Floor Statements

Madam President, today and tomorrow could be historic days in the Senate--indeed, in the history of our country--because we have an opportunity to eliminate what some have called the most unfair tax of all. I speak of what has been called the estate tax, or the inheritance tax, or more recently has become known as the death tax.

Just a word of the history of this tax would be interesting to my colleagues before I discuss the process by which this consideration will occur and some of the reasons why we need to proceed with it.

It is very interesting that the history of the estate tax actually can be traced back to ancient times and the Roman Empire, but the more relevant history for purposes of the United States, because we borrowed this concept from England, came from the Middle Ages when the sovereign or the state, of course, owned all of the assets--the land and even the personal property--within the country.

What would happen is, when the king owned all of the feudal property in England, he would grant the use of that property to the people within the kingdom. Certain individuals during their lifetimes--let's say a farmer--would have the land to till and the farm animals to take care of. When that farmer died, in effect, his family would have to buy back that property from the king in order to continue to farm that land, to raise those farm animals and so forth. When the king died, the king would let the estate retain the property on which the payment of an estate tax, called a relief, existed. That would then enable the family to continue to run the family farm or the family business, to put it in modern-day terms.

It seems very strange indeed in the 21st century we would retain this odd and clearly out-of-place custom of having to buy back our property from the king. We do not have a king anymore. There has never been a king in the United States of America. Our right to property is guaranteed in the Constitution. So it seems strange, indeed, that we should be following a custom which required us to buy back from the king our property when our father or our mother dies, for our children to have to buy it back when we die. Yet that is the etiology of the estate tax, that you pay the state to continue to enjoy the right to the property that you always thought was yours.

It is a very expensive price, indeed. In recent years, it has been 55 percent for the largest estates. Clearly, a lot of people could not afford this, people who put their life savings into their farm or their business.

I had a friend from Phoenix who owned a printing company. He started it himself, and after 40 years built it up to a prosperous printing company. He took a modest sum out for he and his family but basically plowed everything back into the company because to stay ahead in the printing business you had to buy the most modern printing equipment and technology.

On paper, his family had a lot of wealth. He had a lot of wealth when he died. But it was literally tied up in the company. His family looked at the estate tax. They had spent a lot of money buying insurance and so on. They found they were going to basically have to pay over half of the value of this company to the Government. They did not have that money. They did not have that liquid cash. So they had to sell this printing company in order to collect the money to pay the Government about half of it in the form of an estate tax.

What happened? This particular man was one of the most generous people in the city of Phoenix. He contributed millions of dollars. In fact, there is a Boys and Girls Club named after him. Every year his wife and his daughter would be involved in charitable activities. I know because my wife is one of the best friends of his daughter. They headed up charity events and raised millions of dollars for our community. When his family had to sell the business to pay the estate tax to the Government, they were no longer in a position to do the things for the community they had always done. They have remained very active and very giving but not to the same extent when they had a business to rely upon.

So this community lost in many ways. It lost a great, locally owned, family-owned business. It lost the patriarch of that business, a very generous person, who supported the community, and the family, of course, has not been able to employ those people. Over 200 people were employed in the business.

One of the modern-day rationales for the estate tax is that it prevents the concentration of wealth in just a few families. If there is any Nation that you don't have to worry about that, it is the United States of America. We are a Nation in which anyone can make wealth--and you can lose it quickly. Everyone aspires to get higher on the economic ladder. The notion that somehow there are just a few rich families in this country controlling everything is, of course, a wild myth. So it is not necessary to break it up.

But what happened when people like my friend Jerry, when he passed away and his family had to sell his printing company, what happened to the concentration of wealth? It sure took it away from his family, all right, though no one would contend they were really among the elite of this country. He was a poor Jewish kid from New York who came out west, made good, employed a lot of people and did a lot for his community. No, they sold to a big corporation, a public company. So the concentration of wealth, of course, was enhanced, not lessened, as a result of the application of the estate tax.

It is very hard for small businesses these days, or even small farms, to compete with publicly-owned businesses. When the CEO of a publicly- owned business passes on, nothing happens. The corporation simply goes chugging right along. But when the patriarch of a family-owned business passes away and half of the money in the business has to be paid to Uncle Sam, it can crush that small business. It is one of the reasons we need to eliminate this tax. The small family-owned business or family-owned farm cannot compete with the giant corporation which does not suffer the same kind of tax.

We should not have to buy back the estate from the king any longer. We need to end this most unfair tax of all, the death tax.

It is interesting that even though most Americans will not have to pay the death tax because their estates would fall within the amount that is exempted, by very large numbers, they recognize it is a very unfair tax. So when public opinion surveys ask people their opinion of the tax, the majority of people in this country say they would like to end the tax, that it is unfair and it should be eliminated. As a matter of fact, this applies to liberal and conservative voters.

According to a Gallup poll from April of this year, 58 percent of the respondents said that the inheritance tax is unfair. It is interesting, this poll was taken when Americans were filing their taxes. The death tax was called unfair by more people than the despised alternative minimum tax. Only 42 percent of the AMT said it was fair. Yet, of course, we know that also to be a very unfair tax. It was never intended to apply to average Americans. It was put in there to make sure that even the wealthiest Americans with all of their deductions, exemptions, credits and places to park their money that even they would have to pay some tax--even if they did not owe any income tax, they would owe an alternative minimum tax.

Now, that alternative minimum tax, much like the death tax, is reaching down to take money from more and more and more Americans. So we are recognizing that whatever its good intentions originally, it is an unfair tax.

It is interesting that even though more Americans will be hit with the AMT, a greater number of Americans believe the death tax is more unfair

than even the alternative minimum tax. Of course, they are both unfair. They both need to be eliminated. It shows the sense of fairness that Americans have.

There was a poll taken not long after the Presidential election last year. It was interesting to me that while 89 percent of people who identified themselves as Bush voters believed the death tax is somewhat or very unfair, 71 percent of the Kerry voters also found the death tax at least somewhat or very unfair: 25 percent, somewhat; 46 percent, very unfair. So this reaches across the economic spectrum; it reaches across the political spectrum. Americans know an unfair tax when they see it, and they think it ought to be eliminated.

Of course, the economic theory backs them up. They say it is unfair because, among other things, it is a tax on hard work. It is a tax on thrift over consumption. It is a tax on assets that have already been taxed at least once when they were earned and sometimes multiple times as that money has been invested and then returned a profit.

Americans understand we should have a tax policy that encourages savings and encourages working more. When people know that the next dollar they earn is going to be taken by the Federal Government or that half of everything that is left in this estate could be taken by the Federal Government, what is the incentive for them to continue to work?

Dr. Edward Prescott, a Nobel Prize winner in economics from Arizona State University, got that prize by proving the phenomenon that there is a direct relationship in how much more people will work and how much they have to pay in taxes. When they know most of what they earn, they can put back into their business, save, invest or give to their kids, they will continue to work. When they know it will go to Uncle Sam, guess what. They don't work anymore. That is lost productivity. It is lost productivity that damages our entire country, our economy. It obviously hurts in job creation. It hurts in our ability to continue to enjoy the kind of growth we have.

The studies verify this. The studies verify, according to the Joint Economic Committee, for example, which has done one of these recent reports, that the estate tax has reduced the stock of capital in the economy by about $847 billion over the last several decades, the last 60 years. That is almost $1 trillion in lost capital that could have been put to work creating jobs and creating products.

In comparison, the estate tax raised $761 billion in inflation- adjusted dollars over this same period of time. The bottom line is, this is a destructive tax. It is not a tax that helps taxpayers very much. It is about 1 percent of the revenues we collect, and, according to estimates, Americans actually pay about the same amount in money every year to avoid paying the death tax as it brings into the Federal Treasury.

Alicia Munnell, an economist, has made that point. She was a member of President Clinton's Council of Economic Advisers. She estimated that the costs of complying with the estate tax laws are about the same as the revenue raised. It is expected to raise about $28 billion in this fiscal year.

The bottom line is, therefore, it is a very inefficient tax. It costs, actually, twice as much as we think it does. It does not bring in that much revenue. And certainly it is very detrimental to economic growth and to capital formation.

There is a way we treat this phenomenon in the Tax Code. It really tells us how we should treat the estate tax. Think about the unintended events that occur in your life. Obviously, death is the chief among them. You cannot choose when you die. Everyone knows they are going to die, but it is not an event that is a voluntary event or that we decide when we are going to do it, certainly not for tax-planning purposes.

It is much like a couple of other things that are recognized in the Tax Code as involuntary events. One of them is what happens when there is a theft. Someone breaks into your home and steals a lot of your property. You might get the insurance company to give you that money back. Should that money be taxed as income when you get it back from the insurance company? Of course not. It is merely a replacement for what was stolen from you. The Tax Code recognizes this in what is called an ``involuntary conversion,'' and they do not force you to pay the ordinary income tax on the money you get back when you suffer that loss.

It is the same thing for death. Death is not a planned event. Death is not something like a sale of property for which you would expect to pay a capital gains tax but, rather, something that occurs to you involuntarily; certainly you should not suffer a price when the estate is passed to you from your loved one, let's say. It comes, of course, at the worst possible time in people's lives to begin with, when they are grieving the loss of a loved one and now are going to have to pay the king to get that loved one's estate. This is not something which Americans believe is fair or right or just.

There is a way we treat this in the Tax Code--involuntary conversion. You don't get taxed on it. The same philosophy ought to apply to the estate tax. There are a lot of reasons. There are the purely economic reasons. There is American public opinion. There is the philosophy of the Tax Code. All of these things mitigate against having this unfair death tax today.

What we have done is to, therefore, set up a process by which we can take up the House bill which voted overwhelmingly to eliminate the death tax. That is H.R. 8. What we are debating now is the taking up of H.R. 8 so that we, too, can vote to repeal this fundamentally unfair tax. We will have a cloture vote. It will occur presumably sometime tomorrow. I urge colleagues to vote yes on cloture so that we can take up the House bill.

Some of my colleagues do not want to support the House bill for full repeal. I understand that. They are well aware of the fact that since there may not be support for that to get 60 votes, a lot of work has been done to develop an alternative which would end the most pernicious impact of the tax but still allow some revenue to be collected from the most wealthy estates each year. I will discuss that in a moment.

The bottom line is that in order for us to vote on full repeal or to vote on an alternative to full repeal, we will have to support the first cloture motion to proceed so that we can take up the House bill. Presumably, then, the majority leader would have a cloture vote on that underlying bill and people can vote yes or no on that as they please. I will vote to repeal the estate tax. Should that fail, we will then have the opportunity to vote on an alternative. That alternative has been relatively widely discussed, and we will have an opportunity to discuss it more later.

In general terms, what it would do is provide that most people won't have to spend the $30 billion a year that is spent on insurance policies, lawyers, accountants, estate planners, and the like to try to avoid paying most of the estate tax. For most people, under this alternative compromise, the exempted amount will be large enough that they won't have to worry about it, or if even after the exempted amount, their estate will be covered--and with the increase in real estate prices today and with the value of businesses and farms going up, frequently, simply because of the value of the land or the personal property, a lot of estates could get caught even with a generous exempted amount. We have a plan that only the capital gains tax rate would apply. If that is the case, then, whether you choose to sell the property before death or you are willing to pay whatever you have to after the exempted amount after death, it is the same. It would be 15 percent today; after 2010, it would be 20 percent, if that is not changed. Everybody knows, therefore, that the penalty, in effect, to the Government is the same. You pay on the gain if you sell the property before death. If your heirs inherit the property, they would pay that same 15 or 20 percent. There may be an addition to ensure that the very wealthiest estates pay at a higher rate. That is something we are discussing with colleagues.

The bottom line is, what we will do is make clear that for most people, they won't have to worry about the death tax anymore. For the very few who do, it would be only the very largest estates which would clearly have the financial means of doing something about it.

We are not going to be able to get to either a vote on full repeal or the alternative unless we vote for cloture to

take up the House bill. That is the critical vote which will occur tomorrow.

We have a series of speakers. I believe the Senator from Texas, Mr. Cornyn, is next. Then we have Senators Talent, Shelby, Bunning, Allen, Thune, and Grassley on the Republican side. I urge them to be here to ensure their place in line so that they have an opportunity to speak for the allotted time on this important issue, laying the foundation for what is going to be a historic vote tomorrow to finally get on the process for getting rid of this most unfair tax.

I urge colleagues' support and yield the floor.

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

Mr. President, I rise today in strong opposition to the Akaka bill. If cloture is invoked on that bill, there is a process by which we will debate and amend the bill.

I would like to discuss with my colleagues today some of the infirmities with the bill that we would hope to address through the amendment process. There is no way to sugarcoat this bill.

This bill proposes that the Federal Government establish a racial test for Americans who want to participate in the creation of a new government--a government that will gain, according to section 8 of this legislation, lands and natural resources, civil and criminal jurisdiction, and governmental authority and powers. It is unconstitutional, it offends basic notions of American values, and it should be rejected.

I would like to spend a few minutes talking about an amendment that we would be voting on should this bill be brought forward.

First, keep in mind that we are going to have to decide once and for all if we believe in racial tests and race-based government. Government anticipated by this bill is created through a racial test. Read section 3, subparagraph 10: Native Hawaiians, those eligible to participate in the creation of this government, are defined ``as an individual who is one of the indigenous, native peoples of Hawaii and who is a direct lineal descendent of the aboriginal, indigenous, native people in the Hawaiian islands on or before January 1, 1893, and exercised sovereignty there, or a person who descends from one who was one-half Native Hawaiian in 1921.''

What is that test? It is a racial test. As the Supreme Court emphasized, ancestry is a proxy for race.

Some advocates insist that it is not a race-based government, no matter what the actual language of the bill says.

So we will offer an amendment to put this question to the Senate.

The amendment will say that this new government will not have any governmental powers if membership in the entity is in any way determined by race or ancestry. The Senate will have a straightforward up-or-down vote on whether it supports or rejects the principle of race-based government. If I am wrong and the bill's text is wrong, and this isn't about race, then that amendment will surely pass overwhelmingly.

When I discussed this amendment with the bill's sponsors in the past, they have said they would strongly oppose it. So we will let the Senate vote directly and resolve the issue. All Senators should look forward to a vote on whether they support race-based government.

Second, we will have to decide whether the Constitution and basic civil rights are to be left to a negotiation process after the bill's passage.

As I have explained previously, this bill would allow the creation of a government not subject to the Constitution and Bill of Rights. It could also be immune from the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and all other State and Federal civil rights laws. It would authorize creation of an enclave where Native Hawaiians would be subject to a different set of legal codes, taxes, and regulations.

Proponents deny this. They say it is preposterous to say that civil rights won't be protected. They say the bill won't result in unequal tax and legal systems in Hawaii. They say basic fairness would be preserved. But then they say just how this happens is entirely up to subsequent negotiations between the Native Hawaiian entity and State and Federal bureaucrats.

Obviously, basic civil rights should not be up for negotiation. So we will offer an amendment to clear this up. My civil rights amendment will apply the entire Bill of Rights to the new government. It will apply all Federal antidiscrimination laws. It will ensure that the new government doesn't have any special immunities from lawsuits under those laws.

It will prevent the creation of any racially defined liabilities, so that no person is subject to any law, regulation, tax, or other liability if any person is exempted on the basis of race or ancestry. And it will guarantee fairness and equal treatment. It will not leave these matters up to future ``negotiations.''

This civil rights amendment deserves a vote, and it will get one.

The New York Times editorialized today that the bill does not ``supersede the Constitution.'' I disagree, but we can resolve this.

So let's vote and not leave it up to chance. Let's adopt my amendment and guarantee civil rights and equal treatment.

Again, I have shared the drafts of this amendment with the sponsors of the bill who said they oppose it. Perhaps they will reconsider, but the Senate will have an opportunity to vote on this amendment.

Third, there is a dispute over whether the people of Hawaii, who are most personally affected by this legislation, actually want this bill. The sponsors say yes, and point to opinion polls that speak vaguely of ``recognizing'' Native Hawaiians. I can point to alternative polls which show strong majorities opposed when the citizens understand that with recognition comes the potential for unequal treatment. Do the Hawaiian people want this? We know much of the political establishment does. But what about the citizens? I am concerned that this bill will divide Hawaii and encourage racial division there and elsewhere.

Indeed, as the U.S. Commission on Civil Rights noted in its report, if you listen to the citizens of Hawaii rather than just their political leaders, it is clear that this legislation has already divided that State. Why would the Senate want to impose a divisive result upon the State of Hawaii without giving Senators a voice?

So one of my colleagues will offer an amendment that will give us the answer to the question. It will simply require that all citizens of Hawaii have a voice by requiring a statewide referendum once the negotiations are complete.

The Senate should not be passing on the question of what is good for Hawaii when we have evidence of such division.

Again, I have floated this idea by the bill's sponsors, and they have opposed a referendum requirement. But why would they not want to ensure that the people of Hawaii have a direct voice in approving or rejecting the final product of the negotiations called for in the bill?

So we will have an amendment. The Senate can decide if the people of Hawaii should be denied their opportunity to speak.

As I have said in the past, I will support a cloture vote and will support the Senate having an opportunity to debate and vote on amendments to this bill. But should cloture be accepted and the Senate get on this bill, I have also

noted I strongly oppose it and will offer amendments to try to ensure the result of the bill is most fair to the people of Hawaii. That I will most surely do.

I look forward to that debate. I look forward to the debate and amendments that will be offered as a result.

I yield the floor.

Mr. President, I ask unanimous consent that the Committee on Agriculture, Nutrition and Forestry be authorized to conduct a hearing during the session of the Senate on Wednesday June 7, 2006 at 9 a.m. in 329A, Senate Russell Office Building. The purpose of this committee hearing will be to discuss Agricultural Conservation Programs.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, June 7, 2006, at 9 a.m. to hold a hearing on Oil Dependence and Economic Risk.

Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary be authorized to meet to conduct a hearing on ``S.3274: The Fairness in Asbestos Injury Resolution Act of 2006'' on Wednesday, June 7, 2006 at 9:30 a.m. in Dirksen Senate Office Building Room 226.

Witness list:

Panel I: Governor John Engler, President, National Association of Manufacturers, Washington, DC; Peter Ganz, Executive Vice President and General Counsel, Foster-Wheeler, Clinton, NJ; Eric Green, Founder, Principal Resolutions, LLC, Professor, Boston University, Boston MA; Flora Greene, National Spokesperson, Seniors Coalition; Jim Grogan, General President, International Association of Heat and Frost Insulators and Asbestos Workers, Latham, MD; Douglas Holtz-Eakin, Director, Council on Foreign Relations, Washington, DC; Edmund F. Kelley, Chairman, Liberty Mutual Insurance Company; Bob Wallace, Executive Director, Veterans of Foreign Wars, Washington, DC.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on June 7, 2006 at 2:30 p.m. to hold a closed business meeting.

Mr. President. I ask unanimous consent that the Senate Committee on Commerce, Science, and Transportation Subcommittee on Science and Space be authorized to meet on Wednesday, June 7, 2006, at 2:30 p.m. on NASA Budget and Programs: Outside Perspectives.

Mr. President, I rise today in support of S.J. Res. 1, the Marriage Protection Amendment to the U.S. Constitution. I support this amendment because traditional marriage is the bedrock institution of our society and its integrity must be maintained. The people and State legislatures around the country have approved laws and constitutional provisions to protect traditional marriage, but courts persist in reinterpreting their State constitutions to redefine the institution. I believe that, to prevent that kind of judicial activism from spreading, and to guarantee that people and the States can decide the issue, Congress should approve the marriage amendment and send it to the States for ratification.

In my brief remarks, I will address two basic questions. First, is marriage worth defending? And second, is a constitutional amendment necessary, or can this question be handled through the states?

On the first question, the answer should be clear to all. Traditional marriage--marriage between a man and a woman--is the fundamental institution of our society. That is primarily because marriage is the best environment for the protection and nurturing of children. Traditional families are where we hope that children will be born and raised and where we expect them to receive their values. If we want our Nation's children to do well, we need to do everything we can to ensure that children grow up with mothers and fathers. And the place where that happens best is where mothers and fathers properly unite, in marriage. The state sanctions and encourages marriage not only because it wants to validate a lifelong personal relationship, but, more importantly, because we need a stable institution for child-rearing. That is why this issue is of such great importance.

We send a very important message to our children when we stand up for the institution of marriage. We tell them that marriage matters--that traditional family life is a thing to be honored, valued, and protected. We tell them that marriage is the best environment for the raising of children. We tell them that every child deserves a mother and a father. We point them to the ideal. We simply cannot strip marriage of its core--that it be the union of a man and a woman--and expect the institution to survive in its present form. The law of unintended consequences certainly applies here, as in all things. We cannot strip the institution of its essence and expect no adverse consequences.

That leads me to the second question: is a constitutional amendment necessary, or can the future of marriage be handled at the state level? I have heard some of my colleagues argue that this issue is best left to the States. They argue that family law is traditionally a State issue, and that the States are best equipped to manage family law matters. They say that Congress should do nothing, and just let each jurisdiction sort this out on its own.

First, just as a matter of history, some like to say that the definition of marriage is only a State issue, but history shows that the question is a bit more complicated. For example, when Congress admitted Utah as a State in 1896, it expressly required Utah to ban polygamy. In other words, the Federal Government imposed the traditional definition of marriage, because Members of Congress believed that the issue was of national importance. And in general, at least since the Civil War, we have moved increasingly towards a system in which the core questions about how to order our society are answered on a national level.

Second, we should focus on what ``federalism'' actually means. Many opponents of this constitutional amendment suggest that our federalist principles require us to sit on our hands and do nothing. Respectfully, I believe that the underlying principle that gives federalism its power is being misunderstood and misapplied. In fact, I think exactly the opposite is true: a genuine examination of the principles of federalism and States' rights should lead one to support this amendment.

The purpose of federalism is to empower the American people and to bolster democratic participation by ensuring that questions are decided at the local level, wherever possible.

We do not want the Federal Government deciding questions of purely local

importance, so we have limits on Federal power. These limitations are designed not so much to protect State governments, but to ensure that democracy works more efficiently and that policy is set by the American people through the officials that they know better and who are physically closer to them. Thus, federalism is not a dry question of allocating power among governments and politicians. It is about finding the best way to enhance the power of the people themselves.

A vote against this amendment does nothing to enhance the power of the American people. The only thing it does is enhance the power of the courts. To hear this talk of ``States' rights'' and ``federalism,'' you might think that the American people are clamoring for same-sex marriage. In fact, just the opposite is true. Opinion polls consistently show nearly 60 percent opposition to same-sex marriage. Moreover, when citizens are given the opportunity to vote on State constitutional amendments, they support those amendments by an average of 70 percent.

No, as we all know, the danger here is not State legislatures, but judicial activism from the courts. The American people are not deciding this question; the courts are. The alternative to a Federal constitutional amendment is not one in which the people are left to operate their States as laboratories, as Justice Brandeis once suggested, but one in which the people are robbed of any ability to control this issue.

So let us deal with the facts on the ground, so to speak. This is not being ``handled'' by the States today. It is being handled by the courts. Even in the ``reddest of the red'' States such as Nebraska and Oklahoma, each of which adopted State constitutional amendments to protect traditional marriage, the activists have sued Federal court and said those State amendments are unconstitutional under Federal law. The citizens of these States are not being permitted to decide this question. ``States rights'' implies not courts, but the people, making these decisions.

Let's look at what is happening in the courts, with special attention to what has happened since we last debated this amendment.

First, since July 2004, State trial courts in Washington, New York, California, and Maryland all have struck down traditional marriage laws. Those cases are now on appeal. So, compare today versus 2 years ago. In July 2004, we were looking only at Massachusetts. Today, State courts in four other States have followed Massachusetts' lead.

Second, even more State court lawsuits have been filed. In Connecticut and Iowa, same-sex marriage advocates argue that each State's traditional marriage law is unconstitutional, and that the courts must redefine the institution to include same-sex couples.

Third, there has been increased action in Federal courts. In particular, a Federal district court in Nebraska struck down the State's constitutional amendment protecting traditional marriage. The case is on appeal to the Eighth Circuit, and a decision is likely sometime this summer. Regardless of how the case comes out, it shows the aggressiveness of the advocates for same-sex marriage. In Nebraska, 70 percent of voters adopted a constitutional amendment stating clearly that they wanted marriage to be preserved in its present, traditional form. Yet the ACLU still sued.

There has been other Federal court action as well. For example, activists filed a lawsuit in Federal court in Oklahoma challenging the State constitutional amendment enacted by voters, as well as Federal DOMA itself. DOMA also came under fire in California, where a Ninth Circuit panel dismissed a constitutional challenge on technical, standing grounds. Some good news came in Florida, where a Federal district court upheld DOMA's traditional definition of marriage for purposes of Federal law.

So, in summary, there are currently 9 States facing lawsuits challenging their marriage laws--California, Connecticut, Iowa, Maryland, Nebraska, New Jersey, New York, Oklahoma, and Washington. I should add that State supreme courts are expected to rule in New Jersey and Washington sometime this year.

I mention all these cases because they show the folly of relying on ``federalism'' or ``States' rights'' to resolve this national debate. The people are not deciding these lawsuits; judges are. If we do nothing--if we stand aside and let the States work it out, as some of my friends argue, then the American people will see the institution of marriage redefined against their will. It is happening now, and it is going to continue happening for as long as this body punts on this issue.

If we want to stand up for federalism--not to mention traditional marriage--then let's look at how a constitutional amendment works. The constitutional amendment process outlined in Article V of the Constitution is the most democratic, the most grass roots, and the most respectful process available for the establishment of national policy. A constitutional amendment requires the support of \2/3\ of both houses of Congress. Then it requires the support of the legislatures of \3/4\ of the States in the Union. Then, and only then, can the amendment become effective. This is a very high hurdle, but it guarantees that the American people have a full and complete opportunity to speak to the issue, that they can express their views to their Senators, their Congressmen, and their State legislators. It takes time. But in the end, if a constitutional amendment passes, we know that the American people want it.

In other words, Mr. President, the constitutional amendment process enhances federalism and States' rights. It ensures that there is a national consensus on this question, and it pushes the decisionmaking down to the most representative political leaders in our system, rather than allowing a few judges to amend the Constitution by overturning two centuries of our common understanding.

I have much more to say, especially regarding the meaning of this amendment and the political situation in the States, but time is short, so I will ask unanimous consent at the conclusion of my remarks to have printed excerpts from a policy paper that I issued as Chairman of the Senate Republican Policy Committee, ``Why a Marriage Amendment is Still Necessary,'' which was published back on March 28.

To cite ``federalism'' or ``States' rights'' is to avoid the issue as it is actually playing out. Instead, we must decide whether this question belongs in the courts, where it is now, or whether it belongs in the legislatures and before the people. I submit that we should not stand in the way of the American people's right to speak on this question. I have faith that this constitutional amendment process will work--that the difficult social and cultural questions posed by same- sex marriage can be resolved satisfactorily through the democratic process of passing this constitutional amendment.

But I am even more sure that, if we fail to send this amendment to the people, and if the courts continue on their current path, our Nation will face decades of division that will make current frustrations with judicial activism seem quaint in comparison. If we refuse to act, the big loser will be not only traditional marriage, but the people's respect for the judicial system and for the rule of law itself. Such a breakdown would be disastrous, but it is avoidable. It is avoidable if Congress votes ``yes'' and sends this amendment to the States for ratification.

Mr. President, again, it should go without saying that traditional marriage as we understand it between men and women is a fundamental institution of our society and that we should do everything we can to ensure its preservation. The reason that is so is primarily because marriage is the best environment for the protection and the nurturing of children. We send a very important message to our children when we stand up for this institution. We tell them that marriage matters, that traditional family life is a thing to be honored and valued and protected. We tell them that marriage is the best environment for raising of children, that every child deserves a mother and a father. We point them to this ideal. We simply cannot strip marriage of its core, that it be the union of a man and a woman, and expect the institution to survive in its current form. The law of unintended consequences certainly applies here as in all things. We can't strip the institution of its essence and expect no adverse consequences.

That brings us to the second core question: Is a Federal constitutional amendment necessary to preserve this institution? I have come to the conclusion that it is. The question is whether this matter can be and is properly being handled at the State level, as some of our colleagues have contended. It is being handled at the State level to be sure, but the question is whether it is being handled by the people or by their elected representatives or whether in effect the Constitution is being rewritten by the courts, whether a couple of centuries of tradition about a common understanding of what traditional marriage meant is being eroded by court decisions rather than the will of the people.

Opinion polls consistently show nearly 60 percent opposition to same- sex marriage, and when citizens are given the opportunity to vote on State constitutional amendments, they approve them by an average of about 70 percent. So the danger here is not State legislatures but judicial activism from the courts. The American people are not deciding this question; the courts are. That is why the notion that we need to preserve federalism or States rights is, in my view, misplaced.

The alternative to a Federal constitutional amendment is not one in which the people are left to operate their States as laboratories, as Justice Brandeis once suggested, but one in which the people are robbed of any ability to control the issue because it is being resolved in the courts. Even in the reddest of the red States, such as Nebraska and Oklahoma, each of which adopted State constitutional amendments to protect traditional marriage, the activists have sued in Federal court and said that those amendments are unconstitutional under Federal law. So the citizens of these States are not being permitted to decide the question. States rights implies not the courts but the people making the decisions. That will not be what happens if these constitutional provisions are thrown out by the courts.

Look at what happened in just the last couple of years here, since we last debated the amendment. In 2004, State trial courts in Washington, New York, California, and Maryland all struck down traditional marriage laws. Those cases are now on appeal. So compare today versus 2 years ago. In July 2004, we were looking only at Massachusetts. Today, State courts in four other States have followed Massachusetts' lead. So the concern about the courts intruding into this area is not a hypothetical future concern but a reality today.

Even more State court lawsuits have been filed--for example, in Connecticut and Iowa. In addition to that, there is increased action in Federal courts. In particular, the Federal district court in Nebraska struck down a State's constitutional amendment protecting traditional marriage, as I mentioned a moment ago. That case is on appeal to the Eighth Circuit.

Mr. President, would I be out of order if I asked for unanimous consent for 1 more minute to conclude my remarks?

In summary, to summarize these cases, there are currently nine States facing lawsuits challenging their marriage laws-- California, Connecticut, Iowa, Maryland, Nebraska, New Jersey, New York, Oklahoma, and Washington--and the State supreme courts are expected to rule in New Jersey and Washington sometime this year.

So the bottom line is this: The people are not deciding the Constitution, the judges are. If we do not do anything, if we stand aside and let the States work it out, as some of my friends have suggested, then the American people are likely to see the institution of marriage redefined against their will, and it will be much more difficult to adopt a constitutional amendment after these rulings are in place than it is to do so before they are in place.

Mr. President, I ask unanimous consent to have printed at the conclusion of my remarks excerpts from a policy paper that was issued by the Senate Republican Policy Committee.

Mr. President, I rise in opposition to this amendment. This amendment is not just some little amendment that is seeking to cure some outlying kind of case. It amends existing law, as well as to strike a provision that was added in the Judiciary Committee. It is opposed by the administration. The reason is because the administration today is using the part of the law that would be stricken here to remove, in an expedited fashion, illegal immigrants who come here, and--using the figures that are more current--over 10 percent of whom, by the way, are criminals, to their home country, the other-than- Mexican illegal immigrant. Last year, there were over 135,000 of these people who were apprehended, and they were from countries all over the world, including a lot of countries that won't take them back, especially won't take them back very quickly.

So the question becomes, What happens? If they are from Mexico, of course, you can simply put them back on the bus and take them to the border. But if they are from China or Russia or Vietnam or some other country, you can't do that. First of all, you have to work with the other country to ensure they can be removed to the other country, and then you have to keep them in custody until they can be removed. In the meantime, if they want to make a case for asylum, they may do so, and the only standard is the usual standard of credible fear.

So let's not labor under the assumption that this outlying case, this person who will be subject to abuse if the person is returned home, can't make an asylum claim. You can, and it is resolved just like the other asylum claims are resolved: If you can establish a credible fear so that you are put in a separate category over here, and you are not removed to your home country.

But what about those who do not? Today there aren't sufficient detention spaces for these individuals, and so many of them are simply asked to report back in a few days and they don't show up, obviously. So they melt into our society.

It was to solve this problem that Secretary Chertoff invoked the expedited removal plan, which originally just applied to two of the sections on the border and now will apply to all of the border. The people are detained until they can be removed and the period for removal is reduced from about a month down to about 2 weeks, so detention space is adequate.

What happens if the Feingold amendment passes? Secretary Chertoff's promise to us that he would invoke expedited removal and be able to remove these people from the country--those who can't make a credible asylum claim--will be destroyed, because every one of them can file an appeal.

The law that currently exists says that you can't get an injunction. The reason is clear. We passed this because it is obvious that everybody simply files an appeal, gets an injunction, and they stay. It is years before you get them out--if you can ever re-contact them after they have been released. You can't keep them in detention for that period of time, so they are released and the chances are they never show up. That is the experience we had.

Congress decided we can't do that, that it is just a free pass to be illegal. So we said, once you made your claim for asylum and it is denied, and you have a final order for removal, and that can be made by an immigration judge--actually, it can go all the way through the Immigration Board of Appeals or, in certain cases, it can be by an immigration official, but once that order is final you are on your way and you cannot appeal and enjoin your removal.

The ninth circuit decided in its wisdom that ``enjoined'' didn't include ``stay.'' So they said Congress may have said we can't enjoin the removal, but we can stay it. As the Senator from Wisconsin pointed out, it is pretty much the same thing. So the ninth circuit got around congressional intent. Nonetheless, the Secretary of Homeland Security believes that he can use expedited removal to remove most of these illegal immigrants, many with criminal records, from the United States.

What the amendment does is to strike both the injunction language in the existing law and the stay language in the amendment by the Senator from Oklahoma, which was intended to overturn that ninth circuit decision and get back to the original intent of Congress. But the net result is not to speak with a fine sieve or filter here, but to enable everybody against whom a final order of removal has been made to appeal and get injunctive relief from the final order of removal.

In the effort to solve a few outlier cases which could be solved by other means--and certainly the motivations of the Senator from Wisconsin and the Senator from Kansas who spoke with respect to that are important, and I think we would all agree with those motivations, but there is a better way to solve that outlier problem than to simply say, for all of the people who come here illegally and get an order of final removal, they don't have to go; they can appeal, and they can enjoin the order of removal.

I am not sure if the Senator from Wisconsin would agree to this, but one of the ways that you could begin to

limit the application of this, not to destroy Secretary Chertoff's program of expedited removal, would be to ensure that the amendment of the Senator did not apply to expedited removal. I am not sure whether the Senator would be willing to do that, but that would be one start.

The Senator says it is not just expedited removal we are talking about here, and that is very true. But we are also talking about expedited removal and that is something we need to move forward with and not stop dead in its tracks. The problem is that the experience with absconders is significant.

Mr. President, 90 percent of these appeals, when there are appeals, are resolved against the person making the appeal. So most of these are not outlier cases. They are cases that were brought for the purpose of delaying, to allow the individual to stay in the country longer and, in many cases, to simply forget the judicial process once the injunction has been granted or the stay has been granted, so that the individual did simply meld into our society and never show up again. That is the concern that we have, and this amendment sweeps with too broad a brush here.

To deal with the outlier situation we do not have to remove the remedy of the final order of removal for the hundreds of thousands of people who came here illegally and need to be expeditiously removed.

I urge my colleagues to understand that this amendment is serious. It is far-reaching. It is overly broad. It strikes existing law. It is opposed by the administration and it is unnecessary with respect to the underlying purposes of the immigration problem that we are trying to resolve today. My colleagues should defeat this amendment.

Mr. President, I wonder if the Senator from Wisconsin would answer a question that I have regarding his amendment.

It is my understanding that current law--this is the Immigration Nationality Act--states:

No court shall enjoin the removal of any alien pursuant to

final order unless the alien shows by clear and convincing

evidence that the entry or execution of such order is

prohibited as a matter of law.

Is that provision of existing law impacted by the amendment of the Senator from Wisconsin?

Mr. President, in view of that answer, which is greatly confusing to me, it is clear that the effort is not simply to eliminate the stay language that Senator Coburn was successful in inserting in the Judiciary Committee, but also the injunction language that is in the existing statute. I don't know that you can read it any other way. If the Senator from Wisconsin would like to clarify, I will certainly stand to be corrected.

Mr. President, I have an inquiry through the Chair. I thought it was possible, though I would not need 10 minutes, not having spoken on the bill, to ask for 10 minutes simply to point out a couple of things in the managers' package, including the fact that the U.S. Government would be required to consult with the Mexican Government before building any fences on the border.

Would I be able to ask for time to discuss anything in the managers' package at this time?

I ask unanimous consent to speak for 1 minute.

Mr. President, I thank my colleagues for that courtesy.

The managers' amendment has been negotiated right up to the last second. It is hard to know exactly everything that is in it. I am told by staff that among the provisions is one which:

. . . requires Federal, State and local representatives in

the United States to consult with their counterparts in

Mexico concerning the construction of additional fencing and

related border security structures along the U.S.-Mexico

border before the commencement of any such construction to,

No. 1, solicit the views of affected communities; No. 2,

lessen tensions; and, No. 3, foster greater understanding and

stronger cooperation on this and other important security

issues of mutual concern.

I am all for consulting with the Mexican Government on matters of mutual concern, but I do not think it is necessary for us to put as a precondition into the building of any fencing structures the requirement that the U.S. Government consult with the Government of Mexico. For that reason among others, I will be voting against the managers' package.

I thank my colleagues.

Mr. President, I ask for the yeas and nays.

Mr. President, I rise today to offer a tribute to Lawrence Willcox, who has served me admirably for the past 3\1/2\ years as staff director of the Senate Republican Policy Committee and, before that, as legislative director and tax counsel in my personal office. Lawrence has made the decision to return to the private sector and pursue a career in tax law.

Lawrence joined my personal staff in 2001, where he served me ably, especially in the tax policy arena. When I was elected chairman of the Policy Committee at the end of 2002, I asked Lawrence to become the staff director. Lawrence has come to be a trusted adviser, and I have appreciated his good work. He promptly and dutifully carried out every task that I charged him with, and he led the staff members of the Republican Policy Committee to

achieve a level of excellence that I believe has been of value to Senators and their staff.

During Lawrence's time as staff director, we have produced more than 200 policy papers, and dozens of legislative notices. In each case, our goal was a first-rate product--one that would be thorough, accurate, and reliable--that would serve Senators, their staffers, the press, and the public. I commend him for all of his work and his successes in that regard.

Additionally, Lawrence has served as my agent and adviser on Senate leadership matters. He has attended leadership meetings with me and given me sound counsel. He has also managed and attended the Policy Committee's weekly luncheons.

I should mention that it was Lawrence who instituted the Policy Committee's practice of issuing detailed amendment descriptions in anticipation of every rollcall vote. The reception from this new service has been very positive: It has made the jobs of legislative directors and legislative aides vastly easier in preparing Senators for votes. That is just one example of innovations Lawrence has overseen.

I think it would be fair to suggest that many of my colleagues here today and others in the Senate reading these words in future days would want to join me in thanking him for a job well done. We would not be able to do the work we do were it not for staff members of the caliber of Lawrence Willcox.

Before I close, I note that Lawrence has been in public service for nearly all his working life. In addition to his more than 8 years of experience on Capitol Hill, including 3 years as a staffer in the House of Representatives, he served 5 years active duty as a naval officer, and he has also worked in both the judicial and executive branches, serving in various capacities, including as a law clerk on the U.S. Court of Federal Claims and as a trial attorney in the Department of Justice's Tax Division. Lawrence holds a bachelor's degree from the University of Michigan, a law degree from American University, and a master's degree in tax law, LL.M., from New York University.

Lawrence is a person who is always growing from his experiences, putting his newfound knowledge to work in newer and better ways. So, while I wish him well, I am also confident that he will do well, and I hope to retain his friendship in the years ahead. Thank you, Lawrence.

Mr. President, reserving the right to object, if that request is amended to the extent that the same additional amount of time will be given to the Republican side, there will be no objection.

Mr. President, I rise in strong opposition to the Leahy amendment and just warn my colleagues that this is not a benign amendment but is one of the most serious amendments that has been proposed to this legislation and, if it is adopted, literally would allow us to take somebody from the Taliban into the United States.

There is already a law that provides full waiver authority to the Secretary of State to allow entry into this country for someone who happened to be caught up in terrorist activity, albeit innocently--the villager who is forced to give rice and water to a Taliban member. There is nothing that prevents the Secretary of State from allowing that person to come into this country.

This is literally a solution looking for a problem. And it is pernicious because it literally allows entry into this country of members of the Taliban because the Taliban is not a designated terrorist organization or a person who assists an organization which threatens other countries and peoples but not the United States.

Under the specific language of the amendment, there are three specific exceptions. One is the Secretary of State, in consultation with or upon the request of the Attorney General or Secretary of Homeland Security, has determined that these activities threaten the security of United States nationals or the national security of the United States. So you can threaten the security of Israel or Sri Lanka or India or some other country and support that terrorist organization but be permitted to come into the United States. What sense does that make?

There is no problem here that cannot be dealt with under existing law. Show me where in existing law the Secretary of State does not have complete and unfettered authority to waive the provisions of the law. This is a law about terrorists, people who provide material support to terrorist organizations not being allowed into the United States. I know the good intentions of the sponsors of the amendment, but the fact is, some villager who is forced to provide aid and comfort to a terrorist organization can get entry into the United States without this language which opens a huge loophole. Never in the past have we said it is OK to let a member of the Taliban come in simply because the Taliban is not a designated organization.

You might ask: Why, with all of the other terrorist organizations, isn't the Taliban a designated organization? Of the 42 groups in the world that have been certified by the Secretary of State, it is not. The reason is because it is a serious matter to designate someone. For example, once they are designated, then giving anything of value to that group constitutes a Federal felony punishable by 15 years in prison. And as a result, the failure to designate the Taliban would be the type of group that if you give material support or aid to would permit you entry into the United States. Because the Department of State is conservative with these certifications and they have substantial collateral consequences, not every group that would fall into the category of a terrorist group is going to be designated, and the Taliban is a perfect example.

I urge my colleagues, simply because your heart yearns to help someone who might have been forced under a concept of duress to support a terrorist organization or an organization like the Taliban that is not designated as a terrorist organization, don't adopt this amendment under the mistaken view that there is no other remedy. There is a remedy. Clearly, under circumstances of duress, that remedy can be invoked.

I urge my colleagues to reject this very dangerous amendment.

I am not sure if the group that the chairman of the Judiciary Committee referred to is the same one I will refer to here, but to illustrate the fact that the Secretary of State has unfettered authority to grant these waivers and has in fact done so in the past, actually there was a large group of refugees from Burma who were recently permitted asylum in the United States, even though they had provided, allegedly, material support to terrorism. This is an authority which can be exercised, which has been exercised.

Secondly, I urge my colleagues who are in support of this underlying legislation on immigration reform, it is a controversial enough piece of legislation for the Senate to consider. Amending it in the way that the chairman has described, without the necessary careful consideration of what the ramifications would be if this language is too broad, I urge that this be done in another way and another time rather than in this bill.

Mr. President, I will be voting against the Grassley amendment. I compliment the chairman of the Judiciary Committee and the chairman of the Finance Committee, Senator Grassley, and his staff, for working hard at producing what is a big step forward in ensuring that we can determine the eligibility of workers to be hired. Unfortunately, it doesn't complete the job. That is such a critical component of this legislation that I cannot support it until additional changes are made.

My vote is not intended to be pejorative in any way toward those who worked very hard to put this together, and many of my ideas are in that amendment. I appreciate their effort. But there is still a long way to go, and, in some respects, this is a metaphor for a lot of this bill. There has been a lot of progress made, but there is a long way to go.

Mr. President, the amendment that was adopted yesterday is a good amendment. I would hate to see us undo what we did yesterday with the Kennedy amendment. Therefore, I rise in opposition to it.

What we are talking about is self-petitioning by an illegal immigrant for permanent legal status in the United States--a green card--to be here for the rest of their life. The circumstances in the past for that had always been that either a family member petitioned you in under the law or an employer petitioned you in because he had a job for you.

The concept of self-petitioning is a new one in the law in this context. One of the reasons why that is critical is we are trying to assure that while a job may have existed for somebody in the past or even exists today, that job may not be available forever. The concept of temporary workers is just that, that when there is a job available for that worker, then the worker has a temporary visa to fulfill that job. When that jobs goes away, and there is no longer work in that particular area, then the individual's visa would expire, and it would not be reissued until, once again, the work is available. That is the whole concept of ``temporary.''

That concept is eliminated or destroyed with a part of the Kennedy amendment. The first part of the Kennedy amendment does provide for the Department of Labor to make a determination about employment conditions and whether jobs are available in a particular area. But then there is the word ``or'' written in at the end of section III(i). The second way the alien can petition is by simply submitting documents for current employment; in other words, the alien shows that he currently has a job. That is fine for a temporary permit. It is not fine for permanent legal status.

What you are allowing the individual to do is to say: I have a job today temporarily, and with that I am going to petition for the right-- and the law would then allow the individual to acquire permanent status in the United States, which then can lead to citizenship. The whole point of temporary permits, as I said, is they reflect the economic conditions for the length of the permit or the visa.

Under the bill Senator Cornyn and I have, we have 2-year visas. What the President has proposed is a 3-year visa. The bottom line is, it should be no longer than necessary to ensure that if economic conditions change and the jobs are no longer available, that the visa would expire, the individual would return home and would not get another visa to come here for temporary work until the job has opened up again.

So the fact that an individual can prove he has a job today or that he had a job yesterday has nothing whatsoever to do with the availability of employment in the future. That is the fatal flaw of this amendment.

There needs to be an assurance that when we are talking about permanent legal residence, there will be a job available for that person in the future, not just that the individual has a job today. So that is a fatal flaw in the Kennedy amendment. I do not know whether it is deliberately intended. I suspect the point is to undercut the effect of the amendment we adopted yesterday, which is a worker protection amendment.

The bottom line that Senator Cornyn is trying to assure is that if an American has a job, that job is not undercut by somebody coming here today who would be able to stay here forever and, therefore, compete with the American for the job.

So I think we should stick with the worker protection amendment we adopted yesterday and not agree to the Kennedy amendment.

Madam President, I wish to compliment the Senator from Oklahoma for his work, for bringing it to the Senate floor, and for doing something I think is very important and that I think unifies us.

What are some of the things that do unify us? Well, our language unifies us. Senator Alexander, who will speak in a moment, was responsible also for working with Senator Inhofe to include provisions in this amendment that help us to recognize the importance of English in our country and the importance--not just for our new immigrants but for all Americans--of speaking this language that is our national language. So an amendment that recognizes that it is our national language is very positive for both immigrants and nonimmigrants alike.

I would also like to make a point about what this amendment is not. This is not an English-only amendment. That is an important point. We do speak a lot of different languages in this country, but English is our national language, and I think we can all agree on those great principles.

So this expression by the Senate is an important one, and I compliment all of those who helped to work on it, and for bringing it to the Senate floor I thank Senator Inhofe.

Mr. President, this is a simple amendment, a very important amendment. It is not inconsequential. It changes in a major way a specific feature of the underlying bill. But I believe that feature is wrong and needs to be changed. The underlying bill sets up a temporary worker program, but it is not temporary in the sense that the workers who come here and get a temporary worker permit can then apply for permanent legal residency and ultimately citizenship. There is no reason to deny them that under the bill.

As a result, you never have temporary workers. You always have permanent workers, people who are allowed to come here originally as temporary but who can in effect automatically convert their status to permanent legal residency and then citizenship.

The question is, Why is that necessary? The second point is it creates a problem when economic conditions change.

Why would it be necessary? There are many visas in our system today that are temporary. In fact, there are skilled labor visas that are temporary. They can be renewed. They are based upon an economic need. When there is a job here that is going unfulfilled by an American worker, we have the ability to issue visas to foreigners who can then come here and work for a temporary period of time. Then they return home. As long as there are jobs here, those visas ordinarily continue, but when the work is not here, the visas stop. That is a good thing.

I support a temporary worker program under this legislation. However, it should be temporary. That is to say, the program may be permanent, but the visas under it are temporary, for a limit period of time. They may be 8 or 10 months out of the year; they may be 1 or 2 or 3 years in duration. In my view, they should be renewable. There are a lot of different ways to construct it. The bottom line is, when you come in because there is a job available for you as a temporary worker, that same job or another job may not be available to you 5 years later. There may be no work for you 5 years later.

Let me give an illustration I have used before. In my home State of Arizona, we are in a construction boom period. We cannot get enough people to help build houses. There are jobs that go begging, and therefore we have to rely on a large supply of foreign labor to help. It is undoubtedly the case that many of the foreign laborers are illegal. They are not documented in the appropriate way. However, they are workers who are performing a valuable function in our economy today.

Here is the question. I have been in Arizona now for almost 50 years. We have seen lots of upturns and lots of downturns. What happens when the downturn comes, when we are not building as many houses or office buildings, there aren't many jobs available, and Americans begin to find that jobs are not available for them, they are unemployed, and there is just not the work for people? What happens if you have a temporary visa issued and say that visa is for a period of 2 years? That visa expires, and there is no more job available. In fact, there are Americans looking for work. That foreign worker goes home. When another job opens up, when the construction industry gets going again and there are opportunities for foreign labor because Americans can no longer provide all of the labor required, the visas would begin being issued again, and that individual could come back and begin working again. Perhaps there is some other industry in which the individual can work. In any event, the visa for that job would, after a year or after 2 years, expire, and if there is not a job available, you do not issue a new visa.

The problem in the underlying bill is that once you get your temporary visa, you can apply or your employer can apply for you to turn that automatically into a permanent legal residency status or a green card status. And we know from that you can apply for citizenship. When you have a green card, it does not matter whether there is a job here for you, it does not matter whether we are in the middle of a recession and Americans are looking for work; you have a legal right to be in the United States and no one can kick you out. That is what legal permanent residency means.

So there is no reason in a temporary worker program to be able to convert the temporary visa or permit into a

legal permanent residency. In fact, there can be great harm done if the economy changes, the economic situations change, jobs are no longer available, and instead of having those visas expire, you have converted the individuals into people who have a permanent right to stay in the United States.

This amendment does absolutely nothing to change the existing law with respect to how you can acquire a green card in the United States or convert other legal status into benefits under our immigration laws. You can still apply for a green card. You can still apply for other ways of remaining in the United States for differing periods of time. We do not change any of that. If you are somebody who wants a green card, there is still a way to get a green card. In fact, under different versions of the bill, the number of green cards is increased so that there are greater opportunities for green cards. The bottom line is, you do not have to convert the temporary worker program into a permanent worker program.

There are economic studies which back up what I am saying. For the sake of time, I will not get into the details of some of the studies. Among other things, in previous times, going back to the year 2000, for example, in the skilled visa era where we issued large numbers of visas, there were economic studies that suggested we could have a continuing need for those visas on into the future for some number of years, and we were issuing those visas at a very high rate at that time. Little did we know that the economic conditions were going to change very rapidly, and very quickly those high-skilled jobs fell off. Yet we had issued visas for people to come into the country at a time when, in fact, we were starting to go into a recession and, in fact, those jobs were not available for those people.

If they had been able to permanently reside in the United States after they got their temporary visas, it wouldn't matter whether there were jobs available for them; they would be here. It would be legal. There would be no way to remove them. And of course, with green cards, they would be entitled to benefits which would flow from that status. The United States is going to have to pay a lot of unemployment compensation if we now have two bodies of workers, neither one of which can get a job or both of which are competing with each other, American workers and foreign workers.

Whether you are talking about purely the future flow workers under the temporary worker program which many in this Senate want to create, although we differ somewhat on the details of it, I would like to create a temporary worker program because we think they may be needed in the future, or you are talking about the people in the underlying bill who have been here 5 years or less and are required to go into the temporary worker program--those are the two groups of people we are talking about--our view is they should be temporary workers, subject to the economic conditions of the United States, not replacing American workers but fulfilling a work requirement when there aren't enough Americans to do the job. It is basically the same thing the President said in his speech earlier this week when he said that the temporary workers should have an opportunity to be matched with a willing employer when there are not Americans who can do the job. When the job is finished, they can return home. I am paraphrasing, but I think those are the words of the President.

The concept the President has articulated is the same concept that we believe is appropriate. It is the basis of the temporary worker bill in the Kyl-Cornyn legislation. We believe it is appropriate for that same concept to be embodied in this legislation.

Might I inquire how much time remains on both sides?

I will give someone on the other side an opportunity to speak.

Mr. President, let me take a couple of minutes to respond to my friend, the Senator from the State of Idaho.

He projects that 500,000 workers are going to be needed every year. That sounds a bit high, but there is a way to resolve the question. If we have a temporary worker program that works well and brings in all of the temporary employment needed to fill your labor needs, then whatever that number is can be satisfied with the temporary worker program. But if the Senator is wrong and we do not need that many people but we have allowed that many people to come into this country and remain here permanently, then we have a big problem because we also have to consider the American worker and the job of the American worker.

The Senator said we need stability in our workforce. Indeed, that is a good thing. But I submit we need stability for the American worker. The American worker needs to know his job is secure. In all of the industries we are talking about, while there is a significant need for foreign labor, there are far more American workers working in those industries than foreign workers.

The bottom line is, there are American workers who will do these jobs. The only exception of any significance is in certain specters of agriculture. And agriculture, in many respects, is a very different animal.

The reality is, whether you are talking about the hospitality industry with people making beds and washing the dishes or talking about the construction industry or landscaping, there are millions of Americans doing those jobs. And we want to know that those jobs are there for those American citizens when the economy is not as strong as it is now.

So in periods of decreasing jobs and increasing unemployment, we want to be able to ensure that American workers can remain employed. With a temporary foreign worker program, we can ensure that because the foreign workers are brought in, to the extent they are needed, when they are needed, in each of these industries. But if they can convert to permanent status automatically, which is what this legislation would allow, they cannot be removed. They are here. They have legal permanent residency and eventually can acquire citizenship, if they desire.

So whether there is a job for them here or not, they are here. The studies show they compete with American workers very well in the low- skilled job categories by usually taking less money than Americans, with the result that many times Americans will be unemployed, for which we will be responsible for paying unemployment compensation and other benefits, and yet the foreign worker might have the job. So instead of a situation in which there is not an American to do the job, we will have a situation in which there is a job, but it is held by a foreign worker rather than an American worker.

Why do we need to take the chance, is my question. We all agree with the concept of a temporary worker program for skilled labor. In skilled labor, these visas expire. For student visas, they expire. For tourist visas, they expire. They can be renewed in certain situations. In the different categories of temporary workers that we have in the law today, they are all for a specific period of time, and then they expire.

What is the matter with that same principle being applied to low- skilled workers? In fact, the experts all agree--we had testimony before our committee--that with respect to low-skilled workers, you are more likely to have people who are undereducated or less well educated and likely to work in the lower skill occupations. No surprise there. So if you are going to end up in a situation in which you have extra workers who are here, would you rather have them be of the high-skilled variety or the low-skilled variety, unable to be as flexible in the job market as somebody with better education and skills?

Our immigration law has always been very leery of allowing large numbers of undereducated and low-skilled workers into the country because they represent a potential expense for this country in the event that the employment that was promised to them does not materialize or goes away.

So there is no need to take a chance on this. If, in fact, my colleague is correct that we will need more laborers, we can get them under a temporary program where permits can continue to be expanded. We can expand the number or they can be renewed.

In any event, there is always the opportunity for people to acquire green cards. In fact, under I think all of the bills that are pending, the number of green card slots is increased. So there is also an opportunity for that.

But in case they are wrong, and jobs evaporate over time, and even Americans cannot find work, why would we want to be granting these foreign residents who are here temporarily the right to be here permanently? It seems to me it is unnecessary. It is potentially devastating, devastating to American workers, and we ought to change it.

As a result, I hope my colleagues will support this amendment, which could go a long way toward improving this bill, creating a true temporary worker program rather than one which automatically converts to legal permanent residency.

Mr. President, the Senator from Massachusetts is willing to yield back his time. And if there is no one else on this side desiring to speak, I will be happy to yield back our time. I hope our colleagues will support the amendment. Thank you.

I ask unanimous consent Senator Landrieu be added as a cosponsor to this amendment.

Mr. President, I will take a moment, before we vote to again thank the folks I thanked last night: Senator Kennedy; Senator McCain; my colleague, Senator Cornyn, who worked on this amendment for a long time; and Senator Lindsey Graham, among others, for working together to arrive at a consensus on how this amendment should be drafted, to achieve the things the Senator from Massachusetts was just talking about.

We all agree on the significant benefits that can result from legislation of this kind, including, potentially, citizenship, for a lot of people. It should be limited to those who came here and otherwise worked honestly in this country, and it should never be available to those who have deliberately abused our laws, our process, or been convicted of serious crimes. As a result of this amendment, it will make certain that benefits of the legislation, however they are ultimately defined, are not available to that class of people we do not want to count as fellow citizens when this is all over with.

I hope my colleagues will join in voting yes on the amendment. I thank my colleagues.

Mr. President, the time is under the control of Senator Sessions, who asked I take the floor next.

Mr. President, let me first of all note that I very strongly support this amendment for one reason: It embodies the entirety of an amendment which I offered in the Senate Judiciary Committee which was agreed to. When the Senator from Massachusetts defends the underlying bill, he is defending that amendment.

That amendment provides for about half of what we are talking about. In fact, all of the language of that amendment is also included in the amendment of Senator Sessions. Why do I know about that? It was my amendment because it deals specifically with the State of Arizona. What did we do? We went to the Border Patrol and we said: You will have aircraft, sensors, cameras, border patrol, vehicles, fencing, all of those things working in combination to try to secure the border.

What do you need, specifically? What are you recommending for the fencing part of that? This is what they said: First of all, we need to tear down some of the existing fencing because it is not very effective. It is the old surplus landing mat. It is solid steel. It stood vertically. The National Guard built that fencing and that is what exists in the urban areas.

I wish my colleague from Massachusetts could visit the border in Arizona and see how that solid-steel fencing has divided communities. It is an ugly eyesore. It is an ineffective way to prevent people from crossing, right in the middle of Nagales, AZ. On the other side from Naco-Sonora, separated by this fence, we have a huge 30-foot-high or

20-foot-high barrier of solid steel. It is ugly. It is ineffective. People can climb up the other side, and our Border Patrol cannot see them because it is solid steel.

What the Border Patrol would like is a double fencing that you can see through so they can see who is on the other side and what they are about to do. Moreover, the biggest part of violence now is the rock throwing that occurs. They cannot see what is on the other side of this steel barrier.

The first point is they want to replace this landing mat fencing with modern, up-to-date fencing that is probably double. That is to say, there are two fences involved, as there are in California. That has been extraordinarily effective to keep people out because you have a patrolling in the middle. People may get over one fence, but by the time they get over that fence the cameras spot them and are able to direct Border Patrol to the area. They are not able to get over the second fence so they cannot quickly melt into the rest of our society. That is why this double fencing actually works.

In the area of San Diego, I am told that still no one has crossed over the double or triple fencing. No one. In that sector of the border, the apprehensions have gone down. This is good news because it means there are not people crossing--from some 600,000 now down to 100,000. And that is the entire sector of San Diego. In the specific area where there are 26 miles of fencing, no one gets across. That is what we are trying to achieve in the urban areas.

The Senator from Massachusetts said all that has done is to drive them out into the desert, where it is more dangerous and deaths have increased. What is the point of that argument? Is the point that we should simply provide an invitation for those who would like to cross our border illegally, to do it in the same way as the urban area?

What the Border Patrol says works is a combination of things. Fencing in the urban area, where large numbers of people congregate at one time. We have seen the pictures of them rushing the border through the San Diego port of entry, where 200 or 300 people at a time congregate, rush the border, rush through, intermingle with the cars waiting to get through. It is impossible to apprehend more than a handful of them. That is one of the techniques.

We have to try to stop that. One way we do that in the urban area is to have this fencing. Frankly, if I can get my colleagues from New England or other States to come down, Members would agree it is not very sightly. From an environmental standpoint, it is not good. And from a good neighbor standpoint, it is not good to have this ugly fencing. We would like something that looks good and does the job.

What the amendment in the underlying bill does, and it is the same thing in Senator Session's amendment, it says we are going to replace that landing mat fencing with the kind of fencing the Border Patrol believes would be more effective. That is part of the reason for the 370 miles of fencing.

The Senator from Massachusetts derided the amendment as suggesting that it was not just for the urban areas because, after all, 370 miles of fencing is a lot of fencing. That is a big piece of the whole border. Now, let's calm down and do the math. There are several hundred towns along the border. As one should not argue against oneself when one supports the underlying bill, here is what one is supporting. What you are supporting is fencing in the urban areas, approximately 10 miles extended in either direction. The urban areas are maybe 5 or 6 miles and 2 or 3 miles beyond that. That is what the underlying bill provides.

I will read briefly from parts of the underlying amendment:

(1) replace all aged, deteriorating, or damaged primary

fencing in the Tucson Sector located approximate to

population centers in Douglas, Nogales, Naco, and Lukeville,

Arizona with double- or triple-layered fencing running

parallel to the international boundary . . .

To extend it for a distance of not less than 2 miles beyond urban areas except it shall extend west of Naco for a distance of 10 miles. Then we talk about the Yuma Sector of Yuma, Somerton, and San Luis, so there are 15 communities in the State of Arizona.

If you proximate 10 miles on either side of the midpoint of the community, that comes out to 140 miles of fencing. If you add to that, there is at least 26 miles in the San Diego area. I don't know how much beyond that. If you add the 26 miles, that is 176 miles. There are many other communities in California, but let's say there are four or five. That gets you half of the 370 miles, and you have not even talked about the longest part of the border in New Mexico and Texas.

My point is, if all you do is extend, to a modest degree, for more than 10 miles on either side of the communities that are on the border, you are easily up to 326 miles of fencing.

Why did the Border Patrol say it needed 326 miles of fencing? Because they did the math. They counted up all of the communities and figured how much fencing they needed in each of these urban areas and that is what they asked for. This amendment simply takes the underlying bill, which my colleague from Massachusetts is supporting, and adds essentially the fencing for Texas, New Mexico, and California to that, and the sum total we get is about 370 miles to replace existing fencing and add fencing strictly in the urban areas, which will be effective as the fencing in San Diego has been.

The Senator from Massachusetts says we need to secure the border, but we should do it in a serious way. I submit that a virtual fence is not a fence. A serious way means building some miles of actual fence. That is what keeps the illegal immigrants from crossing illegally into the United States. In combination with UAVs, helicopter, fixed-wing surveillance--there is surveillance actually in other ways, as well, which we do not need to get into--there are sensors, there are cameras, there are people on patrol on horseback, on three-wheeled vehicles, on four-wheeled vehicles, and you put all of those things together, and we can build a combination of actual and virtual fencing that creates the ability to control the border. This is what you do if you are serious about controlling the border.

Finally, in the Judiciary Committee, we held hearings about what was necessary to secure the border. We heard from the head of the Border Patrol, David Aguilar. We heard from the former head of the Border Patrol, we heard from the U.S. attorney from Arizona, we heard from a couple of sheriffs on the border in Texas and Arizona. And we asked them what was going on at the border and what they need to control the border. Here are a couple of examples. David Aguilar said that over 10 percent of the people now apprehended coming into the country illegally had criminal records. They were serious criminal records. We are not talking about defacing public property. We are talking about murder, rape, kidnaping, violent smuggling, drug crimes, and the like. More than 10 percent. These people are deterred by fencing, and they need to be stopped. So we are not talking about people trying to come into the country to work.

The U.S. attorney for Arizona testified that crime, in the last year, in terms of assaults in the border areas, has increased by 108 percent. The reason is because the Border Patrol is finally getting to be a sufficient number, and the fencing is doing a good enough job that we are contesting the territory of the drug cartels, the smugglers, the coyotes, and the criminals are fighting back to try to regain the territory with weapons. Do not think rocks are not a lethal weapon. As a result, we are seeing that there is some progress being made, but it has increased the violence. The Border Patrol desperately needs more fencing in order to protect their agents from these criminals on the other side of the border.

It is beyond me why someone would deride a recommendation of the Border Patrol for a little bit of fencing in the urban areas to protect our officers who are out there trying to do their job, among other things, to prevent violent criminals from entering the United States, to prevent contraband drugs from entering the United States.

This is why we are adding a little bit of fencing. The border is 2,000 miles, roughly, and we are talking 370 miles, representing essentially the area of urban communities on the border. Bear in mind, these are communities that straddle the border. In Douglas, until a few years ago, there was a corral in the middle of town, and the border ran

through the middle of the corral. There was nothing but a corral. In places right outside of town, there is a barbed-wire fence that is old and rusty and now does not even have three strands. That is the border.

These are communities in which people work and live on both sides, they cross frequently, and they are now subjected to a huge amount of crime because of the elements that have moved into those communities to transport drugs, to make a lot of money transporting illegal immigrants, and to come across the border from countries other than Mexico because they are criminals, and they figured out this is a good way to get into the United States to do their crime. Who knows what terrorists might be thinking.

The point of this amendment is to add, simply, a little bit more fencing to what is already in the underlying bill in the urban areas of the country to effectively secure the border which, after all, is what we ought to be about here, to protect the people who live in the vicinity of the fencing and to protect the officers we have put into harm's way to do the job we want them to do.

I will conclude with this point. It has become very fashionable now for everyone to say: We must secure the border. What this amendment says is, if you are serious, if you really mean that, here is a very modest little thing you can do, what the Border Patrol has recommended it needs, to have a modest amount of real fencing which they say protects themselves and protects American citizens.

I don't have the statistics on the top of my head, and maybe Senator Cornyn does, but at the hearing we held in our subcommittee, the testimony was that crime in the San Diego area where this fencing had gone up had gone way down, but that San Diego and the Mexican citizens on the other side of the border, likewise, have been subjected to a huge increase in crime until that fence was built. Once the coyotes and the cartels knew they could not come across in that area, they left. And so did the crime.

This is a great amendment. It should be supported by all Members. Crime in San Diego dropped by 56.3 percent between 1989 and 2000. If you can cut the crime in half in a community by building this double fence, and they did, and I don't hear anyone objecting to the double fence in the area of San Diego, why shouldn't the other communities? If anyone would like to come to the Senate and say that it was a mistake to build that double fence in the area of San Diego, I would like to ask them to please do it. I would love to hear the reason why that is not a good idea.

All we are asking is that in the other urban areas along the border, the same kind of fencing be built to protect our law enforcement officials and the citizens of those areas and to help prevent this kind of smuggling across our border--nothing more, nothing less. This is a modest amendment, and it should be unanimously agreed to by the Senate.

Mr. President, Chairman Specter, it is my understanding that if I defer to the Senator from New Mexico, we can actually get an amendment of the Senator from New Mexico voted on and perhaps another amendment considered by Senator Kerry, so they would be disposed of, whereas it may take a bit longer if our amendment is put down.

If we start tomorrow morning with our amendment, the Kyl- Cornyn et al. amendment, perhaps we could conclude more business if we follow in that process.

Mr. President, might I ask the chairman to yield?

It is my understanding that following Senator Kerry this evening we will lay down the Kyl-Cornyn-Graham-Allen-McCain-Frist- Brownback-Martinez amendment so all can see what it is and we can start some debate this evening and then finish the debate tomorrow. Is that correct?

Mr. President, there is an amendment at the desk which I would like to have considered at this time.

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

Mr. President, let me briefly explain this amendment. It is a somewhat different version from what was introduced a couple of weeks ago and was pending at the time this legislation was laid aside for other business.

This amendment has the primary purpose of ensuring that people who have committed serious crimes or have absconded after on order for their removal has been issued would not be entitled to the benefits of the legislation.

Specifically, in the bill as written, there were certain crimes which were included, and if you had committed one of those crimes, you couldn't participate in the program--certain crimes of moral turpitude, for example.

What we found was that list was not all-inclusive and there were other serious crimes, including felonies, that were not included and therefore we felt should be added so that nobody who had committed a serious crime would be able to participate in the program.

Among the crimes that courts have said did not involve moral turpitude and therefore needed to be included in this legislation are the following: alien smuggling, conspiracy to commit offenses against the United States, simple assault and battery, involuntary manslaughter, simple kidnapping, weapons possession--for example, one of the cases dealt with possession of a sawed-off shot gun--burglary, money laundering, and there are others as well.

The point is, we want to be sure this legislation denies the benefits of legal status, including potential citizenship, to anyone who has committed a serious crime of this type. Therefore, the statute provides that if you have been convicted of a felony or three misdemeanors or have been convicted of a serious crime or there are reasonable grounds to believe the alien has committed a serious crime outside of the United States prior to arrival, and there are reasonable grounds for regarding the alien as a danger to the security of the United States, then in those events the individual would not be able to participate in the benefits of the law.

In addition to that, there are several categories of individuals who for various reasons have been ordered removed from the United States and have adjudicated their case and a final order of removal has been issued, either by an immigration judge or another judge or immigration official. Here, too, given the fact that we want the benefits of this legislation to apply to people who are willing to comply with the law, even where there has been a court adjudication of this statute, if they do not like the results and decide they are not going to leave even though the judge ordered them to leave, then we should not allow the benefits of this legislation to apply to them.

One of the things which is inherent in most of the bills--I think in all of the bills, including the bill that is on the floor--is the concept that you are not permitted to be in the United States unless certain things happen. If you commit a crime, for example, then you can't stay here. That relies to some extent on the individual complying with the court order to leave.

This part of the amendment says that when you have been ordered to leave by a judge, you have to do that. If you have demonstrated that you are not willing to do that, then you shouldn't be able to participate in the benefits of this law.

One of the things we have done--and as a result, there have been several cosponsors added to the legislation--is provided some opportunities to have this provision waived if people can make certain arguments. For example, if an individual who has been ordered to be removed can demonstrate they did not receive notice of removal proceedings, under that condition, this provision could be waived.

In addition, the alien could argue that his failure to appear and be removed was due to exceptional circumstances beyond the control of the alien or that the alien's departure from the United States would result in extreme hardship to the alien's spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence.

There is one other factor that has been added relative to coming into this country based upon fraudulent documents. In those situations, the alien could argue that there was a reason this provision should be waived and the alien should still be permitted to participate in the benefits of the legislation.

We think we have drafted something that is fair, that ensures that people who should not be citizens of the United States or granted other legal status under the bill will not be granted the status, but that if there is some reason they can argue that there should be an exception, they will have every right to do so. In that sense, we think this is a firm but fair provision.

I hope our colleagues on the other side of the aisle and colleagues who support the underlying legislation would consider this not an unfriendly amendment but an amendment that is truly designed to ensure that a key principle is upheld. The principle is already built into the underlying bill in one respect. The object of this amendment is to make sure it is complete and covers all of the kinds of crimes one might want to cover. As a result, we would hope this would receive an overwhelming response and could be supported by a large number of our colleagues, both on the Democratic and Republican side.

Let me conclude by saying that this vote will not occur until tomorrow, but it is an important vote. I think it will demonstrate our willingness to continue to move this legislation forward.

I appreciate the consideration of this amendment and ask my colleagues to support it tomorrow.

Mr. President, I appreciate the comments of my colleague and

thank him, Senator Graham, and Senator Kennedy for their work in helping us to negotiate provisions of this amendment.

I join my colleague from Arizona in expressing the view that we should not take very long tomorrow to conclude the debate, and I hope we will receive substantial support for the amendment.

Mr. President, in view of some things that were said a couple weeks ago, let me close this out with a couple of brief comments.

At the time that Senator Cornyn and I first introduced this amendment, we speculated that it might ultimately result in 300,000, 400,000 500,000 people being denied the benefits of the legislation. However, there were those on the other side who said this was a poison pill, this was going to preclude everyone who came into the country illegally or overstayed a visa from getting the benefits of the legislation. We said: No, that is not true. It is cast narrowly by its terms. It talks about convicted felons, three misdemeanors, and the people who have avoided a court order or a judge's order that they leave the country. That is it.

Some on the other side said: We look at the language, and we think maybe this could apply to anyone who comes into the country illegally. By laying it down, you have created a poison bill. As a result, they would not permit a vote on the amendment. As a result, this legislation came to the end of the period of time, the end of the week, and the majority leader had to lay it aside so that the Senate could go on its recess.

Senator Cornyn and I never had an intention to bring the bill to a halt or to create some kind of a poison pill that would make it impossible for anyone to support the legislation if the amendment were agreed to. We simply were trying to point out that there was a deficiency in the bill. Serious criminals could become citizens of the United States. We felt that was wrong.

So we introduced the amendment and tried to explain at the time that was our sole motivation. Frankly, we could have dispensed with this amendment 3 weeks ago if our colleagues had simply gotten down to the debate, carefully read it, talked it out with us, and gotten a vote.

Because of a question that our colleagues raised that we referred to earlier this evening, we have made a couple of modifications to the amendment, demonstrating that we are perfectly willing to negotiate a provision if there is a sense that we should have done something a little bit differently, which we did.

I hope as we proceed to introduce other amendments to this legislation, that our colleagues on the other side will be willing to have votes. We wanted to have a vote on this earlier today or tonight or to lock in a time for a vote tomorrow. No, the other side said: No, we are not ready yet.

If we continue at this pace, we are not going to finish the bill by Memorial Day, as the majority leader has requested, as the President has requested, and as we are committed to do.

Our colleagues are going to have to do two things with respect to the rest of the debate on this bill: No. 1, to be willing to move with us to a quick consideration of amendments, a reasonable time for debate, then a vote, and then move on to the next amendment. No. 2, instead of characterizing amendments in a way that is not correct and attributing political motives to those who are simply trying to point out deficiencies in the bill and correct them with these amendments, they ought to simply be willing to come to the Senate, have the debate, and then proceed to a vote on the amendment.

We are not in this to somehow try to stop the legislation as our repeated efforts to get a vote and move on have demonstrated.

I join my colleague from Texas in saying I appreciate the fact that, hopefully now, knock on wood, tomorrow morning, first thing, we will be able to have a vote on this amendment and not only vote on it but finally, having sat down and looked at it, our colleagues will say: This is an amendment we can support. It makes sense to deny citizenship to serious criminals.

If we can approach the other amendments in the same fashion we have finally gotten to with this amendment, we can actually finish this bill. I urge my colleagues to cooperate with us in that way.

I am happy to yield.

I thank the Senator from Texas.

Yes, we have tried to do that.

I see the distinguished minority leader is here, and I suggest the best way to get this bill quickly considered and finished is to lay down as many of the amendments as Members have ready and then have the minority and majority side work together to figure out the proper order of those amendments, to try to enter into time agreements. If we are able to do that, I don't have any doubt that working in good faith we can complete the work of this Senate before the Memorial Day recess on this important piece of legislation.

Mr. President, as one of the three Senate conferees on this legislation, I want to take a moment to explain why this legislation is so important to our Nation's continued economic growth.

The centerpiece of this conference agreement is the extension of the 15 percent investment tax rate for 2 more years, through 2010. Under this rate structure, lower income taxpayers will have dividends and capital gains taxed at a 5-percent rate through 2007, and in 2008-2010 will have them taxed at a zero rate. Taxpayers who fall above the 15- percent income tax bracket will have their dividends and capital gains taxed at a 15-percent rate through 2010. As the lead sponsor of the Republican leadership bill, S. 7, to make the lower investment rates permanent, I am pleased we were able to extend these rates to give investors certainty that they will not face a tax increase in the near term.

The reason I have worked so hard to extend these lower rates is because the policy has worked exactly as we intended it when we enacted the rates in 2003. In 2003, we suggested that by reducing the marginal rate imposed on investment earnings we would give investors an incentive to put more of their money at work in the markets. At that time, following the tech-bubble bursting and the terrorist attacks of September 11, investors had been very reluctant to put their hard- earned money at risk in the markets. But by reducing the marginal tax rate on investment income, the tax penalty imposed on the additional investment earnings the reward for taking on additional risk is smaller, and thus makes the risk more attractive. When investors get to keep more of their reward, they are encouraged to invest more; with more investment, businesses have an easier time attracting the capital they need to expand, create new goods and services, and also create more jobs. All of this additional economic activity creates economic growth.

Critics argue that most of the benefit of the lower rates flows to the wealthiest taxpayers, but they fail to acknowledge that millions of low- and middle-income taxpayers receive dividends and capital gains and will benefit from the lower rates. Research by the Joint Committee on Taxation and the Finance Committee has found that lower income taxpayers will save more than higher income taxpayers, when the savings are measured as a percentage of total tax liability, thanks to the lower rates, especially the 5 percent and zero rates. The savings are even more pronounced for seniors. In 2008-2010, seniors with adjusted gross incomes of $50,000 and under will see their tax liability reduced by 17.1 percent as a result of the lower tax rates for dividends. In contrast, seniors with income over $200,000 will see their tax liability cut by only 5.7 percent. All taxpayers with incomes of $200,000 and up will see their tax liability reduced by just 2.2 percent as a result of the dividend tax rates.

The sheer numbers of taxpayers who benefit from these policies is equally impressive. More than 19 million taxpayers claimed dividend income in 2003 and more than 7 million reported capital gains. More than 315,000 Arizona taxpayers reported taxable dividends in 2003 and more than 127,000 Arizona families reported capital gains in 2003. More than 38 percent of Arizona tax filers who reported dividend income in 2003 had incomes under $50,000; 73.1 percent had incomes under $100,000. Of those reporting capital gains, 35.1 percent had incomes under $50,000 and 68.8 percent had incomes under $100,000.

In addition to benefiting millions of taxpayers, the lower rates have encouraged investment in our growing economy. The economy expanded at a 4.8-percent annual rate in the first quarter of 2006. This follows economic growth of 3.5 percent in 2005 the fastest rate of any major industrialized nation. Moreover, the economy has created about 2 million jobs over the past 12 months and more than 5.2 million jobs since August 2003. The unemployment rate is 4.7 percent--this is lower than the average of the 1960s, 1970s, 1980s, and 1990s.

Productivity increased at a strong annual rate of 3.2 percent in the first

quarter of 2006. Productivity is a key factor to increasing standards of living. Hourly compensation rose at a 5.7 percent rate in the first quarter--more than twice as much as in the previous quarter. The Conference Board index of consumer confidence increased in April to its highest level in almost 4 years. Industrial production rose at a 4.5- percent annual rate in the first quarter. The stock market hovers near its all-time high. Our economy is booming, and it is due in large part to the tax policies we enacted in 2003.

Another argument we hear about this bill is that we cannot afford it. I don't think we can afford to not pass this bill. The growing economy that has resulted from these tax policies has led to a surge of revenue flowing into the Treasury. According to the Congressional Budget Office, ``Monthly Budget Review'' released on May 4, 2006, ``the 2006 deficit will be significantly less'' than was predicted, even assuming enactment of the supplemental and the tax reconciliation agreement. Revenues for April 2006 were 14 percent higher than revenues for April 2005. Government estimators had predicted that the reduction in capital gains rates that was enacted in 2003 would cost the Federal Government $27 billion in lost revenues for 2004, but CBO now reports that the lower rates actually brought in an additional $26 billion in revenue. So instead of costing $27 billion, the lower rates actually made $26 billion for the Treasury.

I heard that this morning Ambassador Portman, in his nomination hearing to be the new Director of the Office of Management and Budget, told the Budget Committee that revenues flowing into the Federal Treasury will reach their post-World War II average of about 18 percent of GDP as early as this year. That means Congress must make the 2001 and 2003 tax cuts permanent just to avoid taking historic amounts of revenue out of the economy. Clearly, the American people are not undertaxed.

I want to mention briefly some of the other important provisions of this reconciliation agreement. It extends the AMT ``patch'' through 2006, thus keeping 15.3 million taxpaying families out of the alternative minimum tax. I am a cosponsor of Senator Baucus's legislation to repeal the AMT, S. 1103, and, as chairman of the Subcommittee on Taxation and IRS Oversight, I held a hearing last year that looked into the burdens of the AMT.

I am proud that we were also able to address some problems in the international section of our Tax Code in this agreement. The conference agreement provides ``look through treatment'' for 3 years for certain payments between related controlled-foreign corporations. I am the sponsor of legislation, S. 750, to provide this treatment permanently. Today's economy is different from the environment that existed when our foreign tax rules were introduced in the 1960s. Enacting the ``CFC Look-Through'' provision will simplify business structures for U.S. multinational companies and make it easier for them to compete with foreign companies.

The conference agreement also includes an extension of the ``active financing income'' exception, which I actively sought in the conference negotiations. I am a cosponsor of legislation to make this exception permanent, S. 1159. Active financial services income banking income, leasing transactions and other financial transactions that is earned overseas has an exception under law that allows deferral until the funds are repatriated to the U.S. parent, but it expires at the end of 2006. The conference agreement extends the exception through 2008.

The conference agreement extends the current thresholds for small businesses to expense equipment purchases through 2009. Under current law the increased thresholds were due to expire after 2007. Expensing makes it more cost-effective for small business owners to grow their businesses by purchasing new machines and other equipment; extending the provision through 2009 enables businesses to better plan for such investments.

Finally, the conference agreement eliminates the income restrictions on the ability of taxpayers to convert a regular IRA into a Roth IRA in 2010. Under current law, families with incomes over $100,000 cannot convert a regular IRA into a Roth. Allowing the conversion will help families save for retirement because Roth IRAs are made up of aftertax money, and all appreciation in the accounts is withdrawn tax free. We ought not double-tax savings, especially when we need to encourage young people to do more to plan for their own retirements.

I thank Chairman Grassley for being so supportive of my efforts to extend the investment tax rate for 2 more years and for all of his hard work as chairman of this conference. Through his efforts we were able to put together a tax reconciliation agreement that prevents tax increases on millions of Americans and that will keep our economy growing strong well into the future.

Mr. President, I regret that, twice this week, the Senate has failed to address the problem of medical liability costs. I support S. 22, the Medical Care Access Protection Act of 2006, and S. 23, the Healthy Mothers and Healthy Babies Access to Care Act. Both of these bills would address the very real problem of access to medical care for people in my State and across the country. We have a crisis in the United States, and in particular in Arizona, when it comes to the availability of providers.

The terrible distortions in our medical liability system have been with us for years. In Arizona, we have seen emergency rooms that cannot remain open because there are not enough trauma surgeons and specialists to staff the ER, physicians who have decided to move from my State to States with more supportive medical liability law, and finally, doctors who have opted to retire early. It is troubling to have highly trained, dedicated, qualified members of the medical community leave or to give up their profession--all to the detriment of their patients.

This shrinking availability of physicians is due in part to the high insurance premiums that doctors are facing.

In just 5 years, the premiums for general surgery in Arizona increased from $37,804 to $56,862--an increase of 50 percent. For obstetricians in Arizona, premiums in 2001 were $49,436 and are now averaging $72,734. These premiums are rising at a staggering rate in part because juries in malpractice cases have given high-dollar verdicts to plaintiffs. Some of the verdicts are merited; many, we know, are not. In the end, these legal excesses damage the medical liability system, push up premiums, and lead to the early exodus of physicians. The system is broken and it is patients who suffer.

Hard-working men and women who need emergency medical treatment face longer waiting times when there are too few physicians to staff hospitals. Instead of a few days, it takes weeks for children to be seen for complex conditions because of the lack of pediatric specialists. Our seniors are forced to drive longer distances because they are told that physicians are no longer seeing any new Medicare patients. The situation for both physicians and patients has grown bleak, and care is compromised.

We should address this by enacting meaningful medical liability reform. S. 22 provides full recovery of the cost of necessary medical expenses and lost wages in a medical negligence case. When a wrong has occurred, it is important that the patient be able to gain a legal settlement or verdict that meets his or her future needs. This has always been a hallmark of medical liability legislation I have supported because it is in the best interest of the patient. New to S. 22 is the Texas model of caps on noneconomic damages,limiting them to $750,000 for noneconomic damages from three parties. I hear constantly from physicians who share with me the escalating costs of medical liability insurance and the ways they have had to alter their practice to pay these bills.

We have had an exodus of specialists from emergency room on-call rosters, and as you might have expected, hospitals are having trouble recruiting new physicians to the area. Compared to the national average of 283 physicians per 100,000 people, Arizona has only 207 physicians per 100,000 people.

I recently got an e-mail from an emergency physician, Todd Taylor of Phoenix, who is leaving the clinical practice to go to Tennessee. He is giving up medicine at the age of 49, in part, he said, because he sees a bad situation getting worse. The American College of Emergency Physicians recently issued a ``national report card'' and graded the medical liability environment in Arizona a D-minus.

I also heard about a woman in Arizona who returned to her obstetrician to deliver her second child, only to find out that physician had stopped delivering babies because of the high liability premiums. Arizona cannot afford to have physicians leave the State or curtail their practices.

There are areas of my State like Apache County that don't have even a single obstetrician. That means women in labor have to drive to neighboring counties to deliver their children. Apache had only 34 physicians in the whole county in 2004 and has seen even more physicians leave the area since then. One physician there, Thomas Bennett, said that his liability premiums, coupled with decreasing reimbursement, forced him out of his practice after 25 years. Dr. Bennett was an OB/GYN and always practiced in rural areas. What a loss to that community and to our State. S. 23, the second bill I mentioned, would provide liability protection for those who deliver babies and might keep physicians in practice or encourage obstetricians to practice in underserved areas like Apache Conty, AZ.

This is not how the system was ever intended to work. If we want women and babies to enjoy the medical care they expect and deserve, we need to find ways to encourage physicians to practice throughout my State and throughout the country. We cannot afford to have doctors relocating to different States to find more favorable laws and for communities to go without vital services.

The health care community has asked for the protections it needs to continue to provide services.

My Senate colleagues should do the right thing for patients, physicians, and hospitals, and reconsider their opposition to medical liability reform now. We will keep coming back until they are willing to address this situation--not just for the medical community but for all of the patients it serves.

Mr. President, it is with great pride that I rise today to honor a respected jurist and dedicated public servant upon the occasion of his stepping down as the Chief Judge of the United States District Court for the District of Arizona.

The Honorable Stephen M. McNamee earned his bachelor of arts in history from the University of Cincinnati in 1964. He received his master of arts degree in 1967 and his juris doctor degree in 1969 from the University of Arizona.

Judge McNamee began his professional career as an assistant U.S. attorney, a position he held from 1971 to 1985. During that time, he was chief of the civil division in Tucson, chief assistant U.S. attorney, and first assistant U.S. attorney.

In 1985, President Reagan appointed him U.S. attorney for the District of Arizona. He made prosecuting violent crime within the 21 Native American communities in Arizona a top priority, particularly the prosecution of those who victimize Native American children. He also implemented model collection procedures for fines and penalty assessments of Federal defendants--the source of funding for the entire Victims of Crime Act program. Additionally, he testified before congressional committees on behalf of the Department of Justice regarding a variety of issues from terrorist threats to the southwest border, to child abuse and neglect on Indian reservations, to theft of Indian artifacts from archeological sites, to the reauthorization of the Victims of Crimes Act of 1984. At the behest of Attorney General Richard Thornburgh, he helped organize the first major conference to bring together American and Mexican criminal justice officials.

In 1990, he was appointed to the Federal bench by President George H.W. Bush, and in that capacity he developed a similar program to bring Mexican and U.S. Federal judges together to learn about each other's processes and procedures. As the chief judge of the District of Arizona, Judge McNamee managed a burgeoning docket. Since 1999, the filing of criminal cases went up 80 percent and civil case filings went up 59 percent. Nevertheless, under his leadership, the number of cases pending for 3 years or more has declined nearly 20 percent.

Judge McNamee has been an active liaison to Congress for the Administrative Office of the United States Courts and the Federal judiciary. He was appointed to the board of directors of the Federal Judges Association and has served on several Ninth Circuit and District of Arizona committees addressing a wide range of issues, from capital cases to racial, religious, and ethnic fairness to security issues.

As a distinguished member of the community, Judge McNamee has been the recipient of almost two dozen international, national, and State commendations and awards. He exemplifies the highest standards that we have come to expect from our judiciary, and we thank him for his service.

Mr. President, I rise today in support of the resolution introduced by Senator Leahy and others to recognize May 15, 2006, as ``Peace Officers Memorial Day. Peace Officers work tirelessly to protect our society from criminals who would prey on the weak and innocent. They are the front line in a battle for justice and the rule of law. They often are unheralded heroes, whose simple act of going to work puts them in harm's way for our sake.

Tens of thousands of police officers were assaulted last year, and that number is likely to be similar this year. It is important that we take a moment to recognize the crucial service they provide.

Last year, 156 police officers were killed in the line of duty. Justice for the families of slain officers often comes slowly. I have introduced legislation that would speed up the process for the most hardened of criminals, those who murder police men and women. The Law Enforcement Officers' Protection Act would guarantee tough punishment for criminals who murder or assault police officers. Part of the legislation is named after Dr. John B. Jamison, a Coconino County, AZ Reserve Sheriffs Deputy who was slain while responding to a fellow deputy's call for assistance. The killer fired 30 rounds from an assault rifle into Deputy Jamison's car, killing him before he could reach for his gun or even unbuckle his seatbelt. He is survived by two children. State courts completed their review of the killer's conviction and sentence in 1985. Federal courts then delayed the case for an additional 15 years. One judge on the U.S. Court of Appeals for the Ninth Circuit even tried to postpone the killer's final execution date on the alleged basis that that killer was wrongfully denied Sate funds to investigate a rare neurological condition that his lawyer had learned of while watching television. Deputy Jamison's killer ultimately was executed in 2000--18 years after the crime occurred, and 15 years after Federal habeas corpus proceedings began.

So as we recognize the sacrifice that peace officers make to protect us every day--to protect the streets on which we drive to work, protect the neighborhoods where our children play, protect the stores where we shop, protect the very halls of government where I stand today--I urge my colleagues to help protect the peace officers and bring justice to the families of those who have given the ultimate sacrifice for the benefit of the rest of us.

Mr. President, I wish to address the same subject and begin where the distinguished Senator from Illinois left off when he talked about new leadership.

I wonder if he would join Republicans to see if we can eliminate the tariff on Brazilian ethanol, something which the Senator from Illinois suggests we need more of, one of the three solutions he says we need-- more leadership, more ethanol and fuel economy standards. I think we are going to provide some leadership and we are going to provide some more ethanol. One way to do that is to reduce the extraordinary expense of bringing it in from Brazil. We haven't gotten a lot of cooperation from the other side on that. That will be my first question to him: Will he step up and exercise leadership with us to eliminate that tariff on ethanol?

There is a 10-percent mandate in the Energy bill on ethanol. The Senator suggested we should have a higher mandate on ethanol, or a higher subsidy for that. The reality is one of the reasons gas prices have been where they are is we haven't been able to meet that 10- percent mandate. There isn't enough ethanol being produced and, therefore, because there is a lack of supply in comparison to the demand, the price has gone up, obviously. What we need to do here, instead of pointing fingers and demagoguing the issue, is to understand economics and appreciate where the real problem is. Then we can begin to solve it.

There is an old saying: For every complex problem, there is a simple and wrong solution. That is what we have mostly heard on the other side. The reality is, if you want to know the truth, the single most important component in the retail price of gasoline is the cost of crude oil--the single most important factor. Indeed, the cost of crude oil accounts for 95 percent of the price of a gallon of gasoline. Changes in the price of retail gasoline are almost entirely explained by changes in crude oil prices.

I have a chart I wish to show you which demonstrates that over the last 15 years, changes in the world price of crude oil have accounted for more than 95 percent of the changes in gasoline prices. It shows that as crude oil prices have gone up, the price of gasoline has tracked it almost exactly.

If you are looking for a culprit and why crude oil prices have gone up, it is because the demand has exceeded the supply. Countries such as China and India are demanding more and more of the product. And because of constraints imposed significantly by the Congress, we have not been adding to the supply.

There are also other problems that have created this spike recently. The largest reason, according to the folks on Wall Street, is the nuclear saber rattling from Iran, which produces about 4 million barrels of oil a day--or about 5 percent of world's supply--and it controls the Strait of Hormuz through which about 17 million barrels of Middle East oil passes every day. Some experts believe that concern about the Iranian nuclear crisis has added $10 per barrel to the price of crude oil since the start of the year. If you add to that supply disruption in Norway and Nigeria, as well as the machinations of Venezuela's strongman Hugo Chavez, you can see there has been a spike in the world prices which have been reflected at the pump.

We have also had some domestic problems that have added to the spike in prices. The U.S. Minerals Management Service has reported that over 334,000 barrels per day of crude oil production in the gulf coast are still shut in as a result of Hurricane Katrina. More importantly, some of the heavily damaged gulf coast refineries representing nearly 5 percent of U.S. refining capacity are still undergoing repair. But the good news is they are likely to resume production at the end of this month.

Another problem is because there was so much refining capacity that went down, the Government urged the refiners to continue refining and forego their regularly scheduled annual fall maintenance in order to keep the supply of gasoline from dropping even further. They did that. I am glad they did.

The problem now is the crisis is over and they are having to engage in that deferred maintenance. And after months of heavier than normal usage, they are finding this long overdue maintenance is reducing production out of the refineries as well. As it comes on line, we are going to see some relief.

Finally, as occurs every spring, refiners, in compliance with Federal mandated fuel regulations, have to switch from the wintertime fuel blend to the summertime fuel blend which entails completely drawing down supplies of wintertime fuel blend and replacing it with the summertime fuel blend. This obviously also causes a short-term supply disruption adding to the spike.

There are some other factors as well, having to do with the elimination of MTBE as a motor fuel additive and the mandate for ethanol production or addition to the fuel which was not initially able to comply with the 10-percent standard which has had some impact on prices, especially in much of the East Coast and Texas.

But the bottom line here is there is a variety of reasons why fuel costs and, therefore, gasoline prices have spiked. It does not do a lot of good to point the finger at somebody and say, We know the answer; we will punish them and that will solve the problem. The reality is that profits from the oil industry are now being put to use in expanding production. The industry invested nearly $109 billion in 2004. While the numbers aren't in for 2005 yet, for first three quarters it showed investment spending was 28 percent higher than in the first three quarters of the previous year. It is projected this year to grow by double digits again.

This investment will lead to a 2.2 million barrel per day increase in production this year, outpacing demand that is expected to rise by just 1.8 million barrels per day. That, more than any of these other factors, is going to add actual fuel to the pipeline which will, therefore, enable us to bring the fuel costs down.

The bottom line here is when you are talking about solutions, you talk about that which will either reduce the demand or increase the productivity. Unfortunately, consumer demand has not been reduced that much even with the higher prices, which means you have to look for more production. There are several ways you can do this.

The Senator from Illinois scoffed at ANWR, saying it is only 3 percent of the world's supply. Do you realize how much that it is? That is huge. That is as much oil as Iraq produced.

Had President Clinton not vetoed the exploration in ANWR 10 years ago, that oil would now be flowing today. The Senator says it will take 10 years. Yes. Before you can complete your journey, you have to establish the first step. That is what we have to do here. Had we done that 10 years ago, that oil would be flowing today.

By the way, to characterize it as a wilderness area is a misrepresentation because as we should realize, this is an area expressly set aside for oil exploration by the Congress. It is not going into a wilderness area and cutting it out and then exploring in an area that was set aside for wilderness.

There are other increases in productivity in addition to ANWR. Increasing our deepwater production 100 miles offshore is virtually safe. Clearly we can eliminate restrictions on the 100-mile limit for deepwater drilling offshore. We could, if we wanted to, stop buying temporarily in this market today for the SPR, the Strategic Petroleum Reserve. We could suspend the boutique fuel blends and reduce the ethanol mandate.

Those are short-term things that could be done. But again for the longer term, if you want to bring in more ethanol, eliminate or reduce the tariff on Brazilian ethanol; if you want to have more production, look at deepwater drilling and ANWR. Those are ways to actually add crude oil and, therefore, fuel to the equation rather than these ideas of not adding any oil whatsoever but simply make a political point.

The point was made that profits of the oil companies are up. As has been indicated, those profits are now being plowed back into production and to refinery capacity which is going to help us reduce the cost.

The Senator from Illinois said it is strange indeed that prices go up all over town when they go up. It is not strange at all. You don't have to have collusion between the oil companies for that phenomenon to be reflected because of the fact that the crude oil prices are the same for everyone. So if everybody's baseline price goes up, everybody is going to be raising the cost of gasoline at the fuel pump. The idea that there must be collusion or at least the inference there must be collusion, remember that the Government has been investigating this for years and, to my knowledge, has never found any evidence of collusion. As the President said, we will keep on looking for it. If we find it, obviously those people will not go unpunished.

Let us not try to point a finger of blame in an area where we know we are coming up with a dry hole. That isn't going to add anything to the production of crude oil and, therefore, do anything to increase the supply and, therefore, reduce the cost.

The bottom line is this: There are a of lot ideas about how to deal with the short-term cost of energy. Some of them are good. There are ways to increase the long-term supply and thus deal with the long-term cost. But until we are serious about the economics of the issue, rather than simply trying to come up with a bumper sticker solution, we are never going to be able to eliminate the cost to consumers. And that, after all, ought to be our primary responsibility.