Floor Statements

Mr. President, George Washington was nearing the end of his Presidency. He dreamed of a national university for the United States to be located in Washington. This university was going to bring together all the different people of this great country into one educational setting to learn together, to learn from each other, to get to know each other, to overcome prejudices and intolerance.

President Washington actually planned to include his vision of such a university in his now famous and historic Farewell Address. It was not included in that Farewell Address. Apparently, one of the people who was working with him on that Farewell Address was Alexander Hamilton who urged, as he was writing the address, drafting it:

The idea of the university is one of those which I think

will be most properly reserved for your speech at the opening

of the session. A general suggestion respecting education

will very fitly come into the address.

In other words, what Hamilton was saying is this vision of yours, Mr. President, about a national university, where people can come to shed their prejudices from various parts of the country, to live and work with each other should be saved for a different address. Leave it out of the Farewell Address.

In fact, President Washington ended up leaving it out of his Farewell Address, but he included it in a letter. It is a letter which has come down through the generations, and that vision of a national university was outwardly reflected in this letter.

He stated his belief that this country would be stronger if the children from different parts of the country could come together in an educational setting to learn from each other and about each other.

I want to read a few parts of this letter of George Washington because I think it has an application to the University of Michigan case which is currently pending in the Supreme Court.

I come from the State of Michigan. I am proud of it, and I am proud of our university and its effort to promote diversity, and not just racial diversity, but geographic diversity, economic diversity, gender diversity--diversity in general which has been promoted by not just the University of Michigan but by most universities in this country, and it seems to me is to be encouraged.

What George Washington sensed 205 years ago was that a university had a special ability to bring together different people to help them learn about each other, drop their fears of each other and make us one Nation.

This is what he wrote:

I have regretted that another subject (which in my

estimation is of interesting concern to the well-being of

this country) was not touched upon also: I mean Education

generally as one of the surest means of enlightening and

givg. just ways of thinkg to our Citizens, but particularly

the establishment of a University; where the Youth from all

parts of the United States might receive the polish of

Erudition in the Arts, Sciences and Belle Letters; and where

those who were disposed to run a political course, might not

only be instructed in the theory and the principles, but

(this Seminary--

Referring to the university--

being at the Seat of the General Government) where the

Legislature wd. be in Session half the year, and the

Interests and politics of the Nation of course would be

discussed, they would lay the surest foundation for the

practical part also.

But that which would render it of the highest importance,

in my opinion, is, that the Juvenal period of life, when

friendships are formed, and habits established that will

stick by one; the youth . . . from different parts of the

United States would be assembled together, and would by

degrees discover there was not that cause for those

jealousies and prejudices which one part of the Union had

imbibed against another part; of course, sentiments of more

liberality in the general policy of the Country would result

from it. What, but the mixing of people from different parts

of the United States during the War rubbed off these

impressions? A century in the ordinary discourse, would not

have accomplished what the Seven years association in Arms

did; but that ceasing, prejudices are beginning to revive

again, and never will be eradicated so effectually by any

other means as the intimate intercourse of characters in

early life, who, in all probability, will be at the head of

the councils of this country in a more advanced stage of it.

He went on:

To shew that this is no new idea of mine, I may appeal to

my early communications to Congress; and to prove how

seriously I have reflected on it since, and how well disposed

I have been, and still am, to contribute my aid towards

carrying the measure into effect, I enclose you the extract

of a letter from me to the Governor of Virginia on this

Subject, and a copy of the resolves of the Legislature of

that State in consequence thereof.

I have not the smallest doubt that this donation (when the

Navigation is in complete operation, which it certainly will

be in less than two years), will amount to twelve or 1500

pounds Sterlg a year, and become a rapidly increasing fund.

The Proprietors of the Federal City have talked of doing

something handsome towards it likewise; and if Congress would

appropriate some of the Western lands to the same uses, funds

sufficient, and of the most permanent and increasing sort

might be so established as to envite the ablest Professors .

. . to conduct. . . .

President Washington saw that the two strongest ways to unite a country are when people go to war together against the common enemy and when they go to school together with a common goal, to learn. While we would all like to avoid the need to fight together, we all know we can strengthen our ties to democracy and to our country when we learn together about the world and each other.

Learning together allows us to strip away the prejudices that would otherwise keep us apart. The hope of George Washington was later joined by the dream of Martin Luther King and by the promise and the potential of Brown v. Board of Education a half century ago, and they are now hanging in the balance because of the issues that are raised in the University of Michigan affirmative action cases before the Supreme Court.

In April, the U.S. Supreme Court is going to hear two oral arguments in two separate lawsuits challenging the University of Michigan's diversity admissions policy. The Court's decision in these cases will result in the most far-reaching affirmative action ruling since the Bakke decision in 1978. The Court will decide the critical issue of whether Bakke still remains the law of the land and whether racial or ethnic diversity has a value at a university which can be considered in admissions of higher education.

In the Bakke decision, the Court ruled against rigid quotas or set- asides based on race but found that higher education could consider race or ethnicity as a factor in a properly considered competitive admissions process to achieve the educational benefits of diversity.

If the Court overturns Bakke, it could outlaw any consideration of race or ethnicity in admissions to colleges and universities.

There is a national security factor to this issue as well. There are going to be a number of military officers and people connected with national security and defense who will be filing an amicus brief in support of the University of Michigan because universities run ROTC programs. Those programs, where there is diversity at the universities that have them, produce officers for the military, who in turn are diverse and reflect our population. The failure to have officers who reflect our population in terms of race and ethnicity and gender, the failure to have diversity in our officer corps, led to huge problems of morale in the military for decades, until just about 20 years ago when we reached out and made great efforts to have diversity in our officer corps. That is going to be a part of the issue in an amicus brief filed in the University of Michigan case.

I am not going to spend a lot of time on that aspect, but I do want to at least comment on the fact that a significant number of very significant military officers, retired officers, who have been connected at the highest levels with our Nation's military and its schools, are going to be filing a brief

with the Supreme Court relative to this issue.

I want to comment on the more fundamental issue, which is the value of diversity in a university and whether it is conceivable in this country that we will say to universities that they can give additional points for geography, which many universities do, including the University of Michigan. In other words, they can reach out to students in different parts of their State who have been underrepresented and try to get better representation from those underrepresented parts. They can give additional points for that. They can give additional points for gender. If the law school has not had women students, they can give additional points for that in order to overcome the problems which were created when women were discriminated against. They can have an affirmative action program for that. They can give additional points to alumni, kids--and they all do--and athletes--and they all do--and the children of public officials--and many of them do.

Geography alone, which George Washington talked about--I went to a college out east which I know for a fact reached out geographically in this country to try to have good representation from various parts of the country. I come from the Midwest. My SAT scores were not as high as some of the kids' in the East, but the college I went to decided it was important to those kids from the East that they have kids from the Midwest, kids from the Far West, kids from the South, kids from the Southwest, kids from Alaska, kids from Hawaii, kids from Africa--it is important to the education of our students that they go to school with a diverse group of students. So they gave out geographic points. I got points. I do not think I would have gotten into my college, my beloved college, Swarthmore, but for the fact that I came from the Midwest and I was given some additional points. I do not know for sure, but that is my belief, and that is the likelihood, I have no doubt. I know they have geographical affirmative action. Is it conceivable that points can be given for everything but race to achieve diversity, that race is singled out as the one area where we cannot reach out to achieve diversity in our universities? Is it possible that is what we are going to come to in this country, that the equal protection clause will be turned right on its head? The 14th amendment, which was designed, at least in significant measure, to end the scourge of the remnants of slavery, is going to be used to prevent diversity from being achieved in one area where it is most important that we have a diverse university, and that is the area of race. It is the one area where we have had the most difficulty in overcoming the kind of prejudices and obstacles President Washington talked about and for which he said a university was the most suited, other than going to war together.

Our military has done a spectacular job in terms of diversity. It has been a huge factor in the promotion of democracy in this country. Hopefully, we do not have to go to war to promote coming together and learning to overcome prejudices and differences. Hopefully, our universities can be allowed to reach out, as they are with geography, to overcome the fact that some parts of our States are totally underrepresented in our educational institutions, to say, yes, we are going to reach out to that part of the State and we are going to try to get more students from there; they may not have done quite as well on their SATs, because of various historic factors or whatever, but they are highly qualified students, so we are going to give some additional points to those students. But not race? Race would be singled out for not being permitted to be given additional consideration to achieve diversity which is so valuable in education? That would be an unthinkable, unconscionable result, and a distortion of the very purpose of the equal protection clause.

Of all the areas where we have the most hurdles to overcome, most barriers to overcome, more attitudes to overcome, more prejudices to overcome, with all the progress we have made--and we have made a lot-- we have a long way to go in the area of race. The idea that somehow or another all that other diversity, all those other additional points can be given--alumni kids, you can get 10 points; athletes, you can be given 20 points; gender, you can be given points; economic, you can be given points--but not race, that would be, it seems to me, singling out race for discriminatory treatment when it comes to promoting diversity at a university.

The law school's current policies have been upheld by the Sixth Circuit as being consistent with Bakke. The Sixth Circuit has explicitly rejected the plaintiff's contention that the system used by the University of Michigan was the functional equivalent of a quota. The Sixth Circuit found that the law school's admissions program is ``virtually indistinguishable'' from the Harvard man, which Justice Powell held out in the Bakke decision as the appropriate model.

In the University of Michigan's undergraduate admissions program, 110 points out of 150 are given for academic factors, including grades, test scores, and curriculum. The greatest weight, up to 80 points, goes to high school grade point average. Applicants can earn up to 12 points for SAT or ACT scores, up to 10 points for attending a competitive high school, 8 points for taking the most challenging curriculum, and 3 points for SAT quality. Other factors can be considered, including geography, athletics, relationship to alumnus, economic disadvantage. Points can be added for students from various parts of the State which have been underrepresented at the university. Students who have athletic scholarships get additional points, children of alumni get additional points, students from economically disadvantaged backgrounds get additional points. And at the University of Michigan, students from an underrepresented racial or ethnic minority or attending a high school serving a predominantly minority population can receive additional points. And the provost can award additional points to applicants at his or her discretion.

The idea it is all right for colleges and universities to give special consideration to all the other groups--children of alumni, large donors' children--how is that one? It is OK to give special consideration to the children of large donors for whatever university purpose that serves--but it is not OK to give additional points to underrepresented minorities for the obvious university purpose that serves, which is a diverse student population, which our first President, the Father of our Country, pointed out in this letter is absolutely essential if this country is going to be one, if this country is going to be unified.

Indeed, he saw that 200-plus years ago. I hope the Supreme Court will have the wisdom of reading that letter and seeing how important it is that President Washington's dream to bring people from different parts of the country, that people of different backgrounds, which is the University of Michigan program, can, in fact, be realized. That is what some of the stakes are in the University of Michigan case.

Since we are talking judicial matters this evening, I wanted to raise that issue, as well.

It will be lengthy.

You can talk for quite some time on that. You have talked longer, I believe, than I have on this evening.

Let me try to limit this to about 10 minutes.

I will keep the floor and try to keep this down to 10 minutes.

Earlier today we had a hearing in the Armed Services Committee where we received testimony from the intelligence community on worldwide threats to our national security. I gave an opening statement at that hearing, parts of which I want to share with the Senate tonight because of the importance of the subject of Iraq. We have a lot of work ahead of us. We have threats of all kinds, threats which are more immediate, more personal, more imminent, than Iraq, particularly the al-Qaida terrorist network, even though that network has been weakened, it has been deprived of its safe haven in Afghanistan.

It has, just over the last few months, attacked innocent civilians in Bali and Tunisia and has attacked United States service members and civilians in Kuwait and Jordan.

Last month, the United States and coalition forces fought the biggest battle in Afghanistan since Operation Anaconda last spring. Even though our intelligence and our law enforcement agencies are working with allied countries to thwart further attacks in the United States and abroad, the fact is we remain highly vulnerable to al-Qaida, to other terrorist groups. As a matter of fact, the United States is at alert orange now--that is the second highest level of alert in our military forces--and also at heightened force protection levels worldwide. We remain vulnerable. We remain vulnerable not just to conventional explosives but now, we believe, more and more vulnerable to weapons of mass destruction.

Earlier this week, Federal officials even suggested the public should make preparations for a terrorist attack involving chemical, biological, or radiological weapons. While we are placing such a huge focus on Iraq, North Korea, a country that possesses weapons of mass destruction and has ejected the international nuclear inspectors, has declared it is resuming operation of its plutonium-related nuclear facility.

North Korea is not just a country which proclaims it is engaged in a nuclear program as it now has with the enriched uranium program. North Korea is probably the world's worst proliferator of ballistic missile and missile technology. It is on the brink of becoming an undisputed nuclear power. The administration has refused to open a direct dialog with North Korea. That has serious ramifications. Our ally which lives next to North Korea, which surely has got at least as much at stake as we do in the whole matter--and, I think, obviously a lot more since they are the ones nearest the threat--our ally, South Korea, wants us to open a direct dialog with North Korea. They have openly expressed the wish that this country have a direct dialog of the highest levels with North Korea.

The administration has decided not to do that, and all of a sudden, what is obviously a crisis to most of us and most of the world, is not even described as a crisis by the administration. Even though the failure to have contact, the linking it to the axis of evil and the announcement we will have a preemptive policy using military force, could lead to additional provocative and irreversible action on their part because it is stoking the paranoia which exists in North Korea.

On top of that, Iran has admitted now it is mining uranium. That surely must underscore our concern that its nuclear energy program is intended for nuclear weapons, not just for the promotion of nuclear energy. Iraq is the focus and Iraq continues to flout the international community. It is not assisting U.S. weapons inspectors to find or account for chemical or biological weapons programs. Disagreement on how to address the Iraqi threat has divided the U.N. Security Council.

Surely there can be little doubt Osama bin Laden would like to see the United States and Britain attack Iraq without the authority of the world community acting through the United Nations. Keeping the world community together through the U.N. Security Council is exactly what Osama bin Laden does not want to see. He does not want to see a United Nations. He wants to be able to say it is the United States, it is Britain, and it is a few of their personal, close allies. It is not the world that is going after Iraq, it is the United States and Britain that are doing it. He does not want, it is obvious, the world community to be united against the Iraqi threat. He wants to be able, as does Iraq, to characterize the effort as an American/British-led unilateral, not having U.N. authority type of effort.

All of us want Saddam Hussein to be disarmed. The best way to accomplish the goal of disarming Saddam Hussein without war is if the United Nations speaks with one voice relative to Iraq. I want to repeat that, as I think there is so much concern about the possibility of war with Iraq that that particular point is frequently lost.

The best way to accomplish the goal of disarming Saddam Hussein without war is if the United Nations speaks with one voice relative to Iraq.

But if military force is going to be used, the best way of reducing the short-term risks, including risks to the U.S. coalition forces, and the long-term risks, including the risk of terrorist attacks on our interests throughout the world, is if the United Nations specifically authorizes the use of military force. That is the bottom line. The best way of increasing any chance for disarming Hussein without war, and of minimizing casualties in future attacks on the United States if war does ensue is if the United Nations acts relative to Iraq.

The next point, though, is essential as well. Supporting U.N. inspections is an absolutely essential step if we are going to keep the Security Council together. We are not going to have a chance of keeping the United Nations Security Council speaking with one voice unless we support United Nations inspections, which are and have been such an important part of the Security Council's position.

How do we support those U.N. inspections? First, by sharing the balance of the information that we have about suspect sites; No. 2, by quickly getting U-2 aircraft in the air over Iraq, with or without Saddam Hussein's approval, and by giving the inspectors the time they need to do their work as long as the inspections are unimpeded.

I disagree with those, including high officials in our government, who say that U.N. inspections are useless. We heard before the inspections began from the highest level of this government that inspections were useless. We heard it from Dr. Rice at the White House last week. She said specifically that inspections are doomed to failure.

I am also astounded that some of our highest officials have gone so far as to refer in a derogatory way to the ``so-called'' U.N. inspectors. If these inspectors and inspections are useless without Iraqi assistance in pointing out where they have hidden or destroyed weapons of mass destruction, why are we sharing any intelligence at all with the inspectors; and why are we apparently finally implementing U-2 flights to support the inspectors?

It is one thing to be realistic about the limitations of the U.N. inspections and not have too high hopes about what they can produce. It is another thing to denigrate their value or prejudge their value or to be dismissive and disdainful about the beliefs of others on the U.N. Security Council about their value, or to be cavalier about the facts relative to those inspections.

Referring to being cavalier about facts brings me to another point which has to do with the sharing of intelligence information in our possession with the U.N. inspectors. I have followed this issue very closely. I have asked the CIA for months to give us the precise information as to how many suspect sites there are, how many of those suspect sites are of great significance, for how many of the significant sites have we shared information that we have with the United Nations inspectors. They have given me the information in writing but, as it turns out, it is erroneous.

We just began sharing specific information in early January, according to Secretary Powell, who is quoted in the Washington Post on January 9. I can't go into those classified details in the open. I can't give the precise numbers, how many suspect sites we have information on, how many of those suspect sites that we have information on are of significance, and how many of those have we shared with the United Nations. The numbers themselves are classified.

I can say in an unclassified setting, in public, that as of a couple of weeks ago we had shared information on only a small percentage, a fraction of the suspect sites in Iraq, and we had not shared information on the majority of the suspect sites. That was confirmed by CIA staff.

Yet when I asked the Director of the CIA yesterday about this subject, he told us that we have now shared with the U.N. inspectors information about every site where we have credible evidence--all of a sudden, going from a fraction of the sites to we have now shared all the sites.

Then last night, in Director Tenet's presence and in the presence of Senator Warner, his staff acknowledged that as a matter of fact we still have useful information that we have not shared

with the inspectors--which is the opposite of what Director Tenet told the Intelligence Committee yesterday in open session. If we have not yet shared all the useful information that we have with the U.N. inspectors, that would run counter to the administration's position that the time for inspections is over.

The same type of issue exists relative to the U-2s. The inspectors have asked for U-2 surveillance planes. These are planes which have a capability of tracking those suspicious vehicles on the ground that have been referred to by Secretary Powell in his speech, tracking the vehicles that are at a suspicious site and going to another site. They have the advantage of being able to loiter. Unlike a satellite, a U-2 can loiter and actually keep track of a vehicle as it moves from one suspicious place to another and can connect that information to inspectors in real time. They are intensely valuable to the inspectors. They have asked over and over again for the U-2 flights. Why haven't they been provided to the inspectors?

Well, because Saddam Hussein says he can't guarantee the safety of the pilots. So instead of going to the U.N. and saying: Resolution whatever the number is, the United Nations authorizes these U-2 flights and if Saddam Hussein interferes with these flights that will be considered an act of war against the United Nations--instead of doing that, to give the inspectors this additional capability, at least until yesterday or perhaps today, Saddam Hussein has been given a veto by the U.N.--including us; we are part of the U.N.--over the use of surveillance planes, which would contribute to the likelihood that inspectors would catch him with the goods.

I hope that is over now. I don't know for sure that it is. I hope now there is an arrangement made to use the U-2 flights. But if we believe it is important, short term and long term, to both avoiding war, and if war comes, to reducing its risks, that we have a United Nations that is united, speaking with one voice against Iraq, we then must deal with the United Nations' key request that we have an inspection process which is complete and robust. And we must lead at the United Nations to help make it robust. And that includes the use of the U-2 planes.

We have made the suggestion, Senator Clinton and myself, in a letter which we sent to Secretary Powell, that that kind of resolution be introduced at the United Nations which would provide that the U-2 planes be authorized by the United Nations, have the United Nations flag, and, if interfered with by Saddam Hussein, that would be considered an act of war against the United Nations and every member would then be authorized to use military force in response.

When President Bush addressed the United Nations General Assembly on September 12 of last year, he said that:

We want the United Nations to be effective, and respectful,

and successful.

We have some responsibility to help the United Nations achieve that. Saying to other countries, including allies, that if you don't see it our way you must have some ulterior motive, doesn't help us in leading the United Nations to a united front against Saddam Hussein. While a number of heads of State and Governments have called for the United Nations Security Council to take appropriate action, necessary action in response to the threat, and others have pledged to contribute military forces to that effect, others believe we should give strengthened inspections the time that they need to finish their job. But all of the groups agree on the necessity of disarming Iraq.

Rather than following a course that divides the United Nations and separates us from some of our closest allies, we should fairly consider courses of action that unite the world community against Iraq.

I yield the floor.

Mr. President, about 6 months ago, we enacted into law an important set of reforms to curb some of the corporate abuses that have shaken investor confidence in American business, from dishonest accounting to price manipulation to cases in which company executives have walked away from poor corporate performance with millions of dollars in their pockets, while investors, shareholders, and employees have watched their savings evaporate.

These corporate reforms, included in the Sarbanes-Oxley Act of 2002, addressed a host of problems. Today, I want to take a few minutes to discuss one of the most important reforms included in that bill, Section 402, which has so far received very little attention.

Section 402 established, for the first time, a prohibition against publicly traded corporations using company funds to give personal loans to company officers and directors. This simple prohibition is having an impact on corporate America, and I want to take a few minutes to explain the importance of this loan prohibition, the abuses it is correcting, and why it must be protected from efforts to narrow or weaken it.

Last year, the Permanent Subcommittee on Investigations, which I then chaired, conducted an extensive, bipartisan investigation into the collapse of Enron. The Subcommittee reviewed 2 million pages of documents, conducted 100 interviews, held four hearings, and issued two reports. One of the issues we looked at were the loans that Enron gave to its CEO.

In a report entitled, ``The Role of the Board of Directors in Enron's Collapse,'' issued in July, the subcommittee found that multimillion- dollar loans, using company funds, had been approved by the Enron board for the personal use of Mr. Lay, then chairman of the board and chief executive officer. The subcommittee found that the board's compensation committee first gave Mr. Lay access to a $4 million line of credit, increased this credit line in August 2001 to $7.5 million, and authorized repayment with either cash or company stock.

The subcommittee found that, in 2000, Mr. Lay began using what one Enron board member called an ``ATM approach'' toward his credit line, repeatedly drawing down the entire amount available and then repaying the loan with Enron stock. Records show that Mr. Lay at first drew down the line of credit once per month, then every 2 weeks, and then, on some occasions, several days in a row.

In the 1-year period from October 2000 to October 2001, Mr. Lay used his company credit line to obtain over $77 million in cash from the company. In every case, he repaid the borrowed cash by tendering shares of Enron stock. In most cases, he obtained these shares by exercising stock options granted to him as part of his executive compensation. Mr. Lay withdrew these millions of dollars from company coffers at a time when Enron was experiencing cash flow shortages, Enron's shares were dropping, and Enron shareholders were suffering losses. After Enron's collapse, it was discovered that Mr. Lay had borrowed a total of $81 million from the company in 2001, and failed to repay about $7 million.

When asked about these loans at a subcommittee hearing, the head of Enron's compensation committee said that his committee had no duty to monitor the CEO's loan activity. He also indicated that, while Mr. Lay's loans were more extensive than anticipated, appeared to have functioned as secret stock sales to the company, and affected company cash flow at a critical time, he was not prepared to characterize the CEO's actions or failure to repay $7 million as an abuse. He declined to criticize Mr. Lay's conduct. The subcommittee concluded that the Enron board had failed to monitor or halt abuse by Mr. Lay of his company-financed credit line.

Enron was an eye-opener, but it turns out that it is far from the only U.S. company handing out multimillion-dollar loans to executives, often without regard to whether the issued loans benefit the corporation or whether they will be repaid.

In December 2002, the Corporate Library, a non-profit organization that provides information to help investors and stockholders, published the most comprehensive analysis yet of the pervasiveness of company loans to executives prior to enactment of Section 402. The report, entitled ``My Big Fat Corporate Loan,'' presents information compiled from reviewing SEC filings for 1,526 of the largest U.S. corporations in the United States. This report relies solely on what companies have disclosed to the public about their loans to executives, without any attempt to verify or supplement these disclosures. The result is data that may provide a conservative picture of company lending to executives.

The Corporate Library report has determined that over one-third of the largest 1,500 companies in the U.S. have outstanding loans to company executives. According to the report, the average size of these loans was 10.7 million in 2001, and the total amount of lending exceeded $4.5 billion. The report also points out that when company loans to purchase split dollar life insurance, described later, for corporate executives are included, the percentage increases to over 75 percent. When short-term company loans allowing executives to exercise stock options are included, the percentage tops 90 percent.

The list of companies issuing these loans include not only companies marked by scandal, such as Enron, Tyco, Adelphia, WorldCom, and Global Crossing, but also many companies perceived as solid investments with good corporate practices and reasonable executive pay.

The report describes the purpose of the loans as reported by the companies in their SEC filings. The largest proportion of the loans, about 35 percent, had a stock-related purpose, such as to allow a company executive to exercise stock options, purchase stock, or retain stock after a margin call. The report expresses dismay at examples of executives using interest-free loans to buy company stock, being excused from repayment of the loan, and thereby acquiring a substantial company investment without expending any of their own money.

Loans to help an executive relocate to a new area, including buying a house, comprised the second largest portion of company loans to executives. These loans comprised about 27 percent of the total, according to the report. While relocation loans sound reasonable, the report provides examples of disturbing abuses, including loans for millions of dollars. In one case, Millennium Pharmaceutical issued a loan to a senior vice president to buy a house in the Boston area and allowed the loan to be forgiven over time. In another case, the president of a Nike business unit was given a so-called loan for a second home. By its terms, that loan was intended to be forgiven over 5 years. Another example, not mentioned in the report but discussed in the media, is the $16.5 million loan issued by Tyco International to its CEO Dennis Kozlowski to buy property in Boca Raton and Nantucket. Tyco also loaned $14 million to its general counsel, Mark Belnick, for a New York apartment and to build a home in Utah, a State where Tyco has no operations.

It boggles the mind to think that high-paid corporate executives were using company funds to build themselves mansions and then, in some cases, skipping repayment of the funds altogether. It is unlikely that a company would issue a loan to an average employee to build a multimillion-dollar residence or to build a second home, since there would be no business justification for it. There is no justification for lending company funds to a corporate executive either, yet these

types of loans were becoming commonplace. Section 402 was intended to stop these loans cold.

The Corporate Library report tells us that the third most frequent type of company loan for company executives was issued for ``unspecified'' reasons. In other words, millions of dollars of stockholder funds were loaned without disclosing to the stockholders the purpose of the loans. The authors of the report not only express dismay at this unexplained use of company funds, they also suggest that the absence of this information is a clear violation of SEC disclosure requirements.

Another issue highlighted in the report is the extent to which individual companies were devoting substantial dollars to executive loans. According to the report, Wachovia Corporation led the pack last year with a total of $2.2 billion in company loans to executives. Adelphia issued over $263 million in loans to members of the Rigas family that owned it. Worldcom loaned its CEO $160 million. Kmart, now operating in bankruptcy, has outstanding executive loans of $30 million, including a $5 million so-called ``retention'' loan that it gave to its former CEO.

The report also presents data showing that companies are issuing substantial loans to executives on terms that disadvantage the company. Many companies have been charging below-market interest rates or no interest at all. Others have been allowing their executives to escape all loan repayment, simply by forgiving the debt owed. The report states that only half of the companies it examined indicated any plan to charge interest, and a careful examination of loan terms revealed a number of methods to forgive interest or provide additional loans to cover it. The report also identifies over 100 companies that had, or were in the process of, forgiving loans to their executives. It also describes a number of companies that increased outstanding loan amounts to include a ``gross up'' to take care of taxes owed by the executive as a result of the forgiven loan.

Finally, let's look at split dollar life insurance loans. These loans had become very popular among corporate executives in the last few years. The way they work is that the company obtains the insurance policy for its executive and pays the premiums, while the executive names the policy beneficiaries. The policies are called ``split dollar'' because, when the policy pays out, the company is reimbursed from the benefits for the cost of the premiums. The remainder of the insurance benefits, often millions of dollars, goes to the named beneficiaries, such as the executive's family. Because the funds are insurance benefits, the payments to the beneficiaries are mostly tax- free. The result is a company-financed loan to the executive to cover the cost of the insurance premiums, enabling the executive to afford a generous policy and provide tax-free benefits for his or her beneficiaries.

Many of the split dollar life insurance policies that U.S. companies provide to their top executives involve large payouts and large premiums. At Enron, for example, Enron provided its CEO, Ken Lay, with a $12 million split dollar life insurance policy and agreed to pay premiums exceeding $1 million.

The Corporate Library report found that over 60 percent of the companies it examined had purchased split dollar life insurance for one or more of their executives. The report determined that a number of these policies involved substantial sums of money. For example, the report stated that many of the policies cost ``up to $25 million per officer''; Estee Lauder disclosed paying $26 million for premiums on a split dollar life insurance policy for its CEO; Comcast disclosed paying more that $6.5 million in 1 year and $20 million over 3 years for premiums on a policy for its chairman; and First Virginia Banks reported providing all of its executives with insurance coverage of up to a $1 million each.

Since Section 402 has gone into effect, most companies have apparently discontinued providing their executives with split dollar life insurance loans, and the executives themselves have declined to pay the premiums. The result has been a dramatic drop in sales of this insurance. Insurance groups have been lobbying the SEC and Congress to create an exception to Section 402 to permit companies to resume providing split dollar life insurance loans to their executives, but so far they have been unsuccessful in reversing Section 402's ban on this type of corporate loan.

All of the loans banned by Section 402 are loans to corporate officers or directors who are among the highest paid individuals in our society. In 2001, for example, average CEO pay at the top 350 U.S. companies was $11 million. That is 400 times the pay of an average worker in this country. These loans were on top of that pay.

All of these executives could have turned to a bank for their loans. Instead, they turned to their employer and asked to use company funds. The practice of U.S. companies loaning company funds to their executives is relatively new. Given the huge amounts involved, the absence of reasonable interest rates, and the common practice of companies forgiving the debt altogether, the question becomes whether many of these ``loans'' were simply elaborate ways to enrich corporate executives at the expense of the investing public. The Corporate Library report shows that these loans were pervasive and that abuses were commonplace. The work of the Permanent Subcommittee on Investigations suggests that too many boards of directors do not have the will or incentive to limit the loan amounts or to detect or prevent abuses.

That is why, last July, our subcommittee included in its first Enron report a recommendation to stop companies from loaning company funds to executives. That is why, later that same month, Congress enacted Section 402. That is why, in September of last year, Senator Collins and I sent a letter to the SEC urging it to resist any attempts to narrow or weaken Section 402's ban on insider loans to allow corporate executives to purchase company stock, exercise stock options, obtain insurance, relocate for work or pay taxes.

Section 402 has put an end to a large set of abuses associated with company loans to executives. They include loans issued without interest; loans used to build personal mansions at company expense; loans used to provide executives' families with tax-free insurance benefits; loans for every purpose and loans that are never repaid. Company funds belong to shareholders and are intended to benefit them and the company they own; they were never intended to act as a pool of funds available to be loaned or given to company executives.

Congress acted wisely in passing Section 402. This measure, alone, is stopping companies from giving billions of dollars in insider loans to corporate executives. Ending these loan abuses should help restore investor confidence in corporate America. Opponents of this reform are continuing to seek ways around it, but I hope my colleagues will join me in understanding the importance of this reform and the need to ensure it reaches it full potential.

I ask unanimous consent that the Levin-Collins letter to the SEC be printed in the Record.

Mr. President, I am pleased to join with Senator Craig Thomas in introducing the Federal Prison Industries Competition in Contracting Act. Our bill is based on a straightforward premise: it is unfair for Federal Prison Industries to deny businesses in the private sector an opportunity to compete for sales to their own government.

I repeat: the bill that we are introducing today, it enacted, would do nothing more than permit private sector companies to compete for Federal contracts that are paid for with their dollars. It may seem incredible that they are denied this opportunity today, but that is the law, because if Federal Prison Industries says that it wants a contract, it gets that contract, regardless whether a company in the private sector may offer to provide the product better, cheaper, or faster.

We have made considerable progress on this issue since Senator Thomas and I introduced a similar bill in the 107th congress. Two years ago, the Senate voted 74-24 to end Federal Prison Industries' monopoly on Department of Defense contracts. Not only was that provision enacted into law, we were able to strengthen it with a second provision in last year's defense bill.

Despite this progress, much work remains to be done. As of today, Federal Prison Industries retains its monopoly on the contracts of every agency of the Federal Government, other than the Department of Defense. This means that all other Federal agencies, including the new Department of Homeland Security, may be required to purchase products from Federal Prison Industries. It also means that private sector companies may find it impossible to sell their products to their own government, even when their products outperform FPI products in terms of price, quality and time of delivery.

The bill that we are introducing today would not limit the ability of Federal Prison Industries to sell its products to Federal agencies. It would simply say that these sales should be made on a competitive, rather than a sole-source basis.

FPI starts with a significant advantage in any competition with the private sector, since FPI pays inmates less than two dollars an hour, far below the minimum wage and a small fraction of the wage paid to most private sector workers in competing industries. And of course, the taxpayers provide a direct subsidy to Federal Prison Industries products by picking up the cost of feeding, clothing, and housing the inmates who provide the labor. Given those advantages, there is no reason why we should still require Federal agencies to purchase products from FPI even when they are more expensive or of a lower quality than competing commercial items. I can think of no reason why private industry should be prohibited from competing for these federal agency contracts.

We have made several changes to this bill since it was introduced in the 107th Congress. The new bill has been harmonized with the provisions that we have already enacted for the Department of Defense, to ensure that we will have a single, government-wide procurement policy for agencies purchasing products available from Federal Prison industries. This government-wide policy would be codified in the Office of Federal Procurement Policy Act, which is the primary procurement statute that applies to both defense and non-defense agencies. I believe that these changes will strengthen the bill and reinforce its underlying intent.

Federal Prison Industries has repeatedly claimed that it provides a quality product at a price that is competitive with current market prices. Indeed, the Federal Prison Industries statute requires them to do so. That statute states that FPI may provide to Federal agencies products that ``meet their requirements'' at prices that do not ``exceed current market prices''.

Yet, FPI remains unwilling to compete with private sector businesses and their employees, or even to permit federal agencies to compare their products and prices with those available in the private sector. Indeed, FPI has tried to prohibit Federal agencies from conducting market research, as they would ordinarily do, to determine whether the price and quality or FPI products is comparable to what is available in the commercial marketplace. Instead, Federal agencies are directed to contact FPI, which acts as the sole arbiter of whether the product meets the agency's requirements.

The result is totally and understandably frustrating to private sector businesses and their employees who are denied an opportunity to compete for Federal business, as well as to the Federal agencies who are forced to buy FPI products. The frustration of these businesses comes through in a series of letters that were placed in the record of a House Small Business Committee hearing in the last Congress. One letter stated with regard to UNICOR--the trade name used by Federal Prison Industries:

Dear Mr. Chairman: My name is Billy Carroll; I am an

outside sales representatives with C&C Office Supply Co. in

Biloxi Mississippi. Our company has been in business for over

20 years and we employ 20 people.

During the course of our 20-year history we have done

considerable business with numerous governmental agencies and

military installations. Some of them being Naval Construction

Battalion in Gulfport, Mississippi; Air National Guard in

Gulfport; Keesler Air Force Base in Biloxi; Naval Station in

Pascagoula; and NASA in Stennis Space Center.

As a result of FPI's unfair monopolistic practices, we have

seen sales from these governmental agencies go from

$100,000.00 a month to less than $5,000 a month.

There are numerous horror stories we hear from our

customers who deal with UNICOR. The most recent one being

that a customer had to wait 5 months to get their furniture.

When the furniture finally arrived, it wasn't even what they

had ordered. This is something that would have been averted

had they been able to use our company or another dealer.

I could go on about how we could have sold the product much

cheaper, which would have saved taxpayers money, faster

delivery, which would have increased productivity, and

finally better service, but I won't. You get the picture.

Sincerely,

Billy Carroll,

C&C Office Supply Company, Biloxi, MS.

Other vendors expressed even greater frustration about FPI's unfair business practices:

Dear Mr. Chairman: During the past 5 years I have had

representatives from UNICOR tell my customers that they had

to turn over my proprietary designs to UNICOR, without

payment to the dealership. They have told my customers that

if they do not buy UNICOR, they will be `reported to

congress' and that there is no place else to go for

government furniture. They frighten young department of

defense officials with words like `illegal' when they ask

about waivers.

The UNICOR reps routinely refuse waivers on the first

approach. The answer is a standard `UNICOR has products which

will meet your needs.' No explanation. They refuse to answer

waiver requests in a timely fashion. I have had a $110,000

order for the Arizona Air National Guard in Tucson literally

taken away by UNICOR. The representative demanded the designs

and said that UNICOR would fill the request. There would be

no waiver and no discussion. And she was right. Despite the

fact that all of the programming phase had been completed by

my designers, at no cost to the federal government, this rep

insisted that she knew what was best for this customer. Of

course, the products arrived late, in poor condition, was

much more expensive than the budgeted GSA furniture--and the

reps have not been heard from. The answer is `a 10% discount'

or a `free chair.'

In Texas, my representative worked for 4 months with a

customer, completing designs and meeting all relevant

criteria. She proposed only products on GSA contract. UNICOR

unilaterally refused to waive the chairs, approximately

$50,000 worth, because their factories were not at capacity.

The fact that the UNICOR chairs do not meet the price point,

that UNICOR spent no time with the customers determining

function, color or other requirements has no meaning. The

seating portion of the order is lost. The remaining portion

would have been lost, as well, if the customer had not spent

approximately 30 days going from one appeal process to the

other attempting to get waivers. Very few customers will take

the time to do this. Of course, when the project finally

arrives, it will be late and missions will be compromised.

Sincerely,

Ruthanne S. Pitts,

Simmons Contract Furnishings,

Tucson, Arizona.

These letters are far from unique. In case after case, Federal Prison Industries insists on taking contracts away from private businesses, even where FPI's products are inferior, their prices are higher, and they are not prepared to deliver in a timely manner. This is wrong.

Avoiding competition is the easy way out, but it isn't the right way for FPI, it isn't the right way for the private sector workers whose jobs FPI is taking, and it isn't the right way for Federal agencies, which too often get stuck with the bill for inferior products that can't compete with private sector goods. Competition will be better for Federal agencies, better for the taxpayer, and better for working men and women around the country.

Mr. President, I am pleased to join with Senator Craig Thomas in introducing the Federal Prison Industries Competition in Contracting Act. Our bill is based on a straightforward premise: it is unfair for Federal Prison Industries to deny businesses in the private sector an opportunity to compete for sales to their own government.

I repeat: the bill that we are introducing today, it enacted, would do nothing more than permit private sector companies to compete for Federal contracts that are paid for with their dollars. It may seem incredible that they are denied this opportunity today, but that is the law, because if Federal Prison Industries says that it wants a contract, it gets that contract, regardless whether a company in the private sector may offer to provide the product better, cheaper, or faster.

We have made considerable progress on this issue since Senator Thomas and I introduced a similar bill in the 107th congress. Two years ago, the Senate voted 74-24 to end Federal Prison Industries' monopoly on Department of Defense contracts. Not only was that provision enacted into law, we were able to strengthen it with a second provision in last year's defense bill.

Despite this progress, much work remains to be done. As of today, Federal Prison Industries retains its monopoly on the contracts of every agency of the Federal Government, other than the Department of Defense. This means that all other Federal agencies, including the new Department of Homeland Security, may be required to purchase products from Federal Prison Industries. It also means that private sector companies may find it impossible to sell their products to their own government, even when their products outperform FPI products in terms of price, quality and time of delivery.

The bill that we are introducing today would not limit the ability of Federal Prison Industries to sell its products to Federal agencies. It would simply say that these sales should be made on a competitive, rather than a sole-source basis.

FPI starts with a significant advantage in any competition with the private sector, since FPI pays inmates less than two dollars an hour, far below the minimum wage and a small fraction of the wage paid to most private sector workers in competing industries. And of course, the taxpayers provide a direct subsidy to Federal Prison Industries products by picking up the cost of feeding, clothing, and housing the inmates who provide the labor. Given those advantages, there is no reason why we should still require Federal agencies to purchase products from FPI even when they are more expensive or of a lower quality than competing commercial items. I can think of no reason why private industry should be prohibited from competing for these federal agency contracts.

We have made several changes to this bill since it was introduced in the 107th Congress. The new bill has been harmonized with the provisions that we have already enacted for the Department of Defense, to ensure that we will have a single, government-wide procurement policy for agencies purchasing products available from Federal Prison industries. This government-wide policy would be codified in the Office of Federal Procurement Policy Act, which is the primary procurement statute that applies to both defense and non-defense agencies. I believe that these changes will strengthen the bill and reinforce its underlying intent.

Federal Prison Industries has repeatedly claimed that it provides a quality product at a price that is competitive with current market prices. Indeed, the Federal Prison Industries statute requires them to do so. That statute states that FPI may provide to Federal agencies products that ``meet their requirements'' at prices that do not ``exceed current market prices''.

Yet, FPI remains unwilling to compete with private sector businesses and their employees, or even to permit federal agencies to compare their products and prices with those available in the private sector. Indeed, FPI has tried to prohibit Federal agencies from conducting market research, as they would ordinarily do, to determine whether the price and quality or FPI products is comparable to what is available in the commercial marketplace. Instead, Federal agencies are directed to contact FPI, which acts as the sole arbiter of whether the product meets the agency's requirements.

The result is totally and understandably frustrating to private sector businesses and their employees who are denied an opportunity to compete for Federal business, as well as to the Federal agencies who are forced to buy FPI products. The frustration of these businesses comes through in a series of letters that were placed in the record of a House Small Business Committee hearing in the last Congress. One letter stated with regard to UNICOR--the trade name used by Federal Prison Industries:

Dear Mr. Chairman: My name is Billy Carroll; I am an

outside sales representatives with C&C Office Supply Co. in

Biloxi Mississippi. Our company has been in business for over

20 years and we employ 20 people.

During the course of our 20-year history we have done

considerable business with numerous governmental agencies and

military installations. Some of them being Naval Construction

Battalion in Gulfport, Mississippi; Air National Guard in

Gulfport; Keesler Air Force Base in Biloxi; Naval Station in

Pascagoula; and NASA in Stennis Space Center.

As a result of FPI's unfair monopolistic practices, we have

seen sales from these governmental agencies go from

$100,000.00 a month to less than $5,000 a month.

There are numerous horror stories we hear from our

customers who deal with UNICOR. The most recent one being

that a customer had to wait 5 months to get their furniture.

When the furniture finally arrived, it wasn't even what they

had ordered. This is something that would have been averted

had they been able to use our company or another dealer.

I could go on about how we could have sold the product much

cheaper, which would have saved taxpayers money, faster

delivery, which would have increased productivity, and

finally better service, but I won't. You get the picture.

Sincerely,

Billy Carroll,

C&C Office Supply Company, Biloxi, MS.

Other vendors expressed even greater frustration about FPI's unfair business practices:

Dear Mr. Chairman: During the past 5 years I have had

representatives from UNICOR tell my customers that they had

to turn over my proprietary designs to UNICOR, without

payment to the dealership. They have told my customers that

if they do not buy UNICOR, they will be `reported to

congress' and that there is no place else to go for

government furniture. They frighten young department of

defense officials with words like `illegal' when they ask

about waivers.

The UNICOR reps routinely refuse waivers on the first

approach. The answer is a standard `UNICOR has products which

will meet your needs.' No explanation. They refuse to answer

waiver requests in a timely fashion. I have had a $110,000

order for the Arizona Air National Guard in Tucson literally

taken away by UNICOR. The representative demanded the designs

and said that UNICOR would fill the request. There would be

no waiver and no discussion. And she was right. Despite the

fact that all of the programming phase had been completed by

my designers, at no cost to the federal government, this rep

insisted that she knew what was best for this customer. Of

course, the products arrived late, in poor condition, was

much more expensive than the budgeted GSA furniture--and the

reps have not been heard from. The answer is `a 10% discount'

or a `free chair.'

In Texas, my representative worked for 4 months with a

customer, completing designs and meeting all relevant

criteria. She proposed only products on GSA contract. UNICOR

unilaterally refused to waive the chairs, approximately

$50,000 worth, because their factories were not at capacity.

The fact that the UNICOR chairs do not meet the price point,

that UNICOR spent no time with the customers determining

function, color or other requirements has no meaning. The

seating portion of the order is lost. The remaining portion

would have been lost, as well, if the customer had not spent

approximately 30 days going from one appeal process to the

other attempting to get waivers. Very few customers will take

the time to do this. Of course, when the project finally

arrives, it will be late and missions will be compromised.

Sincerely,

Ruthanne S. Pitts,

Simmons Contract Furnishings,

Tucson, Arizona.

These letters are far from unique. In case after case, Federal Prison Industries insists on taking contracts away from private businesses, even where FPI's products are inferior, their prices are higher, and they are not prepared to deliver in a timely manner. This is wrong.

Avoiding competition is the easy way out, but it isn't the right way for FPI, it isn't the right way for the private sector workers whose jobs FPI is taking, and it isn't the right way for Federal agencies, which too often get stuck with the bill for inferior products that can't compete with private sector goods. Competition will be better for Federal agencies, better for the taxpayer, and better for working men and women around the country.

Mr. President, an independent Federal judiciary is a fundamental part of our constitutional democracy. In fact, nominating judges to the Federal bench is among the most important and lasting decisions that a President can make. Equally important is the Senate's role of advice and consent on judicial nominations. Breakdowns in the nomination and confirmation process can impact not only the proper functioning of the judicial branch but the independence which is so critical to maintaining public confidence in the courts.

It is the President's responsibility to work with Senators of both parties to fill vacancies on the Federal courts. It is the duty, the constitutional duty of the Senate to carefully deliberate over the President's nominees.

Nobody can challenge the President's authority to nominate judges. It is indisputable. That the Senate has the right to advice and consent is equally indisputable. The two rights exist in the very same sentence of the Constitution.

That is why the administration's repeated failure to consult with Democratic Senators on the nomination of Federal judges is so troubling. Refusal by a nominee to provide the Senate with adequate information to evaluate their record undermines our ability to carry out our constitutionally mandated duties.

It is this latter point, the lack of information provided by a nominee to evaluate their record, which is particularly relevant to the nominee currently under consideration, Miguel Estrada. Mr. Estrada is nominated for a lifetime appointment on what is arguably the second highest court in the land. The DC Circuit has exclusive jurisdiction over a broad range of cases, including issues from consumer and environmental protection to civil rights and workplace rules. The court's jurisdiction is vast.

The DC Circuit has the obligation to interpret rules for access to courts which allow Americans to challenge the Government when any agency takes an action which affects their health. It is this circuit which is charged with protecting Americans to challenge the Government. It is this DC Circuit that has either concurrent jurisdiction or exclusive jurisdiction in cases involving the NLRB, OSHA, Federal Communications Commission, Americans with Disabilities Act, Federal Energy Regulatory Commission, Federal Elections Commission, Endangered Species Act, and the Environmental Protection Agency, just to name a few.

The judges on this court are widely viewed as potential nominees to the Supreme Court. In fact, three current members of the Supreme Court--Justices Scalia, Thomas, and Ginsberg--served on the DC Circuit.

Despite the importance of the issues that routinely come before the court, we have very little information about the current nominee's views on fundamental constitutional issues. Mr. Estrada has no judicial experience so we have no record of decisions from which to draw an impression of his judicial philosophy. Mr. Estrada is not widely published. He has apparently not published since he wrote an article on banking law in law school. It is not a disqualification if a person has no judicial experience or has not published their views on the law. However, the lack of a record gives the Senate a particular obligation in carrying out our constitutional duty to look at the views of somebody on very fundamental constitutional issues.

We have a higher duty, a greater responsibility to probe where there is no decision record and where there are no writings upon which to base a judgment. The administration's failure to provide the Senate with legal memoranda and Mr. Estrada's failure to ask the administration to provide the Senate with those memoranda-- particularly, again, in light of the absence of a judicial record and publications--will make it more difficult for Senators to weigh the evidence as to what kind of a judge Mr. Estrada would be, nominated as he is to what, in effect, is the second highest court in the land.

There is much evidence from the record before the Judiciary Committee as to a failure on the part of Mr. Estrada to give information that is highly relevant to the Senate and to the committee. Senator Leahy asked:

Is diversity a factor that an employer or a school could

take into consideration?

Answer:

Because this is a matter that is being actively litigated

in the courts and may come before the court, if I am

confirmed, I don't think it would be appropriate generally to

answer that question.

In fact, it is very appropriate generally to answer the question. What is inappropriate would be to answer that question relative to a specific set of facts that are pending before a court or might come before a court if Mr. Estrada is confirmed.

Senator Kohl asked:

In light of growing evidence that a substantial number of

innocent people have been sentenced to the death penalty,

does that provide support in your mind for the two Federal

district court judges who have recently struck down the death

penalty as unconstitutional?

Answer:

I am not familiar with the cases, Senator, but I think it

would not be appropriate for me to offer a view on these

types of issues which are currently coming in front of the

court and may come before me as a judge.

Not even offer a view on these types of issues--not on the specific issues in the cases referred to by Senator Kohl, but these types of issues.

Senator Kohl says:

To what extent should a judge be required to balance the

public's right to know against the litigant's right to

privacy when the information sought could be sealed and could

keep secret a public health and safety hazard?

Mr. Estrada:

Senator, there is a long line of authority in the DC

Circuit, as it happens, dealing with public access in cases

that are usually brought to gain access to Government records

by news organizations, and those cases, as I recall--I

haven't looked at them in some time--do recognize a common

law right of access to public records, which must be balanced

against the interest of the governmental actor that is

asserting the need for confidentiality. I am not aware of any

case, though there may be some that dealt with this issue in

the context that you've outlined, but I would hesitate to say

more than that because I don't know how likely it is that

that very issue that you have just outlined would come before

me in the DC Circuit if I were fortunate enough to be

confirmed.

So now if he believes there are cases that might come before the DC Circuit, he says: I am not going to comment even in general on the subject matter of those cases. But where he doesn't know whether or not issues are coming before the DC Circuit, he says: I am not going to comment on that either. Again, he said: I hesitate to say more than that because I don't know how likely it is that that very issue that you have outlined would come before me in the DC Circuit if I am confirmed.

Either way, he is not going to give us an opinion. Other nominees have provided information of the type that Mr. Estrada will not give us. We have the circumstance--for instance, there are multiple cases where the Justice Department cooperated with past requests of the Judiciary Committee. The Senate requested past Justice Departments to provide this type of memoranda, such as memoranda relating to appeals written by Department attorneys, including the memoranda of William Bradford Reynolds, nominated for Associate Attorney General; Benjamin Civiletti, nominated for Attorney General. Steven Trott, nominated for the Ninth Circuit; and William Rehnquist, when he was nominated for Chief Justice, among others.

The current Bush administration, in fact, provided the Senate with legal memoranda, which Jeffrey Holmstead wrote--an attorney with the White House counsel's office--when there was an inquiry during the consideration of his nomination to be Assistant Administrator to the EPA. So these requests are not unprecedented.

The key is, will Mr. Estrada ask the administration to release the documents? That would give this Senate an opportunity to get his ideas about basic constitutional issues. He is not obligated to request the Justice Department to provide this information. We should be clear on that. There is no obligation on the part of Mr. Estrada to request the Justice Department to provide the information that I have discussed, but his refusal to do so comes at risk to his nomination.

We are not obligated to vote for someone who is not willing to ask the Justice Department to provide information that will give us the opportunity to get a better feel for where a nominee is on some basic, fundamental constitutional issues.

Justice Rehnquist said the following in a 1972 case:

Since most Justices come to this bench no earlier than

their middle years, it would be unusual if they had not by

that time formulated at least some tentative notions that

would influence them in their interpretation of the sweeping

clauses of the Constitution and their interaction with one

another. It would be not merely unusual, but extraordinary if

they had not at least given opinions as to constitutional

issues in their previous legal careers.

I agree with Justice Rehnquist. Apparently, Mr. Estrada does not.

When asked by Senator Schumer at the Judiciary Committee hearing to name three cases of which he was critical in the last 40 years of Supreme Court jurisprudence, Mr. Estrada said he was ``not sure that I could think of three that I would be--that I would have a sort of adverse reaction to. . . .''

As we have heard from Senator Schumer, other nominees have been more than willing to state where they have not been in agreement with Supreme Court opinions. Yet this nominee is not willing to give us even one Supreme Court opinion in the last 40 years where he would ``have a sort of adverse reaction,'' to use his words.

He was asked by Senator Durbin to name judges, living or dead, whom he admired and would emulate on the bench.

He answered:

There is no judge, living or dead, whom I would seek to

emulate on the bench, whether in terms of judicial philosophy

or otherwise.

Finally, after one particularly unhelpful exchange, Senator Kohl seemed to sum up the feeling of many members of the committee when he told Mr. Estrada:

With all due respect to your answer, I am trying to know

more about you, and I am not sure I am.

That sort of sums it up. With all due respect, we are trying to know more about you, and we are not sure we are able to.

Mr. Estrada's failure to provide members of the Judiciary Committee with answers to even the most basic questions on his view of the law is deeply troubling. We don't have writings. There are none. That is not his fault. It does not disqualify him, but there are none. We don't have opinions. That is not his fault. He has never been a judge. There are none. But what is his decision? It is not to ask the administration for documents which he wrote that would give us some answers as to whether or not we are in agreement with his fundamental legal philosophy.

His tactic of refusing to answer questions could become a standard method of operation for future nominees, to the detriment of both the nominating process and the frustration of the Senate's advice and consent duty, if we accept the standard he is setting forth by his refusal.

Mr. Estrada and the administration had the opportunity to make the case for confirmation. The administration chose not to provide information for Senators to properly evaluate his nomination. Mr. Estrada chose to remain silent on key questions despite opportunities to clarify his views.

Mr. President, I understand from a signal from the Parliamentarian that we are supposed to stop at this time,

I will finish with other views of Mr. Estrada at another time. I yield the floor.

Mr. President, I ask unanimous consent that the Willing Seller bill be printed in the Record.

Mr. President, I am pleased to be joined by the Senator Jeffords in reintroducing legislation that seeks to add an important measure of flexibility to a provision of the Temporary Assistance for Needy Families program, TANF, under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. The legislation we are introducing increases from 12 to 24 months the limit on the amount of vocational education training that a State can count towards meeting its work participation rate.

Under the pre-1996 Aid to Families with Dependent Children program, welfare recipients could participate in post-secondary vocational training or community college programs for up to 24 months while receiving assistance. While I support TANF's emphasis on moving welfare recipients into jobs, I am troubled by the restriction on post- secondary education training, limiting it to 12 months. Only one year of vocational education counts as an approved work activity. The second year of post-secondary education study does not.

The limitation on post-secondary education and training raises a number of concerns, not the least of which is whether individuals may be forced into low-paying, short-term employment that will lead them back onto public assistance because they are unable to support themselves or their families. According to recent studies, this is exactly what has happened in far too many cases.

A March 13, 2001, report of the Congressional Research Service, indicates that the average hourly wage for these former welfare recipients ranged from $5.50 to $8.80 per hour. According to the U.S. Census Bureau, the mean earnings of adults with an associate degree are 20 percent higher than adults who have not achieved such a degree.

A majority of the Senate has previously voted to make 24 months of post-secondary education a permissible work activity under TANF. The Levin-Jeffords amendment to the 1997 Reconciliation bill, permitting up to 24 months of post-secondary education, received 55 votes--falling five votes short of the required procedural vote of 60. I must note the efforts of our dear friend and colleague Senator Paul

Wellstone who was committed to this issue and who subsequently, in 1998, offered similar legislation as an amendment to the Higher Education Act reauthorization, which I cosponsored. The Senate adopted his amendment, however, the amendment was dropped during conference negotiations.

In June of last year, Senator Jeffords and I were very pleased that our proposal was included in the Senate Finance Committee reported bill reauthorizing TANF. It is our hope that the Senate will again act favorably and expeditiously on this legislation and that the House will support this much-needed state flexibility. We must do what is necessary to achieve TANF's intended goal of getting families permanently off of welfare and onto self-sufficiency.

Finally, I would like to share with my colleagues some examples of the difference that completion of two years of vocational or community college can make. The following are jobs that an individual could prepare for in a structured two-year training or community college program, including the average starting salary, as provided by the Bureau of Labor Statistics.

Mr. President, I ask unanimous consent that the Willing Seller bill be printed in the Record.

Mr. President, I am pleased to be joined by the Senator Jeffords in reintroducing legislation that seeks to add an important measure of flexibility to a provision of the Temporary Assistance for Needy Families program, TANF, under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. The legislation we are introducing increases from 12 to 24 months the limit on the amount of vocational education training that a State can count towards meeting its work participation rate.

Under the pre-1996 Aid to Families with Dependent Children program, welfare recipients could participate in post-secondary vocational training or community college programs for up to 24 months while receiving assistance. While I support TANF's emphasis on moving welfare recipients into jobs, I am troubled by the restriction on post- secondary education training, limiting it to 12 months. Only one year of vocational education counts as an approved work activity. The second year of post-secondary education study does not.

The limitation on post-secondary education and training raises a number of concerns, not the least of which is whether individuals may be forced into low-paying, short-term employment that will lead them back onto public assistance because they are unable to support themselves or their families. According to recent studies, this is exactly what has happened in far too many cases.

A March 13, 2001, report of the Congressional Research Service, indicates that the average hourly wage for these former welfare recipients ranged from $5.50 to $8.80 per hour. According to the U.S. Census Bureau, the mean earnings of adults with an associate degree are 20 percent higher than adults who have not achieved such a degree.

A majority of the Senate has previously voted to make 24 months of post-secondary education a permissible work activity under TANF. The Levin-Jeffords amendment to the 1997 Reconciliation bill, permitting up to 24 months of post-secondary education, received 55 votes--falling five votes short of the required procedural vote of 60. I must note the efforts of our dear friend and colleague Senator Paul

Wellstone who was committed to this issue and who subsequently, in 1998, offered similar legislation as an amendment to the Higher Education Act reauthorization, which I cosponsored. The Senate adopted his amendment, however, the amendment was dropped during conference negotiations.

In June of last year, Senator Jeffords and I were very pleased that our proposal was included in the Senate Finance Committee reported bill reauthorizing TANF. It is our hope that the Senate will again act favorably and expeditiously on this legislation and that the House will support this much-needed state flexibility. We must do what is necessary to achieve TANF's intended goal of getting families permanently off of welfare and onto self-sufficiency.

Finally, I would like to share with my colleagues some examples of the difference that completion of two years of vocational or community college can make. The following are jobs that an individual could prepare for in a structured two-year training or community college program, including the average starting salary, as provided by the Bureau of Labor Statistics.

Mr. President, I join my Senate colleagues and our Nation in honoring the seven astronauts who lost their lives as Space Shuttle Columbia returned home last Saturday. These brave individuals flew into space in the name of all humanity, and together we mourn their loss.

Those who perished with Columbia represented not only the best of our Nation, but the best of humankind. On board was a crew of seven: COL Rick Husband; LTC Michael Anderson; CDR Laurel Clark; CAPT David Brown; CDR William McCool; Dr. Kalpana Chawla; and Ilan Ramon, a colonel in the Israeli Air Force. They left behind 12 children, their spouses, along with numerous family members and friends. The people of the State of Michigan and our Nation share the grief and the pride of those who lost a loved one aboard the shuttle.

When Columbia blasted off from the Kennedy Space Center at Cape Canaveral a few weeks ago, the astronauts aboard left earth in relative anonymity. In many ways this is a result of NASA's success: there have now been 144 manned space missions. Consequently, many have come to view spaceflight as routine.

However, the journey of exploration which they shared posed great risk. But the astronauts aboard Columbia, like those aboard Challenger and in Apollo I before them, understood those risks associated with their mission. Last Saturday, our Nation and the world once again received the ultimate and painful reminders that these are still our first steps into space. Nevertheless, space exploration will continue, for exploring our world and the heavens above has been a dream of humanity since long before the namesake of the Columbia set out across the Atlantic Ocean seeking a new route to India.

I am confident that in the coming months we will leave no stone unturned in the quest to find the causes of this catastrophe. I am sure the necessary changes will be made to safely transport the heroes of today and those of tomorrow.

A generation ago, the challenge of manned spaceflight inspired thousands

of students to pursue careers in math, science and engineering. We are still benefitting from the innovations that this generation is responsible for. By rededicating ourselves to spaceflight and the wonders of science, we can produce another generation that will tackle new challenges and inspire us with their discoveries.

I believe the comment of my friend and our former colleague John Glenn summarizes it best. Following the tragedy of the Space Shuttle Challenger, he remarked, ``they indeed carried our hopes and our dreams with them. Let us carry their memory with us.'' The men and women of the Space Shuttle Columbia carried with them the dreams of all of us and for that we thank them and hold them in our hearts.

Mr. President, last week the Violence Policy Center released a report entitled ``Just Like Bird Hunting: The Threat to Civil Aviation From .50 Caliber Sniper Rifles.'' This report discusses the range and power of the .50 caliber sniper rifle and its ammunition, and highlights the potential threat this weapon poses to airports and aircraft. The idea that terrorists can legally obtain these weapons should shake us up and force us to act immediately.

The .50 caliber sniper rifle is among the most powerful weapons legally available. According to the VPC's report, a .50 caliber sniper rifle is capable of accurately hitting a target over a thousand yards away and the ammunition available for the .50 caliber includes armor- piercing, incendiary and explosive bullets. The report also cites the U.S. Army's manual on urban combat which states that .50 caliber sniper rifles are designed to attack bulk fuel tanks and other high-value targets from a distance, using ``their ability to break through all but the thickest shielding material.''

One of the most disturbing parts of the report comes from the leading manufacturer of .50 caliber sniper rifles, Barrett Firearms. According to the VPC report, a brochure advertising the .50 caliber sniper rifle states, ``The cost-effectiveness of the Model 82A1 cannot be overemphasized when a round of ammunition purchased for less than 10USD--U.S. Dollars--can be used to destroy or disable a modern jet aircraft.''

I believe the easy availability and the increased popularity of the .50 caliber sniper rifle poses a danger to homeland security, as well as airline safety. 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 regimen of registration and background checks as other weapons of war, such as machine guns. This is a necessary step to assuring the safety of Americans.

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

Mr. President, I want to bring an inspiring young woman from my home State of Michigan to the attention of my colleagues. Her name is Lakeshia Gallman. Lakeshia graduated from Martin Luther King High School in 2002 and currently attends Wayne State University.

As many of my colleagues know, the Detroit area has been plagued by gun-related deaths of children over the last year. Lakeshia Gallman is no stranger to the terrible effects of this rising tide of gun violence on families and communities. She lost her 17-year-old cousin in a senseless act of gun violence 4 years ago. Since that incident, Lakeshia's commitment to reducing the occurrence of gun violence in Detroit has been exemplary. Lakeshia is active in the Detroit Neighborhood Service Organization's Youth Initiative Project, an organization dedicated to drug prevention and stopping youth violence. She has been a champion of gun safety initiatives in Detroit for over 3 \1/2\ years. Over the last year, Lakeshia has set up town hall meetings, and met with local and national elected officials, including me. She also helped distribute over 2,000 gun locks and has educated people about the harsh realities of gun violence. Lakeshia recently authored a column on the effects of gun violence in the Detroit Free Press.

Like many Americans, Lakeshia Gallman understands that the black market and gun traffickers are two of the primary ways criminals get their hands on guns. She also knows that easy access to guns in homes are a primary method by which kids injure or kill other kids. We can eliminate easy access to guns by criminals by closing the gun show loophole. And we can prevent kids from gaining access to guns

by enacting safe storage legislation, such as the Children's Firearm Access Prevention Act. These are two commonsense steps we can take to reduce gun violence.

I had the pleasure of meeting Lakeshia Gallman in October and I commended her on her hard work and dedication to preventing gun violence in her community. I am sure that I speak for many of my Senate colleagues in congratulating her on a job well done.

I ask unanimous consent that Lakeshia's Detroit Free Press column be printed in the Record.

Mr. President, we have before the Senate the Omnibus Appropriations bill. This bill funds a wide array of vital programs, but this bill does not address a relatively new problem that is affecting the ash tree population in Southeast Michigan.

I am talking about the Emerald Ash Borer, an Asian beetle that most likely

traveled to Michigan on wooden shipping pallets. An invasive species, the Ash Borer is rapidly destroying ash trees in southeastern Michigan and as it spreads will do so nationwide. In the time that it has been in Michigan, the Ash Borer has already killed 6 million trees. Ironically, this invasive pest has the potential to wipe out the very tree that was planted to replace the elm trees that succumbed to Dutch Elm Disease.

It is imperative that the Animal Plant Health Inspection Service (APHIS) take a vital role addressing this problem. It is my expectation that APHIS will conducted surveillance into this problem and develop a containment strategy that will lay the groundwork for the eradication of this invasive species.

Mr. President, last month Americans for Gun Safety, an organization which seeks to educate Americans on existing gun laws and new policy options for reducing access to guns by criminals and children, released a report entitled Stolen Firearms, Arming the Enemy. This report examines the effect of stolen guns on communities. According to the report, nearly 1.7 million firearms have been reported stolen since 1993. These stolen guns are frequently used later in committing crimes and fuel the black market for guns. Most of the estimated 170,000 guns stolen each year are never recovered.

The accessibility of stolen firearms was earlier highlighted by a 1997 Department of Justice survey of 33,731 state prison inmates. The survey found that nearly 10 percent of the inmates used a stolen firearm to commit the crime that put them in prison.

The Americans for Gun Safety report points to several factors that contribute to a state's firearm theft rate, such as gun ownership rates, overall crime rates, and safe storage laws. The report notes that the eighteen states with safe storage laws had firearm theft rates nearly 30 percent below that of States without safe storage gun laws. Additionally, over the last 10-year period, theft rates declined by at least 47 percent in States with safe storage laws compared to 30 percent in States without such laws.

As the Americans for Gun Safety report illustrates, safe storage laws can help prevent criminals from gaining access to firearms. Federal safe storage laws aimed at protecting children may have the added benefit of preventing gun theft. Last Congress, I cosponsored Senator Durbin's Children's Firearm Access Prevention Act. Under this bill, adults who fail to lock up loaded firearms or unloaded firearms with ammunition can be held liable if a weapon is taken by a child and used to kill or injure him or herself or another person. The bill also increases the penalties for selling a gun to a juvenile and creates a gun safety education program that includes parent-teacher organizations, local law enforcement and community organizations. This bill is similar to legislation President Bush signed into law as Governor of Texas. I believe this is a simple common sense step we can take to reduce gun violence and gun-related crime. I support this bill and I hope the Senate will act on it during this Congress.

Mr. President, today I look forward to the Senate's speedy confirmation of Governor Ridge to be the new Secretary of the Department of Homeland Security. I believe that Governor Ridge is the right person for the job, and I strongly support his selection to head the new department.

The challenge before Governor Ridge is massive: 22 agencies with over 170,000 people must be reassembled under one umbrella. These agencies and their personnel need to communicate with each other, to work together, and to begin retooling their operations to increase the protections needed to secure America's safety and well-being. Again, it is a massive job.

But Governor Ridge is not the only one who needs to roll up his sleeves. The Congress also has work to do on homeland security, first by enacting legislative repairs to the Homeland Security Act. This Act passed at the end of the last Congress using a hastily written bill that discarded many important provisions that had been worked out on a bipartisan basis. My colleagues and I identified a number of these problems during Governor Ridge's confirmation hearing before the Governmental Affairs Committee last week.

First, the Homeland Security Act leaves the intelligence community without clearly defined roles and creates the possibility for unnecessary and costly duplication of effort. Language addressing the coordination and analysis of intelligence issues was included in the bipartisan bill reported out of the Senate Governmental Affairs Committee, but the key language was dropped from the final Homeland Security Act. The goal of this language was to lay out clearly which agency had primary responsibility for analyzing information about foreign intelligence, and avoid having the new Department of Homeland Security duplicate the work of the Counter Terrorist Center, or CTC, at the CIA. Specifically, the language would have provided that the CTC has the primary responsibility for analysis of foreign intelligence and gave the DHS the primary responsibility of taking that foreign intelligence and mapping it against threats to the U.S.

At his confirmation hearing, Governor Ridge indicated that he agreed with maintaining the CTC's primary role on analyzing foreign intelligence. In fact, when I asked Governor Ridge: ``Will you duplicate the CTC?'' he responded: ``It is not our intention to replicate the CTC with respect to foreign intelligence. Our intention is to use foreign intelligence from the CTC to match threats with vulnerabilities.'' When asked which agency was intended to have primary responsibility to analyze foreign intelligence, Governor Ridge responded: ``the CIA.'' Those were precisely the answers in the bipartisan Senate approach.

On January 18, the Washington Post reported that President Bush had decided to ``leave responsibility for collecting and analyzing foreign intelligence on terrorists with the CIA, and to have the homeland security agency perform further analysis aimed at protecting U.S. infrastructure.'' Again, this is exactly the approach taken in the earlier, bipartisan Senate bill. I am hopeful that the Department will continue to follow the framework set out by the President and Governor Ridge, and that he and the Congress will take any steps needed to restore the clear language on intelligence responsibilities in the Homeland Security Act.

A second problem I have with the Homeland Security Act is the section of the law that exempts the agency from complying with some aspects of the Freedom of Information Act, FOIA, the key Federal statute helping the public keep track of what their government is doing. Government bureaucrats often don't like FOIA requests because they take time and resources to answer. Many would like to reduce the public's right to know.

That's what happened in the Homeland Security Act. Language was added to that law that unnecessarily limits the use of FOIA.

Last year, Senators Leahy, Bennett, and I worked out a FOIA compromise which was included in the original Senate Governmental Affairs Committee bill. At the homeland security mark-up, we were told that the Administration supported our compromise language. But this compromise was ultimately dropped. Instead, the Homeland Security Act cuts back on the public's right to know what its government is up to by expanding the types of information that the new department can keep shielded from the public, including unclassified information about ``critical infrastructure'' issues involving such matters as electrical grids, computer systems, or water treatment facilities.

There is a related problem with the HSA language barring use of critical infrastructure information in civil proceedings. Suppose the DHS gets information submitted by a chemical company indicating a chemical plant is in danger of releasing a toxic gas due to a vulnerability in its critical infrastructure. The statute ties the hands of the DHS, barring it from disclosing the information in court without the chemical company's consent. The statute even bars the DHS from giving the information to another agency such as the Environmental Protection Agency, EPA.

What's more, a whistleblower within the DHS or the EPA could be thrown in jail for disclosing this unclassified information. Even a member of Congress who releases the information presumably could be, under some circumstances, jailed! I find this to be incredible. Limiting the public's right to know and jailing whistleblowers isn't the direction we should be going and is not necessary to protect America.

At the Governmental Affairs hearing, Governor Ridge seemed to agree that

criminalizing whistleblower disclosures of unclassified critical infrastructure information was not the intent of the Homeland Security Act. I am hopeful that Governor Ridge will help us to remedy some of the FOIA problems caused by the Homeland Security Act and restore the bipartisan compromise worked out in our committee.

Another problem requiring prompt action is to get adequate funding to the agencies charged with homeland security. Because of the failure of Congress to pass appropriations bills, the key Federal agencies at the front lines of protecting our homeland have gone underfunded in the first 3 months of this fiscal year. Now, the Republican majority has come up with an Omnibus Appropriations bill that inadequately funds vital homeland security needs for FY 2003. For example, $362 million is not provided to the INS for the Entry-Exit system, which would track the arrival and departure of non U.S. citizens; $265 million is cut from the INS for construction of border security facilities; $92 million is not provided for FBI information technology enhancements; $8 million is cut from the Customs Service container security initiative; and $132 million is cut from FEMA first responders. I supported an amendment in the Senate that would have provided $5 billion to address these and other homeland security priorities in the Omnibus Appropriations bill which was defeated. By under funding homeland security, and promising billions of dollars in tax cuts instead, we have delayed the delivery of urgently needed dollars to the very agencies charged with protecting us from terrorist attacks. The administration's priorities are misplaced and need to be corrected.

Finally, the Homeland Security Act authorizes funding for various homeland security grants, such as grants for first responders and grants for new science and technology equipment. People in Michigan and all our States are eager to gear up to fight terrorism, but it must be a Federal/State partnership. It is unacceptable for us to simply tell the States what they must do and then expect them to somehow find the money to take on new and vast responsibilities. One central office has to be designated as the place to find out about the Federal grants that will be awarded and administered by the Homeland Security Department and all of its many components. And in the interim, it would be helpful for the Department to provide numbers to call and people to contact who can give out this information. In a meeting in my office, Governor Ridge indicated that he agreed that an interim number would be helpful.

I look forward to a quick confirmation of Governor Ridge. I also call on my colleagues to begin the work needed to remedy the remaining problems with the Homeland Security Act.