Floor Statements

Mr. President, I suggest the absence of a quorum.

Mr. President, the House-passed version of the Commerce, Justice and State Departments Appropriations Bill included provisions that, if adopted, would severely hamper efforts of the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) to enforce our nation's gun safety laws.

Under current law, dealers are required to notify the BATFE of the sale of two or more handguns to the same person within five business days. The House-passed provisions would prohibit the public release of information related to multiple handgun sales. The House language would also prohibit the release of information related to tracing requests on guns used in crimes. Eliminating the public availability of this data would make it more difficult to monitor the activities of reckless gun dealers.

In addition, the House-passed language would prohibit the BATFE from issuing a rule requiring Federal Firearm Licensees to take a physical inventory of their firearms. A physical inventory recently revealed that a Tacoma, WA, gun dealer could not account for the sniper rifle used by the Washington, D.C. area sniper and more than 200 other guns. The House language would have required the immediate destruction of records of approved firearms purchases and transfers generated by the National Instant Criminal Background Check System. The retention of these records has assisted law enforcement officials trying to prevent guns from getting into the hands of criminals and identifying gun trafficking patterns.

The House-passed provisions were never the subject of hearings and are not supported by any major law enforcement organizations. They could shield reckless and negligent gun dealers from public scrutiny and weaken the BATFE's oversight and enforcement authority. They should not be adopted by the Senate.

Mr. President, I do ask unanimous consent that the hour which I might be entitled to under the postcloture rules be yielded to Senator Reid.

Mr. President, first, I commend the Senator from New Mexico for his analysis of this bill. I listened to the last part of it and I thought it was exactly on point. I particularly would like to emphasize his last point, which is that this is not the end of the Congress, this is just the end of a session, or nearing the end of a session.

With 4 days' notice of a bill of this complexity--now, I think the bill itself is about 700 pages and there are hundreds of pages of commentary that go with it, but the idea that we should take up a bill of this complexity, when seniors are just having the first opportunity after 4 days to try to fathom what is in it, is a terrible mistake.

The Senator from New Mexico was exactly right in urging that we not rush to consider this bill tomorrow and to adopt this bill. It took a great deal of effort to create Medicare. It was not until 20 years after Harry Truman first proposed the idea of a guaranteed health benefit for seniors that President Lyndon Johnson signed the Medicare Program into law. It was fitting that Harry Truman was the program's first beneficiary. He paid his $3 premium and he enrolled in Medicare in 1965.

We are confronting in this bill a turning away from Medicare's noble purpose. That purpose was to create an insurance pool for all seniors, where the risks and financial burdens are shared--not for the profit of insurance companies or pharmaceutical companies but for the common good. The legislation before us is a fundamental and ill-advised restructuring of Medicare under the guise of adding a prescription drug benefit to the program.

Many Members of Congress have worked for years to bring a Medicare prescription drug benefit to fruition. While the Senate-passed version of this bill had enough flaws to cause me, along with a number of colleagues, to vote against it, at least I was hopeful that some of these flaws would be corrected in the conference committee. Unfortunately, the prescription drug plan before us not only worsens the prescription drug program as adopted by the Senate, it has become a millstone dragging Medicare down with it.

The promise of a prescription drug plan is being used to begin the unraveling of Medicare. First, there are the dangers for seniors created by the prescription drug provisions themselves. The Congressional Budget Office estimates that up to 25 percent of retirees, with existing prescription drug coverage through a former employer, would lose that coverage under this bill's plan. That is about 2.7 million senior citizens who currently have good private insurance and are paying less now than they would have to under a Medicare prescription drug plan. That is 2.7 million retirees who will lose benefits, above and beyond the number of retirees who are projected to lose their benefits under the current trend of employers reducing prescription drug coverage for their retirees.

The tax subsidies for employers included in this conference report are not enough to entice employers to keep their drug coverage for those 2.7 million retirees.

Another fundamental flaw with the prescription drug benefit in this legislation is the lack of a guaranteed Medicare prescription drug plan. In the Senate bill, in the absence of two competing private plans offering a senior a prescription drug benefit, Medicare was the fallback. This approach was gutted in conference. Here is what the conference report provides. If one insurance company in a region offers a prescription drug benefit, regardless of how unattractive it is to seniors in terms of its premiums and copayments, both of which are left up to the insurance company, and if an HMO offers coverage in that region as a substitute to Medicare, no matter how unattractive that HMO is to seniors, and assuming that HMO also offers a prescription drug benefit, the senior will not be offered the fallback Medicare prescription drug benefit.

Let me put that another way. We begin with the fact that private insurance companies offering a prescription drug policy under this bill could charge whatever premiums and copayments they want. If only one private prescription drug plan exists in a region, regardless of how unappealing it is, and one HMO offering a prescription drug plan also exists in that region, a senior has the choice of purchasing the bad prescription drug plan or leaving Medicare to join an HMO that he or she does not want to join, in order to get that prescription drug benefit. Forcing seniors to make the choice between staying in traditional Medicare or leaving Medicare and joining an HMO they otherwise would not join in order to get a prescription drug benefit is a thinly disguised attempt to unravel and privatize Medicare. That is a choice no senior citizen in America should have to make.

Also troubling is the fact that the private company which offers the prescription drug benefit, and the company which offers the managed care alternative to Medicare, can be one and the same under the provisions of this bill. In addition, the prescription drug benefit in the legislation before us has a large gap in the prescription drug coverage. Once a senior's total drug spending reaches about $2,500 for the year, he or she will have to pay 100 percent of the cost of their prescriptions until their total drug spending reaches $3,600. This has come to be called the donut hole. This coverage gap will leave many seniors to pay the full cost of prescriptions at a time when they most need assistance. I know of no other insurance program that is so unfairly structured in that way.

Adding insult to injury, while there is a gaping hole in coverage, there is no gap in the requirement to pay premiums. That obligation continues, even during the period that benefits are halted.

One of the most disturbing aspects of this legislation is the fact that private insurance companies can use the purchasing power of their large number of beneficiaries to negotiate lower prescription drug prices, but Medicare is prohibited from doing so. This is one of the most unacceptable ways this bill protects private insurance companies and prescription drug companies from fair competition from Medicare, all at the expense of seniors and American taxpayers.

Ask veterans how much prescription drugs cost at VA hospitals compared to their local pharmacy. Many of the drugs the VA offers are as little as half the price. The reason is the VA buys drugs in large quantities from drug manufacturers and has leverage in negotiating the prices. Instead of buying the 30-day supply of pills for someone on Medicare, why not allow Medicare to buy thousands of 30-day supplies at once for a fraction of the cost? That makes a lot of sense, but it is prohibited under this bill.

The conferees left out some other real solutions to address the high cost of prescription drugs. Both the House- and Senate-passed versions included a provision to allow seniors to buy drugs in other countries at lower prices, so-called reimportation provision. However, these provisions have been stripped from the final bill. Even though the House and Senate have voted to allow reimportation with strong bipartisan votes, the conferees ignored these votes. More important, they ignored the problem of high prescription drug costs. Americans pay more for prescription drugs than any people in the world. U.S. taxpayers' dollars help to subsidize the research and development of many prescription drugs. Yet drug companies then sell them abroad for less. Because this bill does not address the high cost of prescription drugs, needed medicine will still be inaccessible for millions of our citizens.

Unfortunately, the prescription drug benefit in this bill is what Newt Gingrich envisioned for the future of the entire Medicare Program. The former House Speaker said that he wanted Medicare to wither on a vine. To slowly chip away at the foundation of Medicare until it crumbles with a private network of managed care and drug companies eventually replacing Medicare is what he envisioned.

Apparently AARP, which once stood for preserving social insurance for America's seniors, agrees with Mr. Gingrich. The AARP executive director and CEO wrote the forward to the former Speaker's book entitled ``Saving Lives and Saving Money,'' and later commented that ``Newt's ideas are influencing how we at AARP are thinking about our national role and in our advocating for system change.''

With this bill, the chief cooks of the Republican Party are following Newt Gingrich's ``wither on a vine'' recipe for the future of Medicare.

The six so-called premium support demonstration projects created by this bill are the opening act for the privatization of Medicare. Proponents argue that Medicare's costs won't come down without a private sector competitor. But this bill, while purporting to promote competition between Medicare and private insurers, tilts the playing field against Medicare. First, there is a $12 billion so-called stabilization fund, which is in reality a slush fund. It is a slush fund for insurance companies to subsidize their policies. The $12 billion in slush money is not available to traditional Medicare, only to the private insurance companies.

Second, the claims of the insurance industry that they will and must accept every senior who applies are disingenuous. Here is why. Private insurers will have the flexibility to alter and change their plans, to be able to cherry-pick the healthy senior. For example, if an insurance company designed a program with a very low monthly premium but with high copayments and high deductibles, this would be an incentive for a healthy senior to enroll, someone who could risk having to pay high copayments and deductibles because he or she has relatively infrequent medical treatment. Less healthy seniors, whose frequent medical treatments make it difficult or impossible for them to pay high copayments and high deductibles, would be left for the Medicare program to cover. This is privatization plus. It simply cannibalizes Medicare. Subsidizing insurance companies and allowing them to cherry-pick the beneficiary population means that insurance companies will be profiting mightily, while leaving the U.S. taxpayer to pick up the tab of insuring the less profitable population.

How did we arrive at this ill-conceived legislation? Democrats were all but shut out of the conference committee which wrote this bill. Only two Democrats were allowed to participate in the conference negotiations. This massive shift in Medicare's approach and purpose was delivered publicly to us about 4 days ago. In this bill's 700 pages are provisions to dismantle Medicare as we know it, replacing it with a network of private insurers and drug companies whose goal is making a profit.

There is a fundamental difference between private industry and government: Private companies fail if they do not make money, while government fails if we do not help citizens--especially those that cannot help themselves.

I have heard from many of my constituents in the State of Michigan who need help in getting affordable prescription drugs. Let me read you a few excerpts from letters that I have received on this issue. One constituent writes:

I am writing for your support for the Medicare Program.

Please provide a Medicare drug benefit that is comprehensive,

affordable and secure. Do not undermine Medicare

as a defined benefit program through privatizing it.

Another constituent writes:

We do not want a drug bill that eliminates or reduces our

current prescription plan that we now have . . . When I

retired . . . this plan was part of my benefit package and we

fell that it is their obligation to continue it, and the cost

of our drugs should not be passed on to the tax payers.

I get hundreds of messages a week like that from constituents with concerns over the privatizing of Medicare and the possible loss of existing prescription drug benefits. It is estimated that this bill, if it becomes law, would cause 138,000 seniors in Michigan currently receiving prescription drug benefits to lose some or all of those benefits. And 90,000 seniors in my State who are Medicaid beneficiaries with a current prescription drug coverage will be worse off if this bill becomes law than they are under current law.

A fundamental restructuring of Medicare of this magnitude demands careful and thoughtful deliberation. The conference report contains a large amount of new material not included in either the House-passed or Senate-passed bills. Hastily acting on this legislation is fundamentally unfair to millions of seniors who want and deserve to be treated fairly. I predict that when seniors become familiar with this bill's details, there will be a crescendo of opposition.

The siren song you hear now principally from our Republicans colleagues is that competition is necessary to drive the cost of health care down. The reality of this bill is not competition but government subsidies for insurance companies while allowing them to carve out the most profitable segment in the business--caring for the healthiest-- leaving the seniors with greatest need as the responsibility of the Federal government. Privatizing the most profitable part with a subsidy is not competition; it is a huge gift to private companies at the expense of the U.S. Treasury.

Supporters of this legislation say they are harnessing the power of the marketplace to drive down prices. The reality is just the opposite. They are hobbling the Medicare program in the prescription drug program by letting the private provider use its purchasing power to drive down its drug prices, but not letting Medicare do the same; and in the dismantling of Medicare, by pushing people out of Medicare into private HMOs in order to obtain a prescription drug benefit.

The bill before us will begin undoing 37 years of progress in Medicare. It is an ill-advised assault on the one program that guarantees medical care to our most vulnerable population, our senior citizens. An historic opportunity is being squandered if we adopt this bill. Our Nation's seniors deserve better. I yield the floor.

Mr. President, it is difficult to oppose a bill that has a number of provisions that I not only support, but worked to have included in the bill. However, the process and the product are deeply flawed and I cannot support it.

There are many objectionable provisions that were added to this bill that were not in either the House or Senate versions of this legislation; for instance the retroactive MTBE liability waiver, underground storage tank provisions that would require taxpayers, rather than polluters, to pay $2 billion to clean up leaking underground storage tanks containing gasoline and other toxic chemicals, even at sites where viable responsible parties are identifiable, and the numerable State-specific projects that will cost billions of dollars and were, again, not considered by the House or the Senate.

The Senate passed a comprehensive and balanced Energy bill in July. Then, after weeks of closed-door meetings with virtually no input from Democratic conferees, the Republicans put forward this ``take it or leave it'' Energy bill that is drastically different than the bill that the Senate passed. We have no opportunity to amend this bill, or choose among its good and bad provisions. It is all or nothing.

There are simply too many provisions on the negative side of the ledger. The massive power failure of August 2003, on top of the massive price manipulation perpetrated by Enron and others, provided additional proof, proof that shouldn't have been needed, that the United States' deregulated energy markets are not functioning well. This bill doesn't help that problem. It may make it worse.

The Conference report would repeal the Public Utility Holding Company

Act of 1934, PUHCA, longstanding consumer and investor protection legislation governing energy industry structure and consolidation, 1 year after enactment of this bill. Unfortunately, the bill fails to provide adequate protections to prevent industry market manipulation and consumer abuses. Governor Granholm of Michigan has said that replacing PUHCA with ``weaker anti-fraud and market manipulation rules'' could weaken the States' ability to protect consumers. Further, while the enactment of this legislation's mandatory reliability provisions would be an improvement over the current voluntary system of standards, the bill fails to ensure that regional transmission organizations will have the authority to enforce those standards in order to prevent, or respond effectively to, another blackout. Uncertainty in the power industry threatens our economy and security and creates the loss of investor confidence in U.S. energy markets. If necessary, we should adopt a stand-alone bill that sets mandatory reliability standards, requires utilities to join regional transmission organizations and establishes consistent rules for the enforcement of standards nationwide than pass an Energy bill filled with so many harmful provisions.

In addition, two provisions in this conference report would significantly impede the ability of Federal and State agencies to investigate and prosecute fraud and price manipulation in energy markets. These provisions would make it easier to manipulate energy markets without detection.

Section 1281 of the electricity title states: ``Any request for information to a designated contract market, registered derivatives transaction execution facility, board of trade, exchange, or market involving accounts, agreements, contracts, or transactions in commodities (including natural gas, electricity and other energy commodities) within the exclusive jurisdiction of the Commodity Futures Trading Commission shall be directed to the Commodity Futures Trading Commission.'' Section 332(c) of the oil and gas title contains similar language specifically applicable to investigations by the Federal Energy Regulatory Commission, FERC.

If adopted, this would curtail all State and Federal authority, other than CFTC, to investigate wrongdoing in CFTC-regulated markets. This would impede FERC, Department of Justice, and State investigations of fraud and manipulation in these markets. It would turn the CFTC into an impediment for all other Federal and State investigations into matters within CFTC-regulated markets, which would be an unprecedented intrusion into the enforcement of State and Federal consumer protection laws. Had this approach been in effect in recent years, FERC would not have been able to investigate manipulation of the energy markets, including the fraud and manipulation perpetrated by Enron through EnronOnline.

Section 1282 of the electricity title would impose a higher criminal standard, ``knowingly and willfully,'' for filing false information and for improper round trip trading than exists under current law. The new round trip trading provision is inconsistent with current law and the Cantwell amendment, which prohibited market manipulation in electricity markets, and which recently passed the Senate.

For example, section 4c of the Commodity Exchange Act states it is ``unlawful for any person to enter into . . . a transaction . . . involving the purchase or sale of any commodity for future delivery'' if the transaction ``is, of the character of, or is commonly known to the trade as a `wash sale' or . . . is a fictitious sale.'' There is no requirement that the violation be ``willful.''

Manipulation is difficult to prove even under current law. By raising the burden of proof, this provision will make it nearly impossible to prove illegal round trip trading or wash sales. Rather than weakening the laws preventing fraud and manipulation in energy markets, the Congress should be strengthening these prohibitions.

There are other provisions that would affect FERC's ability to ensure markets are transparent and fair.

The ``Enron loophole'' was attached during the conference on an omnibus appropriation bill in 2000, and was a factor underlying the massive manipulation of the energy markets in 2000 and 2001. The provisions in this bill, attached under hurried circumstances would widen the loophole and increase the chances of more manipulation and dysfunctional markets. This is the wrong response to the current crisis of confidence and integrity in our energy markets.

I am also disappointed that the conference report on this bill directs the Department of Energy, DOE, to ``as expeditiously as practicable, acquire petroleum in amounts sufficient to fill the Strategic Petroleum Reserve to the [1 billion] barrel capacity,'' but does not include any direction to DOE to fill the SPR in a manner that minimizes the cost to the taxpayer or maximizes the overall supply of oil in the United States. That second direction is critical--otherwise the filling of the SPR could lead to continuing high gas prices.

The Levin-Collins amendment, which was adopted unanimously by the Senate last month, directed DOE to develop procedures to fill the SPR in a manner that minimizes the cost to the taxpayer and maximizes the overall supply of oil in the United States. The Levin-Collins amendment expressed the sense of the Senate that the DOE's current procedures for filling the SPR are too costly for the taxpayers and have not improved our overall energy security.

DOE's internal documents state that filling the SPR without regard to the price and supply of oil in the global markets exacerbates price problems in those markets. By increasing demand for oil at a time when oil is in scarce supply, the SPR program pushes the price of oil up even further. Moreover, when near-term prices are higher than future prices, oil companies will meet the additional demand for crude oil by removing oil from their own inventories rather than purchasing high- priced oil on the spot market. Thus, under these price conditions, which have generally prevailed over the past year and a half, adding oil to the SPR will lead to a corresponding decrease in private sector inventories. Since market prices are so closely tied to inventory levels, filling the SPR under these market conditions both depletes private sector inventories and pushes up prices for America's consumers.

Furthermore, according to the Department of Energy's own analyses, taking costs into consideration--as the DOE did prior to early 2002-- can save taxpayers several hundreds of millions of dollars over the span of a few years. Acquiring more oil when prices are low will increase revenues to the Treasury from the sale of high-priced royalty oil that is not needed to fill the SPR. Secondly, allowing oil companies to defer deliveries to the SPR when prices are high in return for the delivery of additional barrels of oil at a later date--as DOE did prior to early 2002--enables the DOE to increase the amount of oil in the SPR without any additional costs.

In summary, the unqualified direction in the bill to DOE to fill the Strategic Petroleum Reserve to 1 billion barrels is likely to increase the cost of crude oil and crude oil products, such as gasoline, home heating oil, and diesel and jet fuel, to American consumers and businesses, as well as to the taxpayer, with uncertain benefits to our national security.

Also, while I support the provision in this legislation that would increase the use of ethanol to 5 billion gallons by 2012 and 3.1 billion gallons by 2005, it needs to be reasonable in a way that ensures the continued viability of the Highway Trust Fund.

Twice the Senate passed legislation that included a Volumetric Ethanol Excise Tax Credit, VTEEC, that would address the shortfall in revenue to the Highway Trust Fund that was caused by the ethanol tax exemption. In addition to taxing ethanol, the VTEEC, as passed by the Senate, would maintain the credit for ethanol production by paying for it from the general treasury, create a biodiesel credit and ensure that all taxes charged on ethanol go to the highway trust fund.

Unfortunately, the arrangement worked out by House and Senate Republicans gives ethanol blenders the new option to receive a 5.2 cent tax credit after paying the federal gas tax or they could continue receiving the current ethanol exemption of 5.2 cents. Since most blenders likely would continue to choose to receive the exemption up front rather than wait for a tax

credit, the highway trust fund would still lose billions of dollars per year. Efforts by Senator Baucus to address this problem were approved by the Senate conferees, but was refused by the House. While I support increased ethanol production, it is imperative that increased ethanol production does not diminish the Highway Trust Fund.

Additionally, I am troubled that this legislation exempts producers of MTBE from liability. MTBE, an oxygenate that can and should be replaced by ethanol, is a potentially harmful product and its producers should not be exempt from liability. In Michigan, it has been estimated that MTBE has contaminated ground water around over 700 leaking underground storage tank sites. Further, as many as 22 water supply wells have been deemed unusable due to MTBE contamination. Because of this MTBE liability waiver, the State of Michigan may have to pay over $200 million to clean up those sites. Governor Granholm has strongly protested that we need to hold manufacturers accountable for the damage that MTBE does to public health and the environment, not guard them from liability which then allows them to pass the cleanup costs on to the States.

As I stated earlier, this bill has a number of provisions that I support and that I worked to have included in it. These include tax credits for advanced technology vehicles and joint research and development between the Government and the private sector to promote the expanded use of advanced vehicle technologies. But in the end, the good provisions must be weighed against the large number of bad provisions, and there are too many objectionable provisions for me to support this bill.

The Senate has worked to create a national energy policy for years. In just a few weeks, without bipartisan negotiation, this piece of legislation was created. We should work to complete a long-term, comprehensive energy plan that provides consumers with affordable and reliable energy, increases domestic energy supplies in a responsible manner, invests in energy efficiency and renewable energy sources and protects the environment and public health.

Mr. President, in the November 3, 2003 edition of Air Safety Week a connection was drawn between airline safety and gun safety. And, while some people may think there is no connection between airline safety and gun safety, the connection is serious. Attention has been paid to potential vulnerabilities of commercial aircraft to terrorists armed with shoulder-fired missiles. A more pedestrian but an equally deadly potential threat looms from terrorists armed with .50 caliber sniper rifles.

The .50 caliber sniper rifle is among the most powerful weapons legally available. These weapons are not only powerful, but they're accurate. According to the House Government Reform staff report, the most common .50 caliber weapon can accurately hit targets a mile away and can inflict damage to targets more than four miles away. The thumb- size bullets, which come in armor-piercing and incendiary variants, can easily punch through aircraft fuselages, fuel tanks, and engines.

These weapons pose a serious threat to planes both in the air and on the ground. According to a recent Violence Policy Center report, aircraft landing are particularly vulnerable, as illustrated by the testimony of Ronnie G. Barrett, President of Barrett Firearms Manufacturing. As an expert witness during a 1999 criminal trial, Barrett was asked about the relative difficulty of hitting a stationary target and a moving target, such as a motorcycle or an airplane. He was asked about shooting at an airplane ``coming in to land . . . descending over 120 miles an hour.'' He testified: ``If it is coming directly at you, it is almost as easy. Just like bird hunting. But yes, it is more difficult if it is horizontally, or moving from left to right . . . '' In other words, according to Barrett, shooting at a moving object coming directly at one is ``almost as easy'' as a stationary target, an answer that is consistent with detailed instructions given in a variety of U.S. Army manuals about engaging aircraft with small arms.

Despite these facts, long-range .50 caliber weapons are less regulated than handguns. Buyers must simply be 18 years old and submit to a Federal background check. In addition, there is no Federal minimum age requirement for possessing a .50 caliber weapon and no regulation on second-hand sales.

I believe the easy availability and the increased popularity of the .50 caliber sniper rifle poses a danger to airline safety, as well as homeland security. That's why last year I cosponsored Senator Feinstein's Military Sniper Weapon Regulation Act. This bill would change the way .50 caliber guns are regulated by placing them under the requirements of the National Firearms Act. This would subject these weapons to the same registration and background check requirements as other weapons of war, such as machine guns. This is a necessary step to protecting the safety of airline travelers.

The .50 caliber sniper rifle is among the most powerful and least regulated firearms legally available. Tighter regulation is needed. I urge my colleagues to support Senator Feinstein's bill.

Mr. President, earlier this week, an article in the Washington Post highlighted concerns about limits on the Federal Bureau of Investigation's ability to pursue terrorists who try to buy guns. After September 11, 2001, the FBI launched an initiative to notify Federal law enforcement officials and other national security officials when suspects on the FBI's terrorist watch list attempt to purchase a firearm. However, according to the Washington Post article, an interpretation of current law by the Attorney General has precluded Federal agents from obtaining any details about gun purchase transactions unless the purchaser is identified by the National Instant Criminal Background Check System as a prohibited buyer.

The Post article cited situations in which law enforcement officials have not been able to pursue known terrorists armed with a firearm. According to the Washington Post, as many as 21 suspects on the FBI's terrorist watch list have attempted to buy guns since the spring of 2003. According to Justice Department officials cited in the Post article, the rules established by the Attorney General prevent Federal officials from sharing information with investigators about legal gun buyers, even if these gun buyers are suspected terrorists.

Law enforcement officials told the Post that the FBI frequently does not know the whereabouts of suspected terrorists on its watch lists. In such cases, learning where a suspected terrorist bought a firearm and what address they provided could be extremely helpful to counterterrorism investigators.

To assist the FBI in monitoring and apprehending suspected terrorists, Senator Lautenberg introduced the Terrorist Apprehension Act. This bill would require NICS to alert the FBI, Department of Homeland Security, and local law enforcement officials anytime an individual on a terrorist watch list attempts to buy a firearm.

I believe this is common sense homeland security legislation, and I hope the Congress will enact it quicky.

Madam President, I want to call my colleagues' attention to the loss of one of the most influential civic and religious leaders in Flint, MI, Dr. Avery Aldridge, who passed away at the age of 78 on November 1, 2003. He is greatly mourned by his wife and family, his church community, and people in my home State of Michigan who knew and loved him as a man of great faith, devoted to his family, and a voice for justice and equality in the African American community.

Dr. Aldridge was born in Widener, AR on February 9, 1925, the fourth of nine children. He completed his secondary education in Memphis, TN, and from there was inducted in the Army in 1943. He served as a Sergeant during World War II, defending the cause of freedom for his country until his honorable discharge in 1946. He then settled in Flint, MI where he married Mildred Light and had two children, Karen and Derrick. Dr. Aldridge and his wife were dedicated members of Antioch Baptist Church where he served as General Superintendent of the Sunday School and was later ordained into the ministry.

In December, 1956, Dr. Aldridge founded Foss Avenue Missionary Baptist Church with his wife, Mildred, and two others. The church has grown through the years to a congregation of two thousand families, with 50 auxiliaries and committees, an elementary and secondary school, a credit union, an activity center and a free clothing center. Dr. Aldridge also led Foss Avenue to initiate a small business center to train youth for employment, provide food baskets to those in need, organize a prison ministry and annually provide Thanksgiving Day dinner to all incarcerated in the Genessee County Jail. Dr. Aldridge's vision and leadership also supported four missionaries to Africa, and led to the founding of Concerned Pastors for Social Action (CPSA), the CPSA Courier, a weekly community and religious publication, and Faith Access to Community Economic Development (FACED), a community development organization.

Dr. Aldridge was a lifelong learner and furthered his education at Moody Bible Institute in Chicago and the University of Michigan-Flint. He believed strongly in the value of education and supported black colleges across the country, as well as scholarships for local youth. Because of his work, he was awarded several honorary degrees through the years.

Dr. Avery was committed to serving the needs of people and improving the quality of community life. He rose to prominence in Flint during the civil rights movement of the 1960s, and was a calming influence in the city during tensions in the wake of the Detroit riots in 1967. He became known as ``The Rights Activist,'' serving on local, State, and national commissions, including the Flint Human Relations Commission, the Flint Housing Commission, the Michigan AIDS Policy Commission, and the National Holiday for Martin Luther King, Jr. Commission.

I know my colleagues join me in paying tribute to the life and ministry of Reverend Dr. Avery Aldridge who will be missed by the many people whose lives he touched. I hope his family takes comfort in knowing that his legacy will stand as an inspiration for generations to come.

Mr. President, today I am joined by a number of my colleagues in submitting a resolution in the hope that the Canadian government will cease its support of the slaughter of seals. The images from this senseless slaughter are difficult to view but even harder to accept: skinning of live animals, some no older than 12 days, and the dragging of live seals across the ice using steel hooks.

On November 15, 2003, the Government of Canada opened a commercial hunt on seals in the waters off the east coast of Canada. This hunt is supported by millions of dollars of subsidies to the sealing industry every year from the Canadian Government. These subsidies facilitate the slaughter of innocent animals and artificially extend the life of an industry that has ceased to exist in most developed countries. These subsides can not be justified and should be ended.

Few would argue that this industry still serves a legitimate purpose. Two years ago, an economic analysis of the Canadian sealing industry concluded that it provided the equivalent on only 100 to 150 full-time jobs each year. In addition, the analysis found that these jobs cost Canadian taxpayers nearly $30,000 each. The report concluded that when the cost of government subsidies provided to the industry was weighed against the landed value of the seals each year, the net value of the sealing industry was close to zero.

There is little about the Canadian sealing industry that is self- sustaining. The operating budget of the Canadian Sealers Association continues to be paid by the Canadian government; their rent each month is paid by the provincial government of Newfoundland and Labrador; seal processing companies continue to receive subsidies through the Atlantic Canada Opportunities Agency; Human Resources Development Canada, and other federal funding programs for staffing and capital costs. The sealing industry, through the Sealing Industry Development Council and other bodies, receives assistance for product research and development, and for product marketing initiatives, both overseas and domestically. All the costs of the seal hunt for ice breaking services and for search and rescue, provided by the Canadian Coast Guard, are underwritten by Canadian taxpayers.

Many believe that subsidizing an industry that only operates for a few weeks a year and employs only a few hundred people on a seasonal, part-time basis is simply a bad investment on the part of the Canadian government. The HSUS has already called upon the Canadian government to end these archaic subsidies and instead work to diversify the economy in the Atlantic region by facilitating long-term jobs and livelihoods.

The clubbing of baby seals can't be defended or justified, and Canada should end it just as we ended the Alaska baby seal massacre 20 years ago. I urge my colleagues to support this resolution.

Mr. President, this has been a very difficult nomination for the Armed Services Committee. We worked very hard for over a year to ensure that we developed all of the relevant facts so we could make an informed decision. In fact, this nomination was first sent to the Congress in the last session and then was resubmitted in this session.

It is totally appropriate that we took this time to address Major General Clark's nomination because PFC Barry Winchell, a soldier serving in Major General Clark's command at Fort Campbell, was brutally murdered by another soldier on July 5, 1999.

Fort Campbell is a large fort, perhaps 25,000 soldiers and 46,000 family members. We were interested in what the command climate was in Major General Clark's command, particularly as it related to his command's implementation of the Department's Homosexual Conduct Policy. We also wanted to see how Major General Clark responded after the murder.

Major General Clark asked the Army Inspector General to conduct an investigation into the facts and circumstances surrounding the murder. The Inspector General conducted this investigation and also conducted an assessment of the command climate at Fort Campbell before the murder. Neither the investigation nor the command climate assessment found fault with Major General Clark's actions.

We met with Private Winchell's family. We met with Major General Clark on a number of occasions. We met with other Army officials. We met with organizations and individuals who expressed an interest in this nomination. So under Senator Warner's leadership, I believe our committee has given full consideration to the nomination of Major General Clark and the events which have to be described as tragic when considering that nomination.

Every one of us, every human being who has knowledge of this incident, is appalled by the brutal murder of a soldier sleeping in his barracks. So we first wanted to look at, again, the incident and the command climate prior to the incident. We reviewed the Inspector General's report that stated that the chain of command, from commanding general through company leaders, responded appropriately to matters with respect to the enforcement of the Department of Defense Homosexual Conduct Policy.

One of the most difficult issues had to do with the statement of Private Winchell's family that they requested a personal meeting with Major General Clark and they did not receive a personal meeting with him.

I think the fact they made that request and it was not complied with was troubling to all of us. As we dug into it, we heard from Major General Clark on this issue. He looked us in the eye and said he never received such a request. That is not to say the request was not made. It is to say that I think most of us believed Major General Clark when he said that request was never forwarded to him. What happened to that request we do not know, and perhaps nobody ever will know.

Major General Clark wrote a letter to the family. It was a heartfelt letter. It was a personal letter about the death of their son. It was really a comment that he added in that letter, which was so personal and so heartfelt, that I think persuaded many of us that he was honest when he stated that there is no way he would not respond to a family request to meet with him.

As others have mentioned, he did have a special responsibility, as the General Court-Martial Convening Authority, to ensure that justice was done and to make sure nothing he would say would in any way create error in that trial.

The murderer, PVT Calvin Glover, was convicted of premeditated murder by the court-martial, which was convened by Major General Clark. He was sentenced to life imprisonment and, of course, a dishonorable discharge from the Army.

Another soldier was convicted of obstruction of justice and making a false official statement and was sentenced to 12\1/2\ years confinement and a dishonorable discharge.

To the extent that justice can ever be done following a brutal murder of this kind, justice was done in this case. It was done under the leadership of the convening authority, Major General Clark himself.

In the end, looking at all the information that is available to us, I have concluded that we should confirm this nomination and that it would be appropriate, at the same time, however, for us to take note of the events relative to this nomination, that surround it, the length of time this nomination has been pending, all of the inquiries and investigations and reports which have been requested, and hope all of this together will lead to a different environment and a different climate in the unit at issue here.

I ask for 1 additional minute, if I may, from the majority side.

I thank the Senator from Alabama.

When we put all this together, the hope, I think of all of us, is that the kind of climate that apparently existed in that one unit, not known to Major General Clark--because the Inspector General found no evidence that he knew of any anti-gay climate in any of the units, much less that one. There was in one unit some anti-gay rhetoric which was immediately responded to by the captain in charge of that unit. As a matter of fact, the captain counseled the noncommissioned officer and put an immediate end to the anti-gay rhetoric. But that was not known to General Clark.

For all these reasons, I think it is appropriate we now confirm this nomination.

I yield the floor.

I move to reconsider the vote.

Madam President, I thank Senator Inhofe also for his service, his work on the committee. He travels to visit with our troops. He is totally dedicated to our troops and the national defense. I thank him for his kind words, but also for that commitment.

Section 336

I suggest the absence of a quorum.

Madam President, I ask unanimous consent that the Senator from Arkansas be recognized for 2 minutes immediately prior to the vote.

Order of Procedure

Madam President, I thank our dear friend, Mark Pryor. Senator Warner and I came together and we came with his father at the same time. His dad and his mother, Barbara, have been dear friends of ours. Mark Pryor has made an extraordinary contribution as a new Senator to this body and to our Armed Services Committee. He has made a great contribution. We are grateful for that and for his remarks this afternoon.

Mr. President, I rise once again to join with Senator Warner in urging the Senate to adopt the conference report on H.R. 1588, the National Defense Authorization Act for fiscal year 2004.

As we stand on the floor of the Senate today, America's armed forces are engaged in military operations around the world on a scale unknown since the end of the Vietnam war nearly three decades ago. According to the latest reports, we have 132,000 troops deployed in Iraq with an additional 87,000 serving in support roles outside of Iraq. We have 9,000 troops in Afghanistan, with an additional 35,000 serving in support roles. Tens of thousands more soldiers, sailors airmen and marines are deployed elsewhere around the world.

In the last 2 years, we have also seen the largest sustained callups of National Guard and Reserve components since the Vietnam war. We have seen units deployed for extended periods, and repeated deployments of the same units. Throughout this period, our men and women in uniform have shown extraordinary ability, professionalism, and dedication, conclusively demonstrating once again that they are by far the best trained, best equipped, best disciplined, most highly skilled and motivated military force in the world. Nonetheless, there are indications that the unprecedented demands we have been placing on our Armed Forces are starting to have an impact on morale.

I will vote for this conference report because it contains so many important provisions for our national security and for our men and women in uniform.

It includes an across-the-board military pay increase, along with a series of other increased pays and benefits for our men and women in uniform and their families. The conference report includes Senator Harry Reid's amendment on concurrent receipt; Senator Daschle's amendment on TRICARE; Senator Kennedy's amendment on expedited citizenship for lawful immigrants serving in the military; and an increase in Army troop strength on which Senator Jack Reed played a leading role. It includes important Senate provisions that authorize an expansion of our cooperative threat reduction programs to countries outside the former Soviet Union.

The provision authorizing the establishment of a new National Security Personnel System did not come out entirely the way I would have liked, but the Senate was able to include a number of important protections for civilian employees at the Department of Defense. Senator Collins' strong commitment to a bipartisan, fair, and balanced approach to this issue made this a far better provision than it would otherwise have been.

The conference report contains a number of other provisions that concern me. For example, I believe that provisions addressing the Endangered Species Act and the Marine Mammal Protection Act go beyond what is needed to address the legitimate needs of the Department of Defense. I am also disappointed by the outcome of the conference on nuclear weapons issues, which take the United States in a dangerous new direction.

Despite my concerns about these issues, I will vote for this conference report because it contains so many other provisions that are so important for our national defense and for our men and women in uniform. I urge my colleagues to join me in supporting this conference report, which will help provide our military the training and equipment that they need and the compensation and benefits that they deserve.

Thanks again to Senator Warner and both our staffs, who we specifically thanked last night for all their work which made this conference report possible.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I ask the time of the half hour allotted to this side be divided between myself and Senator Dodd and that I may proceed for 15 minutes.

Mr. President, what I wish the majority would be allowing tonight is consideration of legislation that addresses the loss of over 3 million jobs in this country during the last few

years, most of them manufacturing jobs.

What I wish the majority would be allowing us to do tonight is to consider legislation to extend the unemployment benefits to those Americans who have lost their jobs in this recession, the way we have extended unemployment benefits in previous downturns.

Those needs of the American people and a dozen other needs are what we ought to be spending our time on tonight and every day until those issues, and many other critical issues, are addressed.

Instead, those on the other side of the aisle decided to spend 30 hours rehashing the reasons that 4 out of the 172 of President Bush's judicial nominees have not been confirmed by the Senate. That is their right, but it is wrong.

In my home State of Michigan, the unemployment rate is 7.4 percent. In fact, Michigan has lost and continues to lose more manufacturing jobs than almost any other State in the Nation. Mr. President, 2.5 million of the 3.3 million jobs which the U.S. economy has lost since January 1, 2001, were in manufacturing. We lost over 160,000 of those jobs in Michigan alone. Other States face large job losses, but what we should be doing is helping people who lost jobs, acting to stop the currency manipulation by China, Japan, and other countries, and the one-way street in trade which has been such a large part of the loss of jobs in this country.

The first act of this Congress last January was to extend unemployment benefits through the end of this year because Congress did not act last year. That made the 2002 holiday season mighty grim for those workers whose benefits had expired. Current law provides 13 weeks of additional Federal aid to laid-off workers who have exhausted their 26 weeks of regular State benefits. However, this administration has shown no interest in either extending the deadline for the program or authorizing new benefits. The trust fund that is to be used for unemployment benefits currently has over $20 billion in it. Why this administration balks at extending unemployment benefits is beyond me since that is what the money in that fund is for.

I, along with a number of our colleagues, propose we extend the December 31 deadline for another 6 months so newly unemployed workers can receive Federal assistance, but also making available an additional 13 weeks of Federal unemployment benefits for a total of 26 weeks. That is what we have done in prior recessions. We responded during the 1974 recession. Federal benefits were extended to 29 weeks.

In the 1981 recession, Congress extended benefits to 26 weeks. In the 1990 recession, 26 weeks were provided, 33 weeks to States with high unemployment.

While the unemployment numbers released last week were somewhat of an improvement, in terms of manufacturing jobs, that loss continues, and the long-term economic forecast continues to be pessimistic.

On this track, this administration will be the first administration to lose private sector jobs since Herbert Hoover.

In one moment I am going to propound a unanimous consent request that I know my Republican colleagues will want to hear, and I want to alert them of the fact I will be propounding that request in a moment. I hope our Republican colleagues will give us consent to take up unemployment insurance extension legislation this evening. Perhaps then this 30-hour exercise will be fruitful.

I think I have alerted the Republicans that we would be making this unanimous consent request.

Unanimous Consent Request--S. 1853

I ask unanimous consent that the Senate proceed to legislative session; that the Finance Committee be discharged from further consideration of S. 1853, which is a bill to extend unemployment insurance benefits for displaced workers; that the Senate proceed to its immediate consideration; that the bill be read a third time and passed; and that the motion to reconsider be laid on the table.

Mr. President, since the majority has now determined we will spend 30 hours of the time of the Senate rehashing 4 of the 172 judicial nominations that haven't been confirmed, I want to address what is an even deeper issue than the majority's effort to weaken and water down the role of the Senate in exercising its advice-and-consent responsibility.

That even more fundamental issue is our Nation's historic and constitutional system of checks and balances. Those checks and balances are an integral part of the unique design of our founding document in restraining the potential excesses and extremes of the executive branch. We share the obligation and responsibility with the judicial branch.

Our rules in the Senate are aimed at restraining the potential abuse of the rights of the minority by the majority within the legislative branch itself.

In June of this year, Robert Caro, the eminent Pulitzer Prize winning historian and author of ``Master of the Senate,'' his great biography of former President and Senate majority leader Lyndon Johnson, wrote to our Senate Rules Committee addressing this subject and quoting from his book. Here is what he said:

. . . in creating this new nation, its Founding Fathers,

the Framers of its Constitution, gave its legislature . . .

not only its own powers, specified and sweeping . . . but

also the powers designed to make the Congress independent of

the President and to restrain and act as a check on his

authority, [including the] power to approve his appointments,

even the appointments he made within his own Administration .

. . and . . . the power to approve Presidential appointments

was given to the Senate alone; a President could nominate and

appoint ambassadors, Supreme Court Justices, and other

officers of the United States, but only ``with the advice and

consent of the Senate.''

Robert Caro goes on to say:

The Framers wanted to check and restrain not only the

people's rulers, but also the possibility that the majority

will be used in Madison's words ``to oppress the minority.''

The Framers, he [Madison] said, established the Senate as the

body ``first to protect the people against their

rulers; secondly to protect the people against the

transient impressions into which they themselves might be

led . . . The use of the Senate is to consist in its

proceeding with more coolness, with more system. . . .

One of the historical tools for the protection of the minority which is developed in the Senate from its earliest days is the principle of extended debate. The exercise of this right of Senators, particularly when it is used to block actions which the majority fervently wishes to take, is embodied in our Senate rule that you must have a supermajority of 60 percent of the Senate on matters where there is strong opposition.

Filibusters have played an important role in moderating action in the Senate. It is widely recognized the Senate is a less partisan place-- you may not be able to discern that tonight, but generally this is a less partisan place than the other body in our Congress or virtually any other democratically elected legislative body anywhere in the world.

As Senator Byrd said in his series of scholarly addresses on the floor of the Senate about Senate history:

Arguments against filibusters have largely centered around

the principle that the majority should rule in a democratic

society. The very existence of the Senate, however, embodies

an equally valid tenet in American democracy: the principle

that minorities have rights.

Senator Byrd goes on to say in his study:

The most important argument supporting extended debate in

the Senate, and even the right to filibuster, is the system

of checks and balances. The Senate operates as the balance

wheel in that system, because it provides the greatest check

against an all powerful executive through the privilege that

Senators have to discuss without hindrance what they please

for as long as they please . . . Without the potential for

filibusters, that power to check a Senate majority or an

imperial presidency would be destroyed. It is a power too

sacred to be trifled with.

Lyndon Baines Johnson said in 1949:

. . . If I should have the opportunity to send into the

countries behind the iron curtain one freedom and only one, I

know what my choice would be . . . I would send those nations

the right of unlimited debate in their legislative chambers.

If we now, in haste and irritation, shut off this freedom,

we shall be cutting off the most vital safeguard which

minorities possess against the tyranny of momentary

majorities.

In May of 1994, when the Republican minority blocked Senator Clinton's nomination of Sam Brown to be ambassador, one of our Republican colleagues said the following:

In considering the nomination of Mr. Samuel W. Brown to be

the Ambassador to CSCE, I have reflected on the latitude

which ought to be accorded the President in making this

decision for the ambassadorship, reflecting as well on the

constitutional responsibility of the Senate for advice and

consent as a check. . . . . I am troubled by a situation

where the only pressure point Republicans have in the U.S.

Government is on cloture. Once cloture is obtained, there are

more than enough votes on the other side of the aisle to

cover the day. While the House is not involved in this

matter, the House is overwhelmingly Democratic; there is a

Democrat in the White House. The only place Republicans can

assert any effective, decisive action is by stopping somebody

from coming up. We have 44 votes, and we have more than

enough, if there is unity among the Republicans, to do that.

I think Mr. Brown's nomination and the responsibilities at

the Conference on Security and Cooperation in Europe are

sufficiently important to preclude his nomination.

The filibuster succeeded in blocking this nomination.

There are many reasons to at least consider modification to the Senate rules regarding the procedures for ending debate, the process we call cloture. Those rules have been modified a number of times before, but one of the reasons to consider modifying our rules is not the reason which is motivating our current majority in the Senate: irritation with the fact that only 98 percent of President Bush's judicial nominees have been confirmed by the Senate. That irritation that a substantial minority of Senators would stand in the way of getting their way 100 percent of the time has led to this 30-hour talkathon and their apparent desire to amend the Senate rules to let them get their way 100 percent of the time.

We find ourselves tonight debating not whether unemployment insurance should be extended for Americans who have lost their jobs, not how to create more jobs in our economy, not how to better provide for the education of our children, or to strengthen our homeland security, or reduce the cost and increase the availability of prescription drugs, but, rather, listening to the re-argument of the case for the 4 nominees out of 172 nominees the Senate has not confirmed.

They want a 100 percent confirmation success record, and they appear to be willing to throw over the very essence of the Senate and its check-and-balance role to accomplish it. The Constitution says the President shall nominate, and, by and with the consent of the Senate, shall appoint ambassadors and judges.

William Maclay, one of the first two Senators from Pennsylvania, wrote the following:

Whoever attends strictly to the Constitution of the United

States will readily observe that the part assigned to the

Senate was an important one, no less than that of being the

great check, the regulator and corrector, or, if I may so

speak, the balance of this Government. . . . . The

approbation of the Senate was certainly meant to guard

against the mistakes of the President in his appointments to

office [and] the depriving power should be the same as the

appointing power.

I thank the Chair, and I yield the floor to my friend from Connecticut.

Mr. President, how I wish we could take a week's worth of time to debate the issues which are of some critical importance to the people of my State; namely, the loss of manufacturing jobs and the problems we have in Iraq. These issues, the economy in general, job loss in particular, and loss of our troops abroad dominate the minds and the hearts of my constituents.

But the majority has the power to take the Senate on a fruitless cruise. That is what we are about: rehashing the merits and demerits of 4 of the 172 candidates who we have voted on in this Senate. I know these numbers are numbers which are very troubling to the majority. I can tell that by the fact they have attempted to come back with a whole bunch of other numbers.

When this debate is over, when the dust is settled, what I think most people will remember, at least in terms of the calls to my office, is, Is this Senate being tied up, night after night, with complaints that 4 of 172 judges have not been confirmed.

Mr. President, 168 is a number now which is impressed on the minds of people who have watched this debate and heard this debate. The number four is a number which people now understand. Maybe the 98 percent confirmation rate is not quite at the same level as these 2 numbers, but those numbers--168 of President Bush's nominees confirmed by this Senate, 4 have not been confirmed by this Senate--those 2 numbers are very much emblazoned in the minds of people across this country.

In rejecting these four, the Senate has exercised its advise and consent function according to our rules. It has carried out the checks and balances role according to the Constitution that gives us a check and a balance, according to the rules of the Senate.

I want to go back a little bit in history. We have heard quite a bit tonight that this is the first time a filibuster has been used against a judge on the floor of the Senate. I will get into this in a little more detail. I hope to have a little time to talk about the economy and manufacturing job loss, and other things which are very much on the minds of my constituents.

But since the majority has decided to set aside this time, mainly to debate the fact that only 98 percent of the judges who have come before us have been confirmed, and have now suggested, over and over and over again, that filibusters have never been used relative to judges, this is the New York Times headline of September 25, 1968 relative to Abe Fortas: ``Critics Of Fortas Begin Filibuster. . . .'' This is what the Senate Web site says about that filibuster. This is not a Democratic Web site. This is the Senate Web site for the date October 1, 1968: ``Filibuster Derails Supreme Court Appointment.'' That is a Senate Web site.

Folks on the other side, our colleagues on the other side, are saying: Well, what about circuit court nominees? We sometimes hear those words put in there when the statement is made that filibusters have not been used to derail judicial nominees. Sometimes the words ``circuit court nominees'' are put in there instead of ``judicial nominees,'' sometimes the words ``circuit court'' are left out, sometimes they are included.

If circuit court nominees have not been derailed by filibuster, it is not for

a lack of trying. The complaint of our colleagues on the Republican side, it seems to me, more accurately would be: Well, we have tried filibusters many times, but we have not succeeded. You folks are succeeding.

That is the complaint when you strip away the rhetoric and look at the reality. If filibusters have not succeeded in derailing circuit court nominees of Democratic Presidents by Republican Senators, it is not for lack of trying. Because the effort was made over and over and over again with Clinton circuit court nominees. The difference is, the filibuster effort did not succeed because the supermajority, which was required during those filibusters, was achieved for those circuit court nominees. That is the difference.

This is not at all unprecedented. This use of extended debate requiring a cloture vote on judicial nominees has been used repeatedly. It has not succeeded repeatedly, but it has been used repeatedly.

One of our Republican colleagues, during a debate on a nominee--this is not a judicial nominee, but this is a nominee which is subject to this exact same language of the Constitution about advise and consent as our judicial nominees are--when a Clinton nominee to be Ambassador was before us, and there was a filibuster underway and that nomination was blocked, this is what one of our colleagues said. Now this was in 1994, and the Senate was controlled by Democrats. The White House was controlled by Democrats. The House of Representatives was still controlled by Democrats. Our Republican colleague here in the Senate was pointing out the only power that was left to Republicans was the use of a filibuster and forcing a cloture vote. And I emphasize, this is on a nominee who had exactly the same rights or lack thereof to an up-or-down vote as a judicial nominee because the nomination is governed by the same advise and consent clause of the Constitution as our judicial nominees. Here is what our colleague said:

In considering the nomination of Mr. Samuel Brown to be

Ambassador . . . I have reflected on the latitude which ought

to be accorded the President in making this decision for the

Ambassadorship, reflecting as well on the constitutional

responsibility of the Senate for advice and consent as a

check. I am troubled by a situation where the only pressure

point Republicans have in the U.S. Government is on cloture.

Once cloture is obtained, there are more than enough votes on

the other side of the aisle to cover the day. While the House

is not involved in this matter, the House is overwhelmingly

Democratic. There is a Democrat in the White House. The only

place that Republicans can assert any effective, decisive

action is by stopping somebody from coming up. We have 44

votes and we have more than enough, if there is unity among

the Republicans, to do that. I think Mr. Brown's nomination

and the responsibilities of the Conference on Security and

Cooperation in Europe are sufficiently important to preclude

his nomination.

That is what our Republican colleague said in 1994:

The only place that Republicans can assert any effective,

decisive action is by stopping somebody from coming up. We

have 44 votes.

That has been the case not just with ambassadorial nominations but with other nominations subject to the advice and consent clause. The only difference with the circuit court nominees of President Clinton, for instance, who were filibustered is that there was not a supermajority to stop the confirmation of the judges. That is not a distinction which I would think the Republicans in this debate would want to emphasize, but it is a distinction in fact.

Mr. President, 168 of this President's nominees have passed the test; 4 have not. When the filibuster has been used relative to those four, the rules of the Senate which provide for that to occur, and there was not a supermajority, then those nominees have not been confirmed.

What is at stake here is the functioning of the Senate as a check and a balance on executive power. Our Republican colleague who spoke that way in 1994 was exactly right. He was using the rules of the Senate in a totally appropriate way and saying that the only way we can stop this, the only way the minority has a voice, if we feel so deeply that there are 41 or more of us who wish to stop this nominee from being confirmed, we must use the filibuster, and we must force a cloture vote. Checks and balances are what are at stake here. The historic role of the Senate is what is at stake here.

Then-Senator Lyndon Johnson, in March of 1949, said the following relative to these checks and balances:

A man elevated to the Office of the President has virtually

unlimited powers of influence over his country. His own

personality is a force of great impact upon all the people of

the Nation and, in fact, upon the people of the world. Add to

those powers directly all those less conspicuous powers of

his aides, his administrative agencies and the multitude of

channels which feel his influence, and you have a force no

other representative government has even trusted for long to

one man.

If on occasion you grant to this titular head of government

the further intoxicant of an overwhelming majority of loyal

supporters in the legislative branch, then you have a force

well nigh irresistible. The distinctions between legislative

and executive are difficult to preserve under such

circumstances. Mere memorandums become laws and laws become

mere memorandums. In such a situation, which happily is more

hypothetical than historical, the entire theory of our

Government system of checks and balances dissolves and

evaporates. The right to check and balance was not granted to

the majority because a majority rarely seeks control over

itself. Those rights were conceived and installed in the

Constitution solely as safeguards for the minority.

He said:

I am no historian, but as I have studied the history of

governments gone before us, I have been impressed by the fact

that the freedom of unlimited debate in legislative chambers

has been given up many times by members themselves who are

irritated or frustrated by a minority. But so far as I have

found, once that freedom was yielded, it has never been

returned. If we now give up this freedom in the Senate, I,

for one, do not expect to live to see its return.

Much has been stated here about filibusters on the floor of the Senate. Too little has been said about stealth filibusters which occur in committee. Political scientist Sheldon Goldman of the University of Massachusetts, who is a neutral observer of the process, said the following in a Los Angeles Times article on November 6:

The Bush administration has been spectacularly successful

in getting the overwhelming proportion of its judicial

nominations confirmed. There are only a relative handful

being filibustered and held up, and this contrasts with the

dozens of Clinton nominees who were held up by the

Republicans in the last 6 years of the Clinton

administration.

Professor Goldman expressed it this way:

The Republicans obstructed quietly in the committee. If

they didn't want to approve you, you just didn't get a

hearing.

Here is one example. Kent Markus was nominated by President Clinton for a seat on the Sixth Circuit. He testified to the Senate Judiciary Committee on May 9, 2002, as follows. To their credit, Republican Senators told him two things.

There will be no more confirmations to the Sixth Circuit

for the Clinton administration.

Two:

This has nothing to do with you. Don't take it personally.

It doesn't matter who the nominee is, what credentials they

may have, or what support they may have.

Mr. Markus went on to testify that one Republican Senator told him the following:

This is bigger than you, and this is bigger than me.

Senator Kohl, who kindly championed his nomination in the Judiciary Committee, encountered a brick wall. The fact was a decision had been made to hold the vacancies and see who won the Presidential election. With a Bush win, all those seats could go to Bush, rather than Clinton nominees.

That is what happened. That is exactly what happened to Kent Markus and his nomination. A hearing was denied to him. A vote was denied to him. And if there is some constitutional right which is being created here on the floor, I assume Kent Markus was denied his constitutional right to a vote, as were the dozens of other nominees of President Clinton who never got a hearing, much less a vote.

I can't believe for one minute that any court, even if it reaches the merits of this case that is going to be brought, would say there is a constitutional right to have your nomination voted on when there are so many ways of blocking a nomination from getting a vote, starting with not having a hearing, starting with not having a markup, starting with not reporting a nomination to the floor, starting on the floor not reaching a vote up or down.

When the Republican Senate denied committee hearings and votes for 63 judicial nominees and more than 200 executive branch nominees, they blocked

a vote on those nominations. That was their right. They may have done the wrong thing in doing so, but they had a right to do so. I wish they hadn't. I wish they had allowed those to come to hearings. At least have a cloture vote, if nothing else, on the floor, but that was not to be.

There are a lot of ways you can have a vote on this floor. One of them is a cloture vote and one of them is a vote up or down. But these 63 judicial nominees never even got to a cloture vote, never even got to see if there could be a supermajority put together for them under our rules on the Senate floor.

It is remarkable to me that our colleagues on the other side of the aisle make the claim that blocking nominees from having an up-or-down vote on the Senate floor is unprecedented, given the actions during the last administration.

Republicans filibustered several Clinton nominees on the floor of the Senate, including Richard Paez, Marsha Berzon, Rosemary Barkett, and H. Lee Sarokin. Cloture votes requiring supermajorities were required to be produced for each of them.

Our colleagues say these nominees were not blocked by a filibuster, which is an artful way of saying that the effort at the filibuster failed. That is very different from saying that the filibuster was not tried. It was. Cloture votes were required but supermajorities were obtained. That is the difference between those Clinton nominees and these four nominees. Here supermajorities have not been obtained. Therein lies the difference. Same cloture votes, same type of cloture votes required, but cloture was invoked for Berzon, Barkett, Paez, and Sarokin. Supermajorities supported those nominations, and the opposition had a right to force those votes. That required a supermajority. They had a right to filibuster, and, in fact, did so.

Two of President Clinton's nominees, not judicial but nominees, still governed by that same advice and consent clause in the Constitution, were defeated by filibusters. One was Henry Foster nominated to be Surgeon General, and the other one was Sam Brown nominated to be ambassador. The argument relative to that nomination was quoted by me at some length a few moments ago where a Republican colleague within his rights using the rules said: We have only to put together 41 Republican Senators and we can block this nomination. It is the only way to block a nomination with which we fervently disagree.

Given the fact that the Democrats didn't control the White House, the Democrats controlled the Senate, our Republican colleague pointed out accurately that the only way to block that nominee was by use of the filibuster. Were his constitutional rights violated? I don't think so. I think he was given consideration by the Senate in the way that the Senate decides to consider nominees, and it can consider nominees in many ways.

It can decide never even to give a nominee a hearing should it choose. I don't think that is a wise course, in most cases, but should the Senate choose not to give a nominee of the President a hearing, that is the Senate's decision. Or after a hearing, if it decides not to have a markup to vote that nominee either out of committee or to defeat that nominee, that is the Senate's decision. Should a chairman, acting alone, decide not to put a name on a markup, that may be that chairman's power.

So the suggestion that requiring a supermajority vote by filibuster is new to the Senate is just simply wrong. We can argue--legitimately argue--and disagree over whether or not the Senate should give up this important check and balance on Presidential power, but we cannot argue, it seems to me, that it is unprecedented in its exercise.

Here are the words of one more of our colleagues during a filibuster of a Clinton nominee on March 3, 2000. During the filibuster of the nomination of Judge Richard Paez to the Ninth Circuit, this is what our colleague said:

I say to the American people who may be listening right

now, judges impact our lives big time in the decisions they

make. Citizens complain about violence and the criminals

getting out. There are bad judges making bad decisions that

cost Americans their liberties, cost them their lives

sometimes. That is wrong. We have an obligation in the Senate

to take a good hard look at a lifetime appointment to the

circuit. The members are there forever, even when they get

real old. It is pretty hard to get rid of them. This is a

lifetime appointment. We have a responsibility to make darn

sure these judges are going to represent the views of a

majority of the American people in terms of the law. I intend

to do that as long as I can stand here to do it.

He didn't have 39 others or 40 others to stand with him. As a result of that, there was a supermajority for that judge, but it was despite the filibuster. It wasn't that there was no filibuster. It was despite the filibuster which the Republicans had a right to stage and did stage. But most Republicans decided, or at least enough Republicans decided not to continue that filibuster but, rather, to invoke cloture.

To suggest the filibuster has never been used flies right in the face of history and recent history, as well as the history of Abe Fortas.

Historian Robert Caro wrote the Rules Committee of this Senate as follows:

In short, two centuries of history rebut any suggestion

that either the language or the intent of the Constitution

prohibits or counsels against the use of extended debate to

resist Presidential authority. To the contrary, the Nation's

Founders depended on the Senate's members to stand up to a

popular and powerful President. In the case of judicial

appointments, the Founders specifically mandated the Senate

to play an active role, providing both advice and consent to

the President. That shared authority was basic to the balance

of powers among the branches.

He continued:

Surrendering such authority is not something which should

be done just because of a Senator's point of view on the

particular issue of the moment--because much more than the

particular issue is involved. What if a Senator--let us say a

Senator from a small population state without any other means

of defense votes to support a new limitation on debate today.

What will he [or she] do in some future year when he is

trying to stop a bill or a nomination that a bare majority of

the Senate supports, but that he and 40 colleagues believe

would be terribly detrimental to their states or to the

nation. . . . What will he feel when he suddenly realizes

that his right to hold the Senate floor against that action

has been so greatly reduced that the bare majority can

silence him before he is finished making his case? What will

he do when he realizes that, without the right of extended

debate his cause is ultimately helpless?

Finally, I ask unanimous consent that the letter from Senator Corzine, which has been referred to, apparently a fundraising letter, be printed in the Record in full because I think the words which were quoted by my friend on the other side had some very critical dots in there, and I think the dots should not have been there. The two sentences should not have been pushed together as though they were one. The document of Senator Corzine says the following:

Senate Democrats have launched an unprecedented effort to

protect the rights of all Americans by keeping our courts

fair and impartial.

That is the unprecedented effort. The next sentence is:

By mounting filibusters against the Bush Administration's

most radical nominees, Senate Democrats have led the effort

to save our courts.

The suggestion that the words read ``an unprecedented effort to mount filibusters'' is not an accurate reflection of that letter. The dots which were in the chart, it seems to me, take the place of some very critical words making two sentences look as though it is one sentence.

I ask unanimous consent, just so we can have full disclosure of this letter, that this letter be printed in the Record.

Mr. President, how much time do I have remaining?

I thank the Chair and thank my colleagues. I am happy to share with them the feeling that somehow or another hopefully we can find a way some day to get over the place we are at, not just on judges but on all of these nominees.

I look forward to that Supreme Court case which my friends are going to file. I think it would be just fine to have the Supreme Court rule on this issue to clear the air on it. I have great confidence that they will support the right of the Senate.

I yield the floor.

Mr. President, this year, as we again remember our veterans and the sacrifices they have made for our country on this 11th day of the 11th month, the men and women serving in our Armed Forces deserve special recognition. This year's remembrance is a unique time as we honor new veterans coming home from the battlefields of Afghanistan and Iraq who have made the sacrifice and have answered the call. Our appreciation and gratitude extends to all of them and their families for the sacrifices that they have made.

As of last week, 395 American service members have been killed and 1,889 American service members have been wounded during Operation Iraqi Freedom. Our thoughts and prayers are with them and their families. We pray for the safety of those still in harm's way and hope they return home soon. I visited some of our servicemen and women at Walter Reed Army Medical Center here in Washington, DC recuperating from wounds they received in Iraq. Some of them had lost limbs, and face significant physical challenges in building a new life. As I expressed my appreciation to them for their sacrifices, I was humbled and inspired by their high spirits, their determination and their abiding faith in our country.

November 11th--the day World War I ended in 1917--has been a distinguished day of recognition for America's veterans since 1954 when President Dwight Eisenhower signed into law the day that would honor the men and women who have served in our Nation's Armed Forces. Since the founding of our country, almost 50 million men and women have served in the United States military, and nearly half of them are still

alive. So today, there are appropriate ceremonies at Arlington National Cemetery, throughout Michigan and the rest of the country to honor our veterans and what their service has meant to our country.

I would also like to recognize the African-American men and women who in years past served our Nation's Armed Forces in primarily segregated units. While segregation in our Armed Forces is a shameful chapter in our Nation's past, these veterans should be uniquely recognized for their honorable service in the face of the burden of segregation. African-American soldiers overcame a patten of prejudice that questioned their ability and prevented them from training and working with their white counterparts. Segregated African-American units have played an important and powerful role in America's military, from the Civil War's 54th Regiment of the Massachusetts Volunteer Infantry, to the Indian War's Buffalo Soldiers of the 9th and 10th Cavalry to World War II's Tuskegee Airmen. Four hundred thousand African-American troops served the United States in World War I and a million African Americans served in World War II's segregated services. We should acknowledge their commitment which went beyond normal service and the call to duty. I am pleased that this past weekend, a special celebration of our African-American veterans took place in my home State of Michigan at the Color of Liberty Celebration at the Wayne County Armory.

I would also like to take a moment to stress the importance of the Federal Government meeting its obligations to all veterans to provide appropriate and adequate health care. There is a commitment by the appropriate committees to add an additional $1.3 billion for veterans health care before Congress adjourns this year. Right now, 60,000 veterans are waiting 6 months or longer for an appointment at VA hospitals. I am hopeful that Congress will fulfill our commitments to our veterans so that they have a strong VA health care system that is well-funded and suitably staffed.

The terrorist attacks of September 11th and the courageous actions of our armed forces in Afghanistan and Iraq remind us that friends of tyranny and enemies of freedom still exist. Whether they are soldiers, sailors, airmen and marines who fought in the World Wars, Korea, Vietnam or the Gulf wars, we thank them for their service, their commitment and their sacrifice in the cause of America's freedom.