Floor Statements

Mr. President, I would like to talk a little bit about the 9/11 Commission which, of course, is right now beginning to interview some of the most high-level people in our Government. The Commission has an important and, I would say, sacred mission, and that mission is to find out what happened and why so many people were killed in the tragedy of 9/11. Of course, many of those people were from my city and State--the vast majority. Some of those people I knew: someone I played basketball with in high school, someone who was a businessman who befriended me on the way up, someone who was a brave firefighter from the Marine Park neighborhood from where I come. And the families mirror--of course with greater intensity--the determination of the American people to get to the bottom of this.

The unfortunate situation is the 9/11 Commission--which is bipartisan and has an important mission that transcends any politics, any one administration, any one Secretary of Defense or Secretary of State or President--is being thwarted as it tries to do its work. They have not been given documents. They have been delayed. Even to this day, Condoleezza Rice has said she will not testify to the Commission in public, even though she was in probably the most sensitive staff position there could be in regard to figuring out the signals before 9/ 11 and what should be done as a result of 9/11.

I think this is regretful. I think this shows, unfortunately, a pattern in this administration of not wanting facts, of sort of making up your mind first and then trying to get the facts to fit that.

It is no secret I have been sympathetic to the President on the war in Iraq. I disagree with certain things he did, but I voted for the war. I voted for the $87 billion. I think we have to fight terrorism. And I do think it is easy to second-guess. I also believe we could get so hamstrung and do nothing that the terrorists would gain more than they have.

Having said that, if there is one thing we thrive on, if there is a thing that is a hallmark not only of winning a successful war on terrorism but of defending the very democracy the terrorists hate and fight, it is that all information come out so we can make an accurate assessment.

I have to tell you, as you look at it, it seems this administration does not want all the facts to come out and, in fact, oftentimes thwarts facts coming out; and then, when they hear facts they do not like that come out not because of administration auspices, they start kneecapping the bringer of bad news.

This has not just happened in one instance; this has happened in instance after instance after instance. Today there is a whole machine discrediting Richard Clarke--certainly disagree with his arguments, certainly disagree with his interpretations of what happened in the White House.

There are two sides to every argument. But to say Mr. Clarke--who, until 2000, according to the newspapers, was a registered Republican, whom I know well, whose sole mission was to defend us against terrorism--to call him names and say he is motivated by partisan politics and he has one friend in the John Kerry campaign, that does a disservice to America; to do the same thing to Mr. Foster, who had numbers on how much the prescription drug bill would cost; to do the same thing to Ambassador Wilson; to do the same thing to Chief of Staff General Shinseki, this is a pattern that does not do the President, the White House, or the administration proud. In fact, it has an antidemocratic tinge to it that should make all of us worry, that should make all of us troubled by what has happened.

Probably the last analogy to 9/11 was Pearl Harbor. And what did this country do? What did Franklin D. Roosevelt and the leaders of this country do? They said: We need to find the facts as to why we were so unprepared. Might those facts have damaged people in office? Surely. But, nonetheless, pursue the facts we did, and a comprehensive report on why America slept was issued.

This 9/11 Commission is in that tradition. Yet this 9/11 Commission has been thwarted every step of the way. Governor Kean is a Republican, greatly respected, not a partisan man. The vice chairman is Lee Hamilton, whom I served with in the House--the same way, a Democrat, but not regarded as partisan. In fact, sometimes the Democratic leadership in the House would tear their hair out at Lee Hamilton's bipartisan nature.

Yet there is almost a fear of facts coming out. What does this say to the American people? Do we believe our country is right? I do. Do we believe, unlike other countries, that we search for the truth, even though that truth sometimes creates bad currents, dissension, whatever, but that truth is the hallmark of our democracy? I do. I think the vast majority of Americans do. I think if you ask President Bush, he would say he does.

But yet, over and over again, with the 9/11 Commission, with Richard Clarke, with Mr. Foster, with Ambassador Wilson, there has been not only an aversion to facts coming out but a kind of ``McCarthyism'' in sort of calling names at the person who had a different interpretation instead of debating whether their interpretation was right or wrong.

This is bad for our democracy. This does not bring credit to this President or the Presidency. This has to stop. I hope today, as the 9/ 11 Commission begins to interview a series of very important witnesses--two Presidents, two Vice Presidents, many of their leaders-- maybe we can turn over a new leaf; that maybe, instead of stonewalling and name-calling and hiding from the truth, this administration will say, look, when you are President you have the powers of the incumbency, but it is also a tough country to govern and sometimes you have to take one for the truth, you have to take one because the facts do not quite square how you thought they did, and explain that to the American people.

I see my colleague from Oregon in the Chamber, and I know he is going to speak on the same subject.

But, again, this 9/11 Commission is extremely important. As Santayana said: Those of us who don't learn the lessons of history are condemned to repeat them. As a New Yorker, I believe that particularly in regard to 9/11. If we cannot get a full, unvarnished, nonpartisan reading of the facts--an analysis of why we were caught so unprepared on that awful day, 9/11--it will hurt us in fighting this war on terrorism, which I believe will be with us for a generation.

If we start off in a way that we are afraid of the facts, if we start off seeming to believe only one side is right and the motivation of anyone who disagrees is suspect, I fear we will not win the war on terror because we will not learn what has happened and we will not be able to correct the mistakes that have been made by many different people of both political parties in the past.

My final plea to our President at 1600 Pennsylvania Avenue is, don't hide the facts. Don't be afraid of the facts. Don't try to undermine those who will present the facts. Our country will be better and stronger for it if you can stick to those rules.

I yield the floor.

Mr. President, I thank my colleague from Connecticut for his leadership. I will be brief. In 2 minutes, one has no choice. This subject could and should have a long debate. I understand the time constraints.

We heard of the awful, terrible terrorist attack in Spain. There is some debate as to whether it is ETA, the Basque separatist organization, or al-Qaida. Now signs are beginning to point to al- Qaida. I am getting asked by my people whether this could happen in New York, Chicago, Los Angeles, or anywhere else? The obvious answer is yes.

We are not close to doing what we should be doing on homeland security. We are not helping our first responders, who are desperate for more help in terms of their patrols and the equipment. They have cut out money for interoperability of radio, which we in New York City learned was so important on 9/11.

In port security, we are wide open and we are doing very little. Truck security--what if they use bombs in trucks to blow up buildings, or railroad stations, or whatever else? Brazil is way ahead of us on truck security, I hate to say. The northern border is still wide open and empty. Our immigration lists don't match up with our FBI lists, which is allowing terrorists to slip into this country.

None of this is lack of technology. This is all lack of dollars. This budget talks tough on homeland security, but it doesn't do the job. The terrible tragedy in Spain today should remind us we are just as wide open and vulnerable, but we don't have to be.

I salute my colleague from Connecticut on his amendment because it is so needed, so desperately needed. We are doing everything we can to fight the war on terror overseas. I have been supportive of that war. But the bottom line is that we are not doing close to enough at home to protect us. Money will help. If there was ever a consensus where we need more dollars, it is here. We are not doing it.

I hope this Senate, in a bipartisan way, will rise to the occasion and support the amendment my friend has offered and of which I am proud to be a cosponsor.

I, too, salute both my colleagues for their superb leadership on this issue. This bill, the assault weapons ban, is hanging by a thread. There is no good reason on God's green Earth why. It has been a success in preventing crimes. It has not hurt a single law-abiding gun owner. Yet we are here today at the eleventh hour worrying and wondering whether this legislation will be renewed. If it is not renewed, it is a giant step backwards, I say to my colleagues.

How can we take it in the light of 10 years of experience which shows how successful the legislation is? The number of guns, assault weapons, 19 banned weapons, used in crimes has dramatically declined--by 300 percent. The number of individuals who have been hurt by this--hunters, small businesspeople, homeowners who want to protect themselves by having a gun--have not been hurt at all.

These are weapons of war. They are designed to kill a whole lot of people quickly. They are not designed for hunting. They are not designed for self-defense of a homeowner or a store owner. The only reason we are here today is politics.

I plead with our President--he has said he is for the legislation after the modification the good Senator from California made, so it is exactly the same as the bill we have had in effect--I plead to not just simply state once or twice he is for this. One phone call, Mr. President, can pass this bill. Please, we need this legislation. I urge my colleagues to reach into their consciences and pass it.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 2636

Mr. President, I ask unanimous consent that James G. Flood, a detailee from the Department of Justice, who is an assistant U.S. attorney for the District of Columbia, be granted the privilege of the floor for the remainder of this session.

Mr. President, I am rising in support of the amendment we will vote on tomorrow on continuing the assault weapons ban. I am carrying this amendment along with Senator Feinstein, who passed the bill in the Senate in 1993. I was the lead sponsor in the House as well as the two of our colleagues from the other side of the aisle, Senator Warner and Senator DeWine, and many others.

When we passed the assault weapons ban in 1993, there was a great deal of concern. The arguments against the ban were two: One, that the bill would cause to be confiscated weapons far beyond the 19 banned weapons, the Uzis and the AK-47s; and, two, that it would not be effective.

We now have 10 years of evidence and the evidence is clear that neither of those worries about this bill have proven to be true. We cannot report a single instance where a nonassault weapon was confiscated, an overreaching Government, ATF, or whomever went in and confiscated hunting rifles or, frankly, other than the 19, weapons that were not on the list. We were careful in the bill. We named 670 different guns used for hunting, protection, and sports shooting that could not be touched. But it is even new guns that have come out since then. There has not been a single complaint of which I am aware.

Second, the bill has been effective. In all gun crimes, the percent of assault weapons that are used has gone down to one-third of what it was. A little more than 3.5 percent--I think it is 3.75 percent of crime guns were assault weapons back before 1993. In the last 10 years, it has gone down to 1.2 percent.

Law enforcement is strongly for our bill for the simple reason they don't want to be outgunned on the streets. They don't want one of our latest criminal problems, gangs, to have Uzis and AK-47s while they are shooting back with their 9 mms. The bill has worked.

As a result, the American people are overwhelmingly in favor of the assault weapons ban. Mr. President, 77 percent of the voters are for it; 21 percent against; even among gun owners, 66 percent for, 30 percent against. So the bill has overwhelming support.

You would think it would be renewed and renewed rather quickly, but instead it is hanging by a hair. If I had to bet--and I have been whipping this bill for the last week--there will either be a tie or it will pass by one vote or it will fail by one vote. This bill is neck and neck. All it does is renew this controversial but successful piece of legislation for another 10 years. In fact, it is an exact replica of the previous bill.

Many of us would have liked the bill to go further, to cover weapons that are semiautomatic assault weapons but are not covered by the bill. Manufacturers have come out and created new weapons around the 19. But in deference to those who worry that the Government will expand unreasonably search and confiscation, so to speak, of these weapons, we didn't do it. So we are simply asking to renew the 19 different types of assault weapons.

Just to show, these weapons that were banned can never be used for hunting. They can never be used for target practice. They can't be used, really, in self-defense unless you are reckless and wild, because they were designed by armies for use in military combat. In other words, they didn't have to be terribly accurate. They had to have strong firepower and be able to fire a whole lot of bullets in a very short time. Names such as AK-47, Uzi, TEC-9, and Streetsweeper--these are weapons of mass devastation. They are very efficient killing machines. They are appropriate on the field of battle but not in a reasonable country where there is a right to bear arms--which I believe in but not an unlimited right to bear any arm whatsoever.

I would say to my colleagues, my adversaries, because that is what they are really, in the NRA, no amendment is absolute. I believe in the first amendment. I cherish it. But there are a lot of limits on first amendment rights. Judge Oliver Wendell Holmes said you can't wrongly scream ``fire'' in a crowded theater. That is an imposition on my complete rights of free speech but it is a reasonable limitation.

The same on the second amendment. I tell you I resent those on the left who want the first amendment to be expanded as broadly as possible and then say the second amendment has to fit through a pinhole. There is a right to bear arms but it is not an unlimited right to bear arms. Should anyone be able to buy a tank or a bazooka? Of course not.

Here is an AK-47. It is the most widely used assault weapon in the world. It is a very good military machine. It comes with a 30-round ammunition clip capable of being fired as fast as the operator can pull the trigger. The faster you can move your finger, the more

people you can kill. With a little practice, a shooter could kill an entire basketball team in seconds. That is not what we want and no one would use this weapon for hunting. No store owner or homeowner would use this for self-defense. They are not even accurate. They just fire a lot of bullets.

How about the next one, the Uzi? This was designed originally as a submachinegun. It comes with a 32-round ammunition magazine capable of being fired as fast as the operator can pull the trigger. It is easy to hide because of its compact design and it is very reliable. Why? Because the Uzi was made for the Israeli Army. Not for the Bloods or the Crips or the MS-13 or any of the violent gangs that love to use these weapons.

There is the TEC-9. We don't have a chart of it. It is similar; 30- to 36-rounds, easily convertible into a machinegun.

Perhaps the most scary of all, is the Streetsweeper. The Streetsweeper--here it is--can fire twelve 12-gauge shotgun shells in less than 15 seconds. That's right, shotgun shells, not regular ammunition. Anyone who knows guns knows a shotgun sprays wide with shot, rather than fixing on a narrow target with a single bullet. That is what makes the Streetsweeper's capability remarkable. It is not part of the right of the average citizen to bear arms.

So the bottom line is this is a reasonable bill that has been successful. There is no, let me repeat, no civilian use for the 19 weapons banned by the assault weapons ban.

Pre-ban assault weapons continue to plague our streets. A couple of weeks ago in my city of Albany, NY, my State, the Albany Police Department suffered its first death of a police officer since 1987. LT John Finn, a highly decorated well-regarded officer and 13-year veteran of the Albany PD was shot on December 23, 2003, 2 days before Christmas, by a criminal using a pre-ban assault weapon, an American Arms AP 9 mm. On February 12, Officer Finn succumbed to his wounds and died.

That is all we are trying to stop, not impinge on the rights of gun owners. Police organizations, law enforcement are for us; the FOP, the International Brotherhood of Police, Major Cities Chiefs of Police, International Association of Chiefs of Police, Hispanic-American Police Command Officers, many other groups. I ask unanimous consent to have the list printed in the Record.

Finally, the tactics.

As I said, this bill is hanging by a thread. The vote is neck and neck.

I would first ask any of you out there in America who are listening to support this ban and to call your Senator. Let them know how you feel because most Americans are overwhelmingly for the bill.

I would say to our President down at the other end of Pennsylvania Avenue: Please. You said you support renewing the ban. Step up to the plate. Help get it passed.

One thing the American people are upset with these days is when any politician says one thing but then does another. To say we shouldn't amend the immunity bill, to say do not lift a finger and help get this ban passed when it is so close, will make the American people, in my opinion, justifiably think the President doesn't want it to pass.

I would again renew my plea to the Vice President that he be available tomorrow. There may well be a tie vote, and he has been a loyal and true servant to the President. We ask him to sit in the Chair you are now sitting in, Mr. President, and cast that vote in favor of renewing the ban.

I hope my colleagues will look into their consciences.

I understand there is a lot of misinformation about this bill. I still have people occasionally who come to me in my State and ask, Why do you want to take away my gun rights? I believe in the right to bear arms. I have opposed abolition of the second amendment, like some of my colleagues from New York on the House side have argued should be done. But if you do not have reasonable laws within the confines of amendment rights, our country wouldn't function.

Again, I urge my colleagues to look into their consciences because we are going to need every vote we can get here to not allow the assault weapons ban to expire, which would be a step backward in America--a step backward for law enforcement, a step backward for safety and, frankly, a step backward in the political discourse of civility and rationality we all prize.

I urge support of the amendment Senators Feinstein, Warner, DeWine, and myself will be offering for a vote tomorrow morning at 11:30.

I yield the floor.

Madam President, I will speak for 1 minute and then I will yield 1 minute to my colleague, Senator Clinton.

Madam President, I am pleased to rise today in support of Gary Sharpe's nomination to be a judge in the Northern District of New York.

Before I discuss Judge Sharpe's impressive qualifications, I wish to make one point to my colleagues.

If my math is right, when Judge Sharpe is confirmed today--and I expect he will be confirmed unanimously because, as my colleagues will see, he is an example of the nominees we get when the process works right--he will be the 170th judicial nominee of President Bush's we will have confirmed.

I note that at the outset because to hear the hue and cry from some on the other side, one would think that we were roadblocking every nominee who comes before us. With this confirmation, the numbers stand at 170 to 5.

That's a record for which the Buffalo Bills and Buffalo Sabres would kill. When you win over 97 percent of the time, you are doing pretty darn well.

I won't belabor the point, but it's important to note that this process can work and that it frequently does. The process works when we work together to choose nominees who are excellent, moderate, and diverse--the three criteria I use when evaluating judicial nominees. And Judge Sharpe easily clears that bar.

For the past 6 years, Judge Sharpe has served with distinction as a United States Magistrate Judge for the Northern District of New York. Before taking the bench, he spent his professional career working as one of the best prosecutors Northern New York has ever seen. He spent nearly a decade in state court as a prosecutor from Broome County.

He then went over to Federal court where he was an assistant United States attorney before becoming the U.S. attorney for the Northern District.

Judge Sharpe is a graduate of two fine New York schools, the University of Buffalo which he graduated magna cum laude and Phi Beta Kappa--and Cornell Law. After graduating college, but before heading to law school, Judge Sharpe served in the U.S. Armed Forces as a member of the Naval Reserve. He is also a Vietnam veteran, having served there in the Army from 1966 to 1968.

We have talked to lawyers in the Northern District and they simply rave about Judge Sharpe. One judge upstate said, ``He's the best lawyer I've ever known.'' That's pretty high praise.

I congratulate Judge Sharpe and his wife, Lorraine, on this tremendous honor and achievement. I know Chief Judge Scullin is anxious to have him and that Judge Sharpe is going to be a great addition to the Northern District bench.

Again, Madam President, overall, we are at 170 nominees to 5. We have blocked 5. That is not too many, and those are the most egregious ones.

Second, in New York, we have worked this out. When the administration wants to play ball with Senators, they can fill the bench. In New York, we will have no more vacancies because we have agreed. They have chosen nominees who are conservative but not out of the mainstream, and we have gone along.

Third, Judge Sharpe clearly is an excellent nominee. He is not just average; he is not just above average; he is at the very top. We talked with lawyers in the Northern District. They say: He is the best lawyer I have ever known.

He is moderate. He deserves to be on the bench. I fully support his nomination and urge my colleagues to do as well.

Mr. President, will the Senator yield for a question?

Thank you, Mr. President. Let my just say, before I ask my question, that I want to thank the Senator from Massachusetts, and the senior Senator from New Hampshire, for their leadership on this issue. The

Senator from Massachusetts, as chair of the HELP Committee last year, took up the generic drug bill authored by the senior Senator from Arizona and myself, saw it through the HELP Committee, and managed its passage by the full Senate. This year, the senior Senator from New Hampshire approached me to work together to come up with the generic drug bill that served as the basis for what is in this bill, and he brought it through the HELP Committee, offered it as an amendment to the prescription drug bill in the Senate, where it was accepted 94-1, and defended it very ably in conference with the House. So, again, I would like to thank both distinguished chair and ranking member of the HELP Committee for their leadership on this issue.

Of course, I also want to thank the senior Senator from Arizona, without whose leadership over the past several years we would not be where we are today on such an important consumer issue.

As for my question, I understand that a generic applicant that has the 180-day exclusivity will forfeit the exclusivity if it has failed to market its product 75 days after certain events have happened with respect to itself or another generic applicant and with respect to each of the patents that gives the generic applicant its generic exclusivity. Is that correct?

And am I correct that one of these events is when ``a court enters a final decision'' that the patent is invalid or not infringed by the drug of the generic applicant?

And am I correct that a final court decision under this provision includes the kind of court decision recognized in the Teva v. Shalala opinion?

Thank you, Mr. President.

First, let me thank my colleague from Oregon for his leadership on this issue, for his persistence--done in a slightly different way, the Oregon way, not the New York way, but it is effective, if not more effective--and for his understanding. There is no one in this Chamber who both understands technology issues and yet has a political grasp of politics and blends the two. I thank him for his leadership.

I thank the Senator from Montana, as well, who has worked long and hard on this issue; and my good friend from Arizona, the chairman of the Commerce Committee, also.

This is going to be a good Thanksgiving for consumers. We are dealing with spam today. The portability rules for cell phones have been enacted. I worked long and hard on those. Both antispamming legislation and portability rules are very important things we have done for consumers. As technology changes, we need to adapt the rules by which this technology can work. The basic principles we have always have to be applied in new and different ways. That is what we are trying to do today.

E-mail is one of the great inventions of the 20th century. But, unfortunately, if we did nothing, e-mail would not be around within a few years and no one could use it. What was an annoyance a few years ago has become a major problem this year and could really cripple e- mail a few years from now. So this Congress has acted. We acted in a thoughtful and careful way.

Is this bill going to solve everything? No. But will it make a real difference? You bet. Spammers: Be put on notice. Within a few months you will be committing a criminal act if you do what you are doing now.

With this bill, Congress is saying that if you are a spammer, you can wind up in the slammer. That is the bottom line. The bottom line is that there will be criminal penalties and real prosecution. Will we go after every spammer, somebody who makes a mistake here and there? No. But the studies show us--this is what gives all of us such hope--that maybe 250 spammers send out 90 percent of the e-mail. And we are saying to those 250, no matter where you are, or how you try to hide your spam, we will find you. This bill gives the FTC and the Justice Department the tools to go after you.

That is why this bill is so important. This is such a good day, not only for those who use computers but for technology in general.

I became familiar with this issue when I noticed my daughter on her computer. My wife and I had always said to one another: Isn't it great that instead of watching television, our kids are always on the computer? Then we saw what was popping up in their e-mail--things we wouldn't want to see, let alone my 14-year-old daughter. As we looked into it, we saw what was happening. Spam is annoying, crippling commerce, and pornographic. All of

that has to end while we preserve the essence of spam itself, which is ease of communication.

There is no single solution. That is why this bill is correct in taking the eclectic approach. I wanted to put a few more provisions in. I have talked to my friends from Montana and Oregon. We are going to monitor this. If new things are needed, we will add them. But there are many different ways we can go after spammers after this legislation is signed by the President.

The part for which I fought fiercely is the No Spam Registry. It will provide prosecutors with the best tools to create the case. They won't have to prove intent. They won't have to prove anything other than as they do with the No Call Registry. Day after day, spammers have relentlessly sent hundreds and thousands of spam e-mails to people who have explicitly said they do not want spam.

I believe that it will work. I know that the FTC has some doubts. Although, fortunately, they now say it is technically feasible, and they are not worried about the list being stolen, they are worried about the evidence.

My answer to the FTC: Try it. We do not have anything better. It is not going to solve everything, but it is the best tool we have.

When they come back to us in 6 months with their proposal, which they must do under this legislation, I have been assured by both Chairman McCain and Ranking Member Hollings, as well as Senators Wyden and Burns, that we will make sure they implement it. We will either do it statutorily or by pressure from the appropriators and others.

So the FTC may disagree with the vast majority of Americans and the unanimity of the Congress--I guess unanimous in the Senate, not quite in the House--but we are going to make this No Spam Registry a reality within a year.

So the bottom line is simple: For the first time there is some light at the end of the tunnel in the fight against spam. This legislation-- not a panacea--will greatly reduce the burden of spam, the difficulty of spam, and the pornographic aspects of spam.

So again, I thank all of my colleagues in the Senate in letting this legislation go through. Again, it is a happy Thanksgiving to computer users everywhere.

I thank my colleagues from Montana and Oregon for their leadership. I thank Senators McCain and Hollings, as chairman and ranking member of the committee, for their support.

When the industry groups tried to rip the registry out of the legislation, these folks stood firm, the Senate stood firm, and that is why we have it in here today.

With that, Mr. President, let me just conclude by wishing you, my colleagues from Maine and Oregon, and all of my colleagues, and all those who work here, a very happy Thanksgiving.

For me, God has given me much to be thankful for, and I will dwell on that over the next few days. I hope everyone here feels the same way about their fortune and good fortune.

With that, I yield the floor.

anti-span legislation

Mr. President, our seniors deserve a comprehensive, meaningful drug benefit under Medicare--it's something that I, like so many of my colleagues, have been fighting for years. The world of health care has changed, and Medicare should be updated to give seniors the services and care they need.

I voted for this bill when it first came to the Senate because I thought it was a good start, and I hoped we could build on it in conference. Unfortunately, now that I see the result, I have to say this is not good enough for New York's seniors--in fact, the bad parts outweigh the good.

The bill contains some good things--it provides a good benefit for seniors who have low incomes or very high drug costs who have no other drug coverage. But for the average middle class senior with moderate drug costs, the benefit is much too small.

In fact, the way this benefit is structured, hundreds of thousands of New Yorkers who currently have coverage may actually end up worse off than they are today--and that doesn't sound like a benefit to me.

When I voted for the bill the first time around, I said that if it got any weaker, got any closer to the House version, I could not, in good conscience, support it. And, unfortunately, that seems to be what has happened here.

Other than the generic drug provisions--which represent a huge win for consumers across the board--it seems in every other case where the choice was between seniors and the big drug companies, the big drug companies have won.

Of all the bad things in this bill, the thing that angers me the most is that Congress has squandered away the single best weapon we have against rising drug costs by forbidding Medicare from using its buying power to negotiate lower drug prices with the drug companies.

At a time of rising budget deficits and escalating costs, it really makes you wonder why the Congress would go out of its way to forbid the Federal Government from using its buying power to get prices like we do through the VA.

If the Federal Government leveraged its full buying power under Medicare, we might not have a doughnut hole in this benefit at all.

The impact of this reckless prohibition is best seen by a Boston University study that shows that the drug companies will earn windfall profits of $139 billion over the next eight years alone from this bill.

This bill not only ensures we will be paying the highest possible price for drugs in this country, but it also guts any chance at reimportation--guaranteeing the drug companies a captive audience.

Is that the Republicans' idea of cost containment?

What this bill does is ensure that the government is gouged by the drug companies while putting a huge bulls-eye on the Medicare program. The prohibition on negotiating and artificial ``cost containment'' mechanisms in this bill will simply help the opponents of Medicare justify shifting more and more costs onto the backs of seniors.

Under the drug benefit before the Senate today, the average middle class senior could still be saddled with up to 80 percent of their drug costs. And almost 30 percent of beneficiaries would actually pay more for this Medicare drug benefit than they would be getting back in drug coverage. What kind of relief is that?

So this bill represents a paltry benefit--or no benefit at all--for most people who currently have no drug coverage. I had hoped that the bill would--at the very least--help provide a down payment for the one- third of New Yorkers who currently have no coverage, but I don't think it even does that.

In fact, there is a very good chance this benefit will actually jeopardize access to affordable drugs for New Yorkers who currently have good coverage.

Of the 2.7 million Medicare beneficiaries in New York State, 989,000 have prescription drug coverage from their former employers; 329,000 are enrolled in the state's pharmaceutical program--known as EPIC; and about 537,000 are covered under New York's Medicaid program.

First, let's look at the EPIC program. Right now, EPIC is available to individuals with incomes less than $35,000 and couples with incomes less than $50,000. People in EPIC currently have access to nearly any drug their doctors prescribe, and can go to virtually any pharmacy in the state to get their prescriptions filled.

I fought to get strong language in the Senate version of the Medicare bill that would have provided these New Yorkers with a benefit better than the one they get through EPIC.

The Senate bill would have provided New York State a subsidy equal to about $375 million per year to help it continue the EPIC and even expand it to provide a more generous benefit, to cover the disabled, which the State currently does not do, and to enroll even more people.

The watered-down compromise in the conference report leaves far too many questions unanswered.

Under the bill, if the State wants to use any of the new Federal investment in Medicare, it has to force EPIC seniors to go and enroll in a Medicare private plan and the State legislature will have to go back to the drawing board and restructure the entire EPIC program to coordinate with the Medicare plans.

The end result will be a program so laden with red tape that it is a virtual certainty that seniors fall through the cracks and lose coverage. It will be an administrative nightmare for the State to implement.

I have yet to hear one compelling argument for how the bill before the Senate will enhance the EPIC program. The State can't even tell me what will happen to EPIC and the 329,000 seniors who depend on it if this Medicare bill passes.

Even more shocking is that the bill gives the private Medicare plans a say in how generous any additional state coverage can be. The way I read it, under the new scheme, the Medicare plans will be able to limit which drugs an enrollee has access to and limit what pharmacies they can go to--no such restrictions currently exist for EPIC enrollees. In short, when it comes to EPIC, many seniors may be worse off with the bill than without it.

One of the other major concerns I have about this bill is that it simply doesn't do enough to protect retirees who have good employer- sponsored coverage.

The conferees made some progress toward reducing the employer drop rate by giving employers a tax break worth an additional $18 billion. However, to truly protect retirees from losing coverage would cost about $65 billion.

Even with the change made in conference, an estimated 215,000 New Yorkers will likely lose their retiree coverage if this bill becomes law, and many others may see their options narrowed. That's simply too big a risk for me.

In addition, starting in 2005, all Medicare beneficiaries would be saddled with higher deductibles for doctor visits. Under the bill, Medicare premiums would no longer be universal, but higher for all beneficiaries with incomes of $80,000 and up--a provision which disproportionately affects states like New York.

In addition, over 500,000 Medicare beneficiaries in New York--living in Rochester, Buffalo, Glens Falls and the Capital Region--may be selected for the premium support demonstration program which would provide seniors with a false choice of entering a private plan or being forced to pay more for traditional Medicare.

As I have said, the bill does provide a good benefit for low-income seniors and seniors with very high drug costs who don't have access to any other drug coverage. However, the new assets test in the conference version of the bill means that about 150,000 fewer people will qualify for these low income subsidies than under the Senate bill.

Even the seniors who do get this additional assistance will face confusing and difficult choices each year about which Medicare plan to choose.

They will face a confounding maze trying to figure out which plan will cover the drugs they use and allow them to continue to go to the drug store down the street. If they are even lucky enough to find such a plan, it could be gone the next year, or change its premiums or its list of covered drugs, and seniors would be back to square one.

Of course, despite all of these negatives, there are some very important provisions in this bill which make my decision a very difficult one.

The bill includes significant relief for rural, small community and small city hospitals--about $344 million over 10 years for New York's hospitals, which is crucial to ensuring access to high quality care not only in the very rural areas of the state, but also in and around upstate cities like Syracuse, Rochester, and Buffalo.

There is also modest relief for the nation's teaching hospitals in the bill--but it is not nearly enough. New York institutions would see an additional $76 million over the next four years, but this only restores about 11 percent of the total cuts they face over that time period.

The Nation's teaching hospitals are the backbone of our health care system--they do the research and they train the doctors--and I am worried we will not get another opportunity to provide them the resources they need to do their job.

The bill also addresses the crisis in physician payments which was driving so many physicians out of the Medicare program and leaving seniors in the lurch. These provider issues must be addressed--we've fought back the draconian cuts in the Balanced Budget Act for five years now. Our providers are struggling, and it's time to set things straight.

I am pleased that the bill includes provisions based on a bill I introduced with Senator Santorum to stabilize the Medicare+Choice program in the short term.

The changes will ensure that plans in places like Long Island and Westchester get paid on par with plans in other areas of the country and will help significantly bring down premiums in these areas over the next few years.

Perhaps the biggest win in the bill--not only for seniors, but for all consumers, employers, and purchasers of prescription drugs--is the extraordinary victory we have achieved in the face of the unprecedented influence of the big pharmaceutical companies: generic drugs.

The generic drug provisions which Senators Gregg, Kennedy, McCain and I have been fighting for over the past few years--and which passed the Senate by a vote of 94-1--represent a huge step forward for all seniors, consumers, and purchasers of prescription drugs.

The provisions close loopholes in the law and end the abusive practices in the pharmaceutical industry which have kept lower-priced generics off the market and cost consumers billions of dollars.

The Gregg-Schumer amendments to the Hatch-Waxman Act, would put an end to the practice of brand companies listing frivolous patents for the sole purpose of automatically delaying generic approval. It would also ensure that the 180-day exclusivity period enjoyed by the first generic to challenge a patent cannot be used as a bottleneck to prevent additional generic competition.

First, the Gregg-Schumer provisions would limit brand drug companies to a single 30-month stay of generic approval, and only on patents listed at the FDA before a generic application is filed. This way, the 30-month stay--if there is one at all--will run concurrent with FDA approval of the generic application and minimize delay.

Second, key to ensuring that patent issues are resolved in a timely way, the provisions clarify that a generic applicant has a right to seek a declaratory judgment that its product does not infringe a patent or that a patent is invalid, and direct courts that they must hear these declaratory judgment cases to the maximum extent permitted by the Constitution.

With the removal of the automatic 30-month stay, if the generic company did not have a clear right to seek resolution of potential patent disputes on its own, the brand company could simply file a new patent and sit back and wait--leaving the generic at risk of being sued and having to pay triple the brand's lost profits if it does decide to enter the market. This clarification of the courts' jurisdiction will have an immediate effect on both pending and future declaratory judgment actions brought by generic applicants.

Third, the provisions enforce the patent listing requirements at the FDA by allowing a generic applicant, when it has been sued for patent infringement, to file a counterclaim to have the brand drug company delist the patent or correct the patent information in FDA's Orange Book.

Fourth, the generic provisions revamp the 180-day exclusivity incentive provided in the Hatch-Waxman Act. Under the act, the first generic drug company to challenge a patent on a brand drug has the exclusive right to market its drug for 6 months before any other generic can compete. This feature encourages generic applicants to challenge weak patents and brings consumers much quicker access to affordable generic drugs.

However, at times, brand and generic companies have abused this exclusivity period--both through collusive agreements and use of other tactics that allow the provision to act as a bottleneck to generic competition. The Gregg-Schumer provisions end this abuse because the generic company forfeits its exclusivity if it doesn't go to market in a timely manner.

The way the provision works, if another generic applicant has resolved patent disputes on the patents which earned the first to file its exclusivity--either through a court decision, settlement, dismissal because the brand company says it does not intend to sue, or withdrawal of the patent by the brand company--the first generic applicant has to go to market within 75 days or it forfeits its right to the exclusivity.

If it forfeits, then the exclusivity is lost and any other generic applicant that is ready to be approved and go to market can go. Either way, the provision ensures that consumers have access to a low-cost generic as soon as possible.

I am very pleased that the conferees preserved these important, pro- consumer cost containment provisions. Indeed, they are the only part of this bill where consumers, seniors, and taxpayers prevail over the big drug companies.

In closing, I had truly hoped this Congress would craft and pass a meaningful Medicare drug benefit for seniors--one which would have protected beneficiaries who have access to good coverage through other programs and which would have provided real relief to seniors with no other choice.

While it contains some good provisions, the package before us does neither. I think we can do better, and we owe it to the 40 million seniors in this nation who have waited decades for drug coverage under Medicare to do better than this.

Mr. President, I am deeply disappointed by the President's choice of James Oberwetter to be the next U.S. Ambassador to Saudi Arabia. My disappointment does not stem from doubts about Mr. Oberwetter's integrity or professional accomplishment. Indeed, in both categories he has my respect and admiration. However, I simply do not believe that Mr. Oberwetter possesses the proper experience to assume what has become one of the most important posts in our Nation's fight against terrorism. And while I will not stand in the way of Mr. Oberwetter's appointment, I believe it is important that the record show that the President's choice could certainly have been better.

Saudi Arabia is one of the primary battlegrounds in the war on terror. This is not simply because 15 of the 19 hijackers from 9/11 were Saudi. Top anti-terror officials tell us that Saudi Arabia is also a hub for terrorist financing and extremist incitement. The inflammatory content of its educational textbooks promotes anti- American sentiment in the Kingdom and its support for extremist madrassas schools in Pakistan, southeast Asia and Africa gives life to institutions that are incubators for the next generation of terrorists abroad.

Given this sad state of affairs, there are several reasons why Mr. Oberwetter should not be our nation's next Ambassador to the Kingdom of Saudi Arabia. First, he has absolutely no official diplomatic or anti- terror experience. As I have said many times before, we live in a post- 9/11 world where the old rules simply do not apply. Given that Saudi Arabia is one of the most important fronts in the war on terror, our top representative there can no longer be a run-of-the mill political appointee; rather, the American Ambassador to Saudi Arabia must be a seasoned diplomatic expert and someone with an extensive background in combating terrorist financing and religious extremism.

Mr. Oberwetter's more than 25 years as an oil industry insider provide him with no background to assume this key position in the fight against terrorism. Indeed, his oil industry pedigree is another reason why he is an inappropriate choice to serve as Ambassador. While I have no doubts about Mr. Oberwetter's personal integrity, his proximity to the oil industry suggests that commercial rather than security interests appear to have taken precedence in the administration's decisionmaking.

I simply do not understand this business-as-usual approach to diplomatic appointments when American lives are at stake. Surely there is someone more qualified than an oil executive that we could choose from the distinguished ranks of our Nation's diplomatic and security corps to occupy this important post in the war on terror. Mr. Oberwetter's nomination is a disappointment and does a disservice to our national security.

Mr. President, I rise in strong opposition to this legislation, and I have fervent hopes that we will not invoke cloture.

Mr. President, this bill is bad for what is in it and bad for what is not in it. I don't know which is worse. It is bad for what is in it because there are so many provisions that don't make much sense that are done to help one State or another but don't really add up to a national policy.

It is particularly bad for what is in it because the MTBE provision is one of the worst provisions that has come down the legislative pike in decades. To tell homeowners who have lost their homes that they cannot take a shower, cannot drink the water and, through no fault of their own, they are out of luck, that their life savings which they invested in their little homes is gone--

even though the MTBE producers knew the stuff was bad and didn't inform anybody--is an outrage.

Some say the Government authorized MTBE. Then let the Government help the homeowners if you don't want to have the oil companies, the MTBE producers, be sued. But don't leave tens of thousands today, and hundreds of thousands within a few years, of homeowners high and dry. I am not a big fan of lawsuits all the time, as my colleagues know. But if there were ever a case where lawsuits were justified, it is in this case. To cut them off, and to cut them off retroactively, is dastardly.

In addition, there is no energy policy in this bill. We have had the triple storm: we have had 9/11; we have had Enron, we have had the blackout. And we do virtually nothing to deal with the aftermath of all three of those.

There is no conservation in the bill. There is no real dealing with the Enron excesses. When it comes to the blackout, we take a baby step that utilities okayed but not what we have to do. Great nations have failed when faced with a crisis and they refused to grapple with it. That is what is happening here.

This bill, whether it passes or fails, will be deeply regretted 5 years from now for what it does and what it does not do.

Mr. President, when pork is used to grease a policy along, well, that is not good. But when pork is used as a substitute for policy, that can be disastrous. I argue that in this case that is what has happened. I had wished that we had a real energy policy in this bill.

My colleagues are all people of good faith. Both Senators from New Mexico, the Senator from Iowa, and the Senator from Montana have all tried their best. Unfortunately, at a time when America demands a thoughtful and far-reaching energy policy, this proposal, instead, delivers little bags of goodies to some individuals, not others, and says that is a substitute for policy.

I hope the bill is defeated.

Mr. President, will the Senator yield?

May I be put in line after Senator Graham?

Thank you, Mr. President.

Mr. President, I appreciate that this debate is now coming to a close, and we

will, evidently, vote on cloture tomorrow morning at about 10:30. It has been a long debate. It has been a good debate. I think it has been an elucidating debate. I think the longer we debate this bill, the more unfavorably it is looked upon by the American people.

I would like to make one general comment about the process before getting into the substance of the bill. I have tremendous respect for my friend from New Mexico, Senator Domenici. He is a fine man. We have worked together on legislation. I think he works hard. I think he is dedicated.

I have a very fond relationship with my former colleague from the House of Representatives, Congressman Tauzin, head of the House Energy Committee. We came into the Congress together in 1980.

But no matter who it is, you cannot negotiate a bill with only two people in the room. Our ranking member from New Mexico, Senator Bingaman, was excluded. The Democratic side in the House was excluded. But it was not just the Democrats who were excluded; too, too many of the Members were excluded.

Why is it that those of us in the Northeast, Democrats and Republicans, think this bill is so bad for our region and our communities? Well, maybe it is because when you have a Senator from New Mexico and a Congressman from Louisiana negotiating the whole bill, there is not enough input from other parts of the country.

The beauty of the system that the Founding Fathers created--and that we have carried forward in our own fashion 215 years later--is that it understood those things, and it understood that we should not have a major bill negotiated by two people behind closed doors.

The fact that this bill is teetering on the edge of survival right now, I think, in part, is because of the process by which it was constructed. I hope we will not do it again.

If we should win our vote tomorrow, those of us who are arguing against cloture, I hope that the lesson will be learned. I hope we will have real debate and real conference committees.

I also hope that, even here, we do not make the same mistake of passing last year's bill and then just saying, ``Let it go to conference,'' which was a mistake, I think, made on our side as well.

The process works. It is long and slow and laborious, but it works.

Again, a bill that has so many goodies for so many people--that such a bill should be teetering on the edge of extinction, I think shows we ought to go back to the process, the open process, the process that has Members of various parts of the country represented, the process of debate and refinement, because that ends up making better legislation.

Now, I have a whole lot to say about this bill, but the hour is late. So I will just put my comments into two categories: one, what the bill contains; and, two, what the bill does not contain--neither of which makes me happy.

What the bill contains: There are some good provisions in this bill. I am not going to get up here and do a diatribe against these little narrow things that are there for everybody. There are a few in there for my State, too. I think those sometimes are the grease that makes good legislation move forward, but alone they are not enough to carry a bill, alone they are not enough to justify a bill.

Some of the bad things contained in this bill, as well as some of the things that are so missing from this bill, make a complete case against the bill.

To me, the two things that are in the bill that should not be, more than anything else, are the ethanol provisions and the MTBE provisions.

On the ethanol provisions, I would say this to my colleagues: We do have to find a substitute for MTBE. We do have to keep our air clean. And ethanol is a good way to do it. I am not against ethanol per se. What I am against is mandating ethanol for every region in the country whether it fits or not. Ethanol would be a good standard to meet the oxygenate requirements in areas where there is abundant corn and abundant ethanol manufacturing facilities. But in many regions of the country, particularly on the coasts, there is not. And there are better ways to meet the clean air standards.

Refiners in my area say that by changing the blend and changing the method of refining, they can do just that without ethanol. And they will do that to meet the oxygenate clean air standards. But this bill has the nerve--that is the only way you can put it--to require them to buy ethanol anyway or at least buy ethanol credits. I have never quite seen anything like it.

Ethanol is a very subsidized product with many different types of advantages. Corn growers get all sorts of subsidies. I am not against those subsidies. I think we need to have a farming community. And just as we need dairy farmers in New York, we need corn growers in the Midwest and other places. But I wouldn't dare require people in the Midwest to buy some kind of dairy product made in New York for some other purpose. I might subsidize the product and say: Go out in the free market and make it work. But I wouldn't force them to do it. This goes a step beyond anything we have ever done in this Chamber.

If we wanted to help the corn growers and we are not helping them enough through the Agriculture bill, then let the Government do it. But the ethanol bill says to the traveling salesmen in upstate New York: You are going to do it. It will raise the price of gasoline 4 to 10 cents a gallon in my area.

How can anyone in this Chamber ask those of us from the Northeast and the West to impose that kind of gas tax on our constituents? It is just unfair. It is just wrong. I, for one, resent it. Again, if you want to subsidize the corn growers, do it. But not in this inefficient, unfair, regionally slanted way. Therefore, I very much oppose the ethanol provision.

My folks can't afford another 4 to 10 cents a gallon, likely to be 7 or 8 cents a gallon. Gasoline is high enough. We should be doing things to lower the price of gasoline. In that one fell swoop, all the good in terms of trying to produce alternative fuels will be undone.

Probably even worse in terms of its egregiousness, in terms of its arrogance, in terms of its nerve, its gall, is the MTBE provision. Parenthetically, I say to my friend from Ohio who said it doesn't stop lawsuits, it certainly does. It doesn't stop lawsuits if the little gas station on the corner was negligent. But if you have lost your home to MTBEs, you are not going to get anything out of that little gas station.

We know the only way that homeowners are going to get recompense here. It is through the oil companies, the producers of MTBEs. And those suits are prohibited.

So it is small comfort to the thousands of citizens in Fort Montgomery or in Hyde Park or in Plainview, NY, different communities in different parts of our State who have lost use of water in their home.

This is not just some environmental fetish. I have visited these homes. I feel for these people. Every time your child wants a bath or shower, you have to get in the car and drive a mile. You must use bottled water. For most of the people I know--these are middle class people, not rich people--the value of their home has been it. All they have been able to do is save for their home, and it is gone.

Now you say: Well, we are just going after the oil companies because they have deep pockets. Bunk. The bottom line is, the oil companies knew, the producers knew this was harmful. And here is the rub: They didn't tell a soul. It is not simply that they didn't produce it, but they didn't tell a soul. When they sold the gasoline with MTBE to the gas station down the street, they didn't say: Be careful. They didn't say: If you sit on top of an aquifer or a well, maybe you shouldn't use it. They didn't say: Make sure your tanks don't have leaks because this is dangerous stuff if it leaks into the water. They didn't say any of that.

Had the oil companies, the MTBE producers, come clean and let people know that this might be harmful and that they ought to take remediation the minute there is a spill and deal with prevention so there wouldn't be spills, we would not be asking that they be sued.

The analogy is to the cigarette industry in the sense not that the product was harmful, not even that people might have known it was harmful--that is probably true in each case--but, rather, that it was kept secret. It was

concealed. People didn't have the ability, the choice, to prevent the harm from occurring.

The suits have been successful. My friend from Ohio just mentioned the suit in Santa Monica. Hundreds and hundreds of suits like that will be stopped if we pass this legislation.

I wish every one of my colleagues had come with me to Fort Montgomery, a little community in the hills overlooking the Hudson, a few miles south of West Point. The people there are mostly retired soldiers, not generals, rather, they are captains and majors and sergeants. It is a modest community. They worked hard for their country and they served their country. All they have is these little homes. And look at their faces. They all gathered one fall afternoon on someone's front lawn and talked to me. They are lovely people. They said: We don't want any money; we are not suing for money.

This isn't one of these lawsuits where they say, ``Give us millions of dollars,'' and claim some alleged damage. I don't like those lawsuits. In fact, right now we are trying to put together a class action bill that would make the lawsuits fairer. But the lawsuits were their recourse. The oil companies were beginning to negotiate with them, either to put filters on their water or to help build a new system.

If this bill passes, these people will have two terrible choices: Sell their home at maybe the half the value it was a few years back before MTBE leached into their water supply, or spend thousands and thousands and thousands of dollars each year, each taxpayer, to build a whole water system.

Who is more to blame? The company that produced the MTBE and didn't tell people it was harmful, although they knew it, or these majors and sergeants and captains who served their country for years and have lost just about everything they have had?

That story can be repeated in many parts of New York and many parts of California and many parts of New Hampshire and many parts of Iowa and many parts of America. We should not allow it to happen.

As I said, I am not the leading advocate on our side of the aisle of lawsuits as a solution to everything. I would much rather see government regulation than lawsuits. But if there was ever a situation where lawsuits are justified, it is here.

What is infuriating is we are giving the MTBE industry $2 billion for closing. My friend talked about the money for LIHEAP. It is good that it is in the bill, but it is an authorization. Every time we do the appropriations bill, we don't come close to the authorization level. That is not real money. Put that $2 billion into LIHEAP, real money. But here we are, instead, giving it to the MTBE producers for closing down.

Do we give money to the little drycleaner shop that has to close down even though the blood and sweat and tears of the person who ran it are real? Do we give money to other businesses that have closed down, the thousands in my State, because maybe our country has not done enough to defend them from unfair trade practices? No. But not only do we give this industry $2 billion as recompense for closing down, but then we protect them from liability. This bill chooses those companies over tens of thousands of innocent homeowners. It is an egregious decision, and it shall not pass--if we have anything to do with it.

Those two provisions are at the top of my list as the most egregious in the bill. I will tell you what bothers me just about as much. It is not just what is in the bill, it is what is not in the bill. As everybody who has come to the floor to speak has said, we need an energy policy in America. This bill is a hodgepodge of little things, without much of an energy policy. It is a stitching together of a coalition of individual ideas. I like the tax deductions for the renewables. The reliability provisions don't go far enough, as far as I am concerned, but at least there is a step forward there. But there is no real energy policy.

Mr. President, 9/11 showed us many things, and one thing it showed us is that we have to be independent of Middle Eastern oil. The best and quickest way to do that is by some measure of conservation, and it is MIA in this bill. When China can pass CAFE standards more significant, more stringent than our own, this country is headed for a fall. If we cannot tighten our belts now, before there is a crisis, then something is wrong with the way our country is governing itself. Yet there is virtually nothing in terms of oil independence and conservation. Even the rather modest provisions that the Senator from Louisiana put in the Senate bill are gone. Again, on issue after issue, that occurred--issue after issue after issue.

There is no real conservation measures, at a time when we cry out. If you ask experts what is most needed in terms of our energy policy, it is conservation. We can increase production, and we can try to do experiments with coal or nuclear or hydrogen or whatever you want, but those are 10, 15 years down the road. We can talk about the timetables. I disagree with my friend from Ohio on that. The quickest way to do it is by conservation. We are not doing it.

Then we have the blackout in the Northeast. It cried out for a national grid to make our electricity system like our highway system, where the Government has direct and fairly strict oversight of the means of transportation--in one case of cars, and in another of electricity. And we do the most modest of steps--after we got a huge warning.

The report yesterday showed how little oversight there is, how little coordination there is. One energy company in Ohio and one voluntary organization in part of Ohio dropped the ball. My view is simple. This ought to all be done not by the electricity companies, which have a dramatic interest against spending the money to make the transmission wires work because that is not where they want to make money. It is not a cost that brings them a big rate of return. We should turn that over to FERC and let them set the standards and require the companies to meet it.

This bill doesn't come close to that. Once again, a shot across the bow, so close to us, and we do virtually nothing. The special interests--the Southeast doesn't want to be part of a national grid. Fine. They don't want to give up any rights or be governed by rules that might be good for the common good. Fine. The grid provisions here, better than much of the bill, leave so much to be desired and are emblematic of this bill. The special interests say jump and the bill says, How high? No energy policy. And the same with the problems we have had with deregulation and the sale of electricity out in California and in the West. I am not an expert on that, but my colleagues from California and Washington State have talked about that. We are MIA.

So instead of a coherent energy policy, which the times cry out for, we have a mishmash of goodies, of nods in the direction of the best parts of the bill, and away from some very bad things that hurt many parts of our country.

It is no wonder, Mr. President, that editorial pages across the country have condemned this bill in a way we have not seen in a long time. There is virtually no division. Frankly, I have not seen one article, one editorial--I have probably missed it--that defends this bill. The New York Times--probably the leading liberal editorial page-- and the Wall Street Journal--the leading conservative editorial page--I think on the same day said, ``Don't vote for this bill.'' And they are joined by about everybody in between. That is not just the media ranting and raving and not understanding the realities, or being too much in their ivory tower, or on their high horse, which I will be the first to admit happens all the time. That is because there is something wrong with this bill.

So it is my view that we are better off going back to the drawing board, open up the process, include the ranking member from New Mexico of the committee, and include the members of the committee, debate the bill even if it takes a few weeks. I guarantee you that we will get a much better bill.

This bill is an overall negative for what it contains and for what it doesn't. We can and must do a lot better. If we defeat cloture tomorrow, we will.

I yield the floor and I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

First, I want to wish the President of the Senate a happy 80th birthday. I come from New York. We pride ourselves on good salmon. At his little gathering last night, the Alaska salmon looked beautiful and tasted as good as any salmon I ever tasted. I want to wish him a happy birthday and thank him for celebrating it with all of us.

Mr. President, what I would like to talk about today is the Energy bill that is coming upon us. I want to talk about one provision in there which I find to be one of the most abusive provisions that I have ever seen come down the pike, and that is the provision of a safe harbor for the MTBE producers.

As everyone knows, we have found that while MTBEs did work at cleaning air, they also worked at polluting the groundwater. What has happened in my State and in 38, I believe it is, of the 50 States is that when the MTBEs were spilled, they went into well water, into aquifers, and basically made the water undrinkable and unusable. This has left thousands and thousands of families in terrible shape, probably tens of thousands, and it is going to grow. It is going to be millions of families down the road because we are just learning of the extent of the MTBE spills.

We are being very generous, even without this safe harbor, to the MTBE producers. We are giving them $2 billion to shut down. How many small business men and women in America, when they shut down, get a Government subsidy? I think very few. But we are giving it to them and I am not arguing against that right now, as much as I oppose it.

We have also given them a safe harbor. We have said to them that you cannot be sued, and we have set a retroactive date of September 5 in this Energy bill. I should not say ``we.'' Two people who crafted the Energy bill did it. Nobody else had much say.

What will this mean? Let me tell you the situations I have found on Long Island and the Hudson Valley, in Orange County and Dutchess County, throughout my State.

MTBEs were spilled and have leaked into either individual wells of family homes or into aquifers upon which towns and villages depend. The water supply is gone. The people cannot use the water or drink the water. What does that mean? The least of it is they need bottled water to do everything--to drink, to brush their teeth, et cetera. They have to go out and buy bottled water. That is a significant expense to these families.

In most of the places I visited, the homes are modest. They are small homes. They are typical American families who have worked their lives and their little piece of the rock is their home.

Worse, however, is that you can't even take a shower because the MTBEs, it is said, give off some kind of vapor that could be very harmful if you shower regularly. So the families have to go to neighbors. Since often the spills are in whole tracts of land, it is not just walking across the street and knocking on the door. In some cases that is possible because some houses are not polluted and some are, that are next to each other. But usually they have to get in the car and drive the kids, drive themselves to take a shower. That renders their home--if not valueless, it knocks out their investment.

We have lots of people struggling with these MTBEs. What they have done, of course, is gone to the people who have created the problem. They have gone to the service station owner who might have spilled the gasoline, or the pipeline that ruptured. But the bottom line is, in most cases those people are out of business or not able to help.

So what happened was, because of lawsuits--and I am not one of the Democrats who is the leading advocate for the trial lawyers, but I do believe there are instances where lawsuits are the only solution. They went to oil companies with lawsuits, one in California, several in other parts of the country, and showed not only that the companies knew MTBEs were harmful but, worse, they didn't tell anybody.

If in the mid-1980s we found that MTBEs were polluting the groundwater and permanently doing such severe damage, wouldn't it have made sense for the oil companies and the producers to send notifications to the service stations, to the pipelines, to the trucking companies, and say: If this stuff spills, it could be dangerous. Be very careful. Here is what you do in the immediate case that there is a spill.

None of that happened. It is reminiscent of the cigarette industry. We knew cigarettes were harmful. Most people sort of had an inkling after 1965. I, for one, believe that just to do a lawsuit because you later find a product is harmful is not the strongest case. But in the cigarette industry, and now with the MTBEs, when the producer knew it and not only continued to produce it but didn't let the information out, that to me is egregious because you could have prevented a whole lot of harm.

So what we had throughout New York was the following. We had lawsuits, and even in many of the cases when it wasn't lawsuits, the oil companies were beginning to come forward. In Fort Montgomery, right near West Point, Orange County, are a lot of retirees from the military, in lovely homes near the banks of the Hudson River. The oil companies paid to put on these filters that would prevent the MTBEs from going into the drinking water, the bathing water, et cetera. In some places, up in Dutchess County, they were beginning to negotiate with the law firm. The town would pay some money, the oil companies would pay some money, and they would put in a water system of piped-in water because the entire drinking water, under a large number of homes, was gone.

Many of these cases didn't reach lawsuits because they were trying to sit down and work out a negotiation. But we all know that the threat of a lawsuit is the only thing that brought the oil companies to the table. But progress was being made dealing with this bad problem. I don't want to cast blame here; it is just a serious problem.

I ask my colleagues, if you are a homeowner and you bought your home and this stuff leaked half a mile away and leached into your aquifer and your home is worth half the value it was, and it could be made whole again by simply putting in a water supply, should we just say to the homeowner: Tough luck? Or should we try to figure out a way to have those who knew this horrible thing was happening help pay?

I would have felt better--maybe some of my colleagues don't like the idea of lawsuits; in this Energy bill we have $30 billion to fund everything under the Sun--had there been a fund to help the homeowners. If you don't like the way of lawsuits, that is fine, and if you believe the Government has some responsibility--which it probably does because the Government sanctioned MTBEs--fine. But what we are saying is, with this safe harbor, to the tens of thousands, soon to be hundreds of thousands, and probably into the millions of homeowners whose whole life savings are destroyed: Tough luck. You can't sue. You can't negotiate.

This is a classic case of what is wrong, sometimes, with the things we do here. We have sided with the oil companies that, at least, have as much blame as the innocent homeowner--more blame. And we have told the homeowners: Tough luck.

It is not fair. As I say, these are hard-working people. There is no fault of their own. No one thinks there is any culpability on the part of the homeowners.

We had things beginning to move in the proper direction, and because of the power of a limited few, and, frankly, because of the way this bill was created, with no debate, no chance for amendment--what we did here on the floor I think many on our side regret because we passed last year's Democratic bill which modified the safe harbor provision, due to the work of the Senator from California and some of the others, and then it was totally ignored and basically two people--both of whom I have a lot of respect for but they have a point of view quite different than many of us here on energy issues--negotiated the entire proposal.

I ask that I be given another 5 minutes since none of my colleagues is here.

Mr. President, many of us believe this whole Energy bill is a travesty. Many of us believe there are three major energy issues that have occurred in the last 3 years. One was 9/11. It showed us the need to be independent of Middle Eastern oil. And China, of all places, because they are worried about dependence on Middle Eastern oil, is now instituting CAFE standards in their automobiles that are higher than ours. That should make every American think. If our country cannot take the necessary preparations to deal with a problem that is going to be nipping at our heels and then create real problems in America a few years from now, that is a sign of weakness of our country, and I love this country and I don't like to see us be weak. But we have done nothing on oil conservation.

I am not one of those who says we shouldn't produce new oil. I was one of six Democrats who voted to look in the east gulf, much to the chagrin of my friends from Florida. I think on Federal lands--certainly not in parks or monuments but on the huge forest land--we should not be so doctrinaire. If there is a good amount of oil and gas that can be recovered in an environmentally sound way, I think we should do so. We need to increase supply and decrease demand. But we are doing nothing to decrease demand. On that issue, we have done nothing.

The second issue that occurred with California and the way electricity flows in this country--again, talk to my colleagues from Washington and talk to my colleagues from California; they will tell you; they know this issue better than I--we are doing nothing in this bill to prevent another fiasco like the one which occurred in California, and the one I find most amazing is the recent blackout that many of us in the Northeast and Midwest suffered. We all know the reason is that no one is in charge of the grid. In some places, it is power companies; in some places, it is a conglomeration; in some places, it is ISOs.

There was consensus immediately after the blackout that we ought to have one national grid governed by someone who will look out for the transmission of electricity.

The analogy ought to be the highway system. We have one national highway system. Even though people drive within the States, commerce flows across State lines. So does electricity.

The idea of not creating a strong national unit that can determine how our power flows because we are going to need more power--again, I don't like those who say we shouldn't grow. We should grow, but we are going to need more power to grow. To not have a national grid after what we saw on August 14, I believe the date was, and to just sort of ignore history because a few special interests or a few power companies didn't like it--I try to read a little bit of history. When the special interests, whether they be left, right, or center, whether they be rich or poor, overcome the national interests, that is a sign of weakness. It is a sign of failure. And energy and power are two issues that demand some kind of national solution and some kind of long-term solution.

This bill, aside from the MTBE provision, is a hodgepodge of little special interest things. I know what it does. I ought to vote for it. I am getting a few things for New York State. If each one of us is going to say we got our little thing for our States and we are not dealing with the national problem--and the two are not mutually exclusive in most cases--then we are not serving America.

I predict that within 5 years we are going to need to do another Energy bill. I think the last one we did was in 1992. We are going to need to do another Energy bill because the best that can be said about this bill is it sidesteps the major problems. The worst that can be said about it, or one of the harshest things that can be said about it, is if you hired the right lobbyist and had the right connections, you got something in this bill.

But the thing I most object to is not all those little things in there but, rather, that they have taken the place of a national policy on energy which we do not have. If there was ever a time to have it, after 9/11, blackouts, and Enron in California, now is the time we should have created it. If we can't create it now, when?

I yield the floor. I suggest the absence of a quorum.