small business size and status integrity. The Committee has heard from a number of small businesses about large businesses parading as small businesses. It is imperative that small business contracts go to small businesses. Small businesses may be losing billions of dollars in opportunities because of size standard loopholes.

This bill attempts to address these issues by making additions to the Small Business Act that are designed to strengthen the government's ability to enforce the size and status standards for small business certification. To achieve this, the new section: establishes a presumption of loss to the federal government whenever a large business performs a small business contract; requires that small businesses annually certify their size status; requires the development of training programs for small business size standards; requires a detailed review of the size standards for small businesses by the SBA within one year; and directs GAO to study the effectiveness of the mentor-protege program.

It is well past time to provide greater opportunities for the thousands of small business owners who wish to do business with the Federal Government. I believe that this legislation is a good step toward opening those doors of opportunity. I hope all of my colleagues will join me in supporting this bill and I look forward to working with them as we work to move this legislation forward.

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

Today I am pleased to be introducing a piece of legislation designed to establish a national criminal justice commission. I do so with, at the moment, 12 cosponsors, including our majority leader, the chairman and the ranking Republican on the Senate Judiciary Committee, the chairman and the ranking member of the Judiciary Subcommittee on Crime and Drugs, and other members of our leadership. I introduce this bill after more than 2 years of effort here in the Senate that I will explain shortly; also with the prior conferral with Supreme Court Justice Kennedy and having discussed this matter with the President and the Attorney General, both of whom I think are strongly supportive of this concept.

Our design, our goal in this legislation, is to create a national commission with an 18-month timeline, not to simply talk about the problems that we have in our criminal justice system but actually to look at all of the elements in this system, how they are interrelated in terms of the difficulties that we have in remedying issues of criminal justice in this country, and to deliver us from a situation that has evolved over time where we are putting far too many of the wrong people into prison and we are still not feeling safer in our neighborhoods; we are still not putting in prison or bringing to justice those people who are perpetrating violence and criminality as a way of life.

I would like to say that, although I am not on the Judiciary Committee, I come to this issue as someone who first became interested in criminal justice issues while I was serving as a U.S. marine, serving on a number of courts-martial and thinking about the interrelationship between discipline and fairness; then after that, from having spent time as an attorney at one point representing, pro bono, a young former marine who had been convicted of murder in Vietnam. I represented him for 6 years pro bono. He took his life halfway through this process. I cleared his name 3 years later, but I became painfully aware of how sometimes inequities infect our process.

Prior to joining the Senate, I spent time as a journalist, including a stint 25 years ago as the first American journalist to have been inside the Japanese prison system, where I became aware of the systemic difficulties and challenges

we have. At that time, 25 years ago, Japan was half our population, and had only 40,000 sentenced prisoners in jail. We had 480,000. Today, we have 2.38 million prisoners in our criminal justice system and another 5 million involved in the process, either due to probation or parole situations.

This is a system that is very much in need of the right sort of overarching examination. I do note the senior Senator from Pennsylvania has joined me on the Senate floor. I am very gratified he has also joined me as the lead Republican on this measure. I look forward to hearing from him as soon as I am finished with my remarks.

The third thing I would like to say at the outset is, I believe very strongly, even though we are a Federal body, that there is a compelling national interest for us to examine this issue and reshape and reform our criminal justice system at the Federal, State, and local levels. I believe the commission I am going to present would provide us with that opportunity.

I start with a premise I do think not a lot of Americans are aware of. We have 5 percent of the world's population. We have 25 percent of the world's known prison population. We have an incarceration rate in the United States, the world's greatest democracy, that is five times as high as the incarceration rate in the rest of the world.

There are only two possibilities. Either we have the most evil people on Earth living in the United States or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice. And I would ask my fellow Senators and my fellow citizens to think about the challenges that attend these kind of numbers when we are looking at people who have been released from prison and are reentering American society.

We have hundreds and thousands of American people who are reentering American society without the sort of transition that would allow a great percentage of them to again become productive citizens.

I think we need to look at this in terms of our own history, our own recent history. This is a chart that shows our incarceration rate from 1925 until today. Beginning in about 1980, our incarceration rate started to skyrocket. What has happened since 1980 is not reflective of where our own history has been on this issue. That is another need, why we need to examine it fuller. We also, for a complex set of reasons, are warehousing the mentally ill in our prisons. We now have four times as many mentally ill people in our prisons than we do in mental institutions. There are a complex set of reasons for that, but the main point for all of us to consider is, these people who are in prison are not receiving the kind of treatment they would need in order to remedy the disabilities that have brought them to that situation.

Drug incarceration has sharply increased over the past three decades. In 1980, we had 41,000 drug offenders in prison. Today we have more than 500,000. That is an increase of 112 percent.

Those blue disks represent the numbers in 1980. The red disks represent the numbers in 2007. A significant percent of these individuals are incarcerated for possession or nonviolent drug offenses, and in many cases, criminal offenses that stem from drug addiction and those sorts of related behavioral issues.

African Americans are about 12 percent of our population. Contrary to a lot of thought and rhetoric, their drug use, in terms of frequent drug use rate, is about the same as all other elements of our society, about 14 percent. But they end up being 37 percent of those arrested on drug charges, 59 percent of those convicted, and 74 percent of those sentenced to prison, by the numbers that have been provided to us and to the Joint Economic Committee. This is a disturbing statistic for us. I emphasize to my colleagues and to others that the issues we face with respect to criminal justice are not overall racial issues. They involve issues, in many cases, of how people are treated based on their ability to have proper counsel and other issues like that. But this is a statistic with respect to drugs that we all must come to terms with.

At the same time, I say we are putting too many of the wrong people in prison, and we are not solving the problems that will bring safety to our communities. Gangs are a hot issue today. I am on the Armed Services Committee. I am on the Foreign Relations Committee. There has been a lot of back and forth in recent months about the transnational gangs that are emanating across the Mexican border. Approximately 1 million gang members are currently in our country today. And I emphasis this is not an issue that is simply existent along the Mexican border. This is an issue that affects every community in the United States, and it is not simply an issue with respect to the Mexican drug cartels, although theirs are the most violent and the most visible today.

The Mexican drug cartels are operating in more than 230 American cities, not simply along the border. The incidents along on the border illuminate the largeness of this problem and of this challenge. Gangs in many areas of the United States commit 80 percent of the crimes. They are heavily involved in drug distribution, but they are involved in other violent activities as well.

There has been some talk over the past few days about how our position toward drugs and our gun policies feed this problem. I would ask my colleagues to think very hard about that. Drugs are a demand- pull problem in the United States, there is no question about that. There are a lot of weapons that are going back and forth across the border. But we should remember the Mexican drug cartels are capable of very sophisticated levels of quasi-military violence.

Many of the members who are brought into the gangs by the drug cartels are former Mexican military. Some of them have been trained by our own special forces, and the weapons they use are not the kind of weapons you are going to buy at a gun show. You do not get automatic weapons, RPGs, and grenades at a gun show.

We have to realize these cartels have a lot of money. By some indications they make profit levels of about $25 billion a year. They can buy the weapons they want. We have to get on top of this as a national priority. Again, it is not simply the transnational gangs that come out of Mexico. Many of them are Central American.

In Northern Virginia, right across the Potomac River, we have thousands of members who belong to the MS-13 gangs emanating out of Central America, who are very active up the I-95 corridor. There are Asian gangs. We have to get our arms around this problem as we address the other problem of mass incarceration in the United States.

Another piece of this issue I hope we will be able to address with this national criminal justice commission is what happens inside our prisons. When I was looking at the Japanese system many years ago, their model in terms of prison administration was basically designed after a traditional military model. You could not be a warden in a Japanese jail unless you started as a turnkey. They had national examinations. They had a year of preparation, training in psychology, in counseling techniques, before an individual was allowed to be a turnkey in a jail. The promotion systems were internal, like the U.S. military. It provided a quality career path, and it brought highly trained people in at the very beginning.

We do not have that in America. Prisons vary warden to warden; they vary locality to locality. We need to examine a better way to do that in our country.

We also have a situation in this country with respect to prison violence and sexual victimization that is off the charts. We must get our arms around this problem.

We also have many people in our prisons who are among what are called the criminally ill, people who are suffering from hepatitis and HIV who are not getting the sorts of treatment they deserve.

I started, once I arrived in the Senate, working on this issue. I was pleased to be working with Senator Schumer on the Joint Economic Committee. He allowed me to chair hearings to try to get our arms around this problem and see what sort of legislative approach might help. I chaired a hearing on mass incarceration in October of 2007. I chaired another hearing last year on the overall impact of illegal drugs from point of origin through the criminal justice system. How does this work in terms of the underground

business environment? How does it work in terms of the disparity in treatment of people who end up incarcerated? How does it affect people's long-term lives? What are the costs associated with it?

I was able to work with the George Mason University Law Center to put together a forum bringing people in from across the country to talk about our overall drug policy. Once we started talking about this, particularly over the last year, we started being contacted by people all across the country, people from every different aspect of the political and the philosophical areas that come into play when we talk about incarceration. It is a very emotional issue.

As I said, I heard from Justice Kennedy at the Supreme Court. I have heard from prosecutors, judges, defense lawyers, former offenders, people in prison, police on the street. All of them are saying we have a mess; we have a mess. We have to get a holistic view of how to solve it. There are many good pieces of legislation that have been introduced in the Congress to deal with different pieces of this issue. But after going through this process over the past year, I have come to the conclusion that the way we should address this is with a national commission that will examine all of these pieces together and make specific findings so we can turn it around.

These are examples of some of the editorial support that we have received. I have written a piece for Parade magazine which will be out this weekend to summarize the challenges we have; I hope our fellow citizens will take a look at it.

As to the design of this legislation, we are looking for two things. One is to shape a commission with bipartisan balance: the President nominating the chairman; the majority and minority leaders in the Senate, in consultation with the Judiciary Committee, each nominating two members; the Speaker of the House and the House Minority Leader, in concert with the Judiciary Committee, each nominating two members; and the National Governors Association, Republican and Democrat, each getting one member. The idea is not to have a group of people who are going to sit around and simply remonstrate about the problem. It is to get a group of people with credibility and wide expertise to examine specific findings and to come up with policy recommendations on an 18- month time period.

This commission will be asked to investigate the reasons in our own history that we have seen this incredible increase in incarceration. What do other countries do, particularly countries that have the same basic governmental systems we do? How do they handle comparable types of crime? What should we do about prison administration policies, prison management? How can we bring more quality, stability, and predictability in terms of the prison environment itself? What are the costs of our current incarceration policies, not only in terms of the billions of dollars we spend on building prisons or the billions we spend on housing people in prisons but also in terms of lost opportunities with our post-prison systems, and how we can better manage that area. What is the impact of gang activities, including these transnational gangs, and how should we approach that issue, not simply in terms of incarceration but as a nation that is under duress from not being able to respond properly? Importantly, what are we going to do about drug policy, the whole area of drug policy, and how does that affect sentencing procedures and other alternatives we might look at? We need to examine the policies as they relate to the mentally ill. We should look at the historical role of the military when it comes to how we are approaching these cross-border situations, particularly on the Mexican border. Finally, importantly, any other area the Commission deems relevant.

This is our best effort, after 2 years of coming up with the universe of issues that need to be examined. There are many people, including the senior Senator from Pennsylvania, who have worked on these areas for a number of years. If they have specific findings they believe the Commission should review, we are very happy to accommodate that.

The first step for the commission would be to give us findings, factual findings. From those findings, then give us recommendations for policy changes. The same areas I addressed in terms of findings apply in terms of the policy recommendations: How we can refocus our incarceration policies, work toward properly reducing the incarceration rate in fair, cost-effective ways that still protect communities; how we should address the issue of prison violence in all forms; how we can improve prison administration; how we can establish meaningful reentry programs. I believe with the high volume of people coming out of prisons, we must, on a national level, assist local and State communities in figuring out a way to transition these people so those former offenders who are not going to become recidivists will have a true pathway to get away from the stigma of incarceration and move into a productive future.

Again, importantly, the last category, any other aspect of the system the Commission or the people participating in it determine necessary.

This is our approach. I am gratified to have had as initial cosponsors six members of the Senate Judiciary Committee, including the chairman, Senator Leahy; the ranking Republican, Senator Specter; the chairman of the Subcommittee on Crime and Drugs, Senator Durbin; the ranking Republican on that subcommittee, Senator Graham; and a number of others, including key Democratic leadership--most importantly, our leader.

I hope we can get this legislation done this year. This is an issue that does not percolate up in the same way. It doesn't have a programmatic element to it in many cases, but it is an issue that threatens every community and begs for the notion of fairness.

I see the senior Senator from Pennsylvania is on the floor. I greatly admire the work he has done in this area over many years, and I appreciate his support on this endeavor.

I wish to express my appreciation to the senior Senator from Pennsylvania for joining me on this legislation and in this endeavor because it will be an endeavor, as the Senator knows, well beyond the legislative approval of the commission. I think this is going to take years. But I wish to express my appreciation for that, for his comments today, and for all the work he has done in this field.

I wish to emphasize a couple of things, in reaction to what the Senator mentioned. I agree. I do believe we can

meaningfully address this problem. And ``solution'' is perhaps a more illusive word. But we can certainly meaningfully address this problem. I think it is very important to say that it is in the interest of every American we do so.

There are a lot of people who will look at this and talk about specific elements of who has committed a crime and whether you should do the time and these sorts of things, but we do need to sort it out. When we have 5 percent of the world's population and 25 percent of the world's prison population, there are better ways. When we still have public safety issues in every community because of gang violence, and particularly transnational gang violence at this moment, there are better ways.

That is the purpose of having a commission: getting the greatest minds in this area in the country together, with a specific timeline, to bring us specific findings and recommendations for the entire gamut of criminal justice in the country--not simply incarceration, not simply gang violence, not simply reentry--but all of those and other issues together, so we can have a much needed and long overdue restructuring of how we address the issue of crime in this country.

I ask unanimous consent that Senator Kennedy be added as an original cosponsor on this bill.

Mr. President, the law granting the Federal Government, for the first time, the authority to regulate the security of the nation's highest risk chemical facilities is due to expire at the end of this fiscal year. Given the success of this law and its vital importance to all Americans, I am introducing legislation today with Senators Pryor, Voinovich, and Landrieu to reauthorize it.

The U.S. is home to an astonishing number of facilities that manufacture, use, or store chemicals for legitimate purposes. From pharmaceuticals to cosmetics, soaps to plastics and all manner of industrial, construction, and agricultural products, chemicals enable the manufacture of more than 70,000 products that improve the well- being of the American people.

The chemical industry is enormous, diverse, and vital to the American economy. It approaches half a trillion dollars annually in sales. It is one of our largest exporters, with exports totaling $174 billion annually. It directly employs more than 850,000 people nationwide and supports millions more indirectly.

These facilities are vital parts of our economy and society. But, to our enemies, they can be potential chemical weapons. Like the airliners of September 11th, it would only take an attack on a few, or even one, to cause a horrifying loss of life.

In 2005, as Chairman of the Homeland Security and Governmental Affairs Committee, I held a series of hearings to examine the terrorist threat to the nation's chemical facilities and the devastating consequences that could arise from a successful attack. As a result of those hearings, I introduced comprehensive, bipartisan legislation to provide the Department of Homeland Security with the authority necessary to set and enforce security standards at high-risk chemical facilities in the U.S. That bill formed the basis for chemical security legislation signed into law in 2006 as part of the Department of Homeland Security Appropriations Act, 2007.

Specifically, section 550 requires the Department to issue rules requiring all high-risk chemical facilities to conduct vulnerability assessments, develop site security plans to address identified vulnerabilities, and implement protective measures necessary to satisfy risk-based performance standards. Section 550 also directs the Secretary of Homeland Security to review and approve those vulnerability assessments and site security plans and to audit and inspect covered chemical facilities for compliance with the performance standards. It also permits the Secretary to shut down covered facilities that are non-compliant.

In April 2007, the Department published interim final rules, known as the Chemical Facilities Anti-Terrorism Standards, CFATS, setting forth the requirements that high-risk chemical facilities must meet to comply with the law. Among other things, CFATS establishes 18 risk-based performance standards which facilities must meet to be in compliance with the law. These standards cover items such as securing the perimeter and critical targets, controlling access, deterring the theft of potentially dangerous chemicals, and preventing internal sabotage.

CFATS, however, does not dictate specific security measures. Instead, the law allows chemical facilities the flexibility to choose the security measures or programs that the owner or operator of the facility decides would best address the particular facility and its security risks, so long as these security measures satisfy the Department's 18 performance standards.

Since publishing CFATS in 2007, the Department has worked aggressively and diligently on implementation. The Department has hired and trained more than 100 chemical facility field inspectors and headquarters staff. Indeed, by the end of Fiscal Year 2010, the Department hopes to employ more than 260 CFATS staff. And, to date, the Department has received over $200 million in funding to support CFATS.

Given the daunting challenges of establishing such a comprehensive regulatory program from scratch, the Department wisely decided to implement CFATS in phases, beginning with those facilities presenting the very highest security risks.

To determine which facilities presented the highest risks, the Department first required chemical plants that possessed certain threshold quantities of specified chemicals to complete an online security assessment--called ``Top-Screen.'' Based on the Top-Screen and any other available information, the Department then ascertained whether a facility ``presented a high level of security risk'' and preliminarily divided such facilities into four tiers of escalating risk. While all covered facilities must satisfy the Department's performance standards, the security measures sufficient to meet them are more robust for those facilities in the higher tiers, such as Tiers 1 and 2.

For chemical facilities that qualified as ``preliminarily high risk,'' the Department required the preparation and submission of security vulnerability assessments. These assessments enabled the Department to identify more accurately each facility's risk and, thus, to assign final risk tier rankings. Based on these final tier rankings, these facilities must develop site security plans and submit to inspections or audits to ensure their compliance.

The men and women of the Department have processed a tremendous amount of information in a relatively short period of time. According to the Department, since establishing CFATS, it has reviewed almost 38,000 Top-Screen submissions and notified more than 7,000 facilities of their high-risk designations and preliminary tiers.

As of December 2009, CFATS covered only 6,000 facilities. Some facilities closed; others made material modifications that altered their risk profile. Of those remaining, the Department has assigned final tiers to almost 3,000--including all of the facilities in Tiers 1 and 2--and is now reviewing their site security plans.

Although the Department remains in the midst of implementing CFATS, it has generally received positive reviews for its work. The private sector has become a partner in the program's success. The collaborative nature of the program has been praised by many experts as a model for security-related regulation.

Notwithstanding the Department's success in administering the CFATS program and the considerable costs that facilities have incurred in complying with it, some now want to ``swap horses in midstream'' by radically overhauling the law.

Indeed, in November 2009, the House of Representatives passed legislation that would dramatically alter the nature of CFATS, requiring the Department to completely rework the program and stop its considerable progress--dead in its tracks. Among other things, the House bill would direct the Secretary of Homeland Security to establish new risk-based performance standards, require covered chemical facilities in Tiers 1 and 2 to implement so-called ``inherently safer technology'', IST, and allow third-party lawsuits against the Department over CFATS implementation.

Unfortunately, Mr. President, the changes proposed by the House will in no way enhance the nation's security. They will, however, impose unnecessary and costly burdens on the economy and destroy the collaborative public-private partnership critical to CFATS' success.

The House provision that would allow the Department to mandate that certain chemical facilities implement IST is an example. IST is an approach

to process engineering involving the use of less dangerous chemicals, less energetic reaction conditions, or reduced chemical inventories. It is not, however, a security measure. And because there is no precise methodology by which to measure whether one technology or process is safer than another, an IST mandate may actually increase or unacceptably transfer the risk to other points in the chemical process or elsewhere on the supply chain.

For example, it is my understanding that after careful evaluations of the available alternatives, many drinking water utilities have determined that gaseous chlorine remains their best and most effective drinking water treatment option. Their decisions were not based solely on financial cost considerations, but also on many other factors, such as the characteristics of the region's climate, geography, and source water supplies, the size and location of the utility's facilities, and the risks and benefits of gaseous chlorine use compared to those inherent with the use of alternative treatment processes.

According to one water utility located in an isolated area of the Northwest, if Congress were to force it to replace its use of gaseous chlorine with sodium hypochlorite, then the utility would have to use as much as seven times the current quantity of treatment chemicals to achieve comparable water quality results. In turn, the utility would have to arrange for many more bulk chemical deliveries, by trucks, into the watershed. The greater quantities of chemicals and increased frequency of truck deliveries would heighten the risk of an accident resulting in a chemical spill into the watershed. In fact, the accidental release of sodium hypochlorite into the watershed would likely cause greater harm to soils, vegetation and streams than a gaseous chlorine release in this remote area. Because the facility is so isolated from population centers, the gas released in the event of an accident would almost certainly dissipate before reaching populated areas.

Forcing chemical facilities to implement IST could wreak economic havoc on some facilities and affect the availability of products that all Americans take for granted. For instance, according to October 2009 testimony by the Society of Chemical Manufacturers and Affiliates before the House Committee on Energy and Commerce, mandatory IST would negatively restrict the production of pharmaceuticals and microelectronics, unnecessarily crippling those industries.

Moreover, the increased cost of a mandatory IST program could encourage chemical companies to transfer their operations overseas, costing thousands of American jobs.

To be clear, some owners and operators of chemical facilities will want to use IST. But the decision to implement IST should be that of the owner or operator, not a Washington bureaucrat.

In fact, the evidence is quite compelling that many chemical facilities, based on an assessment of many complex factors, have already taken steps to avoid the use, storage, and handling of extremely dangerous chemicals in favor of safer alternative processes. The Department's own data indicate that nearly 1,000 facilities voluntarily adopted safer alternative processes.

Notwithstanding all of the other changes to CFATS passed by the House, the mandatory IST requirement itself will bring CFATS to a screeching halt. This is neither necessary nor wise. Congress should not dictate specific industrial processes under the guise of security when a facility may choose other alternatives that meet the Nation's security needs.

That is precisely why Senators Pryor, Voinovich, Landrieu, and I are introducing the Continuing Chemical Facilities Antiterrorism Security Act of 2010. Instead of directing the Department to start again from scratch, our legislation would reauthorize section 550 for five more years. Such an extension would provide the Department with sufficient time to fully implement the CFATS program in its current form. It would also provide a stable regulatory environment to encourage chemical innovation and industry confidence.

Our legislation also contains two improvements, both of which are based on similar provisions from the Security and Accountability For Every, SAFE, Port Act of 2006. The first would direct the Secretary to establish a voluntary Chemical Security Training Program to enhance the capabilities of Federal, State, and local governments, chemical industry personnel, and governmental and nongovernmental emergency response providers to prevent, prepare for, respond to, mitigate against, and recover from acts of terrorism, natural disasters, and other emergencies that could affect chemical facilities. The second would create a voluntary program to test and evaluate these capabilities.

Not only is the chemical industry vital to our country's economy, but also it is the linchpin to the important advancements and innovations in critical fields such as science, technology, agriculture, medicine, and manufacturing.

As one of the co-authors of the first chemical security law, no one is more conscious than I am of the risks that attacks on chemical facilities pose to the nation. The Department has done a remarkable job developing a comprehensive chemical security program.

If our true intent is to secure high-risk facilities, then it is incumbent upon Congress to allow the Department to continue doing its job implementing CFATS.

I begin by complimenting my distinguished colleague from Virginia for his initiative in proposing the creation of a national commission to examine criminal justice. There have been many Commissions in recent years, recent decades. But the problems which we are now confronting warrant a fresh look. Senator Webb has proposed that. This Commission has the potential to be not just another Commission but to make some very significant advances on this very serious problem.

The principal issue on crime is public security, protection from violent criminals. I have long believed the issue could be divided into two parts. One is the violent career criminals. They are defined as someone who has committed three or more serious crimes. One of the first bills which I authored was the armed career criminal bill, which was enacted in 1984, which made it a Federal offense punishable by what is the equivalent of a life sentence under the Federal system, 15 years to life, for anyone caught in possession of a firearm who has committed three or more offenses--a robbery, burglary, rape, arson or the sale of drugs. Statistics show that about 70 percent of violent crimes are committed by career criminals. It is my view, shared by many, that those people ought to be sent to jail for life. They ought to be separated from society. The second category involves those who have been convicted of crimes and who are going to be released. With respect to juveniles, we call that juvenile delinquency, at least in Pennsylvania we do, as opposed to a criminal charge. They are going to be released. First and second offenders are going to be released. The object is, how do we deal with them to, No. 1, protect society and, No. 2, to take them out of the crime cycle so they can have productive, contributing lives in society? We know what to do, but we have never done it. The steps are to work with those who suffer from drug abuse or alcohol abuse. We find that 70 to 80 percent of the people arrested have drug or alcohol problems. They have to be treated, detoxification. Then they need literacy training. So many cannot read or write. Then they need job training so they will have a trade or skill. Then they need to be placed in society.

It is no surprise, when someone who is a functional illiterate, without a trade or skill, gets out of jail, that the

odds are high they will go back to jail. There are a number of programs but not enough, not sufficiently carefully thought through, to place people. We have tax credits which will encourage employers to hire people. In the stimulus package for veterans or juvenile offenders, there is a 40-percent tax break on the first $6,000 of a job which is paid. That is a start. But it doesn't go very far. We have been unwilling to make the kind of investment to provide that kind of realistic rehabilitation. Therefore, we have recidivism and the revolving door in our jails. The public is the principal loser because these people come out and commit more crimes. Individuals are lost. So both in terms of the individual on rehabilitation, to have a productive role in society, a decent life, and for public safety. Candidly, you don't get too far on legislation looking out for the criminals on rehabilitation. But when you talk about the threat to society from repeat crimes, then people pick up their ears.

There has been a fascinating debate recently about whether we can afford to have a criminal justice system that keeps people in jail and protects the public, whether we can afford to have the death penalty imposed. Is it too expensive to undertake the litigation process for society. I do not think we can make a decision on public safety based upon cost. Security is the basic purpose, fundamental first purpose of Government. National security on the international scene, protection from attacks; now we have a new form of security in terrorism. When we come to the domestic scene, it is a matter of having safety on the streets. There is a debate as to whether we ought to have the death penalty. That is a worthwhile debate. The Supreme Court has been moving in a number of areas to limit the application of the death penalty.

From my experience as district attorney of Philadelphia, I believe the death penalty is a deterrent. I questioned FBI Director Mueller about it yesterday in the Judiciary oversight hearing. Director Mueller thinks the death penalty ought to be retained.

When I was an assistant DA many years ago, I had a case in the Pennsylvania Supreme Court when I was chief of the appeals division. There were three young hoodlums, Williams, Caters, and Rivers. They were 19, 18, and 17. They planned a robbery. The two younger ones, Cater and Rivers, said to Williams, who had a gun: We are not going if you take the gun along. They had IQs under 100 but were smart enough to know that if a gun was taken, there might be a killing. That would be felony murder and they could get the death penalty. Williams said: I won't take the gun. He put it in the drawer, slammed it shut. Then, unbeknownst to Cater and Rivers, he took the gun back, put it in his pocket, went to rob a grocer in north Philadelphia, a tussle ensued. Williams pulled the gun and shot and killed a man named Viner. All three were sentenced to death in the electric chair. Williams actually was executed. This goes back to about 1960. Cater and Rivers got a life sentence.

I argued the case in the State Supreme Court which upheld the death penalties and then later, when I was district attorney, I joined in the recommendation of a life sentence for Cater and Rivers. The point is that even with a marginal IQ, there was a deterrent effect. The critical factor in my thinking on their not having the death penalty was they didn't want to take the weapon. In the eyes of the law, they were as guilty as Williams. They were coconspirators. When you rob and a killing ensues, a murder ensues, it is murder in the first degree and calls for the death penalty.

The commission which has been proposed here today ought to take a look at white-collar crime, and ought to make an evaluation of the sentencing which has been imposed and whether it is adequate. If you are dealing with a domestic quarrel, a husband-wife dispute--there are many homicides arising in that context--a jail sentence is not a deterrent. If you are dealing with white-collar crime, there is a deterrent.

Today, we have--and I questioned FBI Director Mueller about this yesterday. He said they have many investigations being undertaken as a result of what has happened with corporate fraud, the misrepresentation of assets, leading us to the tremendous economic problems which we face today. There is no doubt about the deterrent effect. I urged Director Mueller to expedite some of the cases.

There is great public concern about whether there will be accountability. I said yesterday--and repeat to--we do not want to send anybody to jail who does not deserve to go to jail, but you do not have to investigate a case for years and bring forth 100 charges, 100 counts of an indictment. It can be done on a much more rapid pace and have an appropriate trial and have a result, and it would be important to show the example and to show the American people there is accountability.

When we talk about the jails, the commission ought to make a determination as to whether there are people in jail who ought not to be in jail. This morning's news has a report about the State of New York reexamining sentencing on drug laws. There is a lot of thought that the drug laws catch too many people, and many people go to jail who ought not to be in jail. Well, that is a question that ought to be examined.

Our whole prison system in Pennsylvania is called a correctional system, which is a misnomer. It does not correct people. It does not have the facilities to correct people. What they do is warehouse.

A related issue that considerable work has been done on recently is the issue of mentoring. We have some 80,000 at-risk youth in the city of Philadelphia, determined by a hearing which was held recently. Those at-risk youth can go one of two ways: They can move through the education system, if they have proper guidance; or they can be on the streets and turn into criminals, as so many of them do.

Mentoring is a way of providing some guidance. There are so many single-parent homes--a working mother, nobody to give guidance. We have appropriated federally, recently, $25 million nationally for five target cities, one of which is Philadelphia, but that is a very modest beginning. But to be a surrogate parent, you have an opportunity. That is a subject which a commission ought to undertake.

Those are some of the ideas which are current in this very complex field. In trying to estimate the cost of crime, it is hard to do. My own judgment would be, if you put a billion-dollar price figure on the cost of robberies, burglaries, corporate fraud, automobile thefts, to say nothing about the pain and suffering people have--the anxiety in the middle of the night when there is a loud noise in your house; the consolation you have, to some extent, from an alarm system that does not go too far--but this is a big problem in America, and it is a problem which has largely gone unsolved.

Problems of crime are the same today as they were when I first entered the field as an assistant district attorney decades ago. There are ways to deal with violent crime. There are ways to deal with realistic rehabilitation. There are ways to deal with deterrence on white-collar crime--that it ought not to be only a fine, which turns out to be a license to do business. In the confirmation hearing of the new Assistant Attorney General for the Criminal Division, that point was emphasized.

But what Senator Webb has had to say today, and the blueprint he has outlined, could be a major advance on a very complex problem, which needs a--I was about to say ``solution,'' but there is not going to be a solution--but there can be an enormous amelioration if we tackle the problem with the guidance that could be provided by the Webb commission. May I give it the name: The Webb commission? Hearing no objection, so ordered.

Mr. President, I seek recognition to comment on my cosponsorship of the Dam Rehabilitation and Repair Act of 2009 and clarify my intent with respect to Davis-Bacon prevailing wage requirements under this bill.

This bill would establish a grant program within the Federal Emergency Management Agency to provide assistance to states for the rehabilitation of publicly-owned dams that fail to meet minimum safety standards. I am cosponsoring this bill because it is my understanding that there are at least 3,040 deficient dams in the United States, including 369 in Pennsylvania. These dams pose an unacceptable level of risk to the public and should be rehabilitated expeditiously.

I cosponsored similar legislation in the 110th Congress, however, I am advised that it was not considered by the Committee on Environment and Public Works due to concerns over language in the bill which would have required that dam repair work funded under the act adhere to Davis-Bacon locally prevailing wage requirements. As a result, this year's version of the bill, as introduced, does not contain Davis-Bacon prevailing wage requirements out of deference to the Ranking Member of the Committee. However, I am a strong supporter of Davis-Bacon, having voted in favor of preserving it 23 separate times on the Senate floor since 1982. Accordingly, it is my intention to work to reinsert Davis- Bacon requirements into the bill either in committee or on the Senate floor.