Floor Statements

Mr. President, while the Senator from Montana is still on the Senate floor, let me, first of all, thank

him for his comments, to which I subscribe. We have a problem throughout the Western United States with forest fires, not easily understood by those who don't experience the kind of hot, dry conditions we do in the summer with our forests.

People don't think there are forests in my State of Arizona. There are. In fact, about 5 years ago, we had a fire which burned an area-- and this is big Ponderosa Pine country--burned an area almost the size of the State of Rhode Island.

Now, in Arizona and Montana, you can do that. But just think about that if it were in your State. One of the problems is, we have found that the Healthy Forest Act that we passed about 3 years ago, which was designed to limit litigation, has not done as good a job as we had hoped.

I think we need to revisit that in addition to providing more funding. I will conclude this point by saying that one of the best summers of my life was spent in the State of Montana in Glacier National Park helping to put out forest fires in that beautiful place.

I hope all of us can join together in an appropriate way to advance the cause about which the Senator from Montana was speaking.

Mr. President, I want to speak briefly to the issue, which, frankly, is keeping us in session right now, and explain a little bit about what is happening. Everyone in this body understands and agrees that we have an emergency on our hands that deals with our intelligence collection, and we need to address that emergency legislatively.

But there is a disagreement on exactly how to do that. We must resolve that disagreement before we leave here. We will be taking a month back in our home States visiting with constituents. When we come back we will be right on the anniversary of 9/11. There are ways that we can prevent another 9/11 by good intelligence collection as to warnings that might tell us what we need to do to prevent such an attack, but we cannot do that the way the law is currently written.

Obviously, this debate cannot get into a great deal of detail. But, suffice it to say, when the law relating to intelligence collection was written, it was written with a different kind of technology in mind. Technology has evolved over the years. In fact, it has evolved quite rapidly, and it is a simple fact that today's law does not match today's technology. It does not permit the kind of intelligence collection that we can and should be doing.

Without, again, getting into details as to how much collection is being lost, it is fair to say that a significant amount, a significant percentage of intelligence that we could be collecting, we are not collecting, simply because of what is, in effect, an old-fashioned law, a law that can be changed, should be changed.

The kind of collection we are talking about is precisely the kind of information we need that can give us warning of an impending attack. I think it is also fair to say, without getting into detail, that at this time we are seeing increasing evidence of efforts on the part of our enemies--I am speaking specifically of groups such as al-Qaida--to find a way to attack the American homeland.

Given this increased effort on their part--and I would also suggest capability on their part--given that we know what they intend to do, and given that we know there is a great deal of intelligence out there we are not collecting simply because of an outmoded law, it is incumbent upon us to act and to act now.

We cannot leave to go back to our home States for a month without resolving this issue because of the nature of the threat and the fact that an entire month will have elapsed not being able to collect information that we deem vital to be able to give us the kind of warning that we need.

Now, there have been negotiations going on, not only in the Intelligence Committee but with leadership and, primarily Admiral McConnell, who is the Director of National Intelligence, who has brought this matter to our attention. But those negotiations have not resulted in an agreement we can pass in the House and the Senate before we leave. Time is running out. We will wait as long as it takes to resolve this problem. Anything less would be a dereliction of our duty.

I will just conclude by saying this: Prior to 9/11, Senator Feinstein and I, as the chairman and ranking member of the Terrorism Subcommittee of the Judiciary Committee, predicted there would be a massive kind of attack on the United States by terrorists if we did not make substantial changes in the law, on which we had held hearings. We had put legislation in the hopper, and I urged our colleagues to take action on the legislation. They did not do so.

Two days after 9/11, we stood on the floor of the Senate and finally got agreement on some of these elements of legislation, some of which became part of the PATRIOT Act, some of which were part of the Tools to Fight Terrorism Act.

Let's do not let that happen again. The warnings are there. We have to be prepared to deal with them. We cannot leave without changing the law to fit the technology that currently exists, and we will not permit this situation to erode to the point where we have to accept something that is not adequate or we have delay in getting the job done before we leave.

Mr. President, I am happy to yield.

Mr. President, as usual, the minority leader has made an extraordinarily important point.

Admiral McConnell enjoys the confidence, I am sure, of every one of the Members of this body. When he briefed all of us about the problem, I did not see a dissenting voice in the classified briefing about the fact that we had to quickly do something to solve this problem.

I think everyone recognizes that he not only has the expertise but the motivation--only one motivation--to protect the American people. I do not think there is a political bone in his body. As a result, for anybody here in the Congress to play politics with the issue, to not accept the judgment of a man who is so widely respected and so properly motivated in this regard, would not only be a dereliction of duty but would, frankly, set up a potential threat to the United States from which we might not recover.

What I might do is just close my remarks and turn the floor over to the minority leader. I also know the Senator from New Mexico wants to make some comments. But perhaps he would allow the leader to make some comments.

I just want to make this point. Winston Churchill said after World War II that no war could have been more easily prevented. We all understand what he was talking about. The threat was there. The people who were going to cause the problem--Adolf Hitler, Nazi Germany--were clear in their intentions, but people did not act on the knowledge they had.

Mr. President, I submit the same thing is true here. If there is, God forbid, an attack on our homeland, I cannot imagine something that could have been more easily prevented by the kind of change we can make in this body today to ensure that the law that governs this intelligence collection keeps up with the technology.

It is up to us to take the good judgment of people such as Admiral McConnell, as the minority leader has said, and move on with this and not allow a

situation to develop where we would leave for the month of August not having solved this important problem.

Mr. President, I rise today to comment on S. 849, the OPEN Government Act. As a result of negotiations between Senators Cornyn, Leahy, and me, we have reached an agreement on an amendment to this bill that addresses my concerns about the legislation while keeping true to the bill's intended purposes. When this bill was marked up in the Senate Judiciary Committee several months ago, I filed a number of amendments intended to address problems with the bill. Senator Leahy asked me at the mark up to withhold offering my amendments in favor of addressing my concerns through negotiations with him and with Senator Cornyn. I agreed to do so, and later submitted a statement of additional views to the committee report for this bill that described the nature of some of my concerns, and that included as an attachment the Justice Department's lengthy Views Letter on this bill. After follow-up meetings with the Justice Department and Office of Management and Budget to elucidate the nature of some of those agencies' concerns and to try to come up with compromise language, negotiations among members of the Senate began. I am pleased to report that those negotiations have proved fruitful. Our negotiations have benefited from extensive assistance from the Justice Department and other parts of the executive branch, as well as from the input of various journalists' organizations. While none of these parties has gotten exactly what it wants, I do believe that we now have a bill that strikes the right balance with regard to FOIA--a bill that will make FOIA work more smoothly and efficiently.

Allow me to describe some of the changes that my amendment will make to the underlying bill. Section three of the original bill broadened the definition of media requesters to include anyone who ``intends'' to broadly disseminate information. My concern, which was also expressed by the Justice Department, was that in the age of the internet, anyone can plausibly state that he ``intends'' to broadly disseminate the information that he obtains through FOIA. The media-requester category is important because requesters who receive this status are exempt from search fees. Search fees are one of the principal tools that agencies use to encourage requesters to clarify and sharpen their requests. When someone makes a broad and vague request, the agency will come back with an estimate of the cost of conducting such a search. Often, the individual will then sharpen that request. This saves the agency time and the requester money. According to some FOIA administrators, legitimate media requesters rarely make vague

requests. These requesters usually know what they want and they want to get it quickly. But if virtually any requester could be exempted from search fees by claiming that he intends to widely disseminate the information, search fees would no longer serve as a tool for encouraging requesters to focus their requests. Overall, this would waste FOIA resources and slow down processing of all requests. Such a result would not be in anyone's interest.

The compromise language included in my amendment clarifies the definition of media requester in a way that protects internet publications and freelance journalists but that still preserves commonsense limits on who can claim to be a journalist. At the suggestion of some media representatives, we have incorporated into the amendment the definition of media requester that was announced by the DC Circuit in National Security Archive v. U.S. Department of Defense. 880 F.2d 1381 (D.C. Cir. 1989). That definition focuses on public interest in the collected information, the use of editorial skill to process that information into news, and the distribution of that news to an audience. It would appear in my view to protect publishers of newsletters and other smaller news sources, as well as, obviously, the types of organizations described in that opinion. On the other hand, given that this construction of the term news media as used in FOIA has been in effect for 17 years, I do not think that anyone can reasonably fear that codifying it will turn the world upside down. I was amused to see that Judge Ginsburg's analysis of the statute's definition of news media relied in part on conflicting legislative statements made by Senators Hatch and Leahy, two members with whom I currently serve on the Senate Judiciary Committee, regarding the meaning of the 1986 amendments to FOIA. By incorporating a judicially crafted definition of news media, I believe that my amendment spares the courts the indignity of being compelled to parse conflicting Senate floor statements in order to divine the meaning of that term.

The remainder of my amendment's changes to section 3 codify language that has been adopted by some administrative agencies to clarify who is a media requester. Other than stylistic edits, that agency language has been modified in my amendment only to make express that news-media entities include periodicals that are distributed for free to the public. This will protect the fee status of the numerous free newspapers that have become common in American cities in recent years. The agency language codified here also extends express protection to freelance journalists.

Overall, this language should guarantee news-media status for new electronic formats and for anyone who would logically be considered a journalist, even when that journalist's method of news distribution takes on new means and forms. But the language should also prevent gamesmanship by individuals who cannot logically be considered journalists but who are willing to assert that they are journalists in order to avoid paying search fees.

The modified bill also makes important changes to section 6 of the bill. The original version of this section eliminated certain important FOIA exemptions as a penalty for an agency's failure to comply with FOIA's 20-day response deadline. I commented at length on this provision of the bill at the beginning of my additional views to the committee report for the bill. This provision was far and away the most problematic provision of the original bill and I am relieved that Senators Leahy and Cornyn have agreed to abandon this approach to deadline enforcement.

My amendment adopts a modified version of an approach to deadline enforcement that was suggested by Senators Cornyn and Leahy. Their approach denies search fees to agencies that do not meet FOIA deadlines. I have modified my colleagues' proposal by including an exception allowing an agency to still collect search fees if a delay in processing the request was the result of unusual or exceptional circumstances. These exceptions have been part of FOIA for many years now and have a reasonably well-known meaning. I expect that these exceptions will account for virtually all of the cases where an agency cannot reasonably be expected to process a particular FOIA request within the paragraph (6) time limits.

Preserving this type of flexibility is important. A penalty that seriously punishes an agency, which I believe that denying search fees would do, would likely backfire if the penalty did not account for complex or broad requests that cannot reasonably be processed within the FOIA deadlines. If the penalties for not processing a request within the deadlines are harsh and include no exceptions, the agency will process every request within 20 or 30 days. It will simply do a sloppy job. That would not improve the operation of the FOIA and would not be in anyone's interest.

The original bill also made FOIA's 20-day clock run from the time when any part of a government agency or department received a FOIA request. Again, the modified bill exempts FOIA requesters from search fees if the 20-day deadline is not met and no unusual or exceptional circumstances are present. These provisions in combination would have created a perverse incentive for a FOIA requester to ignore the addressing instructions on an agency's website and send his request to some distant outpost of an agency or department, in the hope that doing so would prevent the agency from meeting the 20-day deadline and the requester would be exempted from search fees. I would not expect more than a very small portion of FOIA requesters to engage in such gamesmanship. But given the large number of individuals and institutions that make FOIA requests, it is inevitable that some bad apples would abuse the rules if Congress were to create an incentive to do so.

My amendment makes the FOIA deadline run only from the time when the appropriate component of an agency receives the request. To address concerns that an agency might unreasonably delay in routing a request to the appropriate component, I have added language providing that the deadline shall begin to run from no later than ten days after some designated FOIA component receives the request. I think that it is reasonable to expect that requesters send their requests to some designated FOIA-receiving component of an agency, and I think that it is reasonable to expect that once a FOIA component of the agency gets the request, it will expeditiously route that request to the appropriate FOIA component.

My amendment also changes the bill's standard for awarding attorney's fees to FOIA requesters when litigation is ended short of a judgement or court-approved settlement. The original bill would have entitled a requester to fees whenever an agency voluntarily or unilaterally changed its position and handed over the requested information after litigation had commenced. As I noted in my statement of additional views to the committee report, I am concerned that such a standard would discourage agencies from releasing documents in situations where the agency is fully within its rights to withhold a record--for example, because some clear exception applies--but senior personnel at the agency decide to produce the documents anyway. To impose fees in such a situation would be to adopt a rule of no good deed goes unpunished. It would also likely discourage some disclosures. If an exemption clearly applied to the records in question, the only way that the agency could avoid being assessed fees would be to continue litigating. Also, in my view attorney's fee shifting should only reward litigation that was meritorious. A baseless lawsuit should not be rewarded with attorney's fees. There is enough bad lawyering around already. The government should not be paying litigants for bringing claims that lack legal merit.

On the other hand, Senator Cornyn has presented compelling arguments that since the time when the Buckhannon standard was extended to FOIA, some agencies have begun denying clearly meritorious requests and then unilaterally settling the case on the eve of trial to avoid paying attorney's fees. Obviously, such behavior should not be encouraged. Or at the very least, the requester should be compensated for the legal expense of forcing agency compliance with a meritorious request. Senator Cornyn has

made a strong case that the current standard denies the public access to important information about the operations of the Federal Government.

In the spirit of compromise, and out of deference to Senator Cornyn's arguments and persistence, I have agreed to incorporate language into my amendment that does not fully address my concerns about this part of the bill and that is very generous to FOIA requesters. The language of the amendment entitles a requester to fees unless the court finds that the requester's claims were not substantial. This is a pretty low standard. It would allow the requester to be deemed a prevailing party for fee-assessment purposes even if the government's litigating position was entirely reasonable--or even if the government's arguments were meritorious and the government would have won had the case been litigated to a judgment.

Substantiality is a test that is employed in the Federal courts to determine whether a federal claim is adequate to justify retaining jurisdiction over supplemental or other State law claims. It is generally understood to require only that the plaintiff's complaint not be clearly nonmeritorious on its face and not be clearly precluded by controlling precedent. The classic and most-quoted statement of the substantiality standard appears to be that in the Supreme Court's decision in Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933), in which Justice Sutherland explained that a claim may be ``plainly unsubstantial either because obviously without merit, or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.'' The same principle is expressed through different words in Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974), as whether the claim is ``so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a Federal controversy,'' and in Kaz Manufacturing v. Chesebrough-Pond's, Inc., 211 F.Supp. 815, 822 (S.D.N.Y. 1962), as whether ``it cannot be said that the claim is obviously without merit or that its invalidity clearly results from the previous decisions of this court or, where the claim is pretty clearly unfounded.''

One aspect of this test that makes it well-suited to evaluating attorney's fee requests is that the ``insubstantiality'' of a claim is a quality ``which is apparent at the outset.'' Rosado v. Wyman, 397 U.S. 397, 404 (1970). It is a standard that courts should be able to apply without further factual inquiry into the nature of a complaint. It thus addresses one of the Supreme Court's major concerns in the Buckhannon case, that ``a request for attorney's fees should not result in a second major litigation.''

Part of the very definition of the substantiality test is that courts can evaluate the complaint on its pleadings or without resolving factual disputes. A claim is substantial so long as ``it cannot be said that [it] is obviously without merit, or clearly foreclosed by prior Supreme Court decisions, or a matter that should be dismissed on the pleadings alone without the presentation of some evidence.'' Rumbaugh v. Winifrede Railroad Company, 331 F.2d 530, 539-40 (4th Cir. 1964). ``The substantiality of the Federal claim is ordinarily determined on the basis of the pleadings''--on whether ``it appears that the Federal claim is subject to dismissal under F.R.Civ.P. 12(b)(6) or could be disposed of on a motion for summary judgment under F.R.Civ.P. 56.'' Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976). Other cases articulating these principles are Kavit v. A.L. Stam & Co., 491 F.2d 1176, 1179-80 (2d Cir. 1974) (Friendly, J.); Scholz Homes, Inc. v. Maddox, 379 F.2d 84, 87 (6th Cir. 1967); Smith v. Metropolitan Development Housing Agency, 857 F.Supp. 597, 601 (M.D. Tenn. 1994); In the Matter of Union National Bank & Trust Company of Souderton, Pennsylvania, 298 F.Supp. 422, 424 (E.D. Pa. 1969).

I hope that these comments on my understanding of the law in this area are of assistance to courts and litigants who will now be forced to adapt to the application of the substantiality test to FOIA fee shifting. Obviously this transition would be easier had we adopted a test more familiar to this area of the law, but the exigencies of legislative compromise have precluded such an outcome. For some recent and very thorough examples of how a substantiality analysis is actually conducted, courts and litigants should also look to Judge Williams's panel opinion in Decatur Liquors, Inc. v. District of Columbia, 478 F.3d 360, 363-63 (D.C. Cir. 2007), and to the Sixth Circuit's opinion in Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1505-07 (6th Cir. 1990).

Again, I would have preferred that the Senate select some standard that protects from fee assessments an agency that releases information when the law clearly applied an exemption to the requested information. Agencies will still be protected by the discretionary factors considered in the fee-shifting system, but the lacks-a-reasonable- legal-basis factor is not always controlling and does not create a guaranteed safe harbor. I fear that the standard that we adopt today will lead some agency employees to withhold information that they would otherwise be inclined to release out of concern that unilaterally releasing the information would make the agencies subject to fee assessments.

I would also note that the substantiality test would have been unacceptable were this a fee-shifting statute that assessed fees against private parties. If a private party adopts a meritorious position in litigation but then unilaterally settles, the Federal Government could not rightfully force that party to pay attorney's fees. The occasional unfairness of this provision--the fact that it will sometimes require the payment of fees to a party whose litigation position lacked merit--is tolerable only because the only party that will be forced to pay fees under this provision even when that party was in the right is the government.

I would also like to emphasize for the legislative record that I had originally proposed formulating this standard as ``provided that the complainant's claim is substantial''--and I would have been equally content with language along the lines of ``unless the complainant's claim is insubstantial.'' The double negative in the amendment was not my proposal and I accept no responsibility for that grammatical infraction. It is only because others have insisted on that formulation and I can perceive no substantive difference between ``not insubstantial'' and ``substantial'' that the double negative appears in my amendment.

My amendment also makes one other important change to section 4 of the bill. The original bill allowed a requester to be deemed a prevailing party if the requester obtained relief through ``an administrative action.'' Agency administrative appeals of FOIA decisions do not require lawyers, and FOIA requesters should not be compensated for or encouraged to bring lawyers into these proceedings. An agency appeal simply means that the plaintiff asks the agency to reconsider its denial of a request. Every agency has an appeal procedure in which it assigns the case to another agency employee trained in FOIA who then reevaluates the request. These appeals are most often successful when the plaintiff provides more information about his request. Legal arguments are not appropriate to these appeals. There is no reason to bring attorneys-fee shifting into this stage of FOIA. Thus my amendment eliminates the fee-shifting section's reference to relief obtained through an administrative action.

Mr. President, I appreciate the courtesy. Because we have been held in the Judiciary Committee until now, I was not able to debate my amendment. Given the fact there are not many people on the floor, I would want my 2 minutes when there are people on the floor. For that reason, if we could set it at one of the later votes, I would appreciate it.

Thirty seconds ago.

Well, I was there.

Mr. President, my amendment says that the program is implemented as long as no more than 20 percent of the beneficiaries are crowded out of private insurance; in other words, no more than 20 percent of the beneficiaries already have private insurance.

Here is the problem: The Congressional Budget Office says that between 25 and 50 percent of the people who are going to be covered under this program already have private insurance. What is worse, every one of the newly eligible is already insured. In other words, CBO says 100 percent of the newly eligible, the people we are adding to this program, already have insurance. Now why should the American taxpayer have to pay for people who already have insurance?

Surely, in response to the argument of the other side that it is as efficient as we can get, we can be more efficient than 100 percent inefficient. My amendment says that when we get it down to only 20 percent inefficiency, then the program takes effect; in other words, when only 20 percent of the people we are paying for already have insurance.

I ask for the yeas and nays.

Mr. President, there is only about 17 minutes before voting starts. I have an amendment I would like to speak to for 4 or 5 minutes. If there is not somebody else who needs that time right now, let me do that.

This relates to an amendment that will be, I believe, the last one we vote on in this next tranche that simply reinserts into the code the very minimum wage tax provisions the Senate voted on and approved. It was--if not unanimous, it was a very strong vote in favor of those provisions.

Recall that when the minimum wage bill was dealt with in the House, they originally had a bill, but they ended up putting it in the Iraq supplemental appropriation because that was a must-pass bill. So the minimum wage provisions were attached to that bill, and they passed but without all of the Senate-passed tax provisions.

The bill we are literally debating tonight came from the House of Representatives and is that tax bill. Now, we have amended it to include the SCHIP provisions, but what we need to do is to use that House shell bill for its original purpose, also, and that is to add back the exact provisions we passed in this body to help small businesses offset the costs of the minimum wage requirements we imposed upon them. They have to do with depreciation for leaseholds, restaurants, and for some retail construction. I will explain what each of them is.

Under the leasehold restaurant renovation provision, under current law, leasehold and restaurant improvements and renovations are depreciated over a 15-year period, but that only applies through the end of this year. What we did here in the Senate was to extend that treatment through the end of 2008--very reasonable.

New restaurant construction. Current law requires that components of a new restaurant be depreciated over as long as 39 years, if you can believe it. It doesn't make sense to depreciate restaurant renovations over 15 years but new construction over 39. So what the Senate did was to fix this inconsistency and provide for the same appreciation, a 15- year period, and to extend that again through the end of the year 2008. This applies to things such as convenience stores. A direct competitor of a quick-service restaurant can use the 15-year depreciation schedule for all construction, and it is permanent in our Tax Code. If you have a different kind of restaurant, you don't have that same tax treatment. The Senate recognized that inconsistency and put that into the law and extended it until 2008.

Finally, an owner-occupied retail. Improvements made to that were depreciated for as long as 39 years. The Senate recognized that owner- occupied retail space is not renovated and maintained as often as leased space. So our minimum wage bill provided a 15-year recovery period for improvements made to owner-occupied retail spaces. We extended that same treatment through the end of the year 2008.

My point is those three provisions, which we passed in this body--I think they are all supported by members of the Finance Committee--are not law only because they got dropped in the very bill we are debating today that came over from the House. It is, therefore, the perfect opportunity for us to put them back in.

I am sure my friend, the chairman of the committee, will say this is the wrong bill to do it; this is the SCHIP bill. Well, I say we should not have put the SCHIP bill on the tax bill. We should use that tax bill for its original purpose--to have the House have to pass the same tax provisions we passed. We have to deal with these expiring provisions sometime this year. Right now, they expire at the end of this year. We have to do it. We might as well do it in the very bill it was intended to be done on right now.

There may be a commitment to do all of these so-called extender provisions sometime before the end of the year. When we come back in September, things are going to get pretty dicey with the issues relating to foreign policy and, ultimately, probably tax bills such as AMT relief. We have the FAA reauthorization and all these other things, with time running out.

There is no reason we cannot do it now. I suggest that we do it. All this amendment does is extend the current law provisions for restaurants and leaseholds through the end of 2008--the same thing we would be doing with the usual extender package--and adding the new restaurants construction and owner-occupied retail space to the 15-year depreciation category, as we already did when we passed the minimum wage bill in the Senate.

Remember, we have now imposed the minimum wage burden on small businesses, and they are going to expect some relief so they don't have to bear all of the expense of it. They expected that relief. They are not going to get it if we are not able to extend it before the end of this year. This is the place to do it. I hope my colleagues, when they get to this last amendment, No. 2562, relating to depreciation for retail and restaurants and construction, will recall that they have already supported this once before. We have this commitment to our small business constituency, and I think this is the perfect vehicle for us to ensure that that relief actually gets to them and that they, therefore, can take advantage of it beyond the end of this current year.

Mr. President, this amendment simply has us do something we have already done. We passed, I believe, unanimously some provisions to help small businesses pay for the minimum wage increase. We all did that. The bill went over to the House of Representatives. You will recall they attached the minimum wage bill to the Iraq supplemental, and they dropped out these tax provisions.

This amendment simply reinstates the same tax provisions for small businesses in three areas: leasehold and restaurant depreciation, extending them from the end of this year through 2008; new restaurant construction, a 15-year depreciation period; owner-occupied retail, a 15-year depreciation period--all just through the end of the year 2008.

As to the first one, it has to be done this year because it expires at the end of this year. As I said, we adopted this. We checked the record. I think it was by unanimous consent. In any event, I believe it was unanimous. We already passed it.

Here is the irony. The underlying bill that the SCHIP bill has been attached to is that minimum wage bill. So to the argument that this is not the right bill, I would say, actually, this is not the right bill for SCHIP, but it is the right bill for this amendment. So I hope we can repeat what we have already done and adopt this small business relief.

Mr. President, I move to waive the applicable provisions under the Congressional Budget Act with respect to the amendment, and I ask for the yeas and nays.

Mr. President, I will speak briefly to the Republican alternative--the amendment that will be voted on later as a comprehensive alternative to the bill. Unlike the Finance Committee bill, the Republican alternative achieves the following goals:

First, it reauthorizes SCHIP and preserves health care coverage for millions of low-income children.

Secondly, it adds 1.3 million new children to SCHIP coverage.

Third, it provides $14 billion in new SCHIP allotments over the $25 billion baseline over the next 5 years.

Fourth, the offset is with no new tax increases and, importantly, in contrast in the committee bill, no gimmicks to meet the budget considerations.

Next, it includes funds for SCHIP coverage from fiscal year 2013 to 2017. This is important because the Finance Committee bill, in comparison, uses a budget gimmick to reduce the SCHIP funding spending over that critical period of time. As a result, the Republican alternative includes more money for SCHIP over 10 years--$85.1 billion as compared to the Finance Committee bill of $81.7 billion.

Next, it minimizes the reduction in private coverage by targeting SCHIP funds to low-income children. It doesn't provide the coverage for the adults or children for higher income families who may have access to private health care insurance, as does the committee bill. In fact, I note that according to CBO, for the newly eligible people to be covered, there is a one-for-one crowd-out effect by the committee product. That is to say, for every new family brought on for SCHIP coverage, there is one that goes off private health insurance coverage. That is not a goal to which we should be aspiring.

Next, the Republican alternative promotes market-based health reforms, such as small business health plans and health savings accounts.

Finally, it requires a Treasury Department study on ways to make the tax treatment of health care more equitable, something the President raised in his State of the Union speech earlier this year and which we do need to study to come up with a more equitable tax system.

For all these reasons, I urge my colleagues to support the Republican alternative. I note that it is very simple in terms of the two choices that confront the Senate: one, a budget buster that does not protect SCHIP coverage over 10 years and represents an open-ended financial burden on American taxpayers and takes a significant step toward Government-run health care, or a fiscally responsible SCHIP reauthorization that preserves coverage for millions of low-income children that is fully offset without budget gimmicks or tax increases and promotes market-driven health reforms.

To me, the choice is very clear. The Republican alternative is the right solution for everyone. I urge its adoption by my colleagues.

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

Mr. President, I know the majority leader is going to be coming here shortly to conclude today's activities. Prior to that, let me comment a little bit on an amendment that has been offered on my behalf by Senator Grassley, amendment No. 2537. It is an amendment which deals with the so-called crowd-out effect of the Finance Committee bill.

The crowd-out effect has to do with the people who are covered by private insurance today who would be crowded out of private insurance and going onto the SCHIP program, the Government program under the bill. The problem is that under the bill, all of the newly eligible people under the program are replaced literally one for one from private insurance to the Government program. In other words, a child or a family who is on private insurance today, for every one of those children or families who is on private insurance, when the Government program is expanded, they will leave the private insurance market. It is a one-for-one transfer. We should not be offering more Government benefits for insurance to cover children or anyone else when the effect of that is for every new person covered to have somebody leaving the private insurance market. The object here is to cover people with insurance, to allow them to have access to good care through insurance. We do not solve any problem at all when we take somebody who already has insurance and bring them into a new program.

The CBO estimates that between 25 percent and 50 percent of all the eligible SCHIP recipients are crowded out of the private insurance market. In other words, for every 100 people on private insurance today, between 25 and 50 of them will leave private insurance to go to the SCHIP program as it is expanded. As I said, for the newly eligible, it is a one-for-one transfer. Why is that a good idea?

This amendment which I have offered says that if the effect is more than 20 percent in the crowd-out, that is to say that through this program, more than 20 percent of the people who are covered leave private insurance to be covered by this new program, then it does not go into effect. But it does go into effect if the so-called crowd-out effect is less than 20 percent.

For the life of me, I don't know why we would spend an additional $35 billion to replace people who are already covered. That does not represent a sound and efficient use of taxpayer dollars.

Let me make it clear that I support the reauthorization of SCHIP. I have supported the Republican alternative. But I believe the Finance Committee bill represents not just a reauthorization but an expansion of the program which, as the chairman himself acknowledged, is another step toward universal coverage.

We do not need to be taking people off private insurance to enroll them into this program. The problem, and I will be very brief, is that the people who are added are people generally of higher income, and we are adding a group of adults as well. Those are people who generally are more covered by insurance today. So it is logical that, as CBO says, for every one person who is covered today, one person leaves that coverage to go to the SCHIP program under the committee bill. It is estimated that there will be about 600,000 in this category. In fact, CBO shows that a one-for-one replacement means that for 600,000 newly insured individuals, 600,000 individuals go off their private coverage.

As I said, that simply makes no sense. It seems to me what we should be doing instead is providing coverage for people who do not have private insurance coverage. That would be a much better use of taxpayer dollars.

To conclude the point, there are two reasons why this is happening that are not problems with the alternative, the Republican alternative that was voted on that failed. But they are problems with the Finance Committee bill. The first one is that the Finance Committee bill allows States to enroll children from higher income families, the very ones who have greater insurance coverage today. We have already talked about the New Jersey experience, for example, and the New York experience, in that regard--people at 350 percent to 400 percent of the poverty level, between $60,000 and $80,000 in income for a family of four. Those people, by and large, are already covered by insurance. Not only is there no reason to provide them SCHIP coverage, but we are simply crowding people out of the private sector into this program.

If my colleagues want to avoid the crowding-out effect, it seems to me we

should be focusing on the truly needy, the low-income children, not children from higher income families.

Second, the Finance Committee bill allows States with existing waivers to continue enrolling parents. CBO stated:

No studies have estimated the extent to which SCHIP reduces private coverage among parents so the available estimates probably underestimate the total reduction in private coverage.

According to CBO's own numbers, this is a big problem. It seems to me we should be focused on solving that problem rather than simply adding to the problem as the Finance Committee does. If we are serious about minimizing the erosion of private coverage, then we should direct SCHIP funds to low-income children and not add adults; as the Budget Committee chairman said not too long ago, there is no ``A'' in SCHIP. Otherwise, CBO estimates that over 2 million individuals will go off private coverage under the Finance Committee bill.

Let me state that again: 2 million individuals who currently have private insurance will go off that private insurance onto this new program or onto the program that is added to by the Finance Committee bill. Why would we do that? It doesn't make sense.

My amendment will be dealt with tomorrow. We will have a chance to further debate it and, as I said, all it provides essentially is if more than 20 percent of the people who are enrolled come from the private insurance sector already, then the program would be in abeyance until that number is reduced below 20 percent.

I also note there were several articles recently written that I think describe the general problem as well as this specific problem. There are three in particular I would like to have printed in the Record at the conclusion of my remarks.

I will ask unanimous consent that the following pieces be printed in the Record. One is a piece by John Goodman called ``Insurance Folly,'' in the Wall Street Journal; another is a Wall Street Journal opinion in the ``Review & Outlook'' section, dated July 30, called ``The Newest Entitlement,'' and third is a column in my hometown newspaper, the Arizona Republic, an editorial, August 1, by Bob Robb, which I think correctly notes the problem I have discussed and issues with the Finance Committee bill.

I ask unanimous consent these three published items be printed in the Record.

Mr. President, during the recent debate of the Defense authorization bill, we saw attempt after attempt to declare the new strategy, General Petraeus' strategy, in Iraq a failure. The other side of the aisle wanted to declare that the strategy, which had been in full force only a couple of weeks, had failed and direct the President to begin withdrawing troops from Iraq, which is today the central front in the war against terrorists. Indeed, after the other side lost a vote to withdraw the troops, the majority leader pulled the bill from the floor, thus leaving important business for our military unfinished.

The Democratic majority's insistence that the General Petraeus' strategy has failed makes it easy to overlook what the strategy has accomplished and what the strategy seeks to accomplish.

In that regard, I ask unanimous consent to have an article by Michael Gordon from New York Times of July 24 printed in the Record.

Mr. President, I wanted to insert this article in the Record because it provides an objective description of the Petraeus plan and how it came to be. The goals of the strategy are ``ambitious,'' as the article notes, but that is all the more reason to support the plan and not undermine it in the Senate.

Those who have criticized the surge at this early stage have offered few options for dealing with the aftermath. One option is to follow the recommendation of the Baker-Hamilton Commission.

At this point, I request unanimous consent to print in the Record a column by Steven Biddle that appeared in the July 11 Washington Post.

Mr. Biddle provides a need evaluation of the flaws in the Baker-Hamilton. Among those flaws, as he explains, our combat forces are restraining the intensity of the violence in Iraq, and removing them would cause the violence to rise. This rise in violence would put the safety of Americans who remain to train Iraqis in even greater jeopardy.

Of course, prematurely withdrawing our troops would have many other consequences. Indeed, a sobering assessment of the risks of withdrawal is too often missing from debates about the U.S. mission in Iraq.

In this regard, I ask unanimous consent that an article from the July 17 Washington Post be printed in the Record.

Mr. President, a premature withdrawal would have severe consequences, all of which would pose severe risks. Clearly, we should allow General Petraeus's plan time to succeed.

Finally, Mr. President, as I noted previously, by setting the aside the Defense authorization bill because he lost a vote to withdraw our troops, the Majority Leader left important business for our military undone. Recently, the Senate passed parts of the bill--a pay raise and ``wounded warriors'' provisions--but more needs to be done.

For instance, the Defense authorization bill should be the vehicle for setting our national security priorities, one of which is how we should deal with antisatellite weapons the Chinese could use against us.

I, therefore, ask unanimous consent that an article on China's space weapons that appeared in the July 23 Wall Street Journal be inserted into the Record.

I asked that this article be printed in the Record because it is a wake-up call to a new threat we need to take seriously. By setting aside the Defense authorization bill, we missed an opportunity to deal with this threat from China.

Mr. President, today I am pleased to join with Senator McCain to introduce the Sierra Vista Sub-watershed Feasibility Study Act. This important piece of legislation is designed to authorize the Secretary of the Interior to study alternatives to augment the water supplies in a critical area of southern Arizona in the Sierra Vista Sub-watershed, which is home to a congressionally protected riparian area known as the San Pedro Riparian National Conservation Area, SPRNCA, the U.S. Army Intelligence Center at Fort Huachuca, and nearly 76,000 residents.

SPRNCA, which protects nearly 43 miles of the San Pedro River, serves as a principal passage for the migration of approximately 4 million birds. It also provides crucial habitat for 100 species of birds, 81 species of mammals, 43 species of reptiles and amphibians, and two threatened species of native fish. The Nature Conservancy has called the area one of the ``last great places on earth.''

Fort Huachuca, which is adjacent to SPRNCA, plays a critical role in this country's national security by, among other things, training soldiers in military intelligence. It also is the largest employer in the area, contributing greatly to the economy of Cochise County and the State of Arizona.

In recent years, the Fort has done an exemplary job of implementing water conservation and recharge measures as part of its responsibilities under the Endangered Species Act. Indeed, since 1995, it has reduced its groundwater pumping by more than 50 percent.

Nevertheless, water levels in certain areas of the regional aquifer in the Sierra Vista Sub-watershed are still declining due to natural causes and development near Sierra Vista. Because SPRNCA and the fort could be negatively impacted by these declining water levels, a 2007 U.S. Bureau of Reclamation Appraisal level study concluded that augmenting the local water supply is necessary. To that end, Reclamation's study recommended several augmentation alternatives for further study, all of which are supported by the Upper San Pedro Partnership, a congressionally recognized consortium of 21 local, state, and Federal agencies and private organizations.

The legislation I am introducing today would authorize the Secretary to conduct a feasibility study of the alternatives recommended by Reclamation for further study. The legislation would also authorize appropriations for the Federal share of the study's costs. Importantly, the non-Federal cost share would be at least 55 percent, indicating the non-Federal parties' strong commitment to the study.

The feasibility study authorized under this legislation is the next step in the process of determining how to best address the water challenges facing the Sierra Vista Sub-watershed. Consequently, I urge my colleagues to support this legislation.

Mr. President, reserving the right to object, and I will object, I believe it will be possible, with the sponsors of the bill, to reach an agreement that will obviate the necessity for a great deal of floor time or amendments on the floor. I have met with the sponsors of the bill and have presented ideas about ameliorating some of the deficiencies the Department of Justice brought out about the legislation. Last week, I had a long conversation with Senator Cornyn, who is here. I believe if we can continue those discussions, in a very brief period of time--perhaps by the end of this week--it would not be necessary to devote a great deal of time to the consideration of the bill. Because of that, at this time, I will object to that particular procedure, but I hope we can report back to the majority leader that we have reached an agreement on the bill in the near future.

Mr. President, I object.

Mr. President, might I take 30 seconds to explain why? I have no objection to the text of the Salazar amendment and have talked with Senator Salazar about it. My understanding is that it has the same rule XVI germaneness objection to it that is being posited against an amendment of mine, which I think also is not objectionable. I want to make sure all amendments are treated the same that have the same objection to them.

Mr. President, I understand there was a unanimous consent request to consider the amendment. I was in the cloakroom at the time and had to come out. Perhaps I misunderstood.

Mr. President, I registered my objection, and I continue to do so, but I am happy to try to work something out.

Mr. President, first, I want to compliment the distinguished minority leader for not just recalling the sacrifices of the family and members of the U.S. military today, but for his efforts to do that for a long time now on the Senate floor. He focuses on Kentuckians who have a long history of service to their country, and rightly so. I know he would add to that the service of those members of our military and their families from all over this country and add them to our prayers and thoughts as well. We spend time in Washington debating policies that affect them, and they are living it every day, every minute of every day. I appreciate the words he brought to the Senate floor not just on this occasion but on previous occasions as well.

Mr. President, I will talk about the action taken earlier by the majority and minority leaders. We have now, by unanimous consent, approved two key provisions of the Defense authorization bill by unanimous consent in a period of 3 or 4 minutes. Yet it took the last 2 weeks to debate the Defense authorization bill, only to have it pulled from the floor so that we could not vote on it. It was used by the majority leader as a surrogate for the debate on Iraq policy. We have had something like seven or eight different resolutions--perhaps more, I have forgotten the count this year--on policy relating to Iraq. There is no more important national security issue facing our country than the war against terrorists, and certainly the central battle field in that war is the Iraq war.

Republicans do not shy away from the debate about what to do. It is an extraordinarily important debate. On the other hand, I would have two arguments with the way this has been done. First, the time of the debate right now is misplaced because after the Senate unanimously confirmed General Petraeus, after the President had changed his course and consulted with General Petraeus and others about a new strategy, and that strategy was developed, we sent General Petraeus to Iraq to begin executing that strategy. We put together five brigades to represent a surge in troop strength to accomplish the mission, the last of which went into the theater about a month ago.

When we did that, we made a commitment to the soldiers, marines, airmen, and all the Navy personnel to back them in what we sent them to do, not to immediately begin questioning whether they could succeed in their mission. We heard a lot of calls from the other side of the aisle that were very defeatist in nature, saying it was already lost and there was no way they could win. That is, obviously, not a good sendoff for the young men and women you are putting in harm's way to accomplish a mission that is important to the American people.

So the timing of the debate was off. General Petraeus and Ambassador Crocker will report back here in September. It is an interim report on this new strategy. But we have an idea that it will tell us a lot about the future course of action we should pursue. I think most Americans believe, even though all of us would like to have the troops come home and have our engagement there ended as much as it can, the reality is that Americans don't want to lose, don't want to be defeated. They certainly don't want to see the consequences of that defeat, with al- Qaida having a base of operations in Iraq, perhaps millions of Iraqis slaughtered in the ensuing chaos, and U.S. policy in the war against terror undercut dramatically in that very important region of the world. So the timing was off.

Secondly, using the Defense authorization bill as the surrogate for that debate was wrong. This is a little bit of an inside-the-beltway discussion, but the American people need to know why this is wrong. Each year, for 45 years, the Senate has passed a Defense authorization bill setting the policy for our national security for the following year and establishing the authorization for troop strength, military weapons acquisitions, policy related to missile defense, and you name it. The President has signed the Defense authorization bill. That then enables the Congress to appropriate the money to pay for the things that we believe are necessary for the military.

But this year, instead of having the debate and amending that bill and passing it, it was simply used as a vehicle to debate Iraq. Then when the last Iraq resolution was defeated, the bill was not passed. It was pulled from the floor. That left extraordinarily important policy hanging--policy on which our military troops rely.

This is not the first time the Democratic majority has had second thoughts about action it has taken on the Senate floor. I am glad it is having second thoughts about this bill. But by the action that has been taken, we are still not going to be adopting good policy in the right way. There are consequences to this piecemeal approach.

Let me illustrate my point. What we have just done this morning is to do two very important parts of that bill: to adopt a 3.5-percent, across-the-board pay raise for uniform military service personnel, and to adopt the language from the Dignified Treatment of Wounded Warriors Act, both of which were critical components.

Senator John McCain, my colleague from Arizona, spoke eloquently regarding both matters on this floor on numerous occasions. I know were he here now, he would be pleased at the action the Senate has taken.

Let me cite a few of the things that have been left on the cutting room floor as a result of not passing the Defense authorization bill, but rather simply taking a couple of provisions that are obviously popular with our constituents and leaving the remainder behind. Here are a few of the things we are not adopting as a result of this piecemeal approach: Senator Joe Biden noted that the MRAP, or Mine Resistant Ambush Protected vehicles, ``are the best available vehicle for force protection'' for our troops. He is right. There was $4.1 billion in the act to authorize payment for this equipment. Not adopted.

It authorizes the new hiring and bonus authorities to assist the Defense Department in recruiting and retaining needed, quality health and mental care professionals in the military. Not adopted.

It authorized $50 million in supplemental educational aid to local school districts affected by the assignment and location of military families. That is something all military families know about. Not adopted.

It authorized payment of combat-related special compensation to servicemembers who are medically retired due to combat-related disability. Not adopted.

It included provisions to examine and strengthen security forces at defense sites storing weapons-grade nuclear materials. That is a very important provision relating to nuclear deterrent. Not adopted.

It would have satisfied the Army Chief of Staff's unfunded requirements list by authorizing an additional $2.7 billion for items such as reactive armor, aviation survivability equipment, combat training centers, and machine guns--a variety of things the Pentagon said were necessary to support the missions of our men and women in the military. Not adopted.

My point here is that when you use the Defense authorization bill for the purpose simply of having a debate on Iraq, there are a lot of bad consequences to not passing that bill. You cannot cure them by simply picking a couple of the more politically popular items, such as we have done today, and getting those adopted by unanimous consent. I am delighted that we have done it, but that is not the end of the story if we are really going to support the mission of our troops.

Mr. President, let me conclude on this thought. To some extent, this debate we had in the last 2 weeks just on the Iraq war is a manifestation of what has gone on in the Congress for the last 200 days. It is hard to believe that 200 days is gone. What does this Congress have to show for its actions and being in session for these 200 days? I cannot say nothing because the reality is, we have approved and named 20 post offices. That is a post office every 10 days. It is not exactly heavy lifting, but it is something. As a matter of fact, it is the main thing this Senate can point to in terms of accomplishment. The only other thing of substance was the minimum wage increase, which, unfortunately, did not include the benefits to small businesses that have to pay the minimum wage in terms of tax relief, which Republicans

tried to have included. Of course, we had to pass the supplemental appropriations bill to fund the war effort. That is it.

I apologized yesterday for calling this a ``do-nothing Congress.'' After all, we have named 20 post offices. Let's call it the ``post office Congress.'' Perhaps in the remaining time this year we will pick up the action. Perhaps we will find ways to accomplish things that the American people really want us to do.

One of the big problems we can see is because we have not done the appropriations bills to fund everything from the military to the Departments of Justice and Commerce, all of the other departments of Government that serve the American people are going to be facing a trillion-dollar-plus Omnibus appropriations bill this winter. That is the worst of legislating. It is kind of the opposite of what we are doing with the Defense authorization bill where we don't pass the bill, but we pick two or three items that are politically popular and do them by unanimous consent.

In this case, you don't do anything to fund the Government until the last few days, and then you ball it up into one giant bill, thinking nobody can vote against it because, after all, it is either all or nothing.

That is very bad legislating and something I think we are going to resist because it represents not just an increase in spending but will undoubtedly represent bad policy as well.

Mr. President, my hope is that this ``post office Congress'' can get on to some other business. I am delighted we have been able to select two items from the Defense authorization bill to adopt by unanimous consent today. But that will not correct the deficiencies. I hope my colleagues, in the remaining time before the August work period, and in the months of September and October, will roll up their sleeves and work on the problems the American people sent us here to resolve.

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

Mr. President, I want to talk about the pending amendment to the bill. This amendment is called the Graham-Gregg-Kyl-Sessions, et al., amendment. I wanted to make a couple of quick comments about it.

Because the immigration bill failed on the floor of the Senate, a variety of States have begun to pass their own laws to enforce certain elements of immigration policy, including determining employment eligibility. My State of Arizona is one of those States.

What I noticed that at least a couple of them have done, including Arizona, is to require that employers check with the Department of Homeland Security, and the basic pilot program we have established as a pilot program, to determine the validity of the Social Security status of the prospective employee. It may well be that as States fill the gap created because the Federal Government has not adopted immigration reform legislation, especially dealing with that subject, that the Department of Homeland Security and Social Security will be increasingly called upon to provide information to the States. Because of that, they are probably going to need to be able to improve their systems; not to change what they do or create a Federal program but at least to be able to respond to those State inquiries.

My understanding from the Department of Homeland Security is that they have the capacity to deal with additional inquiries now, but they wish to improve their capabilities and make sure the accuracy level is high of the information passed back to the States and to the employers requesting information, and perhaps even to expand what it is they can provide by way of verification of the validity of the Social Security numbers. So as this process unfolds, we are going to have to make sure all of our Government agencies--primarily the Department of

Homeland Security--have what they need to respond to these requests.

To that end, one of the elements of the amendment that has been offered here authorizes the expenditure of funds for the specific purpose of improving the reliability of the basic pilot program and associated programs of the Federal Government that would respond to State inquiries. Obviously, my preference is that the Federal Government undertake that ourselves. Our responsibility is to form the immigration laws and secure the border. Having failed to pass legislation, they can help our citizens around the country by having the most robust database possible that is easy to access and, therefore, States and employers throughout the States can take advantage of.

The only other thing is that I support this amendment because it includes many of the features that were part of the immigration bill that almost everybody agreed with. What you heard in the debate was that we all agree we need to secure the border, enforce the laws, return to the rule of law, but--there was always a ``but'' and different people had different reasons they didn't want to support the bill. But the bottom line was that almost everybody here supported the essential enforcement features.

The Department of Homeland Security appropriation bill, therefore, is the appropriate place to include funding for the execution of the laws that currently exist and, almost without exception, this amendment does not add new authority or programs for enforcement but rather identifies areas in which enforcing existing law would be enhanced through greater capability achieved through the expenditure of funds that could, among other things, hire more personnel or in other ways make the system more robust.

Here is one specific example: Most folks like to refer to securing the border, and the symbol of that is the hiring of more Border Patrol. That is fine; we need them. But we also know that 40 percent of illegal immigrants in the United States didn't cross the border illegally. They came here on visas and then overstayed their visas illegally. The question is, what can we do to enforce our visa policy, as well as what can we do to secure the border?

This bill focuses on that visa overstayer problem and provides funding for the kind of particular investigators and agents for Immigration and Customs Enforcement that would ordinarily be looking at that problem. In addition, it explores ways in which the entry-exit system can be implemented and we can understand who has overstayed their visas so that can be enforced.

There is much else in this amendment that is good policy and that backs up that policy by the expenditure of funds. The $3 billion figure in here is, very roughly, an approximation of what the immigration bill that we debated provided for, minus the implementation of a couple of programs, the biggest one of which was the employee verification system. That system obviously failed along with the rest of the immigration bill. That was a pretty expensive item.

You will recall that we had mandatory spending of $4.4 billion--money that would have been collected from fines and fees. The $3 billion here represents the bulk of what that money would have been spent on, minus the employee verification system and a few other odds and ends.

That is the explanation for the particular amount of funding in the bill. I hope our colleagues will think carefully about this amendment. Its purpose is good. I think its execution is good. It is on the right bill. What it does that is a bit troublesome to some Members is provide some authorization, though that is not the primary element; it would not be the first time we provided authorization on an appropriations bill, but I can see there is some of that in here. The other aspect is the emergency funding nature. One way or another, we are going to have to get the funding to do the things the American people have insisted on. I have no objection to doing this as emergency funding. If we can fund $100 billion for the Iraq war, for example, I think we can fund $3 billion to secure our own border. If the loss of the immigration bill a month ago taught me anything, it was that the American people are very skeptical that we are committed to enforcing the law. I believe until we demonstrate to them a seriousness of purpose by actions rather than words, by the appropriation of money and by the expenditure of that money on things that they can see make a difference in enforcing immigration policy, they are not going to give us the green light to adopt a more comprehensive immigration reform bill. That is why I am supportive of this amendment as the next step toward solving the problem. I think we want to solve it. I think this is a step in that direction and I, therefore, urge my colleagues to support the legislation.

Mr. President, I rise today to introduce the Southeast Arizona Land Exchange and Conservation Act of 2007. This bill facilitates an important land exchange in Arizona that will provide for the acquisition and protection of environmentally sensitive lands while providing a much needed economic engine for the people of Superior, AZ, and the surrounding communities. I am pleased to be joined by Senator McCain as an original cosponsor of this bill.

This is not the first time Senator McCain and I have introduced this land exchange legislation. In 2005, we introduced S. 1122. S. 1122 was later modified and reintroduced in 2006 as S. 2466. S. 2466, as introduced, reflected the painstaking negotiated compromises and public feedback that we received with respect to the bill. S. 2466 had a favorable hearing before the Subcommittee on Forests and Public Lands in the Senate Committee on Energy and Natural Resources in May 2006. At that hearing, both the Forest Service and the Bureau of Land Management testified in support of the bill. The bill, however, was not enacted in the last Congress. I am pleased to say we are back again this year with a bill that includes some new provisions based on the work of the stakeholders to continue to improve the bill.

The exchange facilitates the conveyance to Resolution Copper of approximately 3,025 acres of National Forest System land, 3 miles outside of Superior, Arizona in the historic Pioneer Mining District. The acreage commonly called ``Oak Flat'' would be traded to Resolution Copper to facilitate future exploration, and possible development, of what may be one of the largest deposits of copper ore ever discovered in North America. The 3,025 acres of Federal lands are intermingled with, or lie next to, private lands already owned by Resolution Copper, and are located south and east of Resolution's existing underground Magma copper mine. Approximately 75 percent

of the Federal land is already blanketed by federally authorized mining claims owned by Resolution Copper that give it the right to explore and develop the minerals. Given the intermingled ownership, the public safety issues that may be associated with mining activities, and the significant financial investment Resolution Copper must make to even determine whether development of a mine is feasible, it makes sense, for Resolution Copper to own the entire Oak Flat area.

However, we also recognize that there are public impacts associated with transferring Oak Flat out of federal ownership. This bill goes far in addressing these impacts. Let me explain. First, the land exchange is conditioned on the execution of a permanent conservation easement to protect Apache Leap, a spectacular cliff area rich in cultural history on the western side of the Federal parcel. Although the conservation easement has been a feature in this bill since it was first introduced, we have expanded and strengthened the protections required by the easement. The easement will now apply to the entire Apache Leap escarpment totaling approximately 695 acres up from the 562 acres that were protected in the original bill. To address concerns that were raised that the mining operation might still affect the area, the conservation easement will not just prohibit surface development, it will also prohibit commercial mineral extraction under the easement area. In addition, the exchange includes a fund endowment for the implementation of the terms of the conservation easement.

The Oak Flat Campground, consisting of 16 rustic tent/RV sites, is located on the north side of the parcel, adjacent to U.S. Highway 60. Recognizing that the campground is used by the community and others, we are requiring that this campground be replaced on the Globe Ranger District at Resolution Copper's expense. Public access to this campground will not immediately terminate on enactment of the legislation: The bill stipulates continued public access to the campground for two years after enactment.

We also heard from the public that climbing and bouldering are important recreational resources at Oak Flat. For this reason, we included a placeholder in S. 1122 for additional climbing provisions as a good faith offer to the climbing community to work with us and Resolution Copper to address the loss of public access to climbing at Oak Flat in a way that would not compromise public safety. A compromise was reached by the stakeholders to continue temporary interim access to some climbing at Oak Flat; and execute a license between Resolution Copper and Access Fund, a national advocacy climbing organization, to allow climbers to gain access to popular climbing sites located on Resolution Copper's private land. This compromise along with the discovery of ``Tamo,'' a climbing gem in the Tam O'Shanter Mountains, which is slated to become Arizona's newest State park, are examples of how parties coming together can turn an unfortunate situation into a win-win.

We had hoped we would be able to make a similar announcement with regard to the cultural resource concerns that were raised by the San Carlos Apache Tribe in May of last year. Unfortunately, that is not the case. I am still hopeful, however, and I will continue to reach out to the Yavapai and Apache tribes as this bill moves through the legislative process.

In return for conveying the Federal land to Resolution Copper, the Forest Service and Bureau of Land Management will receive eight parcels of private land, totaling 4,583 acres plus $7.5 million to be placed in a trust account to be expended by the United States on additional conservation lands in Arizona. The parcels included in this bill have been identified, and are strongly endorsed for acquisition by the Arizona Audubon Society, Nature Conservancy, Trust for Public Land, Sonoran Institute, Arizona Game and Fish Department, and numerous others. They include lands along the San Pedro River, an important internationally recognized migratory bird corridor, riparian and wetland habitat for threatened and endangered animal and plant species, including the southwestern willow flycatcher and the hedgehog cactus, and magnificent canyons and forests that are home to big game species. Most of the parcels are in holdings whose acquisition will enable more effective management of the federal land. It is in the public interest to bring these conservation lands into Federal ownership for the enjoyment of future generations.

Although the focus of this bill is the land exchange between Resolution Copper and the U.S., it also includes provisions allowing for the conveyance of Federal lands to the town of Superior. These lands include the town cemetery, lands around the town airport, and a Federal reversionary interest that exists at the airport site. These lands are included in the proposed exchange to help the town to provide its municipal needs and expand and diversify its economic development.

Though I have described the many benefits of and the important compromises that are part of this exchange, you may be asking why we are legislating this land exchange. Why not use the existing administrative land exchange process? The answer is that this exchange can only be accomplished legislatively because the Forest Service does not have the authority to convey away Federal lands in order to acquire other lands outside the boundaries of the National Forest System, no matter how ecologically valuable.

This bill contains procedural safeguards and conditions that ensure it is an equal value exchange in the public interest. I will highlight some of those safeguards: First, it requires that all appraisals of the lands must follow standard federal practice and be performed in accordance with appraisal standards promulgated by the U.S. Department of Justice. All appraisals must also be formally reviewed, and approved, by the Secretary of Agriculture. Second, to ensure the Federal Government gets full value for the Federal parcel it is giving up, the Federal parcel will be appraised to include the minerals and appraised as if unencumbered by the private mining claims that detract from the fair market value of the land. These are important provisions not required by federal law. They are especially significant given that over 75 percent of the Federal parcel is covered by mining claims owned by Resolution Copper and the bulk of the value of the Federal parcel is expected to be the minerals. Third, the Apache Leap conservation easement is expressly excluded from the valuation of the Federal land, preventing any possibility that this easement would devalue the Federal land. By following standard appraisal practices and including these additional safeguards in the valuation process, the U.S., and ultimately the taxpayer, will receive full fair market value for both the land and the minerals it contains.

With this land exchange we can preserve lands that advance the important public objectives of protecting wildlife habitat, cultural resources, the watershed, and aesthetic values, while generating economic, recreation, and employment opportunities for state and local residents. I hope we approve the legislation at the earliest possible date. It is a winning scenario for our environment and our economy.

Mr. President, I rise today to introduce the Southeast Arizona Land Exchange and Conservation Act of 2007. This bill facilitates an important land exchange in Arizona that will provide for the acquisition and protection of environmentally sensitive lands while providing a much needed economic engine for the people of Superior, AZ, and the surrounding communities. I am pleased to be joined by Senator McCain as an original cosponsor of this bill.

This is not the first time Senator McCain and I have introduced this land exchange legislation. In 2005, we introduced S. 1122. S. 1122 was later modified and reintroduced in 2006 as S. 2466. S. 2466, as introduced, reflected the painstaking negotiated compromises and public feedback that we received with respect to the bill. S. 2466 had a favorable hearing before the Subcommittee on Forests and Public Lands in the Senate Committee on Energy and Natural Resources in May 2006. At that hearing, both the Forest Service and the Bureau of Land Management testified in support of the bill. The bill, however, was not enacted in the last Congress. I am pleased to say we are back again this year with a bill that includes some new provisions based on the work of the stakeholders to continue to improve the bill.

The exchange facilitates the conveyance to Resolution Copper of approximately 3,025 acres of National Forest System land, 3 miles outside of Superior, Arizona in the historic Pioneer Mining District. The acreage commonly called ``Oak Flat'' would be traded to Resolution Copper to facilitate future exploration, and possible development, of what may be one of the largest deposits of copper ore ever discovered in North America. The 3,025 acres of Federal lands are intermingled with, or lie next to, private lands already owned by Resolution Copper, and are located south and east of Resolution's existing underground Magma copper mine. Approximately 75 percent

of the Federal land is already blanketed by federally authorized mining claims owned by Resolution Copper that give it the right to explore and develop the minerals. Given the intermingled ownership, the public safety issues that may be associated with mining activities, and the significant financial investment Resolution Copper must make to even determine whether development of a mine is feasible, it makes sense, for Resolution Copper to own the entire Oak Flat area.

However, we also recognize that there are public impacts associated with transferring Oak Flat out of federal ownership. This bill goes far in addressing these impacts. Let me explain. First, the land exchange is conditioned on the execution of a permanent conservation easement to protect Apache Leap, a spectacular cliff area rich in cultural history on the western side of the Federal parcel. Although the conservation easement has been a feature in this bill since it was first introduced, we have expanded and strengthened the protections required by the easement. The easement will now apply to the entire Apache Leap escarpment totaling approximately 695 acres up from the 562 acres that were protected in the original bill. To address concerns that were raised that the mining operation might still affect the area, the conservation easement will not just prohibit surface development, it will also prohibit commercial mineral extraction under the easement area. In addition, the exchange includes a fund endowment for the implementation of the terms of the conservation easement.

The Oak Flat Campground, consisting of 16 rustic tent/RV sites, is located on the north side of the parcel, adjacent to U.S. Highway 60. Recognizing that the campground is used by the community and others, we are requiring that this campground be replaced on the Globe Ranger District at Resolution Copper's expense. Public access to this campground will not immediately terminate on enactment of the legislation: The bill stipulates continued public access to the campground for two years after enactment.

We also heard from the public that climbing and bouldering are important recreational resources at Oak Flat. For this reason, we included a placeholder in S. 1122 for additional climbing provisions as a good faith offer to the climbing community to work with us and Resolution Copper to address the loss of public access to climbing at Oak Flat in a way that would not compromise public safety. A compromise was reached by the stakeholders to continue temporary interim access to some climbing at Oak Flat; and execute a license between Resolution Copper and Access Fund, a national advocacy climbing organization, to allow climbers to gain access to popular climbing sites located on Resolution Copper's private land. This compromise along with the discovery of ``Tamo,'' a climbing gem in the Tam O'Shanter Mountains, which is slated to become Arizona's newest State park, are examples of how parties coming together can turn an unfortunate situation into a win-win.

We had hoped we would be able to make a similar announcement with regard to the cultural resource concerns that were raised by the San Carlos Apache Tribe in May of last year. Unfortunately, that is not the case. I am still hopeful, however, and I will continue to reach out to the Yavapai and Apache tribes as this bill moves through the legislative process.

In return for conveying the Federal land to Resolution Copper, the Forest Service and Bureau of Land Management will receive eight parcels of private land, totaling 4,583 acres plus $7.5 million to be placed in a trust account to be expended by the United States on additional conservation lands in Arizona. The parcels included in this bill have been identified, and are strongly endorsed for acquisition by the Arizona Audubon Society, Nature Conservancy, Trust for Public Land, Sonoran Institute, Arizona Game and Fish Department, and numerous others. They include lands along the San Pedro River, an important internationally recognized migratory bird corridor, riparian and wetland habitat for threatened and endangered animal and plant species, including the southwestern willow flycatcher and the hedgehog cactus, and magnificent canyons and forests that are home to big game species. Most of the parcels are in holdings whose acquisition will enable more effective management of the federal land. It is in the public interest to bring these conservation lands into Federal ownership for the enjoyment of future generations.

Although the focus of this bill is the land exchange between Resolution Copper and the U.S., it also includes provisions allowing for the conveyance of Federal lands to the town of Superior. These lands include the town cemetery, lands around the town airport, and a Federal reversionary interest that exists at the airport site. These lands are included in the proposed exchange to help the town to provide its municipal needs and expand and diversify its economic development.

Though I have described the many benefits of and the important compromises that are part of this exchange, you may be asking why we are legislating this land exchange. Why not use the existing administrative land exchange process? The answer is that this exchange can only be accomplished legislatively because the Forest Service does not have the authority to convey away Federal lands in order to acquire other lands outside the boundaries of the National Forest System, no matter how ecologically valuable.

This bill contains procedural safeguards and conditions that ensure it is an equal value exchange in the public interest. I will highlight some of those safeguards: First, it requires that all appraisals of the lands must follow standard federal practice and be performed in accordance with appraisal standards promulgated by the U.S. Department of Justice. All appraisals must also be formally reviewed, and approved, by the Secretary of Agriculture. Second, to ensure the Federal Government gets full value for the Federal parcel it is giving up, the Federal parcel will be appraised to include the minerals and appraised as if unencumbered by the private mining claims that detract from the fair market value of the land. These are important provisions not required by federal law. They are especially significant given that over 75 percent of the Federal parcel is covered by mining claims owned by Resolution Copper and the bulk of the value of the Federal parcel is expected to be the minerals. Third, the Apache Leap conservation easement is expressly excluded from the valuation of the Federal land, preventing any possibility that this easement would devalue the Federal land. By following standard appraisal practices and including these additional safeguards in the valuation process, the U.S., and ultimately the taxpayer, will receive full fair market value for both the land and the minerals it contains.

With this land exchange we can preserve lands that advance the important public objectives of protecting wildlife habitat, cultural resources, the watershed, and aesthetic values, while generating economic, recreation, and employment opportunities for state and local residents. I hope we approve the legislation at the earliest possible date. It is a winning scenario for our environment and our economy.

Mr. President, I believe there is an opportunity for someone to speak against the amendment; is that correct?

Mr. President, until this last amendment, I haven't seen politically inspired amendments before this body, and we don't have to vote on politically inspired amendments.

As the distinguished Presiding Officer knows, a suggestion of political motivation is a violation of the rules of the Senate, and I don't believe that any of these amendments have been politically inspired.

The next one offered by Republicans has to do with Pell grants. I think the senior Senator from California had a very serious amendment with respect to detainees at Guantanamo, and there was an amendment which related to that issue. We had an amendment on the fairness doctrine, another on the Secret Ballot Protection Act.

These are serious amendments. I am sure my colleague did not wish to suggest they were politically inspired. I hope that we don't get into politically inspired amendments and that our colleagues will vote against the amendment that has been offered just for that reason.

Madam President, I have an amendment at the desk, No. 2353, and I ask for its immediate consideration.

I ask unanimous consent that further reading of the amendment be dispensed with.

Madam President, the AMT patch that protected most taxpayers from the alternative minimum tax expired on December 31 of last year. As a result, 15 million additional taxpayers on top of the 4 million taxpayers already subject to AMT are subject to the tax this year. This bill affords us an opportunity to correct the problem now, and we should. We are halfway through the year, and the tax is adding up. The AMT should be repealed as soon as possible.

The text of my amendment is identical to a bill introduced by Senator Baucus on January 4. It is S. 55. Very simply, the bill would repeal the individual AMT without any revenue offsets.

In his introductory statement, Senator Baucus noted that the AMT is a ``monster that really cannot be improved. It cannot be made to work right.'' I agree with him. That is why the Senate should vote to repeal the AMT now, before it overwhelms the middle class.

While I believe the Chair will rule it is not germane to this bill, I would suggest to my colleagues it is propitious; that this bill gives us the opportunity to act now to repeal this tax.

Thank you, Madam President.

I will suggest that under the Budget Act the proposed second-degree amendment is not germane. Let me make two comments about it first.

I think it is responsible for us to repeal the AMT in the way the distinguished chairman of the Finance Committee has proposed to this body in S. 55. I happen to be a cosponsor of that bill. I think it is a very good idea.

It is true it repeals the AMT without any revenue offsets. I happen to believe, as the chairman of the Finance Committee does, that is a responsible action, given the number of Americans who otherwise would be subject to the tax.

While I appreciate the notion that a sense of the Senate that we should do tax relief on AMT would be a good thing for this body to do, one of two things will happen. Either the blue slip issue will not be a problem because it will not be raised and we can, in fact, use this vehicle to accomplish this result now or it will and, in effect, my amendment would have been the equivalent of a sense of the Senate.

Madam President, I raise a point of order under the Congressional Budget Act that the proposed second-degree amendment is not germane.

Madam President, I move that the applicable provisions of the Budget Act be waived, and I ask for the yeas and nays.

Mr. President, I apologize. If I could ask the distinguished leader, was this with respect to the Levin-Reed amendment No. 1401?

Mr. President, if I could respond, and reserving the right to object, I assume that if the Cornyn amendment, which was designed to be a side-by-side amendment, and the Levin-Reed amendment could both be voted on and both had a 60-vote threshold, a time agreement could be worked out. I ask the majority leader, could the unanimous consent request be modified to incorporate that principle so that there wouldn't have to be cloture, but there could be a vote on both of those amendments?

Yes, Mr. President, unfortunately, under that circumstance, I object.