Floor Statements

Mr. President, I introduce, along with Senators Allard, Collins, Sarbanes, Bond, Murray, Chafee, Mikulski, Dodd, Akaka, Schumer, Corzine, Landrieu, and Clinton, the Community Partnership to End Homelessness Act of 2005 (CPEHA). This legislation would reauthorize and amend the housing titles of the McKinney-Vento Homeless Assistance Act of 1987. Specifically, our bill would realign the incentives behind the Department of Housing and Urban Development's homelessness assistance programs to accomplish the goals of preventing and ending long-term homelessness.

During the past several weeks, stark pictures of the reality faced by many in the wake of Hurricane Katrina have made more of the country aware of the day-to-day pressures faced by those who are homeless. Unfortunately, as many as 3.5 million Americans experience homelessness each year. Ten to 20 percent are homeless for long periods of time. Many of these Americans have severe disabilities. Many have worn a uniform for our country, with the Veterans Administration estimating that at least 500,000 veterans experience homelessness over the course of a year. Statistics regarding the number of children who experience homelessness are especially troubling. More than one million children experience homelessness each year; that is one in ten poor children in the United States. We have learned that children who are homeless are in poorer health, have developmental delays, and achieve less in school than children who have homes.

Many of those who are homeless have a simple problem--they cannot afford housing. Using the most recent census data, 56 percent of extremely low-income families are paying more than half their income for housing. Between 1990 and 2000, shortages of affordable housing for these families worsened in 44 of the 50 States. In 2000, it was estimated that 4.6 million units of low-income housing would need to be created in order to take care of this problem. As rents have soared and affordable housing units have disappeared from the market during the past five years, even more working Americans have been left unable to afford housing.

So why should the Federal Government work to help prevent and end homelessness? Simply put, we cannot afford not to solve this problem. Homelessness leads to untold costs, including expenses for emergency rooms, jails and shelters, foster care, detoxification, and emergency mental health treatment. It has been almost twenty years since the passage of the McKinney-Vento Homeless Assistance Act of 1987, and we have learned a lot about the problem of homelessness since then.

There is a growing consensus on ways to help communities break the cycle of repeated and prolonged homelessness. If we combine Federal dollars with the right incentives to local communities, we can end long-term homelessness. This bipartisan legislation will do just that. It will reward communities for initiatives that prevent homelessness, promote the development of permanent supportive housing, and optimize self-sufficiency.

The Community Partnership to Help End Homelessness Act of 2005 will set us on the path to meeting an important national goal. I hope my colleagues will join us in supporting this bill and other homelessness prevention efforts.

Mr. President, I ask unanimous consent that the text of the Community Partnership to Help End Homelessness Act of 2005 be printed in the Record.

Mr. President, I introduce, along with Senators Allard, Collins, Sarbanes, Bond, Murray, Chafee, Mikulski, Dodd, Akaka, Schumer, Corzine, Landrieu, and Clinton, the Community Partnership to End Homelessness Act of 2005 (CPEHA). This legislation would reauthorize and amend the housing titles of the McKinney-Vento Homeless Assistance Act of 1987. Specifically, our bill would realign the incentives behind the Department of Housing and Urban Development's homelessness assistance programs to accomplish the goals of preventing and ending long-term homelessness.

During the past several weeks, stark pictures of the reality faced by many in the wake of Hurricane Katrina have made more of the country aware of the day-to-day pressures faced by those who are homeless. Unfortunately, as many as 3.5 million Americans experience homelessness each year. Ten to 20 percent are homeless for long periods of time. Many of these Americans have severe disabilities. Many have worn a uniform for our country, with the Veterans Administration estimating that at least 500,000 veterans experience homelessness over the course of a year. Statistics regarding the number of children who experience homelessness are especially troubling. More than one million children experience homelessness each year; that is one in ten poor children in the United States. We have learned that children who are homeless are in poorer health, have developmental delays, and achieve less in school than children who have homes.

Many of those who are homeless have a simple problem--they cannot afford housing. Using the most recent census data, 56 percent of extremely low-income families are paying more than half their income for housing. Between 1990 and 2000, shortages of affordable housing for these families worsened in 44 of the 50 States. In 2000, it was estimated that 4.6 million units of low-income housing would need to be created in order to take care of this problem. As rents have soared and affordable housing units have disappeared from the market during the past five years, even more working Americans have been left unable to afford housing.

So why should the Federal Government work to help prevent and end homelessness? Simply put, we cannot afford not to solve this problem. Homelessness leads to untold costs, including expenses for emergency rooms, jails and shelters, foster care, detoxification, and emergency mental health treatment. It has been almost twenty years since the passage of the McKinney-Vento Homeless Assistance Act of 1987, and we have learned a lot about the problem of homelessness since then.

There is a growing consensus on ways to help communities break the cycle of repeated and prolonged homelessness. If we combine Federal dollars with the right incentives to local communities, we can end long-term homelessness. This bipartisan legislation will do just that. It will reward communities for initiatives that prevent homelessness, promote the development of permanent supportive housing, and optimize self-sufficiency.

The Community Partnership to Help End Homelessness Act of 2005 will set us on the path to meeting an important national goal. I hope my colleagues will join us in supporting this bill and other homelessness prevention efforts.

Mr. President, I ask unanimous consent that the text of the Community Partnership to Help End Homelessness Act of 2005 be printed in the Record.

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

Mr. President, I ask unanimous consent to speak for up to 15 minutes as in morning business.

Mr. President, headlines across the Nation warn of an impending disaster facing American families this winter--rising energy prices that could wipe out working-class families and seniors. The New York Times reports:

Energy Prices Lead Inflation, Overcoming Salary Increases.

The Wall Street Journal states:

Soaring Natural-Gas Prices Point to Record-High Electricity

Costs.

USA Today states:

Heating Prices Loom as Problems this Winter.

Prior to Hurricane Katrina's devastation in the gulf region, Americans were facing record prices for oil, natural gas, and propane. Hurricane Katrina exacerbated these costs by damaging production platforms and ports and curtailing production at refineries in the Gulf of Mexico. Now Hurricane Rita threatens further damage and, in turn, price increases. Natural gas prices are hitting all-time highs, and crude oil and gasoline prices are again on the rise.

Consumers are feeling the price increases at the pump. But with winter looming, the full effect of these costs has yet to hit us.

In New England, the average heating cost for a family using heating oil is projected to reach $1,666 during the upcoming winter. This represents an increase of $403 over last winter's prices and $714 over the winter heating season of 2003-2004, almost a $1,000 increase in 2 years.

For a family using natural gas in the Midwest, prices are projected to hit $1,568, representing an increase of $611 over last year's prices and $643 over the heating season of 2003-2004. The Mortgage Bankers Association expects steep energy costs could increase the number of missed payments and lost homes beginning later this year.

Yesterday, the State energy directors released a survey about the choices that LIHEAP households make when they face unaffordable energy bills. Of course, LIHEAP is the Low-Income Heating Assistance Program that we have authored and supported for many years in Congress. LIHEAP assists low-income Americans and seniors to ensure they can face these prices.

According to the survey by the State energy directors, 73 percent of the households surveyed reported they reduce expenses for other necessities because they do not have enough money to pay for their energy bills. These other necessities are food, prescription drugs, rent, or mortgage payments. In

fact, one in five LIHEAP households reported they went without food at least 1 day over the last 5 years due to unaffordable energy bills. Twenty-four percent used their stove or oven to provide heat because they could not fill the tanks to provide heat.

On Monday, I visited the home of Aram Ohanian, an 88-year-old veteran who lives in Rhode Island and whose monthly income consists of $779 in Social Security payments. Money is so tight that Mr. Ohanian sometimes eats at his daughter's house or goes to a local soup kitchen for food. He also gets help from a local food bank. Last year, Mr. Ohanian received a total of $600 in LIHEAP grants to help him keep his home safe and warm. But even with that assistance, he had to close off parts of his house to reduce energy costs.

In communities throughout this Nation, Mr. Ohanian's story repeats itself. The warning has been issued. We know that prices for energy products are on the rise. We can all foretell the next disaster facing American families. The question is, What will we do to protect these Americans from this upcoming energy storm?

We saw the most vulnerable Americans overwhelmed by rising waters in New Orleans. If we do nothing, we can see other vulnerable Americans overwhelmed by rising energy prices this winter.

First, Senator Collins and I, joined by 39 colleagues, are calling on the President and Congress to support $1.3 billion in emergency LIHEAP funding in the comprehensive supplemental appropriations package for Hurricane Katrina. This funding will provide our Nation's most vulnerable low-income families, seniors, and disabled individuals with affordable energy this winter. This is the additional funding--let me stress additional funding--needed for LIHEAP to maintain the purchasing power it had last year. This money is on top of the $3 billion we are seeking for the LIHEAP State grant program in the fiscal year 2006 Labor-HHS appropriations bill; the regular LIHEAP funding, if you will.

States are bracing for a crisis caused by the lack of affordable energy, and this funding will ensure low-income families and seniors have warm homes this winter.

Last year, a Rhode Islander receiving $400 in LIHEAP funds could buy approximately 235 gallons of heating oil, almost a full tank. At $2.60 a gallon, $400 will only buy about 150 gallons of oil, a little over half a tank, which might only last about 2\1/2\ weeks. And, indeed, the $2.60 price in Rhode Island is a hard price to find now from oil dealers.

Rhode Island's LIHEAP program estimates the State needs $21 million to serve the 27,000 households it helped last year. I urge all of my colleagues to join Senator Collins and me to support our efforts to secure $4.3 billion for LIHEAP funding this winter.

Second, we need to invest in energy efficiency. The Weatherization Assistance Program is vital to these efforts. The Weatherization Assistance Program has weatherized 5.3 million homes in the United States during its history, including 30,500 in my State of Rhode Island. The program, on average, saves families $274 per year and reduces heating bills by 31 percent. Rhode Island's program alone has saved the United States an equivalent of 43 days' worth of oil consumption, or an equivalent of 81 days of gas consumption over the course of the life of this program.

Now is the time to expand this and other energy efficiency programs to serve these families. This is one of those programs that benefits not only individuals of the family by keeping them warm, by saving them money, but collectively benefits this country because one of our great problems is our accelerating demand for energy which drives up prices. If we can control that demand, if we can be more efficient in the use of energy, we can go a long way to help moderate the prices of energy that we face.

In America--one of the wealthiest nations in the world--no family should have to choose between heating their home and putting food on the table for their child. No senior citizen should have to decide to either buy lifesaving prescription drugs or pay their electric bill. But, unfortunately, our Nation's most vulnerable households--working families, seniors living on fixed incomes, and disabled individuals-- have to make those very choices.

Third, we need to pass Senator Cantwell's Energy Emergency Consumer Protection Act, of which I am a cosponsor. The legislation would ban price gouging at the gas pump in the wake of natural disasters, such as Hurricane Katrina, and would empower Federal regulators to ensure greater market transparency and go after market manipulation of oil and gas prices on an everyday basis.

The administration also must begin to rethink its bankrupt energy policies. Reliable, affordable energy is critical to the social and economic well-being of our Nation. Total energy spending for the Nation this year will approach $1 trillion, 24 percent higher than in 2004. Energy will claim the biggest share of U.S. output since the end of the oil crisis 20 years ago. This is not good energy policy.

Americans deserve a better energy bill than the one President Bush signed this summer. They deserve an energy bill that raises fuel efficiency standards and provides for oil savings, an energy bill that invests valuable tax dollars--those currently being handed out unnecessarily to oil and gas companies--into the development of renewable fuels and energy efficiency.

Oil and natural gas companies are making record profits while energy prices are overcoming workers' salary increases. These companies do not need billions of dollars from the Federal Treasury.

The American public deserves greater accountability to ensure oil companies are not engaging in anticompetitive behavior, such as closing down refining capacity to drive up prices.

Hurricane Katrina demonstrated the economic, social, and racial divides that exist in America. As a nation, we must step back and reevaluate our priorities. Now is not the time to cut funding for or underfund social programs, such as LIHEAP, Medicaid, and food stamps, that support working families and seniors while the President proposes tax breaks for casinos, as the Washington Post reported this morning. We must prioritize, and the most vulnerable amongst us must be considered first.

Hurricane Katrina upset the lives of millions, displacing families from their homes and inflicting severe economic damage. The people of the gulf region deserve our continued support as they rebuild, and as Hurricane Rita threatens the gulf coast of Texas, we must also be prepared to help those Americans affected in its wake.

We cannot, however, forget the millions of Americans who struggle each day to make ends meet. They also deserve our support. I hope the President and the Congress will heed this warning and help build an energy safety net for all Americans beginning with adequate funding for LIHEAP, increasing investment in weatherization, passing sensible legislation such as the Cantwell bill, and revisiting our overall energy policy to make a stronger, more fair, and a more decent place for all of us.

Mr. President, I yield the floor. I note the absence of a quorum.

Mr. President, I rise today to recognize the accomplishments of MG Reginald Centracchio, the Adjutant General of the State of Rhode Island and the commanding general of the Rhode Island National Guard. Major General Centracchio retired on September 1, 2005, after 48 years in the Rhode Island Army National Guard. He is the only adjutant general from Rhode Island to serve his entire career within the Rhode Island National Guard, rising from private to the position of adjutant general.

Major General Centracchio enlisted as a private in the National Guard in September 1957. He graduated from Officer Candidate School in 1962, and was commissioned a second lieutenant, Air Defense Artillery.

Over the past four decades, Major General Centracchio held a wide variety of important command and staff positions, including platoon leader and battery commander on various missile sites throughout Rhode Island; field artillery tactical intelligence staff officer and adjutant; recruiting and retention manager; plans, operations and military support officer; director of personnel and administration; and director of plans, operations and training, Rhode Island Army National Guard.

Major General Centracchio was appointed the Adjutant General, State of Rhode Island, and Commanding General, Rhode Island National Guard, by Gov. Lincoln Almond on August 1, 1995. On August 1, 2002, he achieved the State rank of lieutenant general. On July 1, 1996, he was appointed director of the Rhode Island Emergency Management Agency, RIEMA, merging the National Guard and Emergency Management Agency. On January 21, 2003, he was reappointed by Gov. Donald L. Carcieri as the Adjutant General of Rhode Island; he was then appointed Rhode Island Homeland Security Advisor. Major General Centracchio is the first adjutant general to hold all three positions simultaneously.

During his tenure as Adjutant General and Commanding General of the Rhode Island National Guard, Major General Centracchio's leadership and commitment were essential in ensuring the Rhode Island National Guard trained, equipped, and deployed soldiers and airmen in support of United States military missions at home and abroad. His experience and knowledge were constantly sought during numerous State emergencies in which Rhode Island National Guard troops were employed to ensure public safety. Under his direct supervision, the Rhode Island National Guard mobilized and deployed over 3,500 troops in support of Operations Noble Eagle, Enduring Freedom, and Iraqi Freedom. This represents the largest deployment of Rhode Island National Guard Troops since the First World War.

General Centracchio exemplifies what it means to be a ``soldier.'' He was utterly committed to accomplishing his mission and completely dedicated to the welfare of his troops. He led by example. His service and sacrifice sustained the men and women of the Rhode Island National Guard and will continue to inspire them in the years ahead.

I also want to commend his wife, Linda. She also served by his side to provide for the men and women of the Rhode Island National Guard. Together they made an extraordinary contribution to our Nation and to Rhode Island.

Major General Centracchio's superb sense of duty and responsibility provided the citizens of Rhode Island with solid evidence of the National Guard's commitment to the State and Nation. On behalf of the residents of Rhode Island, I thank Major General Centracchio for a lifetime of selfless service. I wish him well and salute him with the title that he has earned and honored. ``Sir, you are a soldier.''

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

Mr. President, I ask unanimous consent to speak as in morning business for up to 10 minutes.

Mr. President, I want to join my colleagues and all Americans in offering my condolences and my prayers to the residents of the gulf region. These families have suffered grievously. They have lost all of their possessions. They are without homes, without employment. We owe them a great deal of support and consideration, and, indeed, as I say again, all our prayers.

As news reports show, there are heroes throughout the gulf--those who helped neighbors survive the hurricane and those who continue to work in the region to help reunite families and restore order.

Americans throughout the Nation are opening their homes to hurricane survivors and volunteering their time and resources to meet the needs of evacuees. But while this disaster shows the best that America can offer, it also shows the worst. It shows that the Federal bureaucracy is ill prepared to respond to a natural catastrophe that we knew was possible. It shows the Federal bureaucracy ill prepared to respond to future potential disasters.

It shows a government so tied up in red tape that it is not serving its people at their time of need.

In the days, weeks, and months ahead, we will be investigating what went wrong, and there will be plenty of blame to pass around, but we cannot blame the victims of this tragedy as some have chosen to do. Many families in the gulf region did not have the resources or means to leave before Hurricane Katrina struck because this administration's economic policy favored tax cuts for the wealthy over programs that provide economic opportunities for all Americans. Over the last 3 years, poverty has risen in America and the real median income of workers stagnated. We must be willing to look honestly at how budget decisions and tax policy at Federal, State, and local level left New Orleans residents and other communities vulnerable to this tragedy. We must look honestly at how these policies continue to leave millions of Americans vulnerable across the Nation.

Hurricane Katrina demonstrated the economic, social, and racial divides that exists in America. As a Nation we must step back and evaluate our priorities. In my judgment, now is not the time to cut funding for social programs such as Medicaid, food stamps, and community development block grants while the administration pushes to repeal the estate tax. Now is not the time to continue to provide corporate tax breaks, while we must help rebuild a region in the midst of massive deficits as a result of the administration's policies. The damage to the national economy wrought by Hurricane Katrina, the expense to rebuild, and the need to provide for low-income and working families in light of this disaster will add to our growing debt. We must prioritize and deal with the needs of the most vulnerable among us.

For decades, we have known that New Orleans is in harm's way. Senator Landrieu has often spoken passionately about the Federal Government's duty to help protect wetlands in order to safeguard coastal states. Yet, we continued to allow coastal wetlands to degrade and cut funding to vital programs to protect these natural buffers as well as man-made levees to protect New Orleans. The flood waters from the city of New Orleans must be drained in an expedient fashion. However, we must not ignore the environmental impact that these heavily contaminated waters will have on the long-term public and environmental health of the city.

The stagnant waters engulfing New Orleans for the past week contain a myriad of contaminants, including human waste, oil, and even dead bodies. This toxic mixing bowl is rife with disease and harmful chemicals. We are facing a potential ecological disaster as these flood waters continue to be dumped into the surrounding area, and I am greatly concerned that the impact will be seen for years to come. New Orleans is surrounded by Lake Pontchartrain, the Mississippi River, and many precious wetlands. All of these bodies of water drain directly into the Gulf of Mexico.

Now is the time not only to evaluate, but also to act to prevent further ecological damage in the region. More must be done to ensure that while we are clearing the city of New Orleans from this devastating flood, we are also working toward its future rejuvenation.

Our primary focus must be on getting rid of the red tape and getting aid and assistance to those displaced by Hurricane Katrina. But we must also begin to ask how did this happen. The only way to do that effectively and apolitically is to have an independent commission to investigate the long-term impact of Hurricane Katrina on the people of the gulf region and on our Federal Government's response to this disaster as well as our ability to respond to future events. The bicameral commission announced yesterday by the Majority Leader and the Speaker is not the answer. Having the President head up a task force to investigate his Administration's response is not sufficient. The only way the people of the gulf region and the people of America will get the answers that they deserve is through an independent commission.

I also support efforts to restore the Federal Emergency Management Agency, FEMA, to an independent, cabinet-level agency to ensure its effectiveness in preparing for and responding to these types of events. FEMA's director must have the qualifications and abilities to plan for, respond to, and assist in the recovery after such an emergency. We must do better.

As the recovery efforts for the victims of Hurricane Katrina continue, we must stand beside the survivors to provide relief and assistance for their immediate needs now. For this reason, I am cosponsoring Senator Reid's Katrina Emergency Relief Act, which will help get these families by providing medical coverage, housing the homeless, educating children, and offering financial assistance.

Hurricane Katrina upset the lives of millions, displacing families from their homes and inflicting severe economic damage. Neighborhoods that were once called home are now wastelands, and people are concerned their lives may never be the same. The economic impacts are being felt by low-income and working American families throughout the nation. Indeed, there is an imminent emergency confronting millions of low- income Americans caused by soaring energy cost and diminishing affordability of home heating fuel as winter approaches. The administration cannot ignore this looming crisis. The administration must request emergency funding for the Low Income Home Energy Assistance Program so that these families can remain safe this winter. I also encourage the administration, and my colleagues, to support greater investment in energy conservation programs such as the Weatherization Assistance Program and the State Energy Program to help families.

In one way, Hurricane Katrina holds parallels to other situations. We could have anticipated this phenomenon. The reports of the class V hurricane were available to all Federal officials, State officials, and local officials. We knew the levees in New Orleans were not designed to withstand anything more than a class III. Yet we were not ready. This administration ignored what should have been obvious. We had to be ready for a severe hurricane with devastating consequences in New Orleans. This administration was not.

This also speaks to what may happen in the future. This should give Americans pause if they think about another natural disaster and, God forbid, perhaps an intentional mass-casualty effect in the United States. If we bring this same level of expertise and skill and insight, then we surely will see another major disaster on our hands. I hope we do not. That is why it is important to look carefully and closely at what transpired and to do so through an independent commission. I hope we learn from this and apply it to the future, but most particularly, I hope we give real, immediate, and effective support to hundreds of thousands, perhaps even a million Americans who tonight still endure the devastation of Hurricane Katrina.

I yield the floor.

Would the Senator yield for a question?

The Senator from Alabama is a lawyer, a Federal attorney, and has made the statement that an intervening criminal act essentially absolves someone of negligence, which I think is a fair response, but yet the statement of torts, which is recognized generally by most lawyers as the statement of basic law in torts, says very clearly that an intervening criminal act does not absolve someone from their own negligence. Because of the standing of the Senator as an attorney, I suggest that his conclusion does not comport with what most people assume is the law of the country.

Mr. President, I call up amendment numbered 1642.

I ask the Presiding Officer to let me know when I have reached 10 minutes.

My amendment has an overarching purpose, to preserve the right of an individual to sue for negligence when they have been harmed and when that negligence can be fairly attributed to a gun manufacturer, gun dealer, or a gun trade association. It does not depart from the principles of the law. In fact, it braces the fundamental principle of the law which says if someone owes you a duty of care and violates that duty and you have been harmed, you have a right to go into court.

The legislation before the Senate not only sweeps away the rights of individuals but sweeps away the rights of municipalities, counties, and other government entities. This is one of the major reasons the advocates have been talking about in this legislation. They have said there has been a rash of suits by municipalities, not about recovering damages, but about undercutting and undermining the gun industry.

I am reluctant to change what I think is well-settled law and well- settled practice, but if we are confronted with this legislation, I propose we step back and perhaps reluctantly eliminate suits by municipalities, but for goodness sakes, we can have and maintain suits by individuals.

The reason this legislation is before the Senate is because they claim there is a crisis. But if you look at the financial reports of these companies--of Smith & Wesson and Sturm, Ruger--there is no crisis. The financial report of Smith & Wesson indicates they are actually reducing the amount of their reserve to cover these types of suits, which is a strong indication, because it is real dollars, that this threat is dissipating. It is not becoming more enhanced. This crisis is manufactured. And it is, indeed, evaporating.

This suit will deny ordinary people, our constituents, their voice before the courts when they have been harmed. No one is going out and getting shot so they can bring a lawsuit. That is preposterous. They are being shot because people have been either criminal or negligent or both. We have criminal laws to deal with criminals, but we have a well- established body of civil practice which allowed an individual to go in and be compensated, receive damages for the harm they have suffered.

This legislation, the underlying legislation, would bar the door to courthouses for real people. Who are some of these real people? We all know about the most notorious incidents in the last several years, the Washington, DC snipers. If this legislation passed in the last Congress, and it was on the verge of passing, these people would have been denied their day in court.

Ted Franklin is the husband of Linda Franklin, a resident of Arlington, VA. On October 14, 2002, Linda Franklin was a 47-year-old analyst for the FBI. She had two children and a loving husband. She, like so many of us do, was in the parking lot of Home Depot loading up purchases for their new home when she was killed by the sniper.

How did the sniper get his weapon? Well, a teenaged boy walked into a gunshop in Washington State and apparently shoplifted a 3-foot-long assault weapon. The manager did not know about it and he did not know where over 200 weapons were. That is gross negligence, certainly, the kind of fact that would get you before a court. She was killed. A 47- year-old, dependable worker of the FBI.

Margaret Walekar is the wife of Premkumar, who was shot at the age of 54 while he was refueling his cab at a gas station. Tonight, as you fill up your automobile at a gas station, just think, someone else was doing that and innocently was killed and the heart of the causation of that tragic event was the negligence.

After this legislation passes, if it does, that negligent gun dealer and that negligent manufacturer who contributed the weapons would not be held liable for the death of this man.

Carlos Cruz is the husband of Sarah Ramos. They had one son, age 7. She was 34 and was sitting on a bench in front of a post office on October 3, 2003, waiting for a ride to take her to her baby-sitting job when she was shot and killed by the Bushmaster assault weapon shoplifted from that negligent gun dealer in Washington State.

I could go on and on and on. These are innocent victims. These are our neighbors. These are our constituents. These are the people we will tell, unless we adopt the Reed amendment, you have no value in the eyes of the court. You have no voice in that court. You are not important.

Who is important? The National Rifle Association. The gun lobby. The gun dealers. They are important. But these good people are not important.

At a minimum, we have to allow the tort law of the various States that has been worked out to be operative for these individuals. Certain States, very few, have restricted--again at the behest of the gun lobby--certain activities. I don't object to that. But that is

more the normal course of activity since tort law is the province typically of the State. But no State is going as far as this legislation. No State is going to the extent of practically barring all claims.

Now the proponents will stand up and say, no, no, wait, we have exceptions. These exceptions have been carefully crafted to prevent the very cases I have spoken about and we have spoken about from getting to court. These are the real cases. This is what happens. People buy guns through straw purchases. That activity is virtually totally immunized by this legislation. As a result, we are going to see, I think, more reckless behavior.

We have already identified through the reporting system of the ATF and other gun shops across this country that have records and are supplying hundreds of guns to crime scenes, some within a short period of time. A weapon is purchased and a few days later found at a crime scene. If they are behaving that way now under the cloud of potential litigation, what will they do when they feel totally immunized, free, uninhibited, to be grossly negligent? The result, of course, is not some academic statistics. The result is people such as Linda Franklin.

I note that a few moments ago, in Senatorial time, we took a vote on legislation that would at least have given children the ability to use the existing tort laws of their State without the conditions and encumbrances of this legislation. That provision by Senator Lautenberg was struck down. That amendment failed.

What about the case with respect to the Washington sniper where Iran Brown, a 13-year-old boy, was walking to class? All of us who were here vividly remember watching the television set, vividly remember seeing the reports of a young boy walking to the Benjamin Tasker Middle School in Lanham, MD, and being shot by a sniper. The fear that grasped everyone here, parents particularly, that their child could be the next victim, that their school could be the next target, was palpable. He was rushed to a nearby medical center. Thank goodness, after a month in critical condition he survived. What if he had been critically injured or paralyzed? Who was going to pay for that young child's life and recovery if he could not allege that the negligence of the gun dealer contributed to his injury?

That is the reality. This legislation is actually modeled on the legislation adopted by the State of Idaho. Certainly that is a State that is proud of its tradition of recreational shooting and hunting. This State adopted this legislation. They recognized the problem and they took exactly the same steps we have taken. If municipalities and public interest groups are going after the gun dealers or gun manufacturers because they want to make a political point, we are not going to allow victims in Idaho who have been shot to be able to raise their voice in court?

Texas has a similar statute. They put restrictions upon municipalities, they put restrictions upon groups that might take political suits, and we have heard about those suits, but they have let ordinary citizens have a much more expansive right to go to court than anything included in this legislation before the Senate.

So we are not even being consistent with the States of Idaho and Texas and many others and we are usurping the role of States which traditionally set the standards for tort actions in their own States'. That is an interesting position for people who I used to think were faithful to this notion of State rights, State practice, local control, and let the people of Rhode Island, Idaho, and Massachusetts, let those people decide.

We are deciding if this Reed amendment fails and we pass the underlying bill that these people--Linda Franklin and James Franklin, the husband of the victim, and Lisa Brown, the mother of Iran Brown-- are not worth it.

They don't mean anything. You have heard people say these are junk lawsuits. Are these lives junk? They are not.

We have a chance at least to preserve the right of individuals who have been harmed by the alleged negligence of gun dealers, gun manufacturers, and gun trade associations to get their case before a judge, to ask 12 fellow Americans to decide: Was there a duty by that defendant of more care, more attention, more foresight? Was that duty violated? Was I injured as a result of that and, therefore, should I be compensated by that person?

If we fail to adopt this amendment, we are sending a very strong message.

That message is, these people don't matter. The only thing that matters is the gun lobby. That would be a terrible message to send. I urge passage of the amendment and retain the remainder of my time.

Mr. President, let me take a very few minutes because I do want to get on with the vote. First, the underlying legislation would deny the attorney general of Texas the right to defend the people of Texas in court with a suit, I believe. Second, the legislature in Texas could not authorize suits. They could under my amendment. But more importantly, going back to the Washington sniper, none of the carve- outs, none of the caveats would reach that. I don't think it is a matter of dispute. Negligent entrustment has been defined in the bill as supplying a qualified product by seller for use by another person where the seller knows or should know. There is no allegation that the seller knew that the young person came in and shoplifted the weapon. In fact, he could argue that there was no sale involved whatsoever. It was shoplifting. But that was negligence because I think we all agree that gun sellers have an obligation to keep their weapons under control.

With respect to negligence per se, that is an unexcused violation of some enactment or administrative law. There are many States in the country that don't recognize that as a theory of tort recovery. Again, you would have to show they violated the law, they violated an administrative rule. In the case of Bushmaster, the situation is such that I don't believe there is any relevant legislation that says that an owner has to do anything in a way that would give rise to this negligence, per se.

My point is that the legislation before us would effectively carve out all these suits. That is entirely correct.

We are faced with a choice. This amendment does not allow these so- called political suits by municipalities, by political subdivisions, by groups, but it should allow individuals who have been harmed to have their day in court.

I hope we can prevail.

Is the Senator ready?

I yield back my time.

Mr. President, first, I thank Senator Craig for a very deliberate and civil debate. I thank my staff, Steve Eichenauer.

The legislation before us is not about the facts. There is no crisis in litigation affecting the gun manufacturers. These are the litigation trends of Smith & Wesson: In 2001, 32 cases by municipalities; 10 by product liability. It declined steadily, with four cases ending on appeal and two cases with respect to personal liability. That is not a graph showing a crisis in litigation. The slope is going the wrong way. There is no crisis. There is no threat to procurement of military weapons. That is also conjured up out of thin air.

This is not about legal principle. A fundamental legal principle in this country is if you are wronged by the negligence of another, you can go to court. This is not about legal principles. We have had talk about intervening criminal activities taking away the negligence of another. That is not what the statement of torts, which is the black letter law of the country, states. These exceptions in the bill have been carefully crafted to prevent lawsuits, not to enable appropriate lawsuits to go forward.

It is not a failure of State courts to act. They have been acting. These cases have been going down under current State law. They are being handled by the States. It is about power, sheer naked power by the National Rifle Association--the power to take us off the Defense bill, the power to take us from that bill which would consider the quality of life and the safety of our troops to go to this legislation, the power to take us away from debate on stem cells which will save people and help people, so we can protect people who deal in dangerous weapons. It is about power; it is not about principle.

But there is something else. If this legislation passes, what incentive will there be for a gun dealer or gun manufacturer to act reasonably? There is a rogues' gallery of gun dealers--Realco

Guns in Maryland, Southern Police Equipment in Richmond--all across the country--Atlantic Gun and Tackle in Bedford Heights, OH. Hundreds of guns are sold and are ending up at crime scenes. If they are this blatant and reckless now, what do they do when we say, ``Don't worry, no one can touch you''? It will create huge disincentives.

Finally, what we are doing today is silencing the voices of victims of gun violence, silencing people who have been wronged through the negligence of another. This is not about trying gun manufacturers for someone else's fault, this is about their own responsibility.

Think tonight about what happened in Washington with the snipers. An FBI employee loading material at a Home Depot parking lot--shot. Some of that was attributed to the negligence of a gun dealer. That lady's husband and family would be silenced. Think about the young boy walking to his school in Maryland--shot. His family would be silenced. Think about the cabdriver filling up his cab. Tonight when we fill up our cars, think for a second, what if you were struck down, caught up in that web of violence. What if your family knew part of that was the result of the negligence of a gun dealer, a gun manufacturer. Who will take care of your family? Who will take care of you if you are paralyzed? We are telling those good people, our constituents: You are not worth it; the NRA is more important. You will suffer. If you don't have the money, you will be on charity. That will take care of you.

This is wrong. It is wrong morally, it is wrongly legally. We should vote against this legislation. I passionately hope we do.

I yield back my time.

Mr. President, I rise in strong support of the conference report on H.R. 3, which will reauthorize our Nation's surface transportation laws and provided significant and needed resources to maintain and improve our nation's roads, bridges, and transit systems.

For Rhode Island, this legislation is welcome news and will bring tremendous resources to address a number of high-priority highway and transit projects.

This conference report is the product of hard work and bipartisan cooperation, and I was pleased and proud to be named as a conferee on the transit title of this conference report. I believe the transit title of this bill continues the trend of TEA-21 of investing more in transit systems to the benefit of our economy and our environment.

I want to thank Chairman Shelby and Sherry Little, Rich Steinman, and John East of his staff for their hard work and bipartisan spirit. I also want to commend my ranking member, Senator Sarbanes, who has fought for transit since the first day he took office, as well as his staff, Sarah Kline and Aaron Klein, for their tireless work in helping my office and others. Lastly, I want to thank my subcommittee chairman, Senator Allard, and his able staff, Tewana Wilkerson, for their work on balancing the needs of old and new transit systems.

Mr. President, I commend Senator Kohl for this amendment. He has worked with so many of our colleagues to ensure that children are adequately protected. There are too many deaths each year of children because the weapons are unsecure. They are able to get access to them, and they are able to discharge them. There are accidental deaths. Sadly, there are too many childhood suicides that result from having access to weapons.

The Kohl amendment is a practical and appropriate response to that by requiring the sale of a child safety lock along with the weapon. There is huge public support for this issue. Over 70 percent of Americans polled think this is an appropriate and necessary proposal. In fact, I believe 6 out of 10 gun owners similarly believe this is a sensible approach to dealing with the issue of the accidental death of children with firearms.

We are here today to move forward on this amendment, to have a vote which is scheduled. I would hope, also, that we can move to other amendments so they could be offered for votes. Several of my colleagues have offered amendments. It is appropriate, since we have begun the process of debate and amendment and vote, to continue that process forward. I hope we can do that.

I certainly commend Senator Kohl for his efforts over many years. As he rightfully points out, there was overwhelming support for this measure last year. More than 70 Senators supported it. I hope we see that same support this year. Certainly, the danger to children has not diminished from the last Congress. The practicality and efficacy of this approach continues to be compelling. I would hope we would have another strong vote in support of the amendment, as we go forward.

I yield the floor.

No. Go ahead.

Mr. President, I will take a moment to talk about the bill.

I would be happy to yield for a question.

Reclaiming my time, I say to my distinguished friend and dear friend from Alabama, I am not perturbed. I just fear for his safety, and I thank him.

Mr. President, we have heard over the course of the last few days numerous homilies about personal responsibility. The irony, of course, is this legislation says everyone is responsible except for gun manufacturers, gun dealers, and gun trade associations.

There has been a discussion about the law. If one breaks a law they should be punished, but such discussions fail to capture the fact that we have essentially two systems with our legal system. There is the system of laws, the statutes, the ordinances that are passed by legislative bodies such as this body, and then there is the civil law: the criminal law and the civil law.

The Senator from Alabama went on at length about how we can enforce criminal laws more effectively; we can do good things with respect to criminal law enforcement. But I think we are ignoring the sense that there is also this civil law, where people can go to court if they have been injured and seek redress.

What this legislation would do is prevent many Americans who have been injured from going to court and seeking redress, either some type of compensation or some type of equitable remedy.

It is important that we recognize this bill will deny a voice to many people, modest people, who have been injured and who seek redress.

I was trying to think of a somewhat mundane example about these different systems. Since so much of this legislation talks about, well, if a particular statute is violated, one will be liable, but there is this intersection of obligations both under the criminal law and statutes and under the general principles of civil law.

The example I think of is there are some jurisdictions that make it a violation of the law to operate a cell phone in one's hand while they drive, and if one had an accident in that circumstance and someone is injured, the person could be prosecuted for violating the law, but they also could be sued because they have an obligation and duty to pay full attention as they drive. In other jurisdictions without this law, one could not be criminally charged but, of course, they could be sued.

Here is what essentially this legislation does in lots of respects. It says we are disregarding those instances where one has a duty to someone under the civil law. We will let them proceed with their suit if there is a criminal violation or a statutory violation, a violation of regulations, but for the vast number of other responsibilities we owe to each other, that are defined for the civil law, one will not have the opportunity to go to court.

Essentially, what we have said is we all have these obligations and responsibilities, except this now special, privileged class of gun manufacturers, gun dealers, and gun associations.

There is the presumption that has been persistent throughout that the law of the United States in general does not recognize any type of obligation if there is a criminal intervention, if a criminal gets involved in proximity to the injury. As I mentioned before, the black letter law of this country that is established in the restatement of torts clearly says if there is a criminal intervention, one can still be held liable for negligence if they fail to perform their duty, even if in the chain of action of causation there is a criminal act. So this notion that we are charging these gun dealers and gun manufacturers with the crimes of another, a bad person or criminal, is without substance.

What Senator Levin said so eloquently and others said so eloquently talking about his amendment, is this is about the responsibility of the manufacturer, the gun dealer, and the gun associations to fulfill their duties to the general public and to specific individuals who have been harmed: the duty to secure weapons, the duty to act reasonably, the duty to look beyond the superficial aspects of someone coming into a store.

We have seen classic examples: The fellow who walks in with the girlfriend and picks out 12 weapons, gives her

cash, she pays for it. It is so suspicious that the operator of the gun store calls ATF and says, well, I got the money, they got the guns, but watch out for them. That was the circumstance that led to a chain of causation to the serious wounding of two New Jersey police officers. That gun dealer had an obligation to avoid straw purchases. He did not even follow the standards of the industry in terms of being careful of selling multiple guns to some person under those circumstances.

So it is not about the crimes of others being attributed to gun dealers and gun manufacturers. It is not about social conditions that are being excused by these suits. It is about whether an individual had a duty to another person who was injured and failed to carry out that duty.

One of the major reasons we are here, taking very radical action to change 200 years of legal history in the United States, taking the radical action of going into 50 States and saying, We don't care about your laws--the General Assembly of Rhode Island, the General Assembly of North Carolina, of Alabama--we don't care about your laws, we don't care that for 200 years, you specified the standards for negligence in your State, we are changing them for these special people. We don't care that your courts should have the right to take the claims of your citizens who have been harmed. We don't care about that. And we are doing it for a very narrow, defined group of individuals. This is a radical departure from the standards we have adopted and abided by for 200 years.

The pretext for all of this is that there is this huge crisis with respect to manufacturers that threatens their existence, that they are financially on the ropes, that these suits are numerous and literally driving them to bankruptcy.

Where are the facts? The facts that we can establish from the public filings of certain companies suggest that there is no crisis. There is no crisis at all. This is a manufactured crisis. This is a pretext to do the bidding, I believe, of the gun lobby. If you look at the facts as reported, there is no financial crisis that is apparent.

Yesterday, my colleague, the Senator from Idaho, read a letter from the president and chief executive officer of Smith & Wesson that talked about or tried to explain their filings with the Securities and Exchange Commission, their 10-Q filing, and concluded with a stirring passage about the necessity, the criticality of this legislation to Smith & Wesson. It gave the suggestion, of course, that my discussion of their financial reports was somehow inaccurate or incomplete. So I went back and I got their 10-Q report, which was filed on March 10, 2005, for the period January 31 to March 10. It was filed, let me say, March 10, 2005.

They go on to describe these suits, as generally is done. They conclude:

We monitor the status of known claims and the product

liability accrual, which includes amounts for defense costs

for asserted and unasserted claims. While it is difficult to

forecast the outcome of these claims, we believe, after

consultation with litigation counsel, it is uncertain whether

the outcome of these claims will have a material adverse

effect on our financial position, results of operations, or

cash flows.

They are not quite certain whether those cases will cripple them. They go on to say:

We believe that we have provided adequate reserves for

defense costs.

They go on and say further:

We do not anticipate material adverse judgments and intend

to vigorously defend ourselves.

In a sworn statement to the Securities and Exchange Commission, they say: We don't know if this is going to be critical to our financial status. In fact, we don't anticipate material adverse judgments. We don't think any of these cases will be resolved in a way that will negatively affect our position, and we will vigorously defend ourselves.

They went on to say, and we said this before on the Senate floor:

In the nine months ended January 31, 2005, we incurred

$4,535 in defense costs, net of amounts receivable from

insurance carriers, relative to product liability and

municipal litigation.

That is $4,500, basically, out-of-pocket costs they have received from reimbursements from insurance companies. That is the nature of insurance: You pay the premium; if something happens, you get reimbursed.

During this period, we paid no settlement fees relative to

product liability cases. As a result of our regular review of

our product liability claims----

looking at these claims we talked about here as strangling their ability to be competitive and to survive----

we were able to reduce our reserves by $286,022 for the nine

months ended January 31, 2005.

This is such a perilous threat to a company like Smith & Wesson that they are actually reducing the reserves they have on hand to handle these claims.

Again, this is not a crisis. Again, their own data suggest--this from their Web site. This is 2001. These are the industry municipal cases pending or on appeal: 32 and 10 in 2001; in 2002, 26 and 8; 2003, 20 and 5; 2004, 13 and 4; 2005, 4 industry municipal cases pending and 2 product liability cases pending against Smith & Wesson.

The curve is going the wrong way for a crisis. It is going down: four, and two pending cases. It suggests that the courts are doing their job, that the present system we have in place is actually handling these cases pretty well. There is no flood of cases coming over the transom. In fact, this is exactly consistent with their reduction of the reserves for liability because it appears that these cases are dwindling, not increasing. It appears that the system is working pretty well right now. Yet we are here today debating legislation that will deny the rights of individual citizens to go to court, rights they have enjoyed for 200 years in this country, rights that stem not from the actions of criminal third parties but from the failure of the individual defendants to take appropriate action in their duty with respect to the general public and specific individuals.

It is the same with respect to other companies for which we have public records. Many of these companies are privately held. Beretta USA is domiciled in the United States, but it is a subsidiary of an Italian corporation which is privately held, and they are not publicly reporting. But all of this suggests again--not only with Smith & Wesson but with Sturm, Ruger--that there is no material adverse impact reflected by these individuals in their reporting under the pain of penalty for perjury under the Securities and Exchange Commission.

Also, there is a general record of claims and legal cases which goes to suggest that these suits are not an epidemic. As we have indicated before, from 1993 to 2003, 57 suits were filed against gun industry defendants out of an estimated 10 million tort suits. I am not good at math, but that is way below 1 percent. This is not an epidemic. This is not a crisis. Certainly this is not a crisis that is going to threaten our national security.

We have heard claims that the gun industry is being forced to spend hundreds of millions of dollars. The alleged litigation costs have risen in $25 million increments. In fact, I think they have risen since we started this debate, from what I have heard, without any kind of factual data to support them. They are just claims that they are spending all of this money. In fact, if you look at these SEC reports, it hardly adds up to $200 million. Indeed, it seems, based on Smith & Wesson, that reflecting the declining cases they are actually reducing their reserves and potentially, hopefully, reducing what they have to pay out of pocket. But these estimates grow and grow and grow. In 2004, it was $150 million in July. In November 2004, other estimates, $175 million. Now it is up to $200 million. I think I heard in this debate $250 million. No substantiation, no documents, no data.

This is not a crisis. Yet we have displaced the Defense bill to take up this legislation. We have displaced other legislation that could be extremely valuable in order to take up this legislation. Because there is no crisis----

I am happy to yield.

I thank the Senator from Illinois for his question. There were a series of extraordinarily important questions with respect to the quality of life for our soldiers and their families: childcare amendments, amendments with respect to veterans health care, amendments that applied not only to active-duty personnel but their dependents. We had passed legislation already, an amendment that would increase the number of up-armored HMMWVs we are providing to our soldiers. That stands in abeyance until we finish the legislation.

There were important inducements for additional service and enlistment that are necessary to meet the growing and real crisis in recruiting military personnel. If you want to talk about a crisis, it is a crisis, the fact that our Army, despite efforts, has fallen short of the recruiting goal at a time when we need every person to fill out the demand for operations in Iraq and Afghanistan and around the world. It is extraordinarily serious.

I don't know if I can find it, but I saw an editorial cartoon in a magazine, a newspaper, which had a picture of a humvee and three soldiers. The caption, if I recall it, is:

Why don't we just take a 4-week recess during this

difficult time and then return to this operation afterwards?

Essentially, I think it captured the dilemma the soldiers are feeling right now. What are we doing?

As the Senator previously indicated, in the Army Times, they wrote of this:

Senate delays action on the defense bill.

I ask unanimous consent to have two articles printed in the Record, one from the Hill and the other from the Army Times, which talk about this issue of leaving the Defense bill and also the impact on procurement of weapons because of this legislation.

I think at a minimum it puzzles them why we would shift from their concerns, which are so central to our national security and so central to the families of America, to move to a bill that is so narrowly focused on a special interest group and does not help them one bit in terms of anything we might do on this bill.

Perhaps it is summed up. I have located the cartoon. It is as I described before--a group of soldiers in a humvee, and the caption is:

I move we adjourn for 5 weeks and take up this contentious

issue after the summer recess.

Frankly, no one in our military has the option of adjourning for 5 weeks to take up contentious issues after that time.

The legislation generally bars all suits involving negligence and restricts the exemption to some categories of specific violations of Federal law which arguably, in your hypothetical, it would not reach. The only exception, to be fair to the legislation, that might allow someone to go to court under the concept of negligent entrustment, which as drafted in the legislation would say you have to suspect, know that the person would use the weapon illegally, and that person has to use the weapon. But most commonly what happens is there is a straw purchaser, so the negligent entrustment argument doesn't work because that weapon is not being used by that person; it is given to a third party.

But I think the Senator's comment is exactly right. There are so many cases where this legislation has been carefully crafted to prevent people going to court, and the best examples are the ones of which we are already aware. The sniper case in Washington, DC, where a young teenager walked into a shop, shoplifted apparently a 3-foot assault weapon which was used to murder too many people here in the District of Columbia. That suit would be prevented by this legislation; in addition, the case of the straw purchaser and the police officer in New Jersey, prevented by this legislation. We have a case pending now where an individual, a young man, was killed by a weapon that was taken out of a factory, and the gun manufacturer would be exempt, immune from liability, even though he had no background checks on his workers who were criminals and drug addicts, he had no security devices and, in fact, missed any rudimentary standard of care that most reasonable people would say is associated with running a gun factory.

That is exactly right, in my reading of the legislation. There are certain jurisdictions that have specific laws with respect to background checks on daycare centers. The gun industry is virtually unregulated, which is a very important point here. There is very little regulation deliberately on the manufactured weapons, the standards. As you point out so often with respect to product safety, toy guns are regulated by the Consumer Product Safety Commission, real guns are unregulated in terms of their safety. So there is no legal--very little legal statutory requirement. So it depends upon claims of negligence to get at this harm and to redress the harm caused, and this bill essentially wipes out that civil liability under our court system.

Virtually no other. Comments were made on the floor with respect to legislation passed back in 1994 with respect to general aviation. I think it is important at this juncture to clarify that. There was very limited legislation that applied to general aviation aircraft, 18 years or older, in terms of liability because of the concern about the manufacturing base. But there is a distinct difference between this legislation and the General Aviation Revitalization Act of 1994, and it goes to the point we just discussed. There is no more highly regulated industry than the aviation industry. Every time an engine is worked

on, there has to be a log entry made which is subject to the jurisdiction of the Federal Aviation Administration. It is the most detailed legislative scheme we have in place perhaps because the safety of the passengers, all of us, depends upon it. So giving a limited grant of immunity to an industry that is so highly regulated is quite different than telling an unregulated industry you have no liability. That is essentially what this bill does, with very minor exceptions; clearly, I think exceptions which were artfully crafted to avoid the cases that exist today.

I think the Senator is right. The only exception that could be argued would, I believe, be the exception with respect to negligent entrustment. As I pointed out, that has been defined to mean that the individual who receives the weapon--you have to have also the suspicion that that person is going to use the firearm. In the classic case of a straw purchaser, they are the conduit to someone else----

Middleman. So that the argument made by lawyers would say negligent entrustment, saying they gave it to inflict harm. Therefore, this very narrowly defined exception would not apply. Generally, the case I believe would be thrown out of court.

The Senator asks an important question. According to Federal data from the year 2000, 1.2 percent of dealers accounted for 57 percent of all guns recovered in criminal investigations--1.2 percent of dealers, 57 percent of the guns recovered from criminal investigation. In fact, the national crime tracing data from 1989 through 1996 gathered by the U.S. Bureau of Alcohol, Tobacco and Firearms and Explosives has a virtual scorecard on these egregious offerings.

Badger Outdoors, Inc., in West Milwaukee, WI, the dealer sold more than 554 guns traced to crimes, 475 of these guns had a ``short time to crime,'' as defined by ATF; that is, almost immediately they were in the hands of someone and had some type of criminal activity.

I could go on.

Well, for the benefit of the Senator, Realco Guns in Forestville, MD; Southern Police Equipment in Richmond, VA; Atlanta Gun and Tackle in Bedford Heights, OH; Colosimo's Inc, in Philadelphia, PA; Don's Guns & Galleries in Indianapolis, IN.

Elmwood Park, IL; Breit & Johnson Sporting Goods in Elmwood Park, IL.

The Senator's point is extremely well taken. I think there should be at least that exception. I would argue, frankly, that the bill could be further modified to essentially allow individuals who have been harmed--move away from the issue of municipal suits but that is exactly the political implication--to let those suits survive. In fact, as Senator Levin urged, increase the standard from negligence to gross negligence, so further undercutting the argument about frivolous junk lawsuits.

That would be a broader remedy, but your proposal is very wise.

Let me give you an example of that store in Elmwood Park, IL, which I presume is close to Chicago.

This dealer has sold more than 347 guns traced to crime; 271 of those guns had a short time to crime as defined by ATF--again short transit from the time it was sold to the crime scene. The guns were involved in at least 27 homicides, 46 assaults, 23 robberies, and 271 additional gun crimes. The dealer also sold at least 5,429 handguns in multiple sales. That is another possible important remedy, the issue of multiple sales.

Anthony Garner was arrested for gunrunning after he bought 16 handguns from Breit & Johnson that were then sold to Chicago gang members. At least one of those guns was used in a gang-related killing. Andrew Young, age 19, was killed by Mario Ramos, a gang member with a gun from Breit & Johnson.

The list goes on and on. We have these statistics. These are collected by the ATF. We know what's going on.

The Senator raises an excellent point. I phrase it slightly differently, but I reach the same conclusion.

If gun dealers--who now have the threat of a civil suit if there has been negligence--are so cavalier in their attitude about guns, selling them to criminals, to straw purchasers, what happens when they are fully immunized or virtually immunized from any type of liability? What happens when they know that no family is going to come in and say, My son or daughter died because of your negligence, and we are going to see if we can take you to court and get something back--we will never get the child back--but something back.

What about the surviving spouse or children who need something to maintain the quality of their life because they have lost their breadwinner?

There is the case of Conrad Johnson, killed by one of the DC snipers. Those cases would be barred by this legislation.

It is not that the individuals, families, and the survivors are denied their day in court, but any incentive to be responsible, to be scrupulous, to look harder to determine whether that person is buying the weapon at the direction of another, as a straw purchaser, is virtually eliminated. The consequences are going to be much worse. These dealers will be more flagrant, more blatant, less restrained. It is hard to see how they could be more blatant than they are today.

The Senator is again accurate. Unless Senator Kennedy's amendment is allowed to be voted upon, there is no prohibition against looking at the person's picture on the FBI's Most Wanted list, looking at the person and saying: Have a nice day. Take the gun.

Again, one could argue that if that person actually uses the weapon, it might be negligence, but if he or she is a straw purchaser or buying lots of weapons to pass out, they would escape liability.

I don't see that. In fact, I don't see that as the purpose of this legislation. This is not about preventing criminals from getting weapons. It is preventing victims of gun violence from getting their day in court.

I thank the Senator for his questions.

The line of questioning that the Senator from Illinois has opened raises the issue: What are the exceptions? How can someone get to court if they have been harmed?

Since we have had a robust discussion, and I see the Senator from Ohio in the Senate, I yield the floor.

Will the Senator yield?

Mr. President, I appreciate the cooperation and collaboration. I am pleased also that you are looking closely at these amendments. My position is simple. I believe the amendments are relevant. I hope we can have votes on all of them. I particularly think Senator Warner's amendment is relevant, pertinent, and important. I hope he can offer that. But it is my hope that we can bring all

of the pertinent amendments up, with appropriate timing, and conclude.

As we stand now, as the rules require, there will be a cloture vote sometime tomorrow. I think I understand also that after that cloture vote, moving from the gun liability bill to any of the other provisions--energy or the Transportation bill--would require unanimous consent. That is another factor that should be considered. So I hope we can resolve this this evening.

If I may say, my understanding is that once cloture is invoked, to move off the 30 hours of cloture cannot be done by a privileged motion, but by unanimous consent.

I say to the Senator from Virginia, we think his amendment is very commendable, and we would like to see it brought forward for debate and a vote. I have made that point privately, and I make it now publicly. We think it is, as the Senator says, germane and relevant. I think the Senator is owed a vote, and I would like to see it happen.

Unfortunately, we are having difficulties clearing any amendments, including the Senator's, for voting on the floor.

I have asked that that amendment be considered. We are waiting. We were not impatient, but there is a limit to patience. I would point out, too, that there will be an attempt this evening to move to other matters such as CAFTA and the Energy bill which will take away time to debate a vote on the pending gun liability bill. I just think we have wasted too much time, that we should establish some rules with respect to the amendments, vote on those amendments and move forward towards a cloture vote.

Mr. President, I commend the Senator from Vermont for his eloquent remarks. I will talk about the legislation before us, the gun liability legislation.

The legislation before us cannot be all things. It cannot be an effective barrier against litigation to protect the gun industry and, at the same time, be a way to protect legitimate rights of citizens who have been injured or killed by guns. It is not both; it is one of them. It is carefully, cleverly worded legislation to immunize the entire gun industry from virtually any type of liability.

There are, perhaps, minor exceptions, but the most important, compelling cases we have seen in recent years--the case of the DC snipers, the case of Police Officers Lamongello and McGuire in New Jersey, and the pending case of Kahr Arms in Worcester, MA--would be barred. I don't think that is a mere incidental coincidence. They will be deliberately barred.

Thankfully, the first two cases were settled after the Senate rejected this legislation last year. The families of the victims of the Washington area snipers had their day in court and were able to go forward, and a settlement was reached. Officers Lamongello and McGuire similarly had the opportunity to press their cases, and a settlement was reached, but the Kahr Arms case is still pending in court.

One of the sweeping aspects of this legislation is that it does not merely attempt to set the rules prospectively, as we go forward, to say these cases would not be heard by a court in the U.S.; it literally walks in and tells people who have filed cases--cases that have survived motions for summary judgment, cases which judges, looking at the facts and circumstances and the law, have said at least can go forward to trial and jury--it would take those cases and throw them out of State courts and out of Federal courts if they have been filed.

Let's take a look at the Kahr Arms case. It is the case of Guzman v. Kahr Arms. It was filed under the wife's name--Hernandez, I believe. It involves Danny Guzman and Kahr Arms. A lawsuit was filed by the family of 26-year-old Danny Guzman of Worcester, MA, who was fatally wounded with a 9 mm handgun that was stolen from the Kahr plant by a drug- addicted employee who had a criminal record. The manufacturer, Kahr Arms, operated the factory without basic security measures to protect against theft, such as metal detectors, security mirrors, or security guards. Guns were routinely taken from the factory by felons the company had hired without conducting background checks.

The gun used to kill Danny Guzman was one of several removed by Kahr Arms employees before serial numbers had even been stamped on them, rendering them virtually untraceable. Some point has been made about the fact that it is illegal to erase serial numbers. These people were able to get the weapons before serial numbers were imprinted upon the weapons, so that law would not apply at all. The guns were then resold to criminals in exchange for money and drugs. The loaded gun that killed Mr. Guzman was found by a 4-year-old behind an apartment building near the scene of the shooting. Thank goodness that 4-year-old didn't decide to test the weapon himself or herself.

Had Kahr Arms performed background tests or drug tests on prospective employees, or secured its facility to prevent theft, Danny Guzman might be alive today. A Massachusetts court held that the suit states a valid legal claim for negligence, but this bill would throw the case out of court, denying Danny's family their day in court.

Again, this is the Congress reaching into a State court and telling that judge, we don't care what your law says, we don't care what 200 years of legal precedent in Massachusetts or any other State in the country amounts to. This suit should be stricken, taken out, thrown out.

This legislation is sweeping and it is unprecedented. It deals a serious blow to citizens throughout this country, while enhancing dramatically the legal protections for the gun industry. Now, the bill's proponents repeatedly say you cannot hold someone responsible for the criminal actions of another--as my colleagues have said, the intervening criminal actions of another.

First of all, that is not what this case is about. And, frankly, that is not the law. I am surprised that my colleagues who are attorneys would come down and make such an erroneous statement about the law. A memorandum by a professor at the University of Michigan Law School points out that in the restatement of torts--this is as in all law-- this is the basic summary of the status of the law in the U.S. with respect to torts. Section 449:

If the likelihood that a third person may act in a

particular manner is a hazard or one of the hazards which

makes the actor negligent, such an act, whether innocent,

negligent, intentionally tortious, or criminal, does not

prevent the actor from being liable from harm caused thereby.

This is black letter law. There is no special exemption for the criminal act of another if you fail in your duty to the public. And the duty here with respect to Kahr Arms is to secure dangerous weapons and to have employees who are responsible. That is what they are being sued about. They have a duty under the law for the whole community to act in a way that will not unnecessarily cause harm to others. What should be decided in a court is whether they lived up to that duty. If this legislation passes, they will be denied the opportunity to determine whether their duty to the community was upheld.

This is about responsibility for their actions--in this case, the actions of Kahr Arms Company. In the case of gun dealers, it is the requirement and the obligation to take precautions, to use the standard of care a businessperson would use in the conduct of that business--the standard of care any businessperson would use. Certainly, this standard of care should apply to those who manufacture weapons, who sell weapons, and the trade associations associated with them.

The allegation in all these cases is that they failed to do that--not that they were unwitting, incidental victims of a criminal mind, but that they failed in their duty. Bull's Eye Shooter Supply in Washington State, for example, who supplied the Washington snipers with their sniper weapon, could not account for 238 weapons. They had no idea where they were. The evidence was overwhelming that there was no standard of adequate care, no effective controls on inventory. The owner of that gun store claimed a teenager--he didn't realize it at the time--must have walked in and shoplifted an automatic weapon, a 3-foot- long sniper weapon, and carried it away, undetected, during business hours. In fact, this was missing without his knowledge for weeks and months. That is not the standard of care the community should expect from anyone engaged in this type of business. Is that the standard of care? No, it is not the standard we expect. It is particularly not the standard when you are dealing with weapons that can kill people. I would think most Americans on the streets, if you asked them, Would you say gun dealers and manufacturers should be a little more cautious than people who make other items, I think the answer would be, invariably: Yes, of course. These are inherently dangerous products.

So this is not about punishing people for the criminal activities of others. It is about holding individuals and corporations up to the standard of conduct we expect from everybody. There are various examples. Some say, my goodness, if a store sells someone a knife that is then used in a crime, they should not be responsible. Others have talked about car dealers. But if you have the car dealer who leaves the keys in a car, and they have no security, and a teenager gets into that car and harms someone, certainly I think the parents of that individual harmed or that individual themselves could go to court and say this dealer didn't meet the rational standard of care of those in the automobile industry. They have to secure the car and provide security.

They cannot make them so easily available that a young person would take the car and get into an accident. That applies to automobile dealers.

But if this legislation passes, common sense doesn't apply to the gun industry in this country. In fact, this is a license for irresponsibility we are considering today. Whatever precautions they are taking today, because they might anticipate this type of danger and anticipate, perhaps, litigation, there is no incentive after today to take those rudimentary precautions. There will be a race to the bottom, to the worst standards of the industry, to the worst operations of the worst operators.

With this bill, we are saying, in addition to your Federal firearms license, you get another license; you can be irresponsible. That is not to suggest all dealers and manufacturers are irresponsible. But some are. Those very few have landed in court--very few.

We talk about junk lawsuits. It is not a junk lawsuit when your husband has been shot by a sniper while sitting in a bus waiting to go to work, to drive his bus, to service this community, to pick people up and get them to work. I don't think the family of Conrad Johnson volunteered to be part of a social experiment. I think any suggestion to that effect is offensive. They have been harmed grievously. A wife lost her husband. Children have lost their father. The livelihood of this family is in question. They seek redress, as anybody would. That is not a junk lawsuit.

On the contrary, these families have been harmed, in part, because of the negligence of someone, and that someone should pay. The suggestion that this legislation is in response to some avalanche of lawsuits that is devastating the firearms industry is without foundation. The industry is so stressed that they have managed to raise, preemptively, $100 million to protect themselves--not just in terms of going to court and paying claims, but also in terms of controlling documents and communications between themselves and their attorneys, so they can claim the benefits of the law, attorney-client privilege, at the same time they are trying to take away the benefits of the law from average citizens who have been harmed by guns. That is a stunning hypocrisy.

This is not an industry that seems to be without resources. As my colleagues have said, and as I have said, in some of these annual reports to the SEC, companies have said there were adverse effects because of these suits, but ``don't worry, stockholders, we are not losing any money.'' One company reported out-of-pocket costs of $4,500 in a period of less than a year for this type of litigation--$4,500. For that, we are here on this floor to take away rights of Americans they have enjoyed for over 200 years to go to court, to allege they have been harmed by a negligent industry, and let a jury of their peers decide it.

We are not facing a situation where we would be without gun manufacturers because of these lawsuits. It is outlandish to suggest our national security is being jeopardized because we cannot find people in the United States who produce firearms, and that American companies cannot stand up to this torrent of lawsuits. And the suggestion that we have to turn to firearms suppliers for our military is rather odd. Indeed, today, many, if not most, of the suppliers for national defense are the subsidiaries of foreign companies. Browning, Winchester, and Fabrique Nationale, which supplies M-16 A-4 assault rifles and the M-2 49G squad automatic weapons are subsidiaries of Herstal, a Belgian firm. The Pentagon contracted with H&K, a German firm, to help develop the next generation of weapons.

Clearly, the Pentagon doesn't believe American manufacturers are so distressed that they have to go overseas. They are going overseas because they are looking for what they consider to be the best product and best design. They are dealing with subsidiaries of foreign companies. The suggestion, of course, that these suits are driving America and the Pentagon away from acquiring American-made weapons is ludicrous.

It is not about preserving our defense. It has nothing to do with our defense. The Pentagon is making decisions to buy foreign weapons because they believe they are better weapons. This is about protecting one industry from the legal responsibility to exercise caution, a responsibility every individual must exercise. All industries must do that or, indeed, the vast majority.

This is not about protecting the integrity of the courts. What does it say to the integrity of the courts of West Virginia when a judge found that a suit brought by two brave New Jersey police officers should proceed, when we say: No, you are wrong, throw that case out. What will it say to Massachusetts courts if we pass this legislation when that case against Kahr Arms is thrown out the door? It will say we are meddling in the affairs of the courts in an unprecedented fashion. Thankfully, Officers Lemongello and McGuire were able to settle their legitimate case, but there are cases pending, and those cases have to be dealt with.

I urge my colleagues to reject this gun industry immunity bill.

I want to make one other point before I yield the floor. Much has been made of a letter from the Beretta Company about the danger of an avalanche of lawsuits. If you look closely, what has happened is the District of Columbia, their duly constituted legislative body, passed a strict liability bill. The courts have upheld that. They say it is appropriate. That is the American system, legislators pass bills. That is what we are trying to do today. That is a strict liability bill, and that may raise concerns with the gun industry. This bill goes way beyond strict liability. It says simple negligence is out the door, and to conflate those two arguments does a great disservice to the accuracy of the truth of this debate.

Mr. President, I believe my time has expired. I yield the floor.

Mr. President, I ask unanimous consent to lay aside the pending amendment and send an amendment to the desk.

Mr. President, I think the Senator from Idaho makes it very clear what seems to be going on now. I heard a few moments ago the majority leader's response to Senator Kennedy, saying there would be an opportunity to present amendments, to debate this bill. I would also note that prior to any other action, cloture was filed on this bill.

I would be happy to yield.

If I may reclaim my time----

Reclaiming my time, I thank the Senator.

This amendment has been shared with the majority. It has been reviewed by the majority. We are not attempting to surprise anyone with this amendment. It deals with child safety locks. In fact, it is an amendment that was offered to the bill last year and passed overwhelmingly. It is my intent to provide opportunity to discuss issues with respect to gun legislation and to present them to the Senate.

Again, I would note when the majority leader requested unanimous consent to lay aside one of his amendments to offer another amendment, no one on my side objected because in fact we thought we were proceeding in good faith, that we shared amendments if we had an opportunity to look at the amendments beforehand, that we could proceed in an orderly and reasonable fashion. But I am a bit shocked. This amendment has been with the majority for the last, I would suggest, 30 or 40 minutes. It is an amendment that was presented in substance before to the floor. So I am a little bit surprised about the Senator's reaction.

I would be happy to yield.

Reclaiming my time, again, I appreciate the Senator's comments with respect to the amendment, but once again I think we provided you the opportunity to look at the amendment.

There are several issues here. The first issue is whether you think it would be appropriate to support and vote for it, which presumptively comes after debate. But the first issue is allowing us to offer the amendment. You might very well object to the substance of the amendment. You might very well urge our colleagues to reject it. I respect that. But the right to deny the amendment since you object goes against what the majority leader said in how we conduct this debate.

I will make a few comments now in general and I hope perhaps during the course of my comments the review of the amendment would allow us to formally offer it.

Again, there have been some comments about these junk lawsuits. These comments might have some resonance in this Chamber, but I doubt if we were talking to the widow of Conrad Johnson we would have the temerity to say the suit she filed on behalf of the family was a junk lawsuit. Or if you had a working man, someone sitting in his bus seat in the early morning having a cup of coffee and reading the paper--and when I read about that, it reminded me of what my father did every day as a school custodian. He would get up in the morning, read the paper, have a cup of coffee either at the school or someplace else, in the kitchen--and then suddenly his life was ended by snipers, leaving a wife and children. Then they find after the tragic incident the weapon was obtained by the snipers because, in my view, of the incontrovertible evidence of gross negligence, 230 or more weapons misplaced by the dealer, not realizing that a teenage boy walked into his gun shop and took a 3-foot assault weapon off the counter and walked out. That is not negligence?

Oh, and, by the way, because we were able to stop this legislation last year and because in that case the defendant recognized that if they went to a jury of 12 Americans sitting and deciding whether they were responsible in their actions, they settled.

That is not a junk lawsuit. Is it a junk lawsuit when two police officers are called to a violent scene and find themselves in a crossfire, find themselves critically injured, brought to a hospital, given their last rites, and then it is discovered the weapon that harmed them was purchased by a straw purchaser? Or that an individual walked in with a female companion, pointed out the guns, bought 12 of them at one time for cash, had her buy them because he could not pass a weapons background check, jumped in a car, took off--in fact, so obviously that the dealer called the ATF and said I took the money, gave them guns, but watch out. Negligence.

Both those lawsuits would have been stopped by this legislation. Those are not frivolous suits. Those are examples of people being hurt, police officers, bus drivers, through the negligence of gun dealers and gun manufacturers.

There is this constant refrain, the law is clear, the law is clear, we can't blame someone else for criminal activities, when in fact the law is quite clear on this point. I mentioned it before. What is the law of the United States? Well, in terms of tort law these laws are summarized, updated constantly in what is known as restatement. Basically it is a catalog of different positions of the law. Everyone knows it. Everyone coming to the floor, having passed a bar in one State of this country, knows the restatement basically says what is the settled law, the settled law with respect to criminal activity. I will read it again.

Section 449 of the Restatement Second of Torts:

If the likelihood that a third person may act in a

particular manner is the hazard or one of the hazards which

makes the actor negligent, such an act, whether innocent,

negligent, intentionally tortious, or criminal does not

prevent the actor from being liable for harm caused thereby.

What does that mean? It means you have a duty to the public to take certain steps, and if you don't take those steps, even if in the chain of causation there is a criminal act by another party, you are still liable--not for that criminal act, you are still liable because you failed in your duty.

What this bill does is--this great talk about responsibility--it says everyone is responsible except the gun industry. Automobile manufacturers are responsible. In fact, when we get in our vehicles and drive home tonight, we are all going to benefit because years ago under the laws of tort and negligence, automobile companies were forced to improve the safety of their vehicles for the protection of the public. Now the logic that, oh, they can't be held liable for this because no one intends to crash the car, well, that is right; no one intends to crash an automobile, but if the design of the automobile is defective, if there are safety precautions that could be taken, those have to be adopted because they have a duty to the public to provide a safe product, to avoid obvious dangers.

This is a situation in which we have the obligation to take steps. So this notion about criminal intervening activities is not the law. That is not what the black letter law of this country says. The idea that manufacturers are not subject to the common obligation or duty to provide safe products, even if they are not required by statute, that is not the law either.

There is also a deliberate attempt to confuse two very different principles. We have criminal laws, we have regulations, we have statutes that require certain behavior. They define a range of activities that are impermissible. What this bill says is, if you violate a law, one of those aspects of impermissible behavior, yes, maybe you can sue a gun manufacturer. But there is a whole other range of activities--accidents, unreasonable behaviors--that are not defined by law. They are not the criminal, but they do involve opportunities under civil litigation to go to court and say this person acted unreasonably. They did not technically violate a statute. They acted unreasonably.

This statute essentially says, by and large, you can show they violated a very narrowly drawn legislative enactment or statute--they failed to fill out a record, et cetera--yes, maybe you can go to court.

What about all the cases we have talked about, the cases of the straw purchaser where weapons were sold and, obviously, to the casual observer, in a very peculiar way. Why didn't that fellow, I believe, in South Carolina, who is buying the pistols that eventually wounded officers Lamongello and McGuire, why didn't he offer his name? He obviously was picking out the weapon. Why did they buy 12 at one time? There is no law against buying 12 weapons at one time. Isn't it curious that would happen?

Again, we have a situation where this legislation has been carefully worked out to stop these lawsuits. Not the frivolous lawsuits, all lawsuits except under very narrow circumstances. And those circumstances do not seem to apply to the cases that have been filed. The exceptions would not have kept alive a suit by Officers Lamongello and McGuire or by the families of the victims of the Washington, DC, snipers or in the situation of Danny Guzman and Kahr Arms. That is more than coincidental. It is very deliberate.

Again, as I mentioned before, this legislation can't be the panacea for the gun industry, the one touted by the NRA, as we have to have this on one hand, and then allow all the good suits there, the really good suits, the ones, in fact, that have been filed. And it is not. It is designed to stop practically every attempt to be compensated for the negligence of a manufacturer, a gun dealer, or a trade association.

All of the particular aspects of the bill provide some window dressing--it sounds good, section XYZ of the United States Code--but when it doesn't work in practice, that is all it is. This explosion of suits, where are they? A small number of suits filed in this country involve anything covered by this legislation. The cost to the industry? This cost goes up $50 million every day we are here talking about it.

What we know for a fact is that the industry has pooled $100 million to protect themselves, preemptively, to ensure that the communications are covered by the attorney-client privilege, to ensure that doctors are all centralized so they cannot easily be accessed because of attorney-client privilege. They are using our system of civil justice in the courts very well to protect themselves. They are unwilling to let others use the same devices to protect themselves.

This great surge of lawsuits, as was indicated before many times in the Senate, financial reports filed with the SEC, many of the companies are privately held so only few report publicly, indicate to their shareholders there is no material financial risk involved with these suits by municipalities or individual litigants. The litigation costs out of pocket for one of these publicly reporting companies is about $4,500 in the last several months. Hardly a crisis.

And then there is the suggestion that our defense will be imperiled. As I pointed out in my opening remarks, voluntarily the Defense Department is contracting with foreign manufacturers. It is not because of lawsuits. In fact, I don't know what the status is of the civil law in Europe, but I would be surprised if it was more lenient than our laws at present, but they are doing it because they want better weapons.

I can recall as I entered the Army in 1967, the Colt .45 automatic was the side arm of the U.S. Army and had been since the Philippine insurrection in 1903. Now it is a Beretta Italian model produced by an American subsidiary, wholly owned subsidiary of an Italian company, and not, I don't believe, by a national armory of the Italian Government. They are a privately held company.

This notion that this has anything to do with the national defense is unsupported, unsubstantiated by any fact and by the behavior of the Pentagon. They are not coming to us and asking us for this bill so they can keep alive the necessary firearms manufacturers in the United States. They have made a conscious choice for many reasons to go overseas to buy these weapons.

Again, I am in a situation where we are attempting to reach into the courts of each State of the United States and tell them that their legislatures--that propound many of these rules with respect to civil liability--cannot do that. What can be more antidemocratic than that? Then, going to the Commonwealth of Massachusetts and saying: You know, those laws and rules you passed about liability? Can't do that. We don't like it. Or the gun industry doesn't like it.

The case most frequently cited to suggest a crisis is the result of the deliberations of the Washington, DC, council that passed a strict liability bill. That bill was upheld by the DC Court of Appeals. The DC Court of Appeals did not create a rule of strict liability. They said, essentially, the democratic process is working. Elected representatives of the people decided that would be the rule. As a court we cannot step in and overturn that. That is democracy. Of course, we are deciding we can step in and overturn the rules of 50 States. That is antidemocratic.

This legislation is going to deny people who have been hurt the right to bring their case. They might not succeed. As my colleagues have pointed out, many of these cases have been turned down because they could not show that the duty owed to the public was violated by the particular manufacturer or gun dealer. But they have the right now to make that showing. We are taking that right away from them. This right is something that I would think we all would protect, not try to circumscribe and deny, and you cannot go into court with a theoretical complaint saying: I do not like the law; make new law, Your Honor. You have to have a case. You have to show harm. You have to show what the duty of the defendant was, how that duty was breached, and how that breach caused the harm.

That is the way our system works. But not after this legislation passes. You can have the duty, you can have a breach of that duty, and you can have grievous harm. But the victim cannot go to court. It is not about an avalanche of lawsuits. There are a minuscule number of suits filed in this regard. It is not about courts out of control. In some sense it is Congress out of control, saying to State governments, we don't care what the State rules are, we are making the rule.

We should be able not only to talk about but to offer amendments. I hope in the intervening time we have had to analyze the amendments that we could offer amendments and talk about them. I hope that is the case.

I yield the floor.

If the Senator will yield, I notice you read the letter, but the subject of that letter is strict liability, which in layman's terms--and I will consider myself a layman--means that there is no real judgment about the behavior of the defendants; that if they can prove it was a weapon manufactured by Beretta, and it was involved in a crime, they would be liable without a showing of duty or negligence and whether they took rational and reasonable steps. That is what strict liability is.

There is a difference between strict liability and negligence. The legislation we are considering is not about strict liability alone. It is about negligence. It goes way beyond that letter. If we were debating legislation that said essentially a company may not be held strictly liable for X, Y, and Z, this would be a different debate entirely.

This legislation goes way beyond strict liability. It says that negligence cases, those that you must show that, in fact, the manufacturer or the dealer had a duty and unreasonably failed to perform that duty, that is what you have to show. In fact, I think I accurately represented what was in the letter.

I appreciate that. I do. But the point is we are taking a legal theory of strict liability, which they are upset about, obviously, and concerned about, but it does not translate to this bill. None of these cases I talked about--Lemongello or the case with respect to Guzman--is arguing these manufacturers or sellers are strictly liable. They are saying, essentially--now there might be other cases-- but they are saying, essentially, they had a duty, they were negligent.

This legislation we are debating today would wipe away their rights to make a negligence claim. So I agree entirely with the letter in terms of its accuracy. That is what they are talking about. They are concerned about it.

Frankly, if I were the general counsel of Beretta, I would be concerned about it. It might not move me to do the same thing they are suggesting. But we have to be very clear about this legislation, which goes way beyond the strict liability. Again, if we were talking about limiting strict liability suits, this would be an entirely different debate. I do not think I would necessarily agree, but certainly I would be looking at an almost entirely different subject matter.

I thank the Senator for being extremely kind in yielding me time and also being extremely accurate in summarizing my views.

Reserving my right to object--and I will not object, obviously--I know the Senator is looking carefully at these amendments. I make a point, I have served in the House of Representatives where there is a Rules Committee that looks at every amendment and decides what is coming to the floor. In the Senate that was never the practice. We are trying to be extremely cooperative and transparent in what we are doing, going, we hope, the extra mile. I hope it is reciprocated so we can get to amendments and get to votes. That is how in the Senate amendments are decided, not by a committee putting them up or down for consideration, but by Members voting. I do not object.

Will the Senator yield?

For the record, there are three amendments we have attempted to offer. One is an amendment authored by Senator Kohl, which I offered on child safety locks. The floor manager and I have discussed this amendment. There are some technical concerns about it. But that is one.

The second is an amendment Senator Corzine would like to offer about exempting law enforcement officers from the provisions of the bill.

The third is an amendment Senator Lautenberg would like to offer with respect to the denial of immunity when the victims are children.

These are the three amendments. But we are not seeking any extraordinary, provocative amendments. We are trying to get amendments up that are relevant to this discussion about gun safety. I honestly believe that 3 hours--my amendment is going to take 3 hours--and at least several hours for the other amendments will be sufficient time to review this.

I am not going to make a formal parliamentary inquiry now, but I am not under the impression, under the rules of the Senate, that a Senator must get the permission of any other Senator to offer an amendment. If he has the floor, and particularly before cloture, the amendment can be offered. I will seek to clarify that. I do not want to be in error on that point.

But we have gone to great lengths to be cooperative, collegial, to be able to offer these amendments, and to this point we have got this sort of silence--or not silence, but simply: We are looking at it, we are looking at it, we are looking at it. I do not think we can continue in this posture indefinitely.

I thank the Democratic leader.

I am. Go ahead.

I will bring up the amendment and make brief remarks.

Mr. President, I will call up amendment 1626 on behalf of Senator Kohl.

I thank the Chair.

Very briefly, this amendment is a very important one related to safety for children with respect to firearms. There are more than 10,000 accidental shootings a year in this country, and many of these shootings result in the senseless deaths of children, and many of those accidental deaths do not fully take into account the violence because, in addition to that, there are many young people who tragically use a firearm to take their own lives. So we are looking at a situation where nearly 3,000 children, young people, die each year from gun-related injuries. And this recitation of numbers is not only

grim but to all of us, I believe, unacceptable and particularly painful to families who must bear this terrible loss.

This legislation is simple, straightforward, and effective. I must commend Senator Kohl for his authorship and for his persistence in pursuing this legislation. It mandates that a child safety lock device or trigger lock be sold with every handgun. Most locks resemble a padlock that locks around the gun trigger and immobilizes the trigger, preventing it from being used. These and other locks can be purchased for every gun for less than $10 and thus used by thousands of gun owners to protect their firearms from unauthorized use.

This approach is supported by a huge number of individuals. In fact, this Senate has gone on record previously overwhelmingly supporting this amendment. Polls have shown that 73 percent of the American public supports this amendment, including 6 out of 10 gun owners.

This legislation is not only well meaning and well intended, but it could be very effective if we adopt it. I am pleased to see we are now moving to consider this amendment. I am delighted that tomorrow morning we will get a chance for further debate and a vote on this amendment.

I yield my time.

Mr. President, I rise in strong opposition to S. 397, the so-called Protection of Lawful Commerce in Arms Act. Like its predecessor which the Senate soundly rejected last year, this bill is one of the most blatant special interest giveaways that I have seen during my time in the Senate. At a time when more than 7.5 million Americans are unemployed and our Nation faces a deficit of $333 billion, war in Iraq and Afghanistan, inadequate homeland security funding, and now a Supreme Court vacancy, to me the Republican leadership choosing to devote our precious time to a bill that would deny victims of gun violence their day in court and protect the gun industry is a travesty.

The gun lobby argues that this legislation would put an end to frivolous lawsuits that claim gun companies should be liable simply because their guns are used in crimes. In fact, the bill would bar virtually all negligence and product liability cases in State and Federal courts while throwing out pending cases as well as preventing future cases. The bill would provide this sweeping immunity to gun dealers, gun manufacturers, and even trade associations. Interestingly, the NRA modified the bill so that this year they don't appear to be granting themselves legal immunity as they did the last time around.

The track record for this bill in the last two Congresses has, thankfully, been one of failure. We can only assume that the gun lobby is hoping that the third time will be the charm. The gun lobby and its allies in Congress had to abandon their effort to pass similar legislation in the 107th Congress, after the Washington area sniper attacks terrorized an entire region. Then last year, in one of the more bizarre twists in recent Senate history, the National Rifle Association instructed the Republican leadership to kill the bill after a majority of Senators voted to add reasonable gun safety measures--to require background checks at gun shows, renew the assault weapons ban, and require child safety locks to be sold with handguns.

It is a good thing that the Senate defeated this bill because it would have thrown out the civil lawsuits filed by the families of the victims of the sniper attacks, even though the Washington State gun dealer who had the Bushmaster sniper rifle in his inventory could not account for that weapon or more than 230 others. Instead, the families of the victims won a $2.5 million settlement from Bull's Eye Shooter Supply and Bushmaster, the assault weapons maker who negligently supplied Bull's Eye despite its abysmal record of missing guns and regulatory violations.

At the heart here is not activist courts making law. The heart of this is people who have been harmed by weapons, innocent people, people such as the victims of the Washington sniper--someone walking to their car from the Home Depot and being shot and killed; a bus driver waiting to take his rounds in the morning, having a cup of coffee, reading the paper, with a wife and children at home, shot by snipers. Where did they get those weapons? They got them through the negligence of a licensed gun dealer. This legislation would effectively prevent those families from recovering damages, compensation for the loss of a husband and father, the loss of a wife. This is not about activist judges making law. This is about shutting the doors to the courts of America, mostly State courts, to prevent those who have been harmed by the negligence of others to be made whole. That is what this is about. That is why it is so wrong.

With respect to the sort of activism of public policymaking, we all recognize in this body that Federal law is one aspect, but State law is also important. In fact, most tort law is based upon State law. State assemblies make up State laws. They decide causes of action. They decide defenses. They do a lot of those things in conjunction with litigation in their courts. This legislation preempts all 50 States. This says to the State of Georgia, the State of Alabama, the State of Rhode Island, the State of Michigan, you can't have the ability of your citizens to go to court. Even if you believe it is appropriate and right in your State courts, we are preempting you. That is also wrong.

In addition to the monetary settlement for the victims of the families that were the victims of the snipers, in the settlement, Bushmaster agreed to inform its dealers of safer sales practices that should prevent other criminals from obtaining guns, something Bushmaster had never done before. What you have is a situation of negligence, and this negligence can extend not only from the dealer but to the manufacturer. This legislation not only would deny the right of a victim to come forward and ask for compensation, but also to reform the system.

We have to recognize, too, that there are elaborate rules for the governance of weapons and firearms and tobacco, an agency of the Federal Government. But this is one industry that is virtually not subject to any product liability, any consumer product safety

rules, any other type of regulation. This legislation would undercut ways in which a court could do justice. Because the Senate rejected this legislation last year, these victims and their families had their day in court, and at least one manufacturer's commercial practices were improved in ways that benefit all Americans. What could be more helpful to all of us if a manufacturer takes the time and the effort, appropriately, to inform his dealers about appropriate practices in selling weapons, about avoiding selling weapons to those people who might be trafficking in weapons, avoiding selling weapons to those people who might be irresponsible and reckless in the use of those weapons? That can only benefit all of us.

But despite all of these things, we find ourselves again in a familiar situation, one in which the NRA's pet project is again being granted a virtually direct, nonstop ticket to the Senate floor. The Senate Judiciary Committee has held no hearings on this legislation, and no committee markups were ever scheduled. The bill's supporters knew it would be difficult to withstand the kind of scrutiny that might result in careful, deliberate, and thorough committee hearings, so they brought it straight to the Senate floor. Here we are today. Now it is up to us make sure that there is a full and vigorous debate, including not only amendments to deal directly with aspects of this legislation but also to address other issues with respect to violence in America and gun safety.

If we are going to grant blanket legal immunity to the firearms industry, it is imperative that we address inadequacies in other areas with respect to gun safety legislation. Mothers and fathers across America go out of their way every day to protect themselves and their children from harm. How unsettling it must be for these families to think that the gun industry, which is already exempt from Federal product safety regulations that apply to children's toys, pharmaceuticals, and virtually every other product in this country, may now receive legal protection that no other industry enjoys.

I listened closely to the Senator from Alabama talking about this as if a car manufacturer was being held responsible for the actions of others. Well, they could be in certain situations. If a car dealer leaves his cars unlocked with keys in the ignition at night and someone comes and takes that car, drives it away, causes damage, certainly the issue arises, was that car dealer using good common sense? Certainly, that would be a case that would at least get to the notion of filing the case.

This bill would prevent such a similar case from the gun manufacturers and the gun dealers, but there is no attempt, at least today, to limit those types of liability to other manufacturers. I believe that shows how narrow this is and how it is focused to a very special interest. That is unfortunate.

As with any other business, there are good actors and bad actors with respect to the gun industry. There are those who carefully follow the law and those who ignore it. But granting unprecedented legal immunity to the entire industry without requiring any additional responsibilities to protect the public from reckless behavior would be a grave mistake. It will only encourage those who already engage in questionable conduct.

I urge my colleagues, as we work through this debate, to listen closely and to try to recognize that we are taking unprecedented action with respect to undermining the traditional system of common justice. First, we are usurping authority for State law that is traditionally the purview of State assemblies and legislatures. Then we are granting an unprecedented immunity to one very particular industry. That might be a precedent, unfortunately, for other industries that come forward, which would be a severe unraveling of the protections we all have.

All of this, again, begins not with someone going out to stage a lawsuit by being shot. That is the last thing that happens. The victims of this gun violence, who are the subject of these suits, didn't want to be victims. They didn't want to be in court. The bus driver waiting there to start his run was not thinking, Oh, boy, someone is going to shoot me so we can start a case and change public policy. He was shot by a sniper who obtained a gun through the negligence of others. Yet that family would have been denied their relief in court if this bill had passed last year.

There was discussion about personal responsibility. There is personal responsibility. It is important. It is fundamental to everything we do. What about the responsibility of the gun dealer to know how many weapons he has on hand, where they are, not to leave it out so it can be taken? Apparently the youngest sniper, who was barely of age, just picked it up off a counter and walked out of the store with it, a rifle that was used later to shoot and kill several people. Where is that personal responsibility? And if you are the victim of that lack of responsibility, how can you have your day in court if this legislation passes?

Now, we have a lot of work to do in this Congress. We should get on with it. That is why it is amazing that we have left the Defense bill that would provide the resources to protect our soldiers, sailors, marines, airmen and airwomen across the globe to move to this very narrow, special interest bill. I think it is extremely unfortunate.

A part of the rationale for this bill advanced by the proponents is that there is a crisis. There is a crisis with respect to the industry. They are about to lose their ability to manufacture. They are going to go bankrupt. We won't have any weapons for our national security. That is not substantiated by any of the facts before us.

The gun lobby says it needs protection because it is faced with a litigation crisis. The facts tell precisely the opposite story. There is no crisis. There is a crisis in Iraq. There is a crisis in Afghanistan. There is a crisis across the globe with international terrorists. That is a crisis. But it is not a crisis with respect to gun liability in this country. Yet we move from legislation dealing with these huge crises, some of which have existential consequences to us, particularly if terrorists ever get their hands on any type of nuclear material, to a situation where there is no crisis.

I am happy to yield to the Senator from Connecticut.

I thank the Senator from Connecticut.

The only two publicly held gun companies that have filed recent statements at the Securities and Exchange Commission contradict the claim that they are threatened by lawsuits. Smith & Wesson filed a statement with the SEC on June 29, 2005, stating that:

We expect net product sales in fiscal 2005 to be

approximately $124 million, a 5% increase over the $117.9

million reported for fiscal 2004. Firearms sales for fiscal

2005 are expected to increase by approximately 11% over

fiscal 2004 levels.

That is their SEC report which they have to file subject to severe penalties for misstatement and mistruth. I believe that. It appears to be a banner year for Smith & Wesson. There is no crisis.

They go on and say in another filing on March 10, 2005:

In the nine months ended January 31, 2005, we incurred

$4,535 in defense costs, net of amounts received from

insurance carriers, relative to product liability and

municipal litigation.

What they said is--this company, with a banner year of increased sales, with projections for better sales--they incurred $4,535 in out- of-pocket costs to defend product liability and municipal litigation claims and suits. That is a crisis? Sales are up. Litigation costs in this particular area--out-of-pocket costs, to be accurate, of $4,500. That is what they are telling the Federal regulators, under severe penalties for misstatements and even inaccurate statements. There is no crisis.

In that same period for which they incurred $4,535 in out-of-pocket costs, Smith & Wesson spent over $4.1 million in advertising. Maybe the real crisis is they have to spend a lot on advertising. But that is not a crisis situation. That is not sufficient to bring the Senate here to debate a bill to give them protections from these types of suits.

Meanwhile, gun manufacturer Sturm, Ruger told the SEC in a March 11, 2005 filing:

It is not probable and is unlikely that litigation,

including punitive damage claims,

will have a material adverse effect on the financial position

of the Company.

Essentially, what these two publicly reporting companies have said, despite all of the discussion by others that they are on the verge of bankruptcy, is: There is no material adverse effect on our financials based on this type of litigation. There is no crisis.

So at the same time the gun makers are reporting to the SEC that litigation costs are not likely to have a material adverse effect on the businesses, their trade associations have been rapidly inflating the unsubstantiated estimates of litigation costs. Gun lobby claims of alleged litigation costs have risen in $25 million increments, with no data of any kind to support these claims because most of these companies in the industry are privately held. But I would suggest if the publicly held companies are offering their truthful admissions to the SEC--unless the privately held companies are woefully unmanaged or are unusually involved in this type of litigation--then these estimates have to be widely suspect.

Here are the claims of increased costs: April of 2003, estimated litigation has cost the industry $100 million in the last 5 years; July of 2004, estimated litigation costs of $150 million; November of 2004, estimated litigation costs of $175 million; February of 2005, some estimates talk about $200 million.

Now, it does not seem to track when you have major companies saying they have no material impact, paying out of pocket $4,500, and then you have these wildly inflated estimates.

Number of lawsuits faced by the gun industry is, if anything, far less than many other industries. From 1993 to 2003, 57 suits were filed against gun industry defendants, out of an estimated 10 million tort suits, according to the State Court Journal published by the National Center for State Courts--57 out of 10 million. That is not a record of litigants out of control.

The actual monetary awards faced by the gun lobby are even less. The gun lobby's record in court is far worse than the tobacco industry's, which for decades won every case brought against it. But the gun lobby has not lost them all either. In fact, many of the cases my colleague from Alabama was citing were some appeals court cases that were turning down plaintiffs who were unsuccessful at the trial court level. The results of these cases are what one would expect as suits against any industry: Some cases are dismissed, some cases are won by plaintiffs, some are on appeal, others are the result of a settlement between the parties.

Now, the fact is, most of the legal defense costs faced by gun industry participants have been covered by product liability insurance, with very little funding coming out of pocket. Again, every industry in the country has to insure itself against these risks. It seems to me there is nothing to indicate the insurance claims against these gun lobbies and gun manufacturers are out of line with those. In this respect, the gun lobby is no different than any other industry. Moreover, the power of the gun lobby to protect itself from litigation and promote its views is illustrated by the war chest it has put together for this specific purpose over the past several years.

In 1999, the National Shooting Sports Foundation and others in the gun lobby created what is known as the Hunting and Shooting Sports Heritage Fund by setting aside a small percentage of industry revenues. The fund supports lobbying activities as well as industry public relations initiatives emphasizing the positive aspects of firearms, and it helps cover the cost of retaining internal memos and other sensitive documents with a law firm in California so the gun lobby can avoid the kind of unwanted leaks and exposure that plagued the tobacco industry for many years. Some reports indicate the fund has raised as much as $100 million.

We are going to be talking about a lot of victims of gun violence over the next few days, and I can tell you that none of them has access to a $100 million war chest to protect their legal interests or promote their point of view.

In any case, the purpose of lawsuits filed on behalf of victims is not to bankrupt the industry. In fact, some of the cases filed have sought only injunctive relief, including reforms of industry trade practices that would make the public safer. This is not always about money. In some cases it is about safety for the general public.

It is telling that the new Senate version of the gun industry immunity bill has been changed specifically to ban suits seeking injunctive relief. The argument, of course, is there is a crisis, and the crisis is the financial crisis of the gun manufacturers and the gun dealers, but yet this legislation was altered this year to avoid injunctive relief, which has very little direct impact in terms of awards, punitive or otherwise.

Even when plaintiffs seek commonsense reforms in the industry that could save lives, rather than have money damages, the gun lobby and its allies in Congress seek to shut the courthouse door in the face of these victims.

The findings section of the bill states:

[T]he possibility of imposing liability on an entire

industry for harm that is solely caused by others is an abuse

of the legal system.

That sounds reasonable until you consider that the very essence of the cases the bill seeks to eliminate is that the harm suffered by victims of gun violence is often not solely caused by others, but that specific negligent conduct by defendants in the industry contributed to that harm. That is a key point here. This is not a situation as to anyone in the industry--a manufacturer or dealer--who has followed all the rules and has done everything correctly, and then someone else did something wrong. In order to bring a suit for negligence, you have to point out, allege at least negligent activities on behalf of the defendant, be he or she a manufacturer or dealer. So the core here is the allegation that the defendant--those people this legislation seeks to immunize--did something wrong. Liability attaches if a court finds they did something wrong.

Moreover, the bill would exclude many cases that do not seek to hold the entire industry liable but instead focuses on specific dealers or manufacturers based on their negligent contribution to specific instances of harm to victims of gun violence. This is not just a situation where the whole industry is sued. This is a situation where anybody in the industry who is sued gets the benefit of these protections.

Unfortunately, this bill would overturn longstanding, widely accepted principles of civil liability law, which generally holds that persons and companies may be liable for the foreseeable consequences of their wrongful acts. By throwing out common law standards established throughout our Nation's history by State courts, and substituting new standards for negligence and product liability actions conceived by attorneys of the gun lobby, this bill would deprive Americans of their legal rights in cases involving a wide range of industry misconduct.

Even if we concede, for the sake of argument, that some cases against the industry might be frivolous, this bill applies the legislative equivalent of a weapon of mass destruction where a surgical strike would be sufficient. The bill proposes a sweeping Federal intrusion into traditional State responsibilities for defining and administering State tort law, yet there is no evidence that the State courts are not handling their responsibilities competently in this area of law. There has been no rash of questionable jury awards, and not a single decision or final judgment of any court that justifies this unprecedented legislation.

Nevertheless, the bill's proponents seek to preempt the law of 50 States to create a special, higher standard for negligence and product liability actions against gun manufacturers, gun dealers, and trade associations.

We are being asked to do this for an industry that already enjoys an exemption from the Federal health and safety regulations that apply to virtually every other product made in this country. There is no crisis. There is no showing that the gun lobby is in danger of extinction as a result of lawsuits.

We must look at the facts and not the rhetoric. Again, as to a company that spends out of pocket $4,500 a year, when their sales are increasing by about 11 percent, that is not a crisis. There is nothing, I think, substantiated to suggest otherwise.

Now, Mr. President, we are going to engage in a series of discussions over

the next several days here. But I think we have to be very clear, this legislation would undercut State laws and State court practices that have existed for as long as the country has existed. It would do so for the benefit of a very special interest group. It would deny access to courts for people who have been harmed, really harmed.

Let's take some of these cases. Take the case of Denise Johnson, the wife of the late Conrad Johnson. Conrad Johnson was the bus driver who was the final sniper victim of the Washington area snipers. The snipers' Bushmaster assault rifle was one of more than 230 guns that disappeared from the Bull's Eye Shooter Supply gun store in Washington State. The gun store's careless oversight of firearms in its inventory raised serious questions of negligence that fully deserved to be explored by the civil courts.

Two hundred thirty misplaced weapons--if that is not at least a suggestion of some negligence, I do not know what is. This legislation, had it been enacted last year, would have denied the Johnson family their rights in court, their rights to go to that alleged negligent dealer and say: Without your action, without your negligence, my husband, our father, would be alive today.

But in addition to that, the manufacturer's actions also were questionable. Despite questionable control activities in relation to their inventory at Bull's Eye--serious and well-known problems at the gun store--they were still able to acquire weapons from the manufacturer. As I indicated before, the Johnsons were able to settle their claim in court. But if this legislation had passed last year, they would have been thrown out.

Now, there are other examples that are prevalent that also would have been dismissed by this legislation had it been passed, and future cases if, in fact, we pass it in this session.

There is the case of David Lemongello and Ken McGuire, former police officers of Orange, NJ. On January 12, 2001, Mr. Lemongello and Mr. McGuire were shot several times by a violent criminal who should never have had a gun. Because of the injuries he suffered, Mr. Lemongello will never be a police officer again. The gun used in the shooting was one of 12 guns purchased by 2 individuals on a single day from Will Jewelry & Loan, a gun dealership in West Virginia.

Mr. James Gray, a felon, used a woman with a clean record to purchase all 12 guns at once with cash. He and the woman came into the gun shop with thousands of dollars, and Gray pointed out guns he wanted, and then had the woman purchase them in a clear example of a ``straw purchase'' to evade the law. In fact, the gun dealer was so concerned about the suspicious transaction that, after taking the money and giving him the gun, he called the ATF. But it was too late; the guns were already destined for the illegal market. The actions of the gun dealer--who failed to follow sales guidelines recommended by the National Shooting Sports Foundation--raise serious questions of negligence.

The manufacturer of the gun, Sturm, Ruger, is a member of NSSF, yet it failed to require its dealers and distributors to follow the guidelines. At one point in the proceedings, the West Virginia gun dealer and the manufacturer of the gun asked Judge Irene Berger of Kanawha County, West Virginia, to dismiss the case. She heard the gun seller's legal arguments and rejected each of them, applying the general rule of West Virginia law to allow the case to proceed.

Here is a classic example. Someone comes in with another person, purchases 12 guns at once, selects the guns, and pays with cash, but making sure the other person is the one whose name is run through the FBI records check, and then drives away. Doesn't that raise suspicion in your mind if you are a conscientious dealer? Don't you do anything other than call ATF? That is negligence in many respects. Certainly a victim of that crime eventually should have the right to take that case to court.

The gun industry bill would have overridden that judge's decision in West Virginia and thrown out the case of the police officers. Again, the Senate rejected this legislation last year, and in June 2004 Officers Lemongello and McGuire won a $1 million settlement to compensate them for their career-ending injuries. After the lawsuit, the dealer and two other area pawnshops agreed to implement safer practices to prevent sales to traffickers, including a new policy of ending large-volume sales of handguns. These practices go beyond the law and are not imposed by any manufacturers or distributors.

So here is another situation. It is not only the immediate compensation to these police officers whose whole lives and careers have been changed irrevocably; it is also making it safer for other people so the next time someone wanders into this particular gun shop of this dealer, they won't be selling 12 or so handguns without seriously checking who is buying.

Today, as we face another attempt in the Senate to take away the rights of innocent victims of gun lobby negligence, there are still many legitimate pending cases that will be thrown out by the bill before the Senate. We can always anticipate additional situations. In fact, there is a very strong likelihood that if this legislation passes, whatever steps are taken today by gun dealers and manufacturers will be abandoned or lessened because effectively they have a free pass. No one can sue them. They don't have to worry about the litigant going to court and saying, your sales practices or your behavior were negligent. We have given them immunity. In fact, one might even anticipate more incidents.

But there are cases pending today that could be affected. For example, in another case, Guzman v. Kahr Arms, a lawsuit was filed by the family of 26-year-old Danny Guzman of Worcester, MA, who was fatally wounded when a 9 mm gun stolen from a gun manufacturer's plant was stolen by a drug-addicted employee who had a criminal record. The manufacturer, Kahr Arms, operated the factory without basic security measures to protect against thefts, such as metal detectors, security mirrors, or security guards. Guns were routinely taken from the factory by felons it had hired without conducting background checks. The gun used to kill Danny Guzman was one of several stolen by Kahr Arms employees before serial numbers had been stamped on them, rendering them virtually untraceable. The guns were then resold to criminals in exchange for money and drugs.

The loaded gun that killed Mr. Guzman was found by a 4-year-old behind an apartment building near the scene of the shooting. Had Kahr Arms performed drug tests or background checks on the prospective employees or secured its facilities to prevent thefts, Danny Guzman might be alive today. A Massachusetts judge has held that the suit states a valid legal claim for negligence. But this bill would throw the case out of court, denying Danny's family their day in court.

That is the reality of this legislation. That is what we are protecting. We are protecting manufacturers who take no care in hiring employees, yet give them access and proximity to weapons, and who employ no effective security measures. That, at least, is negligence. At least they should be tried in court. This legislation would immunize that.

Ask yourselves again, What incentive would manufacturers such as Kahr Arms have to spend any money on background checks, to spend any money on security? None at all because, frankly, they have a free ride, a pass. No one can touch them. And in this legislation we are not about to start regulating the manufacturing practices of gun manufacturers in the United States.

Now, every industry has good actors and bad actors and the firearms industry is no exception. There are manufacturers that produce high- quality products that feature necessary devices to make the firearms as safe as possible. There are other manufacturers that create poorly designed, poorly constructed firearms that are favored by criminals, that have no place in the home, at the shooting range, or on hunting grounds. Likewise, there are licensed dealers who comply with both the letter and the spirit of our gun laws and do everything in their power to ensure firearms are sold only to lawful buyers. There are other dealers who routinely sell guns regardless of the age or criminal background of the buyer. Essentially, they wink and look the other way.

This small minority of bad apple dealers has a significant impact on gun

violence on our streets throughout the country. According to the Federal data from 2000, 1.2 percent of dealers account for 57 percent of all guns recovered in all criminal investigations; 57 percent of the guns recovered in criminal investigations pass through their hands. Does that suggest there are some gun dealers who are negligent, who are not following the letter or the spirit of the law? And the gun manufacturers know who the problem dealers are because when guns are recovered at crime scenes, they receive firearm tracing reports that show which dealers sell disproportionally to criminals. But in too many cases, the gun industry refuses to police itself.

If this legislation passes, there will be less incentive to take precautions, to take steps to prevent guns from getting in the hands of those people who would use them irresponsibly.

The national crime gun trace data from 1989 through 1996 gathered by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives indicates the following gun dealers sold the highest number of crime guns in America and exhibited crime gun tracing patterns indicative of drug trafficking. Whereas most gun dealers have been associated with zero gun traces, guns sold by these suspect gun dealers turn up in the wrong hands over and over again.

For example, in Badger Outdoors, Inc., of West Milwaukee, Wi, the dealer sold 554 guns traced to a crime, and 475 of those guns had a ``short time to crime'' as defined by ATF. The guns were involved in at least 27 homicides, 101 assaults, 9 robberies, and 417 additional gun crimes. The dealer also sold at least 1,563 handguns in multiple sales. From 1994 to 1996, straw purchaser Lawrence Shikes bought 10 guns from Badger. In one case, he immediately sold the gun to an undercover Federal agent who told Shikes he was a felon. Several weapons Shikes purchased have been recovered from a killer, a rapist, a convicted armed robber, a man who shot a police officer, and three juvenile shooting suspects.

So, again, a very small percentage, but still we are immunizing these people also. This legislation doesn't make any distinction between competent, conscientious gun dealers. It is everyone. And we know everybody is not following the rules as scrupulously as they should.

To put a check on the behavior, if you are harmed and injured by this negligence, go to court and say, I have been harmed, this defendant contributed to my injury and I seek compensation, this legislation will tell that victim, go away; the courts are closed to you.

There are other cases. Realco Guns of Forestville, MD; Southern Police Equipment, Richmond, Va; Atlantic Gun & Tackle, Bedford Heights, OH; Colosimo's of Philadelphia, PA; Don's Guns & Galleries in Indianapolis, IN. Throughout the country, the exception to the rule, and the rule is generally conscientious individuals follow the laws. But this legislation protects these individuals as well as the conscientious dealers. Again, it is inappropriate, unfortunate, unsubstantiated.

Where is the crisis? All the public records we have of the gun manufacturers say there is no material impact on the financial well- being. Those are reports submitted to the SEC, not press releases from lobbying groups. We are going to upset the traditions of tort law throughout this country for a situation where no crisis exists.

Again, we have moved from consideration of one of the most significant pieces of legislation we consider every year, the Armed Forces authorization, to deal with this issue--no crisis, no substance, but an industry-political motivation by the NRA and the gun lobby to protect their members from bona fide allegations of negligence in certain cases.

There is no explosion of suits. These are minimal, a fraction of the tort suits in this country. Yet we are here today to devote a huge amount of time after moving away from the Defense bill to consider this legislation. Procedurally, it is terrible. We should be talking now, as we all hoped we would, about further benefits for our military personnel, about improving their quality of life, improving their equipment, giving them the resources to defend us. Yet we are now staked out, literally, to try to provide benefits for the negligence of a few people in an industry that has no financial crisis and is in no danger of going away.

I yield the floor.

First, let me thank the Senator for yielding the time. I appreciate that very much. I want to make some brief comments.

My colleague and friend from Alabama made reference to the Beretta Company and apparently their concern about legislation in the District of Columbia. I want to make a few points to clarify what I believe the context of this letter from Beretta is. First, the District of Columbia Council apparently passed strict liability legislation which is an example of an elected body, not a judge, making up laws. We might disagree with them, but the point is that this is an elected body doing this; this is not judge-made law. As I understand it, the Court of Appeals for the District of Columbia simply upheld the statute. They acted appropriately, procedurally correct, and the statute is in force. I do not know if this is the intent of the suggestion, but a lot of the debate today has been about letting legislators and legislatures do their jobs without defying the court. In this situation of Beretta, that is exactly what happened. The DC Council acted, the court of appeals said we have no reason to disagree substantively with what you have done and the law stands.

But I think there are much more important points to be made in the context of this legislation. The proposed legislation is not simply attempting to eliminate claims of strict liability against gun manufacturers, gun dealers, and trade associations. It goes all the way to wiping out a broad array of negligence claims. And the essence of negligence is that the defendant, or the one who is being accused of negligence, must fail to perform some duty, the duty to the injured party.

There has to be some personal action, not simply doing something that has been legislatively ruled to be wrong. In that context, one can look at the concerns of the Beretta Company about strict liability much differently than in this legislation, and I think it would be wrong to assume and argue that because they are concerned about strict liability applied entirely to the legislation before us.

Now I assume they oppose the legislation. But the issue is much broader than strict liability; it is negligence. It is not a situation where a manufacturer or an individual will be held liable for something they never did. The essence of negligence is you have to fail to perform a duty, and that is at the heart of the legislation before us, providing broad exemptions and immunities for gun dealers, gun manufacturers, and trade associations whose own conduct would at least lead to allegations in court of negligent behavior.

I wanted to make those two points, and I yield the floor.

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

Yes. Mr. President, we have had a long discussion today about the legislation. I think some of the points the Senator from Illinois made are very pertinent.

First, there is the erroneous presumption that people who would be sued would be sued because of the actions of others, when in fact the negligent suits lie in showing that first an individual had a duty to someone else--a victim--and that duty was not fulfilled. Essentially, that is the essence of negligence. If you cannot show that, you cannot get into court. This is not about somebody being punished or imposed upon for the actions of others. It goes right to the actions of the individuals--the seller, manufacturer or, in this case, trade associations.

There is a perception also, I think, that has been given that the legislation as drafted actually provides exceptions that will cover the meritorious suits, the ones that should be before the court and eliminate the frivolous suits. In fact, that is not the case. As Senator Durbin pointed out in the situation with respect to the Washington, DC snipers, there a gun dealer in Washington State was grossly negligent. He had 230 unaccounted for weapons and they should have been accounted for. He allowed a teenage boy to walk in and pick up a sniper rifle off the counter and walk out and didn't know it was missing until it was discovered to be the weapon of the assassins here in Washington, DC. That suit would have been barred by this legislation if it had passed. The two police officers--Lemongello and his partner-- responded to a call and they were in a shootout. They were seriously hurt, both of them. It turns out that the criminal firing that gun got it from a gun trafficker who walked into a store, a gun dealership, with another woman as a straw purchaser and acquired 12 weapons for cash and walked out the door. In fact, they were so obvious that the gun dealer called ATF and said he sold them the weapons, but watch out for them, which is negligent to me. Both cases were settled. Those cases would be thrown out.

The lives of all of the families in Washington, DC, have already been totally changed because of the loss of their loved ones. Conrad Johnson was a bus driver, waiting to go on his bus run, and he was shot, leaving a wife and children. They would have been out of luck because they could not have brought a suit like this. And there were others. We all lived in fear ourselves. We drove around here looking over our shoulders wondering

whether the assassins were out here in Washington, DC. One woman who was an employee of the FBI and was walking in the parking lot of Home Depot in suburban Virginia was shot. Those families, those victims, could not have come to the court of justice if this bill passed.

There are other suits that are pending today. There is a case in Massachusetts, where a young man, Danny Guzman, an innocent bystander, was shot and killed in front of a nightclub in Worcester. Six days later, police recovered a 9 mm Kahr Arms handgun without a serial number behind an apartment building, near where Mr. Guzman was shot. In fact, I am told a 4-year-old child discovered the weapon first. Ballistic tests determined that the gun was the one used to kill Danny Guzman.

This gun was one of about 50 guns that disappeared from Kahr Arms' manufacturing plant. Some of the guns were removed from the plant by employees that Kahr Arms hired despite criminal records and histories of drug addiction. The case is being pursued now. The issue is not what Mr. Guzman did. It is what this company failed to do. They failed to have background checks on employees who handled weapons. They failed to have security devices that would monitor if these weapons would be taken out of Kahr Arms. I am told, interestingly enough, Kahr Arms is owned by a holding company for the benefit of the Reverend Sun Myung Moon's Unification Church. So one of the beneficiaries of this bill, if it passes, will be Reverend Moon's financial enterprises because they will be protected from allegations of recklessness, not just negligence.

Now, the first exception to the bill is title 18 United States Code section 924(h). This simply permits cases against sellers who sell guns they know will be used to commit a violent or drug trafficking crime. First, in the Kahr case, the guns were not sold; they were taken surreptitiously out of the factory. This exception would not apply.

Second, you have to show they knew that the guns would be used to commit a violent or drug trafficking crime--not that they were negligent in allowing guns in circulation, but that they had to know they would be used in a violent or drug trafficking crime.

The next exception is negligent entrustment. This applies where a gun dealer knows, or should know, that a purchaser will shoot someone with the gun, and that individual shoots a person. This exception only applies to a gun ``seller.'' Once again, Kahr Arms was not, in this situation, a seller. Moreover, Kahr Arms did not entrust its guns to its employees. Rather, Kahr's employees removed the guns from the plant because of Kahr's negligent security, inventory tracking, and hiring of employees with histories of criminal conduct and drug addiction. So that exception doesn't apply.

There is another exception, negligence per se. Under this provision, gun sellers whose negligence causes injury could not be liable unless, at a minimum, they also violated a law or regulation which the court found an ``appropriate basis'' for a negligence per se claim and which proximately caused the injury. The exception only applies to a gun seller, and the bill defines sellers to include only importers or dealers, not manufacturers.

Moreover, in many States--and Massachusetts is one--negligence per se claims are not allowed under their practice and, therefore, the exception would not apply.

Knowing violation of the law exception: This exception applies where a gun seller or manufacturer knowingly violates a State or Federal statute when it makes a sale that leads to an injury. Here, Kahr Arms did not violate statutes related to the sale or manufacturing of a gun. Rather, Kahr's employees surreptitiously took the guns out.

Breach of contract or warranty exceptions once again do not apply. It merely allows gun purchasers to sue if the seller or manufacturer did not provide the product or service it promised in its sales contract. This exception clearly does not apply.

Defective design is a narrow exception for actions for some deceptive design or manufacturing cases. But that exception does not apply.

Rather than being legislation that allows the good suits through and the frivolous ones out, this legislation effectively denies people, such as the family of Danny Guzman, their day in court, and many others. It would have denied the two police officers from New Jersey their day in court. It would have denied the victims of the snipers their day in court.

For these reasons and many others, I am opposed to the legislation and join others who are and look forward to continuing our discussions in the hours and days ahead.

Mr. President, I ask unanimous consent that two of my staff members, Steve Eichenauer and Elyse Wasch, be granted the privileges of the floor during the debate and pending votes.

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

Mr. President, I call up an amendment that Senator Levin has offered, which is at the desk.

Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. President, this amendment was offered by Senator Levin and myself would do several very critical and important things. First, the amendment would increase funding for the Cooperative Threat Reduction Program by $50 million. The offset would be twofold: $30 million would be taken from the long lead procurement of ground-based interceptors as part of the National Missile Defense Program and another $20 million would be taken from the funding for initial construction for silos to house these interceptors.

Essentially what Senator Levin is doing with this provision is to recognize the fact that a more immediate threat to the United States rests with literally thousands of locations where nuclear material might be housed from the breakup of the old Soviet Union, and other locations that need attention with respect to the reduction of these materials. I believe the greatest threat we face in this country is the fact that--hopefully not, but the situation where a terrorist might gain control of these materials, bring them into this country and use them with devastating effect.

So this amendment recognizes the most immediate threat comes from these materials and therefore is putting additional resources from the National Missile Defense Program, modest changes, to approach this major effort with respect to cooperative threat reduction.

The funds would come from our ground-based midcourse defense system. The interceptors and silos where the offsets occur are now currently being deployed at Fort Greely, AK, and Vandenberg Air Force Base in California. Because of recent developments, we have an opportunity to address the critical issue of loose nukes by transferring these funds. I would argue this is a most worthy cause. The offset will not affect the missile defense system at all. In fact, as we understand it, in the last several months the missile defense system has been reevaluating itself, looking at whether the technical issues are challenging, in fact, and have not conducted tests as they thought they could over the last several months. So I think now is the opportune time to put more resources in cooperative threat reduction.

We are all aware, as I have mentioned before, that the greatest threat to us today is the possibility that terrorists will acquire nuclear weapons or nuclear material and use it with devastating effect against us. Of course, one country with enormous amounts of this nuclear material is Russia.

It is estimated that Russia has approximately 16,000 nuclear weapons stored at between 150 and 210 sites. While that is a significant reduction from the 40,000 weapons at the end of the Cold War, it is still a huge number of weapons and also a large number of storage sites.

Indeed, there is some imprecision about where all the sites might be. Of course, we have also heard reports of potential sites for, if not nuclear material, other dangerous material in former components of the Soviet Union, the newly independent states. So this is a challenging issue we have to face.

Only about 25 percent of the total number of weapons sites have received any upgrades in the past five years. Many of them still lack adequate security and safeguards. At the rate planned for in the fiscal year 2006 budget request, it would be around 2011 or 2012 before the work at only a portion of the sites would be completed to bring them up to levels of security and safety that we would feel confident this nuclear material would not be stolen, misplaced or somehow find itself in the world community.

The Defense Department only expected work to be scheduled on one or two sites in fiscal year 2006 so they budgeted approximately $60 million in the process. But then in February, when President Bush and President Putin met at the summit in Bratislava, Slovakia, the two agreed on a way to address security upgrades at 15 key nuclear weapons sites. With this agreement, we have the opportunity to accomplish in 2 years what we thought would take 10.

The issue, of course, is funding. The total cost of these upgrades is approximately $350 million. With this amendment, we are adding $50 million to this project, which is not the total needed but will allow for a good start. Again, this is a huge breakthrough that occurred after the President's budget submission. It is a major opportunity we simply must take advantage of.

As I have indicated before, the proposal of Senator Levin is to move this $50 million into cooperative threat reduction from the National Missile Defense Program. I think it is useful to look at this program to indicate where these transfers are possible, available, and even desirable.

When President Bush first took office in 2001, he made missile defense one of his highest priorities. In May 2000, President Bush said America must build effective missile defense based on the best available options at the earliest possible date. Missile defense must be designed to protect all 50 States, our friends, allies, and deployed forces overseas from missile attacks by rogue nations or accidental launches. President Bush's first major action was to significantly increase funding for missile defense.

Since fiscal year 2002, approximately $45 billion, including fiscal year 2006 requests, has been provided for missile defense. That is $45 billion and here we are talking about a transfer of $50 million from that huge program. This amount is half of what has been spent on missile defense since President Reagan launched the Strategic Defense Initiative in 1984. We have seen a huge acceleration of funding with respect to missile defense. Another aspect of President Bush's plan for missile defense was that the systems would be developed and acquired under an approach called spiral development. As the Congressional Research Service succinctly summarizes: A major consequence of the administration's proposed evolutionary acquisition strategy is that the Missile Defense Program would not feature the familiar phases and milestones of the traditional DOD acquisition system. Another consequence is the Missile Defense Agency cannot provide Congress with a description of its final missile defense architecture, the capabilities

on any near or longer term system, the specific dates by which most elements of the emerging architecture are to be tested and deployed, or an estimate of the eventual costs of the Missile Defense Program.

So President Bush's plan was to spend an enormous amount of money in a short period of time with little plan and no traditional checks and balances with respect to traditional procurement programs.

This program has, in fact, come under self-generated pressures. Tests that were proposed to be conducted over the last several months have been postponed and cancelled. There is a hard relook at the technology. There is potential here, but certainly there is not the kind of progress that would justify the robust spending to date and certainly not indicate that they need an additional $50 million to keep doing what they are doing.

In the past, we have looked very carefully at this program of national defense. Like so many others, I believe if we can produce--and I think we can ultimately--a workable system to protect this country, protect its allies, our troops in the field, we have to do that, but we have to do it with deliberate speed, and I would emphasize deliberate speed, not all-out haste, which generally means waste.

I believe we should pursue this system, but I also believe we should take the time to determine that the technology, which is extraordinarily complex, is mature and effective. So beginning in 2002, I offered amendments which I felt would improve the Missile Defense Program. In the fiscal year 2003 bill, I introduced an amendment requiring a report on flight testing of the ground-based midcourse defense, or the GMD, system. In fiscal year 2004, I offered an amendment which would direct that the Missile Defense Agency provide information on procurement, performance criteria, and operational test plans for ballistic missile defense programs. In fiscal year 2005, I introduced an amendment requiring operationally realistic testing and independent evaluation of the ballistic missile defense system.

All of these amendments were modified by the majority. Then they were passed. Indeed, it is unclear if they were not modified whether they would have passed.

Furthermore, when the Missile Defense Agency met these requirements, in many instances details and quality of reporting were lacking. For the most part, the Missile Defense Agency has been doing what it wants to do with very little detailed supervision by the Congress and it has led to a situation now where the program is being seriously looked at. We certainly have not made the kind of technological breakthrough which was anticipated. One thing is certain, we have spent a great deal of money in this pursuit.

Now, where we are today, interceptor tests are the critical tests which involve a real missile defense interceptor hitting a real target missile. These tests are the only means to truly assess whether a missile defense system has the chance of working against a real enemy missile. There is nothing elaborate or sensational in this proposition. In order to see if a system works, one has to take it out and use it. One missile has to be fired against another missile and knock down the intruding missile. If that is done with enough frequency and enough confidence, then the system is ready to go.

The first intercept flight test of the system was conducted in December 2002 and it failed. Six days after that test failure, President Bush announced the United States would deploy the missile defense system. Usually such announcements are reserved for success, not failure. In effect, it is almost like looking at a new, expensive jet fighter prototype going down the way, malfunctioning and then turning around and saying let us buy a lot of them, let us put them in the sky. That is not what most people believe is the appropriate criteria for being operational.

Over the next 2 years, seven other planned tests were cancelled. Yet, in September 2004, the system was declared nearly operational, with six interceptors at Fort Greely, AK, and two interceptors at Vandenberg Air Force Base. Three months later, in December 2004, the Missile Defense Agency then conducted the only second integrated flight test on a multibillion system. It too failed, and the system was now described as operational in the near future.

On February 14, there was another integrated flight test and it too failed. After these three consecutive failures, Lieutenant General Obering, director of the Missile Defense Agency, established an independent review team to examine test failures and recommend steps for improving the test program. The team made some very interesting observations.

First, I believe they confirmed suspicions that there was a rush to deployment, a rush not justified by the technology, its maturity, and by the operational techniques that were necessary to deploy it, but simply to get it deployed. The team report states:

There were several issues that led to the flight test

failures of the Integrated Flight Tests . . . With the focus

on rapid deployment of the Ground-based Midcourse Defense

system, there was not always adequate opportunity to fully

ground test the system prior to each flight attempt.

Again, skipping over critical steps to rush to a

deployment. The team also found:

Schedule has been the key challenge that drives daily

decision making and planning in the program.

Not the technological maturity of the system, not technical issues, but schedule was driving the technology, not the other way around.

The independent review team also took issue with the spiral development and lack of testing. Again, in their words:

Due to the lack of application of a few well-known

verification specification and standards by the GMD program,

failure evidence suggests that some problems might have been

during the launch. The team feels that considerable

opportunity exists to improve the confidence in the

reliability of hardware and software by adopting industry

best practices that exist as specification and standards.

In effect saying, we have to have requirements, we have to have standards, we have to have specifications, we have to be able to measure this program and its components before we rush to deploy it, much of it echoing comments made on this floor by myself and many others.

The team report further states:

There are not enough ground tests available to verify/

validate system operational performance and reliability. The

Joint Program office should consider redirecting some

production assets for ground tests to gain a higher

confidence in the GMD system performance.

The GMD review team would again recommend, in their words:

The Ground-based Midcourse Defense Program enter a new

phase focused on Performance and Reliability Verification, in

which Missile Defense Agencies make tests and mission success

the primary objective. The new phase should validate the

technical baseline and should be event driven rather than

schedule driven.

In effect, build on success, don't build based on schedule.

General Obering also requested Rear Admiral Kate Paige to

direct a Mission Readiness Task Force to study the review

team's recommendations and put the program on a path to

flight test and management success.

The Mission readiness task force, under the Admiral, made

the following recommendation: Four interceptors previously

planned for near-term operational deployment will be diverted

to serve as ground test missiles. There will be a significant

increase in ground testing of all systems, components, and

processes before resuming flight testing. Contractors will be

held accountable for their performance. The first flight test

will not be an intercept test and the first intercept test

will not take place for more than a year.

Let me commend General Obering and the Missile Defense Agency for implementing these recommendations. I believe they will go a long way toward improving the missile defense system, an objective we all share. However, I note these recommendations sound very familiar and one could only contemplate how much effort and money would have been saved if we had approached the system this way from the beginning--not rushing to failure, but building for success.

There are presently six ground-based interceptors in silos at Fort Greely and two in silos at Vandenberg Air Force base. The administration also requested, and the Congress has already approved, most of the funding for these 30 interceptors. As I have noted, there has yet to be a successful flight test of these interceptors, so we are already buying an additional 30 interceptors when we do not know how to make the first 6 work. I think a responsible approach is to slow the allocation of

funds for the procurement of these interceptors until they are proven operational and to use that funding for more pressing needs. This amendment does that.

The President's budget request seeks long-lead funding for 10 operational interceptors and 8 flight test interceptors, 18 missiles in all. However, the actual production rate capacity for the interceptors is 1 per month, or 12 per year. That means the Defense Department is seeking funds for more missiles than they can build in 1 year. There is no need to pay for more interceptors than can be built in 1 year.

Instead, we can provide 1 year's worth of funding for 1 year's worth of missiles--12 instead of 18. This amendment will not cause a break in the production line.

I also note the House Armed Services Committee, in its fiscal year 2006 Defense authorization bill, reduced the long-lead funding for five of the operational interceptors. The administration has not indicated that the proposed reduction would cause any serious problems for the program.

I also want to state that the President's budget request includes $53 million in long-lead funding for eight test missiles. It is essential to produce missiles for testing. This amendment would not reduce that funding for the test missiles at all. We realize we are in the test phase. The problem becomes we are attempting to buy operational missiles before we are sure the test missiles will really work. That, I think, is at the heart of much of the criticism.

Our missile defense systems are robustly funded in this bill with about $7 billion. What this amendment does is take money that cannot even be spent this year and allocate it to a new opportunity to prevent loose nukes, which is truly an imminent threat, an existential threat to this country. This amendment, which enhances security by funding one program without causing any harm to another program, is a win-win situation, and I urge my colleagues to support this amendment.

We are trying to exploit a diplomatic breakthrough that was engineered by President Bush in his meeting with President Putin that allows the expansion, rapidly, of inspection and securing of sites in the former Soviet Union and Russia. We are taking a truly modest amount of money, given about $6 or $7 billion for overall missile defense, and using that to try to prevent the proliferation of nuclear weapons and nuclear materials across the globe, which is the most serious threat that we face as a nation.

I thank the Chairman for the question. My understanding is that the production cycle for the system, these interceptors, is 12 per year. Yet the budget is asking for more than that. So I don't think taking $50 million--as I understand the amendment, $30 million taken from long-lead, ground-based interceptors--taking $30 million away I do not think would upset the production line schedule. There is no intent to do that, and I think the effect would not be to do that also.

With respect to your point, which I think is well taken, about the buildup in funds in the comprehensive threat reduction, some of that-- we will check more dutifully--but some of that to my knowledge is the result of the inability to agree on a way to deal with some of these sites. We hope that difficulty has been substantially reduced by President Bush and President Putin's discussion in Bratislava. Now that they have agreed on a framework, they can start applying this money.

Also, again, I think this money would be well spent, would not disrupt the production of the missile systems, and just the sheer scale--this is $50 million total, $30 million from the ground-based interceptors, $20 million for initial construction of silos and housing for the interceptors--again, this is truly long-lead procurement. We have, in my view, and I believe that of Senator Levin, much more of a problem in the site in Russia that contains the nuclear materials.

We have all heard the horror stories of people being able to walk in, walk around, and walk out of these sites without anybody interfering with them--no electronic equipment or sensors that would detect or report their presence to anyone's attention. So our view--my view, speaking for myself--is that this money could be much better spent, without disrupting the missile defense program, by applying it to comprehensive threat reduction.

Frankly, $500 million is an impressive amount of money that has not yet been spent, but we all recognize, if any of this material made its way outside these sites and got into the hands of irresponsible people, it would be serious.

I could say, Mr. President, we will try to determine this, but unexpended does not mean that it is not committed. Some of these funds could in fact be committed to specific sites already so that money can't be spent again elsewhere. We will try to get a number on that.

But the scale of the problem, the number of sites--it is in the order, just within Russia, of 200 sites.

Mr. President, my information indicates the fiscal year 2006 budget for expansion, there is $20.682 million. I will ask my staff to coordinate with your staff.

Fifteen minutes, I believe.

Senator Levin will need some time, also.

Would the Senator restate the UC?

Reserving the right to object, I just want to protect the ability for Senator Levin to have time.