Floor Statements

Mr. President, I have an amendment at the desk.

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

Mr. President, let me briefly describe what the amendment does. I appreciate the fact that most of my colleagues are leaving, and we will have to have the debate next week. Since the budget point of order was not sustained, we are going to proceed to the consideration of the addition of $1 billion to the LIHEAP funding for low-income energy assistance. Of course, in the colder States, that generally takes the form of assistance in the heating oil bills to heat their homes. We have, however, in other States a crisis in the middle of the summer when it is so hot that folks have a hard time paying the air conditioner bills. The issue is essentially the same.

It has been pointed out by one individual that more people actually die as a result of heat than cold. In any event, we are pleased to see $2 billion already having been spent for the low-income energy assistance program in those colder States.

What we are talking about here is the addition of another $1 billion. We are saying, as to this other $1 billion, it should be spent pursuant to the formula in the law. What our amendment does is to say take this additional $1 billion, spend it pursuant to the formula under the law.

That formula is broken into two parts. The first is $250 million and the second is $750 million. The formula for the first $250 million disburses it a certain way, and for the last $750 million, it disburses it somewhat differently. That formula actually ends up getting money to all of the States but in a different mix than the first $2 billion, which is so-called contingency funding, which was almost all given to support folks in the Northeast part of the United States, in the colder part of the country.

The problem is that by the time we get to the summertime, almost all of the money is used, and anybody who

needs it for air-conditioning assistance, of course, has nowhere to turn. Last summer, when we had the record-high temperatures in Arizona, we found that there was no money. We finally located about $183 million, if memory serves me, and by the time we located that funding, it was virtually too late to do very much good.

That is the reason, at this point in the year, if we are going to spend an additional billion dollars, we need to spend it pursuant to a formula under which all States can receive funding, that it is distributed fairly and spread out evenly so that the States that have air-conditioning problems will receive the benefit from it just as those States that have problems with the cold.

Mr. President, I suspect there is little point to further debating this amendment at this time. I hope that when Members return, we will be able to vote on this amendment. If we are going to add the additional billion dollars, at least let's do it in a way that is more fair. I think something like 38 States lose under the proposal of the Senator from Maine, and they would actually be made more whole if my amendment is adopted. I hope at that time we will act favorably on this amendment.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on March 2, 2006, at 9:30 a.m., in open session to receive testimony on the Defense authorization request for fiscal year 2007 and the future years Defense program.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on March 2, 2006, at 10 a.m. to conduct a hearing on ``Continued Examination of Implementation of the Exon-Florio Amendment: Focus on Dubai Ports World's Acquisition of P&O.''

Mr. President. I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Thursday, March 2, 2006, at 10 a.m., on USF Distributions.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Thursday, March 2, at 10 a.m. The purpose of this hearing is to review the proposed fiscal year 2007 Department of Interior budget.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, March 2, 2006, at 9 a.m., to hold a closed briefing on A Nuclear Iran: Challenges and Responses.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, March 2, 2006, at 10:30 a.m., to hold a hearing on A Nuclear Iran: Challenges and Responses.

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to hold a hearing during the session of the Senate on Thursday, March 2, 2006, at 10 a.m. in SD-430.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Thursday, March 2, 2006, at 10 a.m. for a business meeting to consider pending committee business.

Agenda

Legislation

1. S. 2128, Lobbying Transparency and Accountability Act of 2005.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a markup on Thursday, March 2, 2006, at 9:30 a.m. in Senate Dirksen Office Building room 226.

I. Nominations

Jack Zouhary, to be U.S. District Judge for the Northern District of Ohio; Stephen G. Larson, to be U.S. District Judge for the Central District of California; Steven G. Bradbury, to be an Assistant Attorney General for the Office of Legal Counsel; John F. Clark, to be Director of the United States Marshals Service; and Terrance P. Flynn, to be U.S. Attorney for the Western District of New York.

II. Bills

S. 1768--A bill to permit the televising of Supreme Court proceedings, Specter, Leahy, Cornyn, Grassley, Schumer, Feingold, Durbin; S. 829--Sunshine in the Courtroom Act of 2005, Grassley, Schumer, Cornyn, Leahy, Feingold, Durbin, Graham, DeWine, Specter; S. --Comprehensive Immigration Reform, Chairman's Mark; S. 489, Federal Consent Decree Fairness Act, Alexander, Kyl, Cornyn, Graham, Hatch; S. 2178--Consumer Telephone Records Protection Act of 2006, Schumer, Specter, Cornyn, DeWine, Feinstein, Feingold, Kyl, Kohl, Durbin; S. 2039--Prosecutors and Defenders Incentive Act of 2005, Durbin; Specter, DeWine, Leahy, Kennedy, Feinstein, Feingold; and S. 2292--A bill to provide relief for the Federal judiciary from excessive rent charges, Specter, Leahy, Cornyn, Feinstein.

III. Matters

S.J. Res. 1--Marriage Protection Amendment, Allard, Sessions, Kyl, Hatch, Cornyn, Coburn, Brownback.

Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Thursday, March 2, 2006, to hear the legislative presentations of the Fleet Reserve Association, the Air Force Sergeants Association, the Retired Enlisted Association, the Gold Star Wives of America, and the Military Officers Association of America. The hearing will take place in room 106 of the Dirksen Senate Office Building at 10 a.m.

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

Mr. President, I ask unanimous consent that the Subcommittee on Readiness and Management Support be authorized to meet during the session of the Senate on March 2, 2006, at 2 p.m., in open session to receive testimony on military installations, military construction, environmental programs, and base realignment and closure programs, in review of the defense authorization request for fiscal year 2007.

Madam President, I rise today to comment on S. 2271, which I anticipate that the Senate will overwhelmingly approve today. I support the USA PATRIOT Improvement and Reauthorization Act Conference Report, with the three amendments negotiated contained in S. 2271. It is long past time to reauthorize the USA PATRIOT Act, which has been critical to our efforts to protect Americans. I support the compromise that has allowed this up-or-down vote because I think that the agreement maintains the tools necessary to fight terrorism while further strengthening safeguards to protect Americans' civil liberties just as the conference report itself does.

The conference report clarifies that the recipient of a section 215 FISA business records order or a National Security Letter, NSL, may disclose receipt to an attorney to seek legal advice or assistance and also to those necessary to comply with the request. During House-Senate negotiations, provisions were added allowing the government to request that the recipient tell the government to whom the recipient had disclosed the order or NSL. This provision makes sense because there will be times when the Government will need to know everyone who has been told about a section 215 order or NSL. For example, if there is a leak of the existence of the request, or the recipient's name, that leak may need to be investigated. And we know from the criminal conviction of Lynne Stewart that, unfortunately, sometimes it is the attorneys who are breaking the law.

Some Senators expressed concern that these provisions required all recipients to identify their attorney in all instances. This was a misreading of the language, which would have allowed the government to request the names of individuals to whom subsequent disclosure was made but did not set out a blanket requirement.

Other Senators were concerned that this provision could chill a recipient's right to counsel. It is clear under the law that the constitutional right to counsel would not be implicated or offended by the conference report provision. But in a spirit of compromise, the Administration agreed to modify the provisions such that they could not be used to request the identity of an attorney to whom receipt was disclosed. I support this amendment primarily because there is no way that the agreed-upon language would preclude the use of a grand jury subpoena or other investigative tool in the event of a subsequent leak investigation. So the government will still have tools available to investigate leaks as the need arises--even if the offending party is the recipient's attorney.

The conference report also makes it clear that the recipient of a section 215 FISA business records order can go to court and challenge the order. Some Senators raised concerns that under the conference report a recipient would have explicit rights to consult an attorney about the order and to challenge the order to produce business records, but would not have an explicit right to challenge the nondisclosure order that accompanies such a production order. I think it is likely that a court would entertain a constitutional challenge to the nondisclosure requirement, and nothing we say in a statute is going to change that one way or another. Moreover, it is important to remember that these are court orders--they are reviewed and approved by judges before they are served.

But notwithstanding my confidence that the conference report was fully consistent with Americans' civil liberties, the administration agreed to a compromise that explicitly authorizes judicial review of a section 215 nondisclosure order. I think the agreement is a good compromise--it explicitly allows challenges, but does so without risking national security. Pursuant to the agreed-upon language, a challenge could be brought any time after the first year after the judge issued the section 215 order; the challenge could only be brought in the FISA Court; and the standard of review would be the same as the standard the conference report provides for review of nondisclosure orders accompanying NSLs. The delay is perfectly appropriate and necessary to preserve valuable personnel resources--these orders are approved by judges before issuance, so it makes little sense to allow recipients to challenge the non-disclosure requirement only a week or even a day after the court issues them.

Taking the standard of review from the NSL provisions also makes sense. Not only did that standard pass both the House and Senate, but it affords the appropriate level of deference to the Executive branch's judgments on national security and diplomatic relations.

This standard provides that the FISA Court judge may set aside or modify the nondisclosure order if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal or counterterrorism investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person. If, upon the filing of a challenge to the nondisclosure order, the Attorney General, the Deputy Attorney General, an Assistant Attorney General, or the FBI Director certifies that disclosure may endanger the national security of the United States or interfere with diplomatic relations, the certification is conclusive unless made in bad faith.

Courts have long recognized that national security and diplomatic relations fall within the heartland of the executive branch's responsibility and expertise, and this standard simply recognizes that expertise. By requiring that the certification be made by a Senate- confirmed official before granting it bad-faith review, the conferees added political accountability--and I note that neither the House version nor the Senate version had this additional safeguard.

Finally, some Senators also expressed concern about the applicability of national security letters to libraries. This concern has always seemed to me to be based on a misunderstanding of the NSL statutes. There are several NSL authorities, but each authority only allows the government to request a narrow category of records from a narrow set of institutions. The statue that is generally in the news allows the FBI to request things like customer subscription records from ``wire and electronic communication service providers.'' And we have already made clear in statute what institutions qualify as ``wire and electronic communication service providers.'' The way I read the statute, and the way that experts read the statute, the FBI cannot use an NSL to learn what books you and I are checking out from the library.

But the compromise makes it crystal clear that the FBI may serve an NSL on a library only if that library is acting as a ``wire or electronic communication service provider.'' Just to be clear: we are not changing the set of entities that can be subject to NSLs; we are merely clarifying that libraries can be subject to NSLs only if they perform the functions that make an entity subject to NSLs. I can support this language because it does not create a safe haven for terrorists in libraries. If it did, I could not support the language.

It is well past time to pass this report, which passed the House with strong bipartisan support. A majority of Americans supports reauthorizing the USA PATRIOT Act, as does a strong bipartisan majority of Senators. I support this compromise.

Mr. President, I rise today to announce to the Senate the arrival in this world of Laura Dale Duffield. Miss Duffield was born to her parents Cara and Steven this last Friday, and is reported to weigh over 7 pounds. Her father, Steven, is the Judiciary Policy Analyst and Counsel for the Republican Policy Committee, which I chair.

I would like to take a moment to note for posterity some of the events taking place in the world at the time that young Laura joins us. Most important among the matters recently before the Senate, I think, is the confirmation several weeks ago of the nomination of Samuel Alito to be a Justice of the Supreme Court of the United States. In the fall of last year, the Senate also confirmed the nomination of John Roberts to be the Chief Justice of the United States. Steven played an important role in both confirmations, supplying Republican Senators with information and draft speeches about the nominees, and even staffing me on the Judiciary Committee during the nominees' hearings. This is the first time that there has been a change in the membership of the Supreme Court since 1994--before Laura's parents even began law school. Chief Justice Roberts replaces Chief Justice Rehnquist, who originally had been appointed to the Court in 1971, in between the time that Laura's parents were born. Justice Alito replaces Justice O'Connor, who had been appointed to the Court when Laura's parents still were in grade school.

In the years to come, we of course will have many opportunities to evaluate these two new Justices and their impact on the law. At the present time, based on what I saw ofthese nominees at their hearings before the Judiciary Committee, I think that they give us reason to be hopeful about the future. I think that we can reasonably expect both nominees to usher in a new era of the rule of law in this country--to restore the Supreme Court to its intended role, of declaring what the Constitution means in light of how it was reasonably understood when it was enacted. For many years now, Americans often have felt powerless at the hands of a Court that has pursued its own political agenda--an agenda without a basis in the text, structure, or history of the Constitution. I am optimistic that in the years to come, the Supreme Court might play a less prominent role in American life, and might allow the American people and their elected representatives a more prominent role in making the laws that govern them.

This year also marks the 5th year since the terrorist attacks on the Trade Center in New York and on the Pentagon. Those attacks still set much of the national agenda, from the wars in Afghanistan and Iraq to the legislation that we are considering in the Senate. On the day that Laura was born, last Friday, the headline in the Washington Post was, ``Patriot Act Compromise Clears Way for Senate Vote.'' I will include this news story in the Record following my remarks. Last December, the PATRIOT Act--an important antiterrorism law that enhances investigators ability to detect and disrupt terrorist plots--was held up in a legislative filibuster. Occasionally, the Senate takes to heart its intended role as a brake on legislative action and throws one of its periodic tantrums. But fortunately, just in advance of Laura's arrival, the impasse over this indispensable law has been cleared.

Finally, this moment in time also is marked in this place by legislative action on a slew of reforms to our civil-justice and bankruptcy laws; an attempt to reform our immigration system and control our border; and an attempt to reverse the verdict of the Civil War by authorizing Native Hawaiians to secede from their State. Mention of these projects, however, serves only to highlight their insignificance relative to the arrival of a new child in the world. I doubt that Steven even will remember the laborious policy papers that he produced on all of these topics as he watches Laura grow older.

I congratulate Steven and Cara on the arrival of their daughter--on the fact that there is now one more person in the world whom we will all call ``Duffield''--and I wish them good fortune in caring for and cultivating their new charge.

I ask unanimous consent that the following Washington Post news story be printed in the Record.

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

Mr. President, I wish to speak for a moment, first of all, about the process we are going through and then about the substance of a couple of amendments that our colleague from Wisconsin would have liked to have introduced and have a vote on it with respect to the PATRIOT Act.

Our constituents might be wondering why we are on the floor of the Senate on this Thursday afternoon discussing the PATRIOT Act. After all, haven't we passed it? Of course, the answer is, in a sense, we have passed it now several times. But there are colleagues on the other side of the aisle who have decided that rather than let the will of the Senate be carried out with adoption of the PATRIOT Act so this bill can be sent to the President so he can then sign it, thus reauthorizing the act for another 4 years and giving the tools to fight terrorism to our intelligence and law enforcement officials that, rather, they are going to make us comply with all of the procedural technicalities which they can throw in our way which accomplishes absolutely nothing but requires us to take several more days to finish the process.

What can be gained from this? Nothing at all except that we waste more time thus making it more likely that we will not have time to do other business of the Senate, especially as it gets toward adjournment later on in the year.

What we are seeing is taking something very important for the protection of the American people--the PATRIOT Act--and using it for what I believe are improper purposes and simply delay action in the Senate so that we will have less time to act on other items.

There is no basis for delaying the PATRIOT Act. The votes are there to go to the conference and have the House of Representatives approve it, again, as it already has, so it can be sent to the President. There are no amendments that are going to be brought up. We are going to have a final vote on Tuesday--and that is it. But rather than being able to accomplish that result today, we are having to waste all of this time.

What kind of a message does this send to our allies who are, first of all, a little skittish about some of the news leaks about our surveillance programs in which they participate, to some extent. We get good information from our intelligence service, and I suspect they are worried about the lack of control over our intelligence process. They are not sure, I suspect, what to make of this debate about the PATRIOT Act. They thought we had it resolved so they could work with it on the basis of the laws they understood. They are not sure.

I often wonder what Osama bin Laden is thinking. I suspect he is not getting live coverage, but he is probably getting reports somehow or other, and he must be shaking his head: I thought I was pretty clear, I am really making threats against these guys, and they are playing around. They are not taking my threats seriously.

I, for one, am taking his threats very seriously--and so does the Director of the CIA and so does Ambassador Negroponte.

Our intelligence officials and the people we have asked to do this job for us take this threat dead serious. They have asked the Congress to give them the tools they need to fight this terrorist threat. Part of the tool is this PATRIOT Act, which has now been revised and reformed and amended and gone over again, and, finally, there are now three more changes to it--and it is done.

We have the ability now to simply pass it on to the President so he can sign it, and for 4 more years everybody knows exactly what we have to work with here.

Remember the 9/11 Commission following the tragedy of September 11, when we asked this commission to analyze what we could have done better and what went wrong, part of what they said was wrong was that there was confusion in our law enforcement intelligence community about what they could and should do.

In fact, legal interpretations differed so much they felt there was a wall that separated the intelligence agencies and the law enforcement agencies from even talking to each other.

One of the things the PATRIOT Act does is makes clear that there is no such wall; that at least our law enforcement and intelligence folks can talk to each other about these terrorists.

It is most distressing that we can't simply get this bill passed on to the President so that everybody knows we have it reauthorized again for another 4 years.

As I said, if there were any rationale behind this, other than simply delaying so that we can't do other business, you might have something to bite your teeth into and debate on the floor. But in truth, this thing, when it passes, is going to be overwhelming. I doubt that we will have a handful of votes against it. In fact, we may have less than a handful, which would be 5 votes against this when we vote on it. But I thought at least it would be interesting to see what some of the objectives posed by some of the most vociferous critics of the PATRIOT Act are, what those criticisms are, to examine them so we can see exactly what the complaints are about, about what the President has called an essential tool in the war on terrorism.

When you look at the suggested amendments--again, amendments which we are not going to be voting on because we have already been through that process three times and that has thankfully come to an end--I wanted to examine a couple of amendments our colleague from Wisconsin would have offered to illustrate it is not something we should be wasting our time on. One of them has to do with something that has been in existence for 40 years, called national security letters. It is essentially a subpoena for records that is just like a grand jury subpoena.

The county attorney or the district attorney goes to the grand jury and says: I think we need the following documents in order to see whether we can make our case. They write up this piece of paper, it is delivered, say, to a hotel, and it asks for the business records: We want to know everyone who checked in and out of the hotel for the last 3 days because we think maybe this person we are after may have checked into this hotel--that would verify his presence on the night of the murder, or whatever the case--so the hotel gives them the records.

There is no expectation of privacy in the records. When the hotel clerk says: Here, sign in--and he turns it over, you can see exactly everyone else who has signed into the hotel. There is nothing private about it.

These national security letters have been used for many different government agencies. If you are investigated for Medicare fraud, for example, your doctor might get one of these security letters asking for information.

Back when the security letters were authorized, we did not have terrorism. Now we have terrorism in a big way in the last decade or dozen years. Law enforcement authorities say: You know that process we have of getting business records through the security letters is a good process, and we ought to apply that to terrorism, too. Why not? If we can investigate drug dealers or bank fraud criminals or people like that with this kind of a subpoena for records, why shouldn't we be able to do it for terrorists? That is a much bigger deal.

Now for the first time our colleagues are saying maybe we should have a court process to review this. That process exists in a totally different context. If we want a much more formal procedure, there is something called a Section 215 warrant. That is court supervised. This is the sort of light version. If it is contested, of course, you have to go to court. Most of the time the records are easily given because they are not private records.

For the first time in the context of terrorism our colleagues are saying this is an invasion of privacy and we need a court to review this. My point is, it must be very confusing to law enforcement to have Congress debating something like this when there is no rationale for changing the law of 40 years that has been applied in everyday context throughout the country, and all of a sudden where we would want the most streamlined procedure, where we would care most about the cops, where we need speed because we do not know whether an attack is imminent, for example, in the situation that is much more serious, now we are saying we need to throw some roadblocks in the way of the law enforcement tool. It does not make sense.

I thought I would take two of the amendments--we are not going to be debating the amendments, but this is the kind of thing raised as an objection to the PATRIOT Act--the kind of amendments that would be offered. It shows how unnecessary this approach is.

Let me note one other thing. There have been a lot of unnecessary amendments attached to the PATRIOT Act. It is getting to the point where I wonder whether we can really do the job, our law enforcement community can really do the job that our constituents want it to do. For example, by my count, the final bill that we will send to the President requires 12 different reports or audits of our Nation's antiterror investigators. Obviously, oversight is important. Reports to the Congress are important. But it seems to me this is overkill. Our intelligence agencies should be devoting their resources primarily to investigating suspected terrorists, not to investigating each other. All of these reports simply add to the burden they already have.

And we wonder sometimes after the fact, when a September 11 commission reports that they were too burdened to do their job, how that could possibly be. Congress sometimes can be part of the problem as well as part of the solution.

All of the changes have been negotiated and renegotiated, as I said. At some point, we need to complete the bill. There are other amendments I would like to add, but I had my chance and this is not the time to be reopening the process for yet another round of amendments. It seems to me we ought to be moving on.

I will mention this one amendment. It is actually an amendment numbered 2893 that would have been offered by the Senator from Wisconsin. This amendment would strip away the protections for classified information about suspected terrorists and terrorist organizations in the manner I discussed a moment ago. The amendment not only risks revealing our level of knowledge of our data collection methods to those who would do us harm, but it also threatens to undermine our relations with allies who supply us with a lot of information in this war or terror. They do not do that so it can be given out to the public. The purpose of classification is to see that the information remains secret. But this particular amendment would allow classified information to be compromised during the challenge to a nondisclosure order for national security letters or a FISA business records order. FISA is the Foreign Intelligence Surveillance Act. It serves no substantial interest but, as I said, can be very damaging to our national security.

Let me put this in perspective. A section 215 order--which I discussed before, which is a FISA order and is always accompanied by a nondisclosure requirement--already is judicially reviewed, as I said. There has to be a court action on it before it can be issued. And under the amendment that was offered by the Senator from New Hampshire, a third party recipient of a section 215 order also would be able to have the courts review the section 215 order after its issue, which is a second round of review. We have added that in. To my mind this is redundant and unnecessary, but that has been added. That is one of those compromises to enable us to get to this point.

Let me put this issue in perspective. A section 215 order, which provides that second round of review, is much different than a national security letter which, as I said earlier, has been around since the 1970s. They have always been accompanied by a nondisclosure requirement. In other words, when the third party is served with this subpoena that says: Would you please give us these records, you are not supposed to tell the person that a law enforcement entity is seeking the records. Obviously, you do not want to tip them off that you are investigating them. There is a nondisclosure requirement. You cannot tell the person that the Government has come asking for the records. That requirement has always been automatic, and there has never been any provision for any judicial review of that nondisclosure requirement.

The national security letters, like virtually all other subpoenas, are also not judicially reviewed before they are issued. The conference report, for the first time in the history of these national security letters, authorizes judicial review of the need for the nondisclosure of the subpoenas. That was another compromise that was added. You not only have it in the formal section 215 requirement but also in the less formal security letter process. It allows the recipient to challenge the nondisclosure requirement, and it ensures the automatic nature of the nondisclosure requirement.

Now the FBI will have to evaluate each national security letter. The nondisclosure of the NSL and the nondisclosure requirement can only apply if the FBI certifies that the public disclosure of the service of the NSL will harm national security. In other words, before it is issued, the FBI has got to have a certification that the recipient of the letter may not disclose it because to do so would be to harm national security. That certification is based upon a very solemn judgment exercised by the Attorney General.

Critics condemn this provision as giving only the illusion of judicial review. When they say that, it bears mention that what they are condemning is language that is being added to a statute that never provided any kind of judicial review before that. For over a quarter of a century there has been none whatsoever, and yet there is a complaint this judicial review is not good enough. The sponsor of the amendment argues that the standard employed for the review of the security letter and the section 215 nondisclosure requirement is too high and can never be met.

It is high, but it is very high for a reason. If a challenge is made, the FBI needs to reevaluate whether there is a continued need for the disclosure. But if the FBI certifies that disclosure of the NSL would harm national security, that reclassification is conclusive. Now, when you say ``conclusive,'' that is a very high standard.

In this respect, the proponents of the amendment are correct; that is a high standard. But it is the only way the determination can work.

Think about it for a moment. Only the FBI, the people who are investigating the matter, not individual district judges, are in a position to determine when the disclosure of classified information would harm national security. Obviously, that is not something that a Federal district judge has any expertise on. You have to have, literally, a trial to determine whether that proposition were true in each particular case.

The reason nondisclosure might be necessary should be obvious. If a suspected terrorist or his associates, for example, are funneling money through a particular bank in a city, and if that bank were to make public the fact that it had received a security letter requesting records in a terrorism investigation, that disclosure would easily tip off the terrorists and their associates that they are under investigation. You do not want to do that.

It is also important that the FBI make the final determination whether the disclosure would harm national security. And only the agents in charge of these counterterrorism investigations will be able to evaluate how the

disclosure of a particular piece of information could potentially, for example, reveal sources and methods of intelligence and who, therefore, might be tipped off as a result of the disclosure.

We are all aware of this current controversy regarding the briefing of select members of the Intelligence Committee over a particular surveillance activity involving international communications with members of al-Qaida or people suspected of being with al-Qaida. The reason not every member of the Intelligence Committee is briefed is because of what we would call ``sources'' in this case. Methods of surveillance are so secret, so classified, that it has been determined that even some members of the Intelligence Committee should not be fully briefed on exactly how this methodology works.

So you can imagine when the FBI has sources of intelligence to protect or certain methods of intelligence gathering to protect, the last thing you want is for a judge to decide that those should simply be made public.

That is why this conclusive presumption is in the law, why it is so important, and why we cannot have this section amended to open that to public disclosure of that sensitive information. Yet this amendment numbered 2893 would allow every one of the 800 Federal district judges in the country, in fact, to be their own director of national intelligence and decide for themselves whether exposing classified information would inappropriately reveal the sources and methods I discussed, whether that might tip off terrorists to what we already know about them, and whether it would harm relations with our allies who, perhaps, have provided us with the information. Obviously, that cannot be allowed. We cannot expect our allies in the war on terror to cooperate with us if we treat this sensitive information that they provide to us with anything other than the most careful consideration. And we cannot expect our agents to be successful in detecting terrorist plots if every step of the way, every time they gather information through either a security letter or the more formal section 215 process, they can be sued and forced to divulge classified information about whom and where they are looking and what methods they are using.

This amendment would do serious harm to U.S. national security. And to what end? What powerful privacy interest or civil rights interest dictates a third party asked to produce business records in its possession must be allowed to disclose the existence of the investigation or must be given access to other classified information in order to plead that matter before the judge?

When the FBI is investigating organized crime in the United States and grand juries compel testimony or require the production of records, we do not let those witnesses or the parties holding the records publicize the fact that they had been subpoenaed or publicize that there was an ongoing investigation. We recognize that secrecy is important in an organized crime investigation and it outweighs any interest that third parties might have in talking about the investigation.

Why wouldn't we recognize the same realities in a terrorism investigation, an area where the safety and security of the American people are much higher? That is the kind of amendment that would be offered. Thankfully, as I said, we decided to go forward with the process and not have any more amendments and have the vote next week which will enable us to send this bill to the President.

My point in discussing this is to demonstrate there is no reason to have further debate or amendments, and we could have gotten done this afternoon and known we had reauthorized the act for another 4 years.

The only other amendment I want to discuss is amendment No. 2892, blocking these section 215 orders even where relevance is shown. This amendment is highly problematic because it would bar antiterrorism investigators from obtaining some third party business records even where they can persuade a court that those records are relevant to a legitimate antiterrorism investigation. We all know the term ``relevance.'' It is a term that every court uses. It is the term for these kinds of orders that are used in every other situation in the country. Yet the author of the amendment argues that relevance is too low a standard for allowing investigators to subpoena records.

Consider the context. The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code. These national security letters have existed since the 1970s, and they have always employed a relevance standard.

Why now that we are faced with a terrorism threat, and we decide this same investigative tool should be available to investigate terrorists would we impose a higher standard to get the information? If anything, you would be talking about applying a lower standard because of the importance of the threat and the fact that sometimes speed is of the essence.

As the Department of Justice Office of Legal Policy recently noted in a published report--I want to quote this--``Congress has granted some form of administrative subpoena authority to most Federal agencies, with many agencies holding several such authorities.'' The Justice Department ``identified approximately 335 existing administrative subpoena authorities held by various executive-branch entities under current law.''

As I said, 215 orders already are harder to get than regular subpoenas, even though the subject matter would suggest that perhaps they ought to be easier to get. In the case of these section 215 orders, the law requires that the FBI first seek a determination of relevance from a judge, which makes it harder to get a 215 order than it is to get any other grand jury subpoena or virtually any other kind of administrative subpoena because none of them require preapproval from a judge. Even a grand jury subpoena is not approved or reviewed by a judge or the grand jury before it is issued. It is issued directly by the prosecutor.

It is interesting; there was a recent online article in National Review Online by Ramesh Ponnuru, a very good writer and student of this issue, who made the following comments. This is a quotation. He noted that critics say:

that investigators shouldn't be able to get business records

merely by convincing a judge that the records are

``relevant'' to an ongoing terrorism investigation. Yet that

relevance standard, from Section 215 of the law, is the exact

same standard employed for discovery orders in civil

litigation, for grand-jury subpoenas in criminal

investigation, and for each of the 335 different

administrative subpoenas currently authorized by the U.S.

Code. Getting a 215 order is harder than getting a grand-jury

subpoena or almost any kind of administrative subpoena, since

judges don't have to review the latter [before they are

issued].

Again, this is the current law. So even without an amendment, which would make it even more difficult, the law we are talking about with regard to terrorism investigations makes it more difficult in a terrorism investigation to get a subpoena than in any other situation. Yet the proponents of this amendment would make it even more difficult than that.

Now, let's imagine what this means. Here is a scenario:

Let's imagine that intelligence agents have discovered that

suspected Al Qaida agent Mohammed Atta is in the United

States and that he has hired another individual to work for

him. Under the Patriot Act legislation being considered now,

it will be easier for the federal government to subpoena

records in order to make sure that Atta is paying that

individual the minimum wage than it will be to obtain records

to find out if Atta is using him to engage in international

terrorism.

That is not right. I was going to say something else. I will just say that is not right. This is the existing law. This is before we would make it even more difficult with the amendment I discussed a minute ago.

So without making further arguments on this point, I think you can see that we have girded this PATRIOT Act with levels of civil rights protection and privacy rights protection that we do not have in any other part of the code, even though the need for speed and the need for agility to get after these terrorists is, I would argue, a much more important matter than investigating Medicare fraud or bank fraud or money laundering of whatever it might be.

We have not imposed all of those civil rights or privacy protections in those sections of the code, but here we

are going to add them and make it even more difficult for the FBI and other law enforcement and our intelligence agencies to do the job we want them to do. Then, of course, if something happens, we will haul them before Congress and say: Why couldn't you get your job done? And when they say: Well, the statute was a little tough for us to comply with, we will say: That will be no excuse.

So we need to be very careful what we do in considering further amendments to the law.

Mr. President, let me conclude by saying that the other amendments that would have been offered are in the same vein, making it unnecessarily difficult for our intelligence agents and our law enforcement officers to do the job we have asked them to do.

When my colleagues and I have had before us on the floor of the Senate amendments to add armor to humvees or to have better bulletproof vests or to have other kinds of equipment or tools for them to carry out the missions we ask them to perform when we send them into harm's way, we do not hesitate long to give our military everything they need because we want them to succeed in their mission. We do not want them to be left vulnerable in any way. Why? Because we want to be protected and we want them to be protected.

Yet when it comes to giving our intelligence agencies the tools to fight terrorism, we shirk back and say: Well, we are going to do it, but first we are going to add several layers of additional requirements to make it more difficult for you to do your job.

In the law and in this fight against terrorism, we are generally not fighting with airplanes and ships and the like. This is a different kind of war. This is a war against a very secretive enemy all over the globe. There is really only one way to get to this enemy, and that is with good intelligence to find out who they are, where they are, and what they are up to.

So the equipment we are giving to them, the tools for them to fight terror are these provisions of the PATRIOT Act and FISA and the other activities that have been discussed. This is what enables them to perform their missions. We cannot load these tools up with so many restrictions and legal loopholes that it is impossible for them to do their job. If we expect them to be able to protect us, we have to write these laws in clear, understandable, fair, and effective ways, certainly protecting our civil rights. But I think I have demonstrated we have done that.

If you do not need all these protections if you are investigating bank fraud, then I would say, as the lawyers say: A fortiori. They are less necessary in an investigation of terrorism, where speed may be required, where secrecy is absolutely critical, and therefore where the kind of protections that have been offered are very problematic to these folks doing their job.

So the bottom line is this: We have a good act, the PATRIOT Act. It is going to be reauthorized for another 4 years. We have already added numerous protections of civil liberties to it. It is, therefore, quite appropriate that the time for amendments has come to an end, that we not have any more of these amendments brought before us--I think I have demonstrated the harm those amendments would do--that we get on to the job of getting this legislation reauthorized so we can say to our constituencies we were able to provide the tools to fight terrorism that will protect them and their families.

That is our charge. There is only so much we as legislators can do, but this is something we can do, and we need to get about doing it.

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

Mr. President, let me respond to the kind invitation of the ranking member of the Finance Committee, on which I sit, to speak to the matter that is before us. I appreciate listening to his remarks about various aspects of the reconciliation tax bill and features thereof. Let me speak to some of those items as well.

There will be a lot of debate, I suspect, over the next several hours--much of which has very little to do with the Senate bill--but I think in anticipation of what is likely to occur in the conference committee when the Senate bill joins up with the House bill and we decide what provisions to take from each of those bills and bring back to our respective bodies.

Clearly, discussion about the capital gains and dividends extension will be part of that discussion. Let me start with that.

I want to begin by noting that the budget resolution which the conference reached in April provides reconciliation protection for $70 billion in tax reductions over 5 years with the direction that the allocations be used to prevent tax-rate increases during the budget window, which is 2006 to 2010.

Let me repeat that. The instruction that we gave for this budget was to prevent tax-rate increases during this budget window. If we do not take action, there will be tax-rate increases during this budget period.

This, as the President said in his State of the Union speech, would be both unanticipated and very unwelcomed by the American people.

What exactly do we mean by that?

Talking about capital gains and dividends, what we did back in April was send a signal to investors that capital gains and dividend tax rates would be extended through 2010. Investment advisers have been alerting their clients that in their planning they must consider that the tax rates have not yet been extended and may, in fact, expire in 2008.

The conference agreement that comes back to our respective bodies needs to extend these investment tax rates to give these investors certainty and to give businesses certainty about how they raise funds to expand their operations.

When Secretary Snow testified before the Finance Committee a week ago, he said it was his opinion that the investors in the country, those people who helped create jobs by investing in our businesses, had already determined that it was likely these tax rates would be extended.

He said, if we do extend them, which we anticipate doing, that is built into the market right now. But he said if we should fail to do so, we could anticipate that the market would react very negatively to our failure to do so. The reason, of course, is obvious. Investors want to know what the return on their investment will be 3 or 4 years out. That is when they will likely turn the asset that will provide the profit or a deficit for them. They want to know what that return is likely to be, which means they want to know what the tax rate is.

The tax rates that will expire in 2008 do not tell them what they need to know.

We have the opportunity to extend those tax rates through 2010 and prevent an increase from occurring, and that is precisely what we ought to do.

It is interesting that these particular taxes are very important to the majority of taxpayers in the country. These are not the so-called tax cuts for the rich. These are a continuation of existing tax rates for a majority of tax filers.

More than half of all Americans own stocks, either directly or through mutual funds. The 2003 marginal rate cut on investment income worked by giving investors an incentive to put more of their money to work in the markets. At the lower rates, the tax penalty imposed on the additional investment earnings, the reward for taking on additional risk, is smaller than before, and it 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 new jobs.

It is all part of this additional economic activity that creates this economic growth.

Americans support the extension of these tax rates.

A recent poll by the Pew Research Center, released on January 24, found that ``half of Americans support extending reductions in taxes on investment income such as capital gains and profits from stock dividends, while 35 percent believe these tax cuts should not be extended.''

I intend, by the way, to support extending the tax cuts by 34 percent, 35 percent. The reason is very apparent--

because it benefits millions of taxpayers.

These lower rates have helped millions more taxpayers than other popular tax provisions; for example, the alternative minimum tax relief that we want to enact as well.

Let me do a comparison between the AMT, which both Senator Baucus and I would like to see repealed, how many people would benefit from our relief from the alternative minimum tax versus how many would gain relief from an extension of current rates on capital gains and dividends.

It turns out, of all taxpayers that pay the AMT--these are figures from the 2003 tax year, which is the last year--9.7 percent had adjusted gross incomes under $100,000. Meanwhile, of all taxpayers reporting capital gains in 2003, 67.5 percent had adjusted gross incomes under $100,000. Of those reporting dividend income in that year, more than 70 percent had adjusted gross incomes under $100,000.

Nationwide, fewer than 8 million filers would be helped by the AMT hold-harmless provisions, while nearly 20 million filers would be helped by the dividend relief that we would extend, and just over 7 million filers would be helped by the relief from capital gains.

Here is the bottom line: A lot of Americans--over half--are now invested in the stock market. A lot of people will receive benefits if we continue the current tax rates for dividends and capital gains. Over 20 million of these filers under $100,000 will have dividend income and over 7 million will have capital gains income. That is compared to those taxpayers whom we will help under the AMT relief that we provide of about 8 million filers.

The bottom line is, other than the wealthy in our country, we are talking about helping people with both kinds of relief, but far more will benefit from the capital gains relief, and especially the dividend relief, than will benefit from the AMT relief. Some of our colleagues understand that and say: We understand in terms of pure numbers there are a lot more taxpayers, especially in the lower income categories, who will benefit from dividends and capital gains relief than AMT relief.

What about the fact that maybe they do not get as much relief, that the dollar amount is not as much? There is a myth floating around that it is actually very low. In fact, there is something being quoted as IRS statistics--and they are not IRS statistics. They are from a report of a group called the Center on Budget and Policy Priorities and also the Brookings Institute Tax Policy Center, which claims IRS data shows the taxpayers with income of $50,000 or less only receive a benefit of $11 per return from the lower rates on dividends and capital gains, and the benefit for taxpayers with income under $75,000 would only be $77 per return.

That is just plain wrong. First of all, the data is not from IRS. What is the data from IRS showing? Mr. President, I ask unanimous consent a couple of charts be printed in the Record after these remarks to show what I am talking about.

The IRS statistics--and this comes specifically from table 3.6, 2003, of a report called ``Individual Income Tax Returns, Returns with Modified Taxable Income: Taxable Income and Tax Classified by Each Rate at which Tax Was Computed and by Marital Status.'' If you look under that table, what you will find is that based upon actual IRS data estimated from 2003, the people who had taxable income of less than $50,000 on a per return basis, saved about $171 each. In 2008, the tax rate is reduced from 5 percent to zero for these taxpayers. Based upon the same data, that allows the rate to expire, which would result in a $341 tax increase on each of the almost 10 million taxpayers in these two lowest income tax brackets if we do not extend this tax rate at its current level.

What are we saying? If we do not take action and extend this current rate, what we are going to have for these lower income tax payers, those who make $50,000 or less, is they will see a $341 tax increase on each of those almost 10 million taxpayers. That is a far cry from this figure of $11, which is simply wrong.

The bottom line is, not only will more taxpayers receive relief under the extension of the capital gains and dividends part of what we hope will be the conference report than those who receive AMT relief, it will be substantial relief. If we allow these rates to expire, there is going to be a substantial tax increase on these people in the lowest brackets, those making $50,000 and below. They will see a $341 tax increase. I would call that real money. I call that amount of people real people.

I mentioned before the people making $100,000 or less. What about those making less than that? If you look at those with adjusted gross incomes of $30,000, for example, with regard to dividends, 19.2 percent of the people reporting dividends were in that income category. With respect to capital gains, likewise, at that lower adjusted gross income of $30,000, 18.5 percent of those reporting long-term capital gains were in that category.

The bottom line is, whether you are talking about less than $100,000, less than $30,000--I mentioned the amount of money received from those making less than $50,000--whatever category you are looking at, you better extend the current rates or there will be millions and millions of these low-income taxpayers receiving a big hit on their taxes.

Let me be very plain. We are not talking about additional cuts in taxes. What we are talking about is just keeping the existing tax rates. If we do not extend them, millions of low-income Americans are going to see a huge increase in their tax bill; one that is unanticipated, unappreciated. We cannot afford to allow that to happen.

I hope we could agree, those who agree there should be relief from the alternative minimum tax, that we also need to continue to provide the relief from the dividends in capital gains taxes as well.

In addition to talking about this in terms of American families, it is important to understand what this has done for our economy. The fact is, all taxpayers, all workers in this country, all people who have jobs, all benefit from the economic expansion that has occurred largely as a result of the tax policies the President has proposed and to which Congress has agreed. It would be folly to allow those tax policies to expire.

What kind of impact have these tax policies had on the gross domestic product? Whether you embrace these lower rates or not, you have to acknowledge they have helped our economy, which grew at a 4.1-percent annual rate in the third quarter of last year, the 10th straight quarter in which gross domestic production grew at a rate above 3 percent. It is interesting to compare this with the European economies. For 2005, the Euro area gross domestic production grew at only 1.4 percent. Economists predict for 2006 it will be about 1.9 percent. The United States, by contrast, is expected to grow at 3.6 percent for 2006, according to the CBO.

What does this mean, or how does the gross domestic production actually increase? You have to have business investment, primarily small businesses. Interestingly, business investment fell in the nine consecutive quarters before the 2003 tax rate bill was passed. For nine consecutive quarters, businesses were not investing. Investment was declining. So in 2003 we passed these additional tax rates. What happened was cutting taxes on capital helped reverse the decline. In the 11 consecutive quarters since these tax cuts, business investment measured by nonresidential fixed investment has increased each and every quarter. In fact, business investment has continued to increase even after the expiration of the temporary bonus depreciation for business investments expire.

Interestingly, it has not just been businesses that have seen additional revenue as a result of the investment, but there has been job creation from these tax cuts. But, ironically, these tax cuts--or paradoxically, I could say--have also provided increased revenues to the Federal Treasury. According to a recent report by the CBO, capital gains revenue is 16 times greater than it was forecast to be. Government estimators predicted that the reduction in capital gains rates enacted in 2003 would cost the Federal Government $27 billion in lost revenues for 2004. CBO's most recent report shows

that the lower rates actually brought in an additional $26 billion in revenue. Instead of costing $27 billion, the lower rates actually made $26 billion for the Treasury.

Why does that happen? It is fairly obvious. You are holding assets, and if you sell them, it will cost you 20 percent in taxes, 20 percent of the gain. That is a pretty stiff tax. You do not want to do that. Congress comes along and says: We will reduce that down to 15 percent. Small businesses, in particular, say: Great; in that event, we will pay less in taxes, 25 percent less. We will go ahead and sell the asset and only pay 15 percent.

So more people do that than were expected to sell assets so even at a lower rate, because of the increase in volume, the Government ends up making a lot more money.

Think of it this way. You are a department store. When you go to the department store and there is a big sale over the week, how can the department store make any money? It is simple. They reduce the price they sell their product for, but there is so much more of the product sold that they more than make up for the reduced cost by the volume of sales.

It is the same thing that occurs here. Lower the rate a little bit, but that attracts people to sell their assets, to take advantage of that lower rate. And that increased volume in sales more than makes up for the reduction in the rate. That is why you have to be a little careful with the CBO projections about the ``cost'' to the Federal Government of lower taxes. Frequently, the cost ends up not to be a cost at all but an increase in actual revenues. That is precisely what has been occurring here.

It is interesting that according to the same CBO report, the Government took in $60 billion in capital gains taxes in fiscal year 2004, which is a 20-percent increase from 2003. And it is projected that capital gains taxes coming into the Treasury increased another 25 percent in 2005--up $75 billion. That is real money no matter how you calculate it.

We cannot say for certain that the lower tax rates will always continue to make revenue for the Treasury in the future, but looking back we can sure conclude that these investment tax rates have thus far been nothing but good news for the Treasury. That means good news for all of us because instead of the Government going further into a deficit situation, this increased revenue is helping us to keep the deficit more under control.

It is interesting that overall revenues are up in 2005. The Treasury collected $2.15 trillion in revenues, which is the highest level of Federal receipts in history, and it is $274 billion more than collected in the previous year. Remember, this is with lower tax rates. Yet we still took in $274 billion more than collected the year before. That is a 14.6-percent increase overall. CBO has projected individual revenues for 2006 will be up 8.2 percent, greater than they were from 2005, and that corporate receipts will be 8.6 percent higher. Revenues for December 2005, just to take that month, were 12 percent higher than they were for December 2004. Corporate receipts were up about 33 percent, and receipts from individual income tax payments were up about 5 percent.

This is the biggest reason we should not in any sense be accepting arguments that somehow we need to have what some people around here call pay-go, where you take the CBO estimates of how much a tax reduction is going to cost the Treasury, and somehow you make that up in additional revenue. So that net, you are not reducing taxes on the taxpayers at all.

What is the point of a tax reduction if it is not a real tax reduction; if you are just taking money out of one pocket but then you have to add it from the other pocket? It makes no sense. In fact, it is just reversed. We should not be talking about the cost to the Treasury; we should be talking about the cost to the taxpayers. They are the ones who have to pay. It is their hard-earned money. We cannot spend a dime in Congress that somebody did not work very hard to earn to send back to Washington in the form of taxes.

When we talk about increasing taxes or decreasing taxes or keeping the level of the taxes where they are right now, and we calculate the cost to the Federal Treasury, I say forget that. I am worried about the cost on my constituents. They are the ones who will invest. They are the ones who will hire more people if we let them keep more money. And that means more people will have jobs. If people have jobs, they will pay more in taxes and the Government will continue to collect more revenue.

The statistics I have quoted demonstrate that a sensible tax policy, one which doesn't set the rates too high, will actually end up bringing more revenue into the Federal Treasury than one which tries to set the rates too high. That is why since pay-go does nothing about the spending side of the equation, which is what is driving up the deficit--because our big entitlement programs: Medicare, Medicaid, and Social Security are not affected by that. It does nothing to affect them whatsoever. The only thing it does is require if we have a tax reduction we have to have a tax increase somewhere else so it comes out even. That does not do the economy any good at all.

The bottom line is the provisions of the bill before the Senate, as well as those that are likely to come back to the Senate from conference, will be helpful to individual taxpayers in the lower income brackets and helpful to families who create small businesses, who have small businesses that create jobs. They will be helpful to the economy as a whole and even helpful to the Federal Treasury.

I will refer a little bit to this argument made by some, including my good friend from Montana, that we cannot afford to do both the 1-year fix for AMT; that is to say, have most people not pay the unanticipated taxes under the alternative minimum tax, and also the relief we would provide by continuing the existing tax rates for capital gains and dividends. The fact of the matter is, we can, and we will, do both. Within the next 3 or 4 weeks, we will have done both, and the country will be better off for it.

There is about $30 billion that is required to provide the so-called fix for the alternative minimum tax to make sure that at least most taxpayers are not going to be stunned by that tax this year. I support that. The AMT is a feature of our Tax Code that has gone awry. As I said, both Senator Baucus and I have sponsored legislation to do away with it. Its intended purpose was to make sure very wealthy people could not zero out their tax liability by claiming what are, in fact, legitimate deductions and exemptions and credits. But they were being used to the point that some people paid virtually no taxes or no taxes. Congress decided: Well, everybody has to pay something, everybody except people at the low income.

But because it was not indexed for inflation, and, as it turns out, it is almost impossible to target just the ``rich,'' the AMT has gone awry. It has crept into the middle class. If we do not stop it, before long it is going to affect virtually all taxpayers.

So what the bill provides is an increased exemption for 2006 so that the exemptions do not drop back to pre-2001 levels. It also prevents certain credits from being eroded by the AMT. The net result is that most people should not have to worry about the AMT tax bill for this year.

But the bottom line is, we can do that and also provide the relief for capital gains and dividends, according to the calculation of the ``costs'' for that relief. In other words, extending for 2 more years the existing rates for capital gains and dividends, that is a little more than $20 billion.

So when Congress passed the $70 billion in relief in the budget last April, and asked the committees to come back with their reconciliation in taxes for that amount, we wanted to make sure no one would pay higher taxes during this 5-year budget window. We can do that by extending the same rate for capital gains and dividends--that is about $20 billion--providing this year of relief from the alternative minimum tax--that is about $30 billion--and there is still something like $16 billion or $20 billion, about $20 billion left over for other provisions which we also want to take care of.

I am also going to discuss some of these other provisions because I think it is very important for anybody who might think about voting against this bill to appreciate what they would be voting against.

First, they would be voting against the savers' credit. The savers' credit is

a nonrefundable tax credit that encourages low-income taxpayers to make contributions to an employer-provided retirement savings plan or an IRA. This tax reconciliation bill extends that credit through 2009. It is currently scheduled to expire at the end of this year. Nationwide, almost 5.5 million filers take advantage of this tax credit. By the way, almost 100,000 of those filers are in my State of Arizona.

How about small business expensing? Under current law, small businesses can deduct the cost of qualified investments in the first year they are made, up to $100,000, indexed for inflation. After 2007, this amount will drop back to $25,000. What our bill does is to extend the increased amount through 2009. Keeping the increased amount enables small businesses to continue to invest and grow.

Now, if you vote against this bill, here is something else you will be voting against: the above-the-line deduction for college tuition expenses. Under current law, the provision that allows a taxpayer to take an above-the-line deduction for college tuition costs expired at the end of 2005. It is done. The full deduction is available for joint filers with income under $130,000 and is phased down for higher income filers.

The tax reconciliation bill, the bill that is before us, would extend it through 2009. We have to do that this year because it has expired. Above-the-line deductions are important in this case because they are available to nonitemizers, while most deductions, below the line, are only available to those filers who itemize. Nationwide, over 3.6 million filers claimed this deduction in 2004. About 74,000 of those filers, by the way, were in my State of Arizona.

There are some other extenders. The President talked about some of these in his State of the Union speech. For example, the R&D tax credit that is so important to continued research and development in our country. And there is the 15-year depreciation recovery period for restaurant improvements, the 15-year depreciation recovery period for leasehold improvements. This bill also extends the deduction for teachers who pay for some expenses out of their own pocket. This is something I introduced some years ago. In fact, if my recollection serves, the average teacher spends about $500 a year out of her or his own pocket to bring supplies to school that are not paid for by the schools in order help teach the kids. We provide a deduction for that. Nationwide, there are 3.3 million filers who take advantage of that. And 62,000 of those are in my State of Arizona.

Finally, to mention the sales tax deduction. This is very important. It is not important in my State in particular, but it sure is important in some other States. For 2004 and 2005, taxpayers living in States without income taxes could take an itemized deduction for State and local sales taxes in lieu of the existing deduction for State and local income taxes, from which they get no benefit. The reconciliation bill would extend this option for 2006. Nationwide, 12.3 million families and individuals will benefit from the sales tax deduction this year, 2006.

So the bottom line of all of this is that this bill is not just about the AMT and capital gains and dividends; it is about a lot more. My colleagues who want to help average taxpayers, people who do not even itemize their deductions, teachers, small businesses--all of these taxpayers are benefited by the bill we have before us. It is important for us to support these taxpayers, by the millions, as I said.

There is a final point; that is, a point that Senator Baucus has raised concerning the so-called Byrd rule. This is a very technical, rather arcane point about revenue loss beyond the budget window. The two tax-writing committee chairmen in the House and the Senate are well aware of this requirement and will make certain the conference agreement complies with all rules of the Senate by including any necessary offsets, as the Senate-passed reconciliation bill complies with all rules of the Senate. So I want to assure my colleagues that the problem that has been raised is not going to be a problem by the time we conclude voting on this legislation. They can rest assured of that.

So, Mr. President, I urge my colleagues, as they consider any motions to instruct conferees this evening, that it is all well and good to tell our conferees what we think, but the bottom line is, we need to get this bill into conference so the conference committee can issue a conference report that we will then deal with and our House colleagues will then deal with, that will continue the tax rates that currently exist, that will continue the deductions and exemptions we currently have for all these taxpayers we talk about, that will not allow taxes to increase on our constituents. That is what this bill is all about-- nothing more, nothing less--no tax increases.

Thank you, Mr. President.

Exhibit 1

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Monday, February 13, 2006, at 10 a.m. for a hearing titled, ``Hurricane Katrina: Waste, Fraud, and Abuse Worsen the Disaster.''

Mr. President, I ask unanimous consent that the Permanent Subcommittee on Investigations be authorized to meet on Monday, February

13, 2006, at 8:30 a.m., for a field hearing at James J. Hill Reference Library in St. Paul, MN, entitled ``Volatility in the Natural Gas Market: The Impact of High Natural Gas Prices on American Consumers.''

I send an amendment to the desk.

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

Mr. President, I will be brief.

For those who have been involved in this issue, it has been discussed actually since last August and deals with the small companies or businesses that would be paying into the fund that is the subject of this bill. The amendment is designed to reduce the impact of the trust fund on the small- and medium-sized companies and to ensure that the fund does not drive them into bankruptcy.

It does principally two things.

First, it provides across-the-board relief to small- or midsized companies, those with annual gross revenues of less than $1 billion, by limiting their trust fund contributions to 1.67 percent of their gross revenues. This per se relief should resolve most ability-to-pay problems that are created by the fund with certainty and without administrative burdens.

For those who do not qualify for this across-the-board relief or for whom it is not enough, the amendment provides a second form of hardship relief. It authorizes the administrator to reduce the company's fund assessments if the company otherwise would go out of business and would be unable to pay its bills. To be exact, under the amendment, a company can qualify for an adjustment if it can show that its fund payments ``would materially and adversely affect the defendant participant's ability to continue its business and to pay or satisfy its debts generally as and when they come due.'' Under this amendment, access to this form of relief would be unlimited.

This amendment does not solve all of the problems with the trust fund allocation of payments. I anticipate there will be other amendments to address some of those issues, and I support some of those amendments, as well. I believe this amendment does go a long way toward solving the problem I identified.

What this amendment does do is shave off some of the roughest edges of this bill. This amendment makes the hardship adjustment a real and predictable guarantee. The way that the bill currently is written, some small- and medium-sized companies will be hit with trust fund payments that will constitute a major portion of their gross revenues. These companies obviously will not be able to make these payments. While the bill currently authorizes an insolvency hardship adjustment, that hardship adjustment is vaguely stated and includes limitations that undercut its usefulness for many companies on the margins. Literally, companies faced with crushing payments under the bill would be forced to tell potential creditors or capital markets, ``yes, we will be required to pay 25 percent of our gross revenues into the trust fund under the FAIR Act, but we might be able to get a hardship adjustment.'' You can see why these companies might have trouble getting a loan. Under my amendment, these same small- and medium-sized companies will be able to tell the banks and potential investors that they will not be forced to pay more than one and two-thirds of a percent of their gross revenues into the fund. By providing guaranteed reasonable limits on assessments, this amendment will make it possible for these companies to continue to engage in normal business transactions.

This amendment does not directly affect the availability of inequity adjustments under the trust fund. The amendment does, however, indirectly expand the availability of inequity adjustments by making hardship adjustments into a separate category that is not drawn from the $300 million that is currently set aside for both kinds of adjustments. That $300 million will now be set aside solely for equity adjustments.

Also, the amendment does not in any way affect the fund's guarantee of producing $3 billion a year for compensating victims. Under the bill as it is currently written, in the event of any shortfall in reaching that $3 billion, a guaranteed payment surcharge is imposed on all defendant participants in order to make up the difference. Thus, to the extent that relief received by any defendant pursuant to this amendment prevents the fund from reaching the $3 billion target, that gap will be filled by the payment surcharge. This amendment, therefore, in no way adversely affects the FAIR Act's funding guarantee.

Allow me to describe in greater detail exactly how this amendment works. Under the amendment, no defendant participant, other than a Tier I participant, with 2002 revenues of less than $1 billion is required to contribute more than the greater of 1.67 percent of its revenues as of December 31, 2002, or 1.67 percent of its revenues for the most recent 12-month fiscal year. The revenue cap employed by this amendment matches the 1.67 percent of gross revenues that is the measure of Tier I contributions. Also, only companies that elect to report on a consolidated basis may take advantage of this revenue cap.

This amendment's revenue cap is only a rough measure of ability to pay. It is, however, easy to administer, and it is less subject to manipulation than other measures, such as net income.

As for the amendment's changes to the hardship adjustment, first, there currently are two hardship provisions in the bill--section 204(d)(2), which provides relief generally for severe financial hardship and which is subject to the $300 million hardship and inequity cap, and section 204(d)(5), which allows the cap to be exceeded if otherwise a company would be forced into insolvency. My amendment would rewrite (d)(2) to provide clearer standards, eliminate (d)(5), and make clear that there is no cap on hardship relief. The result is a simpler proposal more attuned to the needs of potential hardship-adjustment applicants.

Under the amendment, any defendant participant can apply for hardship relief, whether it is in Tier I or not, and whether or not it reports on a consolidated basis. However, in the case of defendant participants that do not file on a consolidated basis, the administrator must examine the real financial situation of the defendant participant by taking into consideration the financial position of the affiliated group.

Again, under the revised hardship adjustment in this amendment, the Administrator may grant an adjustment if he concludes that the amount of a defendant participant's payment obligation would materially and adversely affect the defendant participant's ability to continue its business and to pay or satisfy its debts generally as and when they come due. The amount of relief would be limited to the amount necessary to avoid the problem.

In determining whether to grant an adjustment under this revised provision, the administrator will required to consider, among other things: the historical audited financial statements for the defendant participant or affiliated group for the three years immediately prior to the application for relief; projected financial statements for the 3 fiscal years following that application; an analysis of capital spending and fixed charge coverage on a historical basis for the 3 fiscal years preceding and the 3 fiscal years immediately following the application; any payments or transfers of property made, or obligations incurred, by the defendant participant during the 6 fiscal years prior to the application to or for the benefit of any insider; any extraordinary transactions of the defendant participant, including payments of extraordinary salaries, bonuses, or dividends, within the 6 fiscal years prior to the application; the defendant participant's ability to satisfy its payment obligations to the fund by borrowing or financing with equity capital, or through issuance of securities to the fund; and the defendant participant's ability to postpone discretionary capital spending for a reasonable period.

The term of any adjustment under the amendment shall be 5 years, unless the administrator determines that a shorter or longer period is appropriate in light of the financial condition of the defendant participant. Any adjustment under the amendment may be renewed upon a showing that it continues to be justified--and it is automatically terminated if the defendant participant files for bankruptcy protection.

The amendment also eliminates provisions for recapture of hardship adjustments, except in cases of fraud. The current bill's provisions for frequent review of hardship adjustments and potential for giving adjustments back

have significantly reduced the usefulness of these adjustments in addressing the concerns of companies on the margins. If these adjustments aren't reasonably predictable, they are not useful either.

Finally, under the amendment, companies that have received discounts off their tier/subtier allocation because of the cap or hardship adjustments would only get the benefit of cumulative step downs to the extent that the step downs exceeded the amount of the discounts the company already had. The same rule applies for hardship adjustments.

Mr. President, I rise today to put into the Record a letter that Senator Graham and I recently sent to the Attorney General, and to respond to misrepresentations that have been made in the press and by others regarding the circumstances of the enactment of the Graham amendment to last year's Defense Authorization bill. The letter responds to similar misleading attacks that were made against the Justice Department at the beginning of this year. My office has received several inquiries about this letter, which was sent to the Attorney General on January 18. So that anyone interested in this matter might review the letter, I will ask to have it printed in the Record.

I ordinarily would not comment on the meaning of legislation that already has been enacted into law. In this case, however, there has been a considerable amount of post-enactment commentary by others on the meaning of the Graham amendment. Much of this commentary insinuates that the Administration and the backers of the amendment are violating an agreement with members of the minority by characterizing the amendment as governing pending litigation. Since the enactment of the Graham amendment last December, some critics have begun to paint a revisionist history of this legislation. In this new account, the Graham amendment supposedly was intentionally modified by the Senate so as not to affect pending litigation. Also in this version of events, Senators relied on representations that the amendment was modified to carve out pending litigation when they voted in favor of its final passage. This conspiracy theory is without foundation.

For those unfamiliar with the Graham amendment, the disputed provision in the legislation changes the Federal habeas code by adding a subsection providing as follows: ``Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.'' The amendment also provides that ``[t]his section shall take effect on the date of the enactment of this Act.'' In addition, the amendment establishes substantive standards for limited judicial review of CSRT determinations and military-commission decisions, and provides that the paragraphs creating those review standards ``shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.''

Some critics now assert that nothing in the amendment prevents pre- enactment habeas actions from going forward in their previous form. For reasons explained in the letter to the Attorney General, I believe that such an interpretation is untenable. In addition to the points made in the letter, I would also add the following: the amendment states that the changes that it makes to the habeas code ``shall take effect on the date of the enactment of this Act.'' If the current pack habeas cases are allowed to go forward in their current form, the law's provision that ``no court, justice, or judge shall have jurisdiction'' to hear those cases in that form will not be effective on the date of the law's enactment. Rather, the courts still would have jurisdiction over these cases after the date of enactment, and the law's all-encompassing jurisdictional bar would become effective only when the current litigation would exhaust itself--a date that likely would come only years in the future. Such a result would not be consistent with the requirement that the law's total jurisdictional prohibition ``take effect of the date of the enactment of this Act.''

Of those critics who argue that the amendment carves out pre- enactment habeas cases, I would simply ask, what part of ``no court, justice or judge'' do you not understand? How could this language possibly be more comprehensive? And how could any Senator possibly have been misled as to its effect?

Some of the recent criticism of the amendment in the press has taken a new tack. A few critics have begun to suggest that even if the legislative text of the Graham amendment does wipe out the pending habeas cases, Senators were affirmatively misled about this aspect of the final amendment. The allegation is that Senators were led to understand that the amendment that they were voting on would not affect pending cases. I have reviewed the legislative record from the days leading up to the vote on final passage of the Graham amendment, and find this suggestion wanting. Allow me to describe what was actually said about the original version of the amendment--the Graham/Kyl amendment--as well as the final version, the Graham/Levin/Kyl amendment, prior to their passage.

On November 10, Senator Levin stated with regard to the original Graham/Kyl amendment, ``I read the language as to how broad it is. It eliminates explicitly any appeal: No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus, and that is the way an appeal goes to a court from one of these people. It is eliminated.'' (151 Cong. Rec. S12665.) Similarly, later that day, Senator Bingaman characterized the original Graham amendment as follows: ``It essentially denies all courts anywhere the right to consider any petition from any prisoner being held at Guantanamo Bay.'' (151 Cong. Rec. S12667.) And later, on November 15, Senator Durbin said the following about the original Graham/Kyl amendment: ``the amendment would eliminate habeas for detainees at Guantanamo Bay. . . . It would strip Federal courts, including the U.S. Supreme Court, of the right to hear any challenge to any practice at Guantanamo Bay, other than a one-time appeal to the D.C. Circuit. . . . It applies retroactively, and therefore also likely would prevent the Supreme Court from ruling on the merits of the Hamdan case, a pending challenge to the legality of the administration's military commissions.'' (151 Cong. Rec. S12799.)

Thus from the beginning, Senators recognized and emphasized to their colleagues that the original Graham amendment language was comprehensive. They also recognized and emphasized that the amendment barred pending cases from going forward, including the Hamdan case in the Supreme Court. These aspects of the original amendment not only were generally acknowledged, but were a point of controversy during the Senate debate.

Had the subsequent Graham/Levin/Kyl amendment departed from the original amendment by carving out pending cases, this would have been a momentous change. Aside from the fact that such a change would have gutted the amendment, it also would addressed one of the issues about which opposing Senators had expressed sharp concern. Surely, had such a change been made or even intended to be made, the fact would have been noted. Instead, it is the dog that did not bark.

First, neither Senator Graham nor I ever said anything in the days leading up to the final vote on the amendment that could possibly suggest to anyone that the modified amendment exempted pending cases. Senator Graham is the lead sponsor and I am an original cosponsor of the amendment that passed the Senate on November 10. We controlled the amendment. No one was in a better position than we were to describe what the amendment does and does not do. Had such a major change to the amendment been made, it is inconceivable that one of us would not at least have commented on it. No such comment or even the suggestion of such a change was made by either one of us.

Indeed, the few statements that Senator Graham did make prior to passage of Graham/Levin/Kyl that describe the amendment's reach tend to confirm that the amendment does not treat detainees differently based on when they filed their claims. For example, on the evening of November 14, when the final amendment was introduced, Senator Graham noted that ``[i]nstead of having unlimited habeas corpus opportunities under the Constitution, we give every enemy combatant, all 500, a chance to go to Federal court, the Circuit Court of Appeals for the District of Columbia.'' (151 Cong. Rec. S12754.) ``What we have done, working with Senators Levin, Kyl, and others, we have created that same type of appeals process for all military commission decisions.'' Ibid.

During that same evening, Senator Levin also commented on the new amendment. Although he said that the amendment did not ``strip jurisdiction'' from the courts, he made clear that he meant that jurisdiction remained in place because the pending cases--including challenges to military-commission decisions--could go forward as claims invoking the substantive review standards of the new amendment. Senator Levin stated: ``What we have done in this amendment, we have said that the standards in the amendment will be applied in pending cases, but the amendment will not trip the courts of jurisdiction over those cases. For instance, the Supreme Court jurisdiction in Hamdan is not affected.'' (151 Cong. Rec. S12755.) Again, later: ``what our amendment does, as soon as it is enacted and the enactment is effective, it provides that the standards we set forth in our amendment will be the substantive standards which we would expect would be applied in all cases, including cases which are pending as of the effective date of this amendment.'' Ibid. And again: ``because it would not strip courts of jurisdiction over these matters where they have taken jurisdiction, it does, again, apply the substantive law and assume that the courts would apply the substantive law if this amendment is agreed to.'' Ibid.

Whether the amendment, by barring one type of claim and authorizing another type to take its place, strips the courts of jurisdiction, is, to some extent, a matter of perspective. It is a question of whether the glass is half empty or half full. On the operative issue, however, Senator Levin's remarks on November 14 are consistent not only with my own and Senator Graham's characterization of the amendment (see, e.g. 151 Cong. Rec. S14263), but also with the interpretation now advanced by the Justice Department: that the current claims can go forward, but only as claims for review under the substantive standards created by the new act.

It bears mention that the revised amendment's authorization of judicial review of military-commission decisions, though narrow and venue-restricted, was a substantial departure from the original amendment. As Senator Levin had emphasized on November 10, the original amendment ``eliminates court review of the sentences of enemy combatants before these commissions.'' (151 Cong. Rec. S12664.) He stated that the amendment even ``eliminates the appeal of a conviction that led to a capital offense.'' (151 Cong. Rec. S12665.) Under the original Graham amendment, no appeal of any kind would have been permitted from the military-commission verdict in the Hamdan case.

The revised amendment does allow limited appeals of final military- commission decisions. In fact, this change was described to Senators as the principal difference between the original and revised Graham amendments. Senator Levin noted on the morning of November 15, before the vote on Graham/Levin/Kyl:

The amendment which was approved last Thursday, which is

the one now awaiting this amendment, would have provided for

review only for status determinations and not of convictions

by military commissions. . . . One of the reasons I voted

against the amendment last Thursday is that it did not

provide for that direct judicial review of convictions by

military commissions. That is the major change in the

amendment before the Senate, the so-called Graham-Levin-Kyl

amendment which is before the Senate. There are a number of

other changes as well, but of all the changes, what this

amendment does is add . . . a direct appeal for convictions

by military commissions. (151 Cong. Rec. S12754.)

Other Senators speaking about the amendment prior to the final vote did not even view the detainee's glass as half full. On the morning of November 15, Senator Specter exhorted his colleagues to oppose the amendment, stating: ``On the face of the Graham amendment, it . . . even takes away jurisdiction from the Supreme Court of the United States.'' (151 Cong. Rec. S12799.) He later stated that the amendment would ``strip Federal courts of the authority to consider a habeas petition from detainees being held in U.S. custody as enemy combatants,'' (151 Cong. Rec. 12801), and reiterated that the Graham/ Levin/Kyl amendment was an amendment ``which on the face takes away jurisdiction of the Supreme Court of the United States.'' Ibid. Senator Specter's remarks should at least have placed any Senator on inquiry notice that the final amendment might affect pending cases.

Finally, Senator Durbin also spoke about the final Graham amendment prior to the vote. As I mentioned earlier, on the morning of November 15, Senator Durbin expressed concern that the original Graham/Kyl amendment's jurisdictional bar would apply ``retroactively,'' and that it ``likely would prevent the Supreme Court from ruling on the merits of the Hamdan case.'' (151 Cong. Rec. S12799.) Almost immediately after these words, Senator Durbin also commented on the revised Graham amendment. He stated:

The Graham-Levin substitute amendment would somewhat

improve the underlying amendment by expanding the scope of

review in the D.C. Circuit Court to include whether CSRT's

are legal, but not whether a particular detainee's detention

is legal. It would also allow for post-conviction review of

military commission convictions. However, the amendment would

still eliminate habeas review and overrule Rasul.

(151 Cong. Rec. S12799.) Again, no suggestion was made that the new amendment might carve out pending cases, despite the Senator's expressed concern about retroactivity. The Senator gave no hint that he expected the new amendment to treat pending cases any differently than did the old amendment. Senator Durbin does not appear to have been misled about the effect of the final Graham amendment, nor did he mislead anyone else.

To be sure, two statements that do appear in the Record prior to the final vote on the Graham amendment both assert that the amendment would not ``strip jurisdiction''--and both of these statements are unleavened by Senator Levin's accompanying clarification that pending cases would proceed under the substantive review standards of the new law. Both of these statements, however, appear to have been introduced into the record following the final vote--both refer to that vote in the past tense. Neither Senator thus could have misled other Members about the effect of the amendment prior to the vote. Senator Kerry made clear in his statement that his remarks were made only after the November 15 vote: ``Today, I voted in favor of Senator Bingaman's amendment No. 2523, because it would have preserved judicial review . . . When the Bingaman amendment failed, I voted for a second-degree amendment.'' (151 Cong. Rec. S12799.) Similarly, Senator Reid also emphasized that his statement did not precede the actual vote: ``the Senate has voted to deny the availability of habeas corpus to individuals held by the United States at Guantanamo Bay, Cuba. I rise to explain . . . my votes in favor of the Bingaman amendment and the Graham-Levin amendment earlier today.'' (151 Cong. Rec. S12802.) Neither of these statements was part of the information that was presented to Senators prior to the final vote on the Graham amendment.

To summarize, the legislative record is utterly devoid of any evidence that Senators were led to believe that the Graham/Levin/Kyl amendment would carve out pending cases. Prior to the vote, several Senators spoke of the original amendment's breadth and the fact that it would terminate pending cases. Senator Graham, drawing no distinction between pre- and post-enactment filers, stated that the revised amendment would apply a uniform standard to all 500 Guantanamo detainees. Senator Levin made clear that ``the standards we set forth in our amendment will be the substantive standards which we would expect would be applied in all cases, including cases which are pending as of the effective date of this amendment.'' Senator Specter pointedly warned that the final amendment would ``strip Federal courts of the authority to consider a habeas petition from detainees'' and ``even take[] away jurisdiction from the Supreme Court of the United States.'' Other Members who condemned the original amendment for terminating pending cases gave no hint that they viewed the new amendment any differently. Quite simply, there is no evidence that anyone misled anyone else about the fact that the Graham amendment would only allow pending cases to go forward under the limited review standards of the new law.

On November 15, the Graham/Levin/Kyl amendment passed the Senate by a vote of 84-14. That same day, the entire Defense Authorization bill passed the Senate by unanimous consent and the Senate appointed conferees. One month later, on December 16, the House and Senate conferees agreed to file a conference report. In the days that followed, a new slew of statements were made in the Senate and even in the House commenting on the meaning of the Graham amendment. Many of these statements are simply the usual effort by the losers of legislative battles to rewrite legislative history. The majority of the Senators, for example, who announced in these statements that the Graham amendment was not intended to affect pending cases also were among the 14 Senators who voted against the final Graham/Levin/Kyl compromise. No one can seriously suggest that these members relied on any representations made by the backers of the amendment. And more importantly, given the marked disagreement between the statements that were made at this late stage about the effect of the amendment on pending cases, no one could justifiably have relied upon one view rather than another to learn what the amendment does. Rather, it is up to members to examine the actual language of the amendment.

I hope that this review of the circumstances of the enactment of the Graham amendment will put to rest any accusation that members of Congress were misled about the amendment's impact on pending cases. Whether the amendment does in fact govern pending cases is another matter. For the reasons expressed here and in the January 18 letter to the Attorney General, I believe that it does so, but that, of course, is a matter for the courts to decide. In the event that the courts concur with my and Senator Graham's interpretation of the amendment, however, no Member should be heard to complain that they were led to believe that the amendment would operate differently.

I ask unanimous consent that the letter be printed in the Record.

Mr. President, when the Judiciary committee reported an asbestos-trust fund bill in 2003, I proposed three criteria for evaluating such a bill: the trust fund must be fair to people with asbestos injuries; its cost must be reasonable; and it must provide a permanent solution to the asbestos-litigation crisis. Last year, I voted to report this bill out of committee because I believe that the bill does meet or has the potential to meet each of these criteria. I also voted for the bill in no small part out of appreciation for the chairman's extensive efforts to address my concerns about the bill. I particularly appreciate his assistance in adding to the bill a gatekeeper mechanism for certifying exigent claims seeking an early settlement. Any startup provision that threatens to prematurely return the trust fund to court is bad for victims, bad for participant businesses, and bad for the U.S. Government. Once this fund is started, it need to work--we cannot shift victims back and forth between the tort system and the fund, especially those victims with malignant conditions, who likely do not have long to live.

The need for this bill is obvious. Current asbestos litigation practices have been accurately described by Professor Lester Brickman as a ``massively fraudulent enterprise fit to take its place among the pantheon of American scandals.'' Typically, trial lawyers consolidate thousands of claims and file them against a series of defendants. These claims are generated by mass-screening recruitment companies that ignore all scientific standards for identifying asbestos disease and employ corrupt physicians who will say that anyone has asbestosis if the fee is right.

In the perverse rules, plaintiffs' lawyers have a de facto veto over confirming the bankruptcy trust and can thus dictate its terms.

The results are predictable: even for asbestos bankruptcy trusts amounting to billions of dollars, the plaintiffs' lawyers take 40 percent off the top. These recoveries inevitably compensate lawyers in an amount several orders of magnitude greater than anything resembling a reasonable hourly rate. And all for bringing claims that no honest doctor would ever describe as legitimate cases of asbestos injury. It is easy to see where a well-crafted trust fund could improve on this system--how it could cut our the trial lawyer middle man and preserve recoveries for actual victims of asbestos disease.

Nevertheless, when I voted for this bill in the committee, I expressed reservations about the final product. One concern about this bill looms above all others, and it directly threatens all three of the above-stated criteria for evaluating the bill: solvency. I remain deeply concerned that this fund will run out of money and prove unable to pay all qualifying claimants. Allow me to explain why I am concerned about the fund's finances.

Here are a couple of reasons why. First, look to the bankruptcy trust funds previously existing and that have existed in the past. What has our experience been? Not very good.

In written questions to Dr. Francine Rabinovitz, who has been retained by trust fund bankers to estimate future claims under the fund, I asked her about the experience under the asbestos bankruptcy funds. Those funds are about the closest analog to what we are doing here--no-fault funds that compensate all claimants who meet particular exposure and medical criteria. Indeed, the criteria for this fund explicitly are borrowed from the latest version of the Johns Manville bankruptcy fund, which is part of her study. I appreciate her candor. Here is what she had to say:

To my knowledge, none of the bankruptcy trusts created

prior to 2002 have been able to pay over the life anywhere

close to 50 percent of the liquidated value of qualifying

claims. Of the current generation of bankruptcy trusts, the

expected payout of those trusts, to my knowledge, ranges from

a low of 5 percent (Manville) to a high of 31.7 percent

(Western McArthur). The only current operating Trust to pay

100 percent of its scheduled values in the Mid-Valley Trust.

These percentages are sensitive, of course, to the

eligibility criteria the trusts apply. Under its original

eligibility criteria, Manville was forced to drop its initial

100 percent payout first to 10 percent and then 5 percent of

liquidated value. There will be a reevaluation of Manville's

ability to pay a higher percentage in the near future by

virtue of the impact of its recently imposed more stringent

eligibility criteria.

These figures should disturb us all.

We are legislating a $140 billion trust--one that must work, because the costs of failure would be catastrophic. And yet the model for this fund is one that has failed every time that it has been tried. The miserable performance of the bankruptcy trusts should, at the very least, make us very cautious in proceeding down the same no-fault trust-fund path. While I recognize that this Fund is not exactly like the bankruptcy trusts--that it is designed better in some ways--in other ways the compensation criteria employed by this Fund are a change for the worse.

Another example that ought to give us some pause is the black lung fund, which is designed to compensate miners with CWP, a coal-mining- induced lung disease. That fund is now $8.7 billion in debt. It is now finally bringing in enough revenue to pay current claimants, but it is unable to service its debt. Each year's interest is simply added to the total debt. This is no way to run a trust fund.

It is telling to read the story of the black lung fund and hear why it has become so overburdened. The narrative should sound familiar to anyone who has closely followed the committee proceedings for the asbestos fund. There is a June 12, 2002 report from the Congressional Research Service. I wanted to quote from part of it, but the bottom line is that the crafters of the black lung fund ignored medical science when they set up the fund's compensation criteria. As is predictable for Congress, criteria were developed in the spirit of political compromise rather than under the guidance of hard science. The results have been very unfavorable.

The report basically said:

Virtually all of the expectations for the Black Lung

Benefits Act when it was enacted in 1969, e.g., the numbers

of claims submitted or approved, were contradicted by

subsequent experience. Corrective legislation was adopted in

1972, 1977, and 1981, including the establishment of trust

fund financing in 1977, but results have continued to be at

variance with expectations. As a consequence, the trust fund

has perennially been in a position of growing deficit.

In other words, even at a time when the black lung fund's liberal compensation criteria were generating a surplus of claims, political pressures nevertheless pushed Congress to further liberalize those criteria and further bankrupt the fund.

In the asbestos arena, I fear that we already have repeated the first part of the black lung fund story. Our concern is that as we continue down this path, we risk repeating the rest of the story as well.

But this fund is different from black lung in one key respect: it is much, much more expensive. This fund has the potential to burn through scores of billions of dollars, rack up $30 billion in

debt, and throw us back into the tort system--all within one decade. Such a result truly would make the black lung fiasco seem insignificant. It would be an utter disaster. We cannot let it happen.

I wish that the Judiciary Committee had learned more from the black lung experience--that we could at least recognize that a no-fault trust fund must be run as a tight ship, with rigorous compensation criteria and no leakage of claims. Unfortunately, that does not describe the bill that has been produced by the Judiciary Committee.

In his recent testimony before this committee, Dr. James Crapo described how we are repeating the same mistake made in the black lung fund: we are compensating diseases that are not caused by occupational exposure to asbestos. Dr. Crapo criticized the fund's compensation of persons with pleural reactions, which are not regarded as a disease and are not even a predictor of future disease. He also criticized the fund's claim level for persons with colorectal, stomach, and other cancers, noting that it would ``result in large compensation to large numbers of individuals who develop a cancer for which there is no established causal relationship to asbestos exposure.''

And just as was the case with black lung, despite the asbestos fund's use of criteria that are far more liberal than what can be justified by medical science, we already are hearing arguments that the fund should go further, that its compensation criteria should be even more liberal. For example, the medical literature strongly demonstrates that the only marker for asbestos-related lung cancer is clinically significant asbestosis. The cohort studies overwhelmingly show that unless a person has at least some asbestosis, asbestos exposure played no role in his lung cancer. But in this bill, we go further than compensating lung cancer in the presence of asbestosis. We also compensate lung cancer with pleural plaques. Pleural plaques are evidence of asbestos exposure but are not a valid marker for asbestos-related lung cancer.

And yet, even this has not satisfied some fund critics. This committee was even forced to vote several times on an amendment that would have obligated the fund to pay compensation for lung cancer when the claimant did not even have pleural plaques. The committee did defeat that amendment by a vote of more than 2 to 1, showing some respect for medical science. Nevertheless, the amendment is a harbinger of the political pressures that this Fund ultimately will face over its life.

Several other aspects of this bill also cause me concern. Let me summarize some of those.

For example, the sunset: The bill still contains a provision that would prematurely terminate the fund and return all claims to State and Federal court, with no mechanism for fixing problems even if the reason that the fund is running out of money is because it is paying non- meritorious claims. Once the fund is started, it must work. Going back to court is not a realistic option. As the bill now stands, the fund would borrow $30 billion prior to any sunset. Once companies are back in court defending against asbestos claims, they would also be paying down this debt. This would require full trust fund assessments for at least a decade. These payments, combined with renewed litigation and no, or heavily eroded, insurance policies, would be unaffordable for many companies. The effects of such a sunset likely would be so devastating that companies would demand that the Federal Government begin directly subsidizing the fund. This is a prospect that we should do all that we can to avoid. The fund should have a self-correction mechanism that makes sure that a sunset will never happen.

Another problem is allocation. This is an emerging problem, the scope of which we are only gradually becoming aware of, and, frankly, one to which I will devote my primary attention. The bill requires companies to pay into the fund based on their past asbestos expenditures, judgments, settlements, and litigation costs, even if those payments in the past were all absorbed by insurance. Companies' insurance will not cover their trust fund payments; insurers pay into the fund separately. The fact that the bill effectively invalidates the company's insurance contracts creates colorable takings claims against the fund. It also creates some serious inequities. Companies that found their asbestos liabilities to be manageable will find themselves facing unaffordable fund assessments. I am going to insist we have language in this bill that will address these inequities.

Another problem is startup. Much progress was made during the last days of markup toward fixing the so-called startup provisions. Nevertheless, the fund still ultimately allows claims to return to court if there are delays in startup, with no limits on award and no offsets in future fund payments for participants. Other, much simpler trust funds, such as those for radiation workers, have taken 18 months to start functioning. We cannot dismiss the possibility that this fund will require more than 2 years to begin paying all claims. Without an offset in limits, such a startup reversion would be disastrous for many companies.

Another issue relates to pending claims. The fund allows claims that already have advanced to trial to remain in the tort system with no offsets and no limits on damages. Already, some trial lawyers have begun seeking acceleration of their trial dates in order to take advantage of this provision. For the same reasons as applied to the startup provisions, such continued litigation could be very damaging.

A final problem is the problem of medical criteria which I alluded to earlier. Although improved over the 2003 committee bill, especially with regard to removal of level VII smokers, the fund still pays people with very common diseases that were not caused by exposure to asbestos. Credible medical experts had expressed the view to the committee that these problems will bankrupt the fund. These flaws in the bill would be less severe if the fund contains some self-correction mechanism that allowed tightening the million-dollar criteria in the event of insolvency caused by nonmeritorious claims, but it currently contains no such mechanism.

In summary, the bottom line is this is a bill which remains very much a work in progress. I am committed to addressing its problems as the bill advances through the Congress. I want to see it advance through the Congress. The bill is so important to so many people: the asbestos victims seeking compensation--at least it might help take care of their families, the businesses with only marginal connections to asbestos that nevertheless face bankruptcy through litigation, and workers and pensioners who see their jobs and retirement accounts destroyed by the litigation juggernaut. This bill is important. I look forward to working on the legislation with the chairman of the committee, the ranking member, and others who are supporting it. I will support the cloture motion and motion to proceed to the consideration of the bill.

Mr. President, I wish to respond directly to my friend from North Dakota on a couple of points which he made in the context of the discussion of the legislation before us.

I wish to begin by quoting what the President said last night in his State of the Union Speech, and then I think we will see how it fits into comments just made.

Last night, the President reported in his State of the Union Speech in terms of our economy.

He said:

Our economy is healthy, and vigorous, and growing faster

than other major industrialized nations. In the last two-and-

a-half years, America has created 4.6 million new jobs--more

than Japan and the Europeans Union combined. Even in the face

of higher energy prices and natural disasters, the American

people have turned in an economic performance that is the

envy of the world.

Then he went on to say:

Keeping America competitive begins with keeping our economy

growing. And our economy grows when Americans have more of

their own money to spend, save, and invest. In the last five

years, the tax relief you passed has left 880 billion dollars

in the hands of American workers, investors, small

businesses, and families--and they have used it to help

produce more than four years of uninterrupted economic

growth. Yet the tax relief is set to expire in the next few

years. If we do nothing, American families will face a

massive tax increase they do not expect and will not welcome.

Because America needs more than a temporary expansion, we

need more than temporary tax relief.

Part of what is in the bill before us is designed to continue that same tax policy.

There are, for example, funds to do what the President talked about last night to stimulate research and development. There are tax provisions that encourage people to do that. This legislation would continue those tax policies.

The President last night talked about educating our young people. When you pay college tuition, if you are not an itemizer, we believe you should still have a tax deduction for that. As a result, this bill would continue that tax policy. Those are the kinds of provisions that are embodied in the bill that is before us.

I ask my colleagues, almost two-thirds of us who voted for this very same bill before, has something changed where we would not want to continue those kinds of tax policies, the kind of things that have helped us to stimulate and continue this economic growth? It seems to me we want to continue those policies.

One of the things that has been discussed is not in the bill; that is, the tax on capital gains and dividends my friend from North Dakota talked about. That is not in the bill before us. Nevertheless, it is a good discussion to have because, as the President noted last night, this is part of that tax package that has provided this great economic growth, and it is part of what the House of Representatives has passed.

When the bill goes to conference with the House of Representatives, it is very likely, and I think very desirable, that the continuation of the tax rates on capital gains and dividends be included in the final conference report we will approve. Those rates expire in 2008. When people are making investments today, they want to know what the tax rate is going to be when they invest. Is there a return on the investment, let us say in 4 years--4 years from now is 2010. What we want to do is extend those rates from 2008 to 2010. If we don't, what we are going to find, as the President said, is tax increases the American people do not expect, do not appreciate, and it certainly won't be good for the economy.

My friend from North Dakota said people who work hard and have a tax on their wages get one set of taxes, but presumably people who do not work hard and receive dividends or capital gains should not have a lower tax rate. This is a fundamental misunderstanding of the Tax Code and the way our economy works.

Take the person who put on his boots every day and went to work and for 40 or 50 years paid income taxes, tried to save some money along the way, and when he could invested that money because upon retirement he does not want to be dependent upon Social Security benefits. He has a small pension or he has invested in the stock market. He retires and he is now faced with a situation where he is not receiving a wage anymore that he is paying taxes on. Instead, his income now is coming through the deferred gratification of the investment he made throughout the years when instead of spending money he saved it and invested it. Now there are rewards coming to him in the form of dividends or capital gains--in other words, a return on his investment. That, plus Social Security, is now all he has to live on.

He paid income tax on that money. Make this point very clear: All his

working life he paid his income tax and his aftertax dollars went into these investments. Now he is being taxed a second time on that money when he begins to get the return, when he gets dividends from his investment or capital gains. Yes, the tax rate is a little lower depending upon what his taxable bracket is. It could be the same, but the tax currently is 15 percent. Thank goodness, because the reduction a few years ago from 20 percent down to 15 percent means we have had a tremendous stimulation for the economy. So this person has paid his income tax and now he is paying another tax on capital gains or on dividends.

Actually, this is not just the second time this money is taxed; this money was also taxed when the corporation or the entity that earned the money earned it and had to pay its taxes. So the corporation pays its taxes and then what is left over it either takes as profit or returns part of that profit in the form of dividends to the shareholders--our friend now, the senior citizen we are talking about.

This money has been taxed at least three times now: When the income was earned by the individual, when the corporation paid the tax on the investment, and when it provided the dividend to our senior citizen, the retired fellow living in Sun City, AZ. And he now has to pay 15 percent on that again.

You can only tax this so many times. Yet we have found that by having a Tax Code that tries to keep these taxes as low as possible, we are able not only to continue to stimulate investment, create jobs, and provide a living for people, and then a retirement income, but also to provide enough money for our Government to grow. We are spending a lot of money in this Government now. We are not standing still. We are spending far too much money, according to some--and I put myself in that category. Revenues are not the problem with respect to our deficit; we are spending too much. Our revenues exceeded the projections last year by something like $270 billion or more. It was $100 billion more than we assumed at the beginning of last year. So we have gotten far more in revenues than we ever expected. Why? Because our economy is growing so rapidly. What is one of the reasons it is growing? Because of the tax structure we have. That tax structure is part of what the legislation before the Senate intends to continue so we cannot only leave more money in the hands of the people who provide the growth for our country and provide for our families and small businesses but also provide the revenue for the Government to provide what they need, as well.

There was something else my friend from North Dakota said that is quite wrong. That is the comment that we provided tax relief for rich people, that these dividends and capital gains are not for the average working person, and that the tax policy we are promoting in this legislation, therefore, does not help most Americans, that somehow it only helps the wealthy.

I noted before the legislation before the Senate does not even mention the words ``capital gains'' or ``dividends,'' but we are assuming when the bill comes back from conference it will have those taxes in it. One of the taxes we are seeking to ameliorate the effect of in this bill is the AMT. Almost everyone believes we either ought to eliminate the AMT, the alternative minimum tax, or significantly reduce its impact on taxpayers. Let's take a look at what the AMT does to the people in the country versus capital gain and dividends since, according to my colleague, the latter two are good ways to raise revenue and the AMT is a bad way.

Of all of the taxpayers in the AMT in 2003, the last year we have statistics, 9.7 percent had an adjusted gross income of under $100,000. We are talking about relief in the bill before the Senate that presumably most of my friends on the other side of the aisle are very much for, relief here for 9.7 percent of the filers having income of less than $100,000. The other people we are providing relief for were above that, obviously.

Let's compare that with the people who are paying capital gains or dividends. Of all the taxpayers reporting capital gains income in the year 2003, 67.5 percent had adjusted gross income under $100,000. Of all the taxpayers reporting dividends income in 2003, more than 70 percent had an adjusted gross income under $100,000.

If we are talking about trying to provide relief for the average American family--maybe a two-worker family; their income, in any event, is less than $100,000--the AMT relief we are providing, 9.7 percent of the folks we are providing relief for are in that under $100,000 category, whereas the relief we would be providing if we included the capital gain and dividends would apply to 67.5 percent with respect to capital gains and 70 percent with respect to dividend income. These are the people, 70 percent, who report incomes of $100,000.

The fact is we have become a nation of investors. Over half of the American people now are invested in the stock market. When we talk about providing tax relief, we are providing tax relief for average families, for small businesses and investors in America who rely on these kinds of investments in their retirement years. More than half of all Americans own stock either directly or through mutual funds. In the 2003 marginal rate on investment, marginal rate cut on investment income worked by giving these investors an incentive to put more of their money at work in the markets. That is what stimulated the great economic recovery we are enjoying now. At the lower rates, the tax penalty imposed on the additional investment earnings--the reward for taking the additional risk--the penalty is smaller and thus the risk is more attractive. That is why we have had this great economic recovery because people have been willing to invest more of their money getting a greater return for that investment.

It is interesting that all of the guesses about what kind of income our economy would derive from capital gains, to take one of these taxes, turned out to be incorrect. What we find is instead of the capital gains rate cut cutting revenues, the capital gains rate cut from 20 percent to 15 percent in 2003 has actually increased revenues to the Treasury. In other words, this tax cut has more than paid for itself.

This is not just me saying it; this is according to the Congressional Budget Office, the CBO. Its annual Budget and Economic Outlook, just released, shows the 2003 tax cut on capital gains has more than paid for itself. What the CBO did was compare the estimated revenues from capital gains with the actual revenues from capital gains. The actual liabilities from capital gains were $71 billion in 2004, $80 billion in 2005 for a 2-year total of $151 billion. What was originally estimated to be the return from this tax? The sum of $125 billion. So there was an actual increase in revenue to the Federal Treasury of $26 billion. Instead of costing the Government $27 billion, which was originally estimated, the tax cuts actually earned the Government an extra $26 billion.

The bottom line is that sometimes raising tax rates does not raise tax revenue. If you want to think of this in simple terms, say we want to bring in the maximum amount of revenue. Say we will put a tax on of 100 percent. One cannot get any higher than that. How many of us would work if 100 percent of our earnings would be taxed? I daresay not very many. How about 90 percent? How about 80 percent? We still will not get many takers. The point is, people will not work or invest, put their capital at greater risk, if the tax penalty is so great it is not worth it. The object is for Government to find that level which produces the most revenue to the Treasury with the least amount of damage to the economy. In other words, it encourages people to work or encourages people to invest to the maximum extent and that extent, then, produces the maximum amount of revenue.

Basically, one thing we found from the tax rate reduction from 20 percent to 15 percent with capital gains is 20 percent was still too high. With 15 percent people were far more willing to invest. It put their money at risk. And because so much of that activity occurred, the revenues, even with lower rates, far exceeded the revenues at the higher rates. That is why the House of Representatives has included in its legislation a 2-year continuation of this same 15-percent rate for capital gain and dividends because it will actually produce more revenues to the Treasury because more Americans will invest

and will save, because this will provide more job creation and provide continued economic growth in our country.

Since over half of Americans are investors in our stock market, since more than 70 percent of those earning $100,000 or less receive this benefit with respect to capital gains and with respect to dividends, 67.5 percent, clearly this is designed to help most Americans.

I find it ironic my colleagues who are so insistent on doing something to fix the problem of the AMT are talking about only 9.7 percent of the people with adjusted gross incomes under $100,000. When sometimes people loosely say, your tax cuts are only for the rich, I guess I would say to my friends, your tax cuts are for the rich, if you are focusing mostly on the alternative minimum tax.

Now, I happen to think we should provide relief in all of those areas. That is why I think what we are doing in this legislation--to provide relief from the alternative minimum tax; and then, assuming the House of Representatives includes it in the conference, for dividends and capital gains, when the bill comes back to us--we will ensure that not only will we be able to continue to help our families and our small businesses but also to ensure that we will continue to have economic growth in this country. That is why I encourage my colleagues to support the legislation before us.

Mr. President, today I rise to pay tribute to the life of Mrs. Coretta Scott King. She was a steady force in the civil rights movement who ably supported the work of her late husband, the Reverend Dr. Martin Luther King Jr. Her legacy, like that of Dr. King, is steeped in the American principles we all hold dear: those of equality and justice, patriotism, faith, and family values.

As a young woman, Coretta Scott, a native of Marion, AL, experienced the racism and prejudice that characterized the South at that time. She had a desire to exceed expectations in the most challenging of environments. Coretta was valedictorian of Lincoln High School in 1945 and pursued the serious study of music at Antioch College in Ohio, and then at the New England Conservatory of Music. It was in Boston that Coretta first met the young Martin King, a divinity student earning his doctorate in theology.

Both of them knew the value of education and study, but both were also determined to serve others. Coretta had been involved in the civil rights movement before she met Dr. King; but when they joined forces as husband and wife in 1953, the movement was strengthened. Each place they lived in was roiled by the controversies of the movement to end racial segregation. In every place, bigots threatened the King family's safety. Amidst the violence, the arrests of peaceful protesters, the bombings, and assassination attempts against her husband, Mrs. King remained a bedrock for her husband and the protector of her children. Yolanda, Martin III, Dexter, and Bernice found remarkable role models in both of their parents, but it was Mrs. King's steady hand that directed their upbringing.

As the world took notice of Dr. King's philosophy of nonviolent social change, Mrs. King spread it effectively, especially among women. She lent her time and talents to numerous educational causes and civil rights groups. She exhibited poise, dignity, and grace in everything she did.

Mrs. King's commitment to civil rights did not diminish in 1968 when her husband's life was ended by an assassin's bullet. She instead made a commitment to the nonviolent achievement of social justice as her life's work. The Martin Luther King Jr. Center for Nonviolent Social Change in Atlanta, GA, stands today as a testament to Dr. King's work and to that of his wife, for it was she who made the institution what it is. Mrs. King's strong will and courageous strength allowed her to stay the course and further the movement.

She was also a strong force behind the national holiday to commemorate Dr. King's life.

Coretta Scott King and the late Rosa Parks were often regarded as ``Mothers of the Civil Rights Movement.'' We are sad to have lost both of them in so short a time. But as we enter Black History Month in February and then Women's History Month in March, the message and example of these American heroines will be before us. They demonstrate that ordinary people can achieve extraordinary things. Their selflessness will not be forgotten.

May Mrs. Coretta Scott King find the peace for which she and Martin strived so hard to achieve. God speed...

Mr. President, I explained last Wednesday that I would support the nomination of Judge Alito. Since then, I have been somewhat frustrated at how this Senate debate has progressed. Time and time again, some Senators have mischaracterized the cases and record of Judge Alito. I would like to take a few minutes and walk through just a few of those misstatements.

First, let me address the case of Sheridan v. DuPont.

On January 26, the junior Senator from Colorado indicated that Judge Alito was unlikely to support principles of diversity because he ruled against a female plaintiff in a gender discrimination case. The Senator said, ``In Sheridan, Judge Alito registered the lone dissent among thirteen judges voting to prevent a woman who had presented evidence of employment gender discrimination from going to trial.'' The Senator's summary of the case requires additional elaboration, though.

According to the record of that case, the plaintiff, Barbara Sheridan, was employed as head captain of the Green Room restaurant in the Hotel DuPont. Initially, she received good performance reviews, but DuPont claimed that her performance began to deteriorate in 1991. At that point, her manager met with her to ask her to stop using the restaurant bar for smoking and grooming. Apparently Sheridan was frequently late to work, and other employees had complained about food and drinks she gave away. In February 1991, the hotel decided to reassign Sheridan to a nonsupervisory position that did not involve the handling of cash. She would not suffer any reduction in pay because of this job transfer. Rather than accept reassignment, Sheridan resigned in April 1992 and sued for gender discrimination.

When the case came before him on appeal, Judge Alito joined a unanimous three-judge panel that ruled for Ms. Sheridan. He held that her case should go to trial because it was plausible that a jury could agree with her. Judge Alito explained, ``a rational trier of fact could have found that duPont's proffered reasons for the constructive termination were pretextual.''

Later, however, the case was heard by the full Third Circuit. At that time, Judge Alito expressed doubt about the applicable Third Circuit precedent. Hesitant about the court's broad rule that affected all cases with varying factual situations, he explained that when the employee makes out a case like this, she should usually, but not always, be accorded a trial. He reached this conclusion after parsing the Supreme Court's 1993 decision in St. Mary's Honor Center v. Hicks. And most importantly for present purposes, the Supreme Court later agreed with Judge Alito's view in a unanimous opinion authored by Justice O'Connor. That case, Reeves v. Sanderson Plumbing Products, can be found at 533 U.S. 133, and was decided by the Supreme Court in 2000.

The job of an appellate court judge is to faithfully interpret the Constitution and the Supreme Court's interpretations of statutes. The history of this case demonstrates that Judge Alito got it right when he examined pleading standards in title VII cases.

Let's move on to another case, the 1996 case of U.S. v. Rybar, in which Judge Alito dissented.

On January 25, the Senior Senator from Rhode Island said that Judge Alito ``advocated striking down Congress's ban on the transfer and possession of machine guns.'' He further said that Judge Alito had argued that he was ``not convinced by Congress' findings on the impact of machine guns on interstate commerce. He substituted his own policy preferences in a way that the Third Circuit majority found was, in their words, counter to the difference that the owes to its two coordinate branches of government.''

I discussed this case with Judge Alito during his confirmation hearings. The description we have just heard does not tell the whole story.

Judge Alito's dissent in that case had nothing to do with being ``convinced'' by Congress's findings. Rather, Judge

Alito based his dissent, in part, on the fact that Congress made no explicit findings regarding the link between the intrastate activity regulated by these laws, the mere possession of a machine gun, and interstate commerce. Note that this case was about possession, not transfer or commercial activity.

Second, the dissent had nothing to do with Judge Alito's own policy preferences regarding the possession of machine guns. Rather, it was a careful application of the then-recent decision in United States v. Lopez, which reminded courts to take seriously the limits of Congress's powers under the commerce clause. In Lopez, the Supreme Court had held that Congress's power to regulate commerce among the several States did not include the power to regulate possession of a gun near a school where the gun never crossed State lines. It was for the Third Circuit to decide whether Congress's power to regulate interstate commerce included the power to regulate possession of a machine gun where the machine gun never crossed State lines. In Judge Alito's view, the Supreme Court's decision ``require[d] [the court] to invalidate the statutory provision at issue.'' He relied on and cited Lopez at least 22 times in his 9-page dissenting opinion.

Again, this is the job of an appeals court judge: to interpret Supreme Court precedent and apply it to new cases.

I should also point out that Judge Alito's dissenting opinion provided a virtual roadmap for how Congress could regulate the possession of guns in a way consistent with the Constitution and Supreme Court case law. This is hardly the behavior of someone bent on imposing a ``policy preference'' against regulating machine guns. According to Judge Alito, all Congress had to do was make findings as to the link between the possession of firearms and interstate commerce or add a requirement that the government prove that the firearm moved across State lines.

Let me add one last word on the Rybar case. It is often said that Judge Alito always sides with the government. Well, this case was called ``United States versus Rybar,'' and Judge Alito was on the side of Mr. Rybar. Of course, he did not think of himself being on anyone's side. He was just doing as he believed the Constitution and Supreme Court required. And he would have felt the same way if the law required the opposite conclusion.

Let us now move on to another case, that of Riley v. Taylor.

Speaking at the executive business meeting for the nomination of Judge Alito, the senior Senator from Illinois left a misimpression of the facts of this case, so I would like to clear up any confusion.

In that case, Judge Alito found there was insufficient evidence to support a criminal defendant's claim that the prosecutor had violated his constitutional rights by striking three minorities from the jury pool. The Senator said that the prosecutor had ``in three previous murder cases, used every challenge they had to make certain that only white jurors would stand in judgment of black defendants.'' That is not accurate. While it is true that the criminal defendant relied heavily on the anemic evidence that in three previous trials no African Americans ended up on the jury, it is also the case that the prosecutor had struck both Blacks and Whites from those juries. Indeed, Judge Alito pointed out in his decision that, of the excluded jurors in the previous trials, only 24 percent were African Americans. He suggested that this might not even be disproportionately high in a county where the most recent census indicated that 18 percent of the population was Black.

Most importantly, Judge Alito's opinion rejected the selective use of statistics based upon the sample size of three trials. In so ruling, Judge Alito was in agreement with multiple State and Federal judges who had heard the case before him. On the full Third Circuit, four other judges, half of them Democratic appointees, joined in his opinion on this point. Not a single judge thought the statistical argument settled the case.

As a postscript, when Riley was given a new trial by the Third Circuit, he was again convicted of all charges. When he again appealed, the Delaware Supreme Court found that his petition was ``wholly without merit.''

Let me turn to another case, one also discussed by the senior Senator from Illinois, but during his January 25 floor speech, that of Pirolli v. World Flavors.

The Senator from Illinois stated: ``Another case involved an individual who was the subject of harassment in the work place. This person had been assaulted by fellow employees. He was a mentally retarded individual.'' The Senator continued, ``His case was dismissed by a trial court, and it came before Judge Alito to decide whether or not to give him a chance to take his case to a jury. And Judge Alito said no. The man should not have a day in court.''

Several corrections are needed here.

First, the plaintiff in this case did have his day in court; he just did not reach a jury. During the course of the proceedings, the plaintiff presented his argument to not one, but four judges--one district court judge and three appellate court judges. The rules of the Third Circuit require that a plaintiff present his case in a minimally adequate fashion in order to be considered. The plaintiff must, at a minimum, state what happened to him and provide the basis for his claim. But the plaintiff in this case, a man who had a lawyer, never did that. The Third Circuit judges in this case were not provided with enough facts to make an adequate and informed decision. Judge Alito emphasized, ``I would overlook many technical violations of the Federal Rules of Appellate Procedure and our local rules, but I do not think it is too much to insist that Pirolli's brief at least state the ground on which reversal is sought.''

Second, with regard to the plaintiff's sexual harassment claim, Judge Alito refused to accept the arguably demeaning stereotype which the plaintiff's lawyer advanced, which was ``that retarded persons are any more (or less) sensitive to harassment than anyone else.'' Judge Alito required evidence on which to base his ruling and refused to rely on the proposed stereotype.

Let's move on to another case, that of Doe v. Groody.

This case was mentioned by several Senators but in particular by the Junior Senator from Massachusetts on January 25. The Senator said that Judge Alito did not support individual rights because he dissented in Doe v. Groody. He said, ``Judge Alito's hostility to individual rights isn't limited to civil rights. He consistently excuses government intrusions into personal privacy, regardless of how egregious or excessive they are. In Doe v. Groody,'' the Senator from Massachusetts argued, ``dissented from an opinion written by then-Judge Michael Chertoff because he believed that the strip search of a ten year-old was reasonable.''

First, let's get the legal question straight. The issue in Doe v. Groody was whether police officers should be able to be personally sued for money damages when they misunderstand the scope of the search warrant they were given.

Second, let's look at what happened during the event in question. On March 6, 1998, as a result of a long-term investigation of a John Doe for suspected narcotics dealing, officers of the Schuylkill County Drug Task Force sought a search warrant for Doe and his residence. The typed affidavit in support of the warrant stated, among other things, that a reliable confidential informant had purchased methamphetamine on several occasions from John Doe at his residence. The affidavit sought permission to ``search all occupants of the residence and their belongings.''

However, the printed sheet entitled ``Search Warrant and Affidavit'' contained an entry naming only John Doe under the question, ``specific description of premises and/or persons to be searched.'' When the officers entered the house to commence the search, they decided to search Jane Doe and her daughter, Mary, age 10, for contraband. A female officer removed both Jane and Mary Doe to an upstairs bathroom where she searched them for drugs. No contraband was found. Once the search was completed, both mother and daughter returned to the ground floor to await the end of the search.

As a matter of policy, the sad reality is that drug dealers often hide weapons and drugs on children in the home. Judge Alito acknowledged in his opinion that he found the fact that the

search occurred to be unfortunate. Accordingly, police officers sometimes request warrants that allow them to search all persons found during a drug bust.

The Does sued the police officers personally for money damages. The issue was how to read the warrant in light of the affidavit. And the legal question question was whether a reasonable officer could have believed that the search warrant allowed the officers to search everyone in the house. Two judges on the panel said no, while Judge Alito said yes.

Why did Judge Alito believe that the police officers should not be liable personally? He concluded that a reasonable police officer could think that the warrant should be read in conjunction with the attached affidavit. Judge Alito reasoned that a ``commonsense and realistic'' reading of the warrant authorized a search of all occupants of the premises. Judge Alito found that the officers in this case ``did not exhibit incompetence or a willingness to flout the law. Instead, they reasonably concluded that the magistrate had authorized a search of all occupants of the premises.''

So, on the law, Judge Alito did not, as he has been accused repeatedly over the past few days, authorize the strip-search of a 10- year-old girl. He just tried to sort out a practical, on-the-ground problem for law enforcement. It is sad but predictable that this case, with its inflammatory facts, would come up repeatedly, but repetition is not going to change the record of what happened.

Mr. President, let's move on.

I want to address a claim by the junior Senator from Illinois in a January 26 speech that, whenever Judge Alito has discretion, he will rule against an employee or a criminal defendant. To quote, the Senator said, ``If there's a case involving an employer and employee and the Supreme Court has not given clear direction, Judge Alito will rule in favor of the employer. If there's a claim between prosecutors and defendants if the Supreme Court has not provided a clear role of decision, then he'll rule in favor of the state.''

This just is not the case. There are 4,800 cases that could be reviewed to demonstrate the inaccuracy of that claim, but let's just look at a few.

In Zubi v. AT&T, an employee claimed that AT&T had fired him based on his race, but the record was far from clear. Judge Alito clearly had room to rule against the employee. After all, the other two judges deciding the case on appeal did so and threw out the employee's claim. They held that the employee had waited too long to bring his claim. In contrast, Judge Alito issued a lone dissent arguing that the employee was entitled to bring his discrimination claim. Later, the Supreme Court unanimously vindicated Judge Alito's view.

As another example to counter the Senator from Illinois's claim, consider the case of United States v. Igbonwa. There, a criminal defendant argued that the prosecutor had failed to honor his plea agreement. The majority of the court voted against the defendant and in favor of the prosecutor. Clearly, Judge Alito had legal grounds to do the same. Instead, Judge Alito issued a lone dissent arguing that the prosecutor was required to fulfill this promise to the defendant.

In yet another example, in Crews v. Horn, Judge Alito ruled that a prisoner was entitled to more time to bring his habeas petition. Again, the Supreme Court and Third Circuit had never decided the question, and the statute was unclear. Judge Alito could have ruled either way, yet he ruled in favor of the prisoner's claim.

This is a good time to remind the Senate what Third Circuit Judge Edward Becker, who served with Judge Alito for 15 years, had to say on this point. He testified, ``The Sam Alito that I have sat with for 15 years is not an ideologue. He's not a movement person. He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be. He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants.'' As Judge Becker summarized Judge Alito's career, ``His credo has always been fairness.''

Mr. President, I want to turn to some of the mischaracterizations of Judge Alito's past record as a government official.

In her January 25 speech, the junior Senator from New York said that Judge Alito had written that ``in his estimation it is not the role of the federal government to protect the health, safety, and welfare of the American people.''

As best I can tell, the Senator is referring to a 1986 document addressing the Truth in Mileage Act, a bill to require States to change their automobile registration forms to include the mileage of the car every time it was sold. That document did not, as the Senator said, offer Alito's ``estimation'' on anything. Judge Alito was drafting a veto message for President Reagan. Accordingly, he drafted that message in President Reagan's voice and restated President Reagan's policy on federalism. The first-person pronoun in that message is President Reagan, not Alito.

It is also worth nothing that Judge Alito did not challenge Congress's powers. His cover memo acknowledged that ``Congress may have the authority to pass such legislation.'' He did point out that the legislation was ``in large part unnecessary since only five states and the District of Columbia do not already have'' title forms that meet this requirement.

Let's move to another statement from the Senator from New York. She stated that Judge Alito's ``time on the bench shows an unapologetic effort to undermine the right to privacy and a woman's right to choose.''

In fact, Judge Alito's record confirms that he is not an ideologue on a crusade to curtail Roe v. Wade. In his 15 years on the bench, he has confronted seven restrictions on abortion, and he struck down all but one. Judge Alito has upheld a woman's right to choose even when he had the discretion to limit abortion rights.

For example, in the 1995 case of Elizabeth Blackwell Health Center for Women v. Knoll, Judge Alito struck down two abortion restrictions by the State of Pennsylvania. The first provided that a woman who became pregnant due to rape or incest could not obtain Medicaid funding for her abortion unless she reported the crime to the police. The second provided that if a woman needed an abortion to save her life, she had to obtain a second opinion from a doctor who had no financial interest in the abortion. The question was whether these laws conflicted with a Federal regulation issued by the Secretary of Health and Human Services. There was no binding Supreme Court precedent on point, and Judge Alito easily could have upheld the abortion restrictions if he had such a preset agenda. But Judge Alito voted to strike down both laws in favor of a woman's right to choose. This is not the behavior of someone bent on chipping away at Roe v. Wade. This is the behavior of a jurist who understands the importance of precedent.

The junior Senator from New Jersey came to the floor earlier today and criticized the work Judge Alito had done on behalf of the Reagan Justice Department on abortion cases. He suggested that those efforts showed a bias against Roe v. Wade that would matter in the future. But the record shows just the opposite, as discussed above. How else to explain the Knoll case? Moreover, the Senator said that Judge Alito would not describe Roe v. Wade as, quote, ``settled law.'' Judge Alito addressed this question repeatedly during the hearing. A judge cannot call an area of law ``settled'' when it is likely that cases dealing with that area will come before him. This demand to say that Roe is settled is little more than a desire to prejudge all those cases, including cases pending before the Supreme Court today. Judge Alito simply cannot do that without violating his judicial ethics and depriving those litigants of their fair day in court.

I will move on.

Earlier today, the junior Senator from Michigan said that Judge Alito had ``been criticized by his colleagues for trying to legislate from the bench in order to reach the result that he desires.'' I am not aware of a single example of any member of the Third Circuit, or of any other court in the Nation, claiming that Judge Alito had any tendency toward quote, ``legislating from the bench.''

In fact, just the opposite is true. It is especially surprising to hear such a claim given the testimony of Judge Alito's colleagues on the Third Circuit.

Would seven current and former Third Circuit judges testify for Judge Alito if they believed he was a judicial activist or otherwise unqualified for the bench? Those listening now or reading the Congressional Record in future years should go to the Judiciary Committee records on the Internet and read what those judges had to say when they testified on January 12. When I spoke last week, I entered in the Record a series of excerpts from that testimony that the Senate Republican Policy Committee, which I chair, had compiled. The complete testimony is worth reviewing, too. Again, I am not aware of a single time that any judge has accused Judge Alito of legislating from the bench.

As one last point, I must address this unitary executive issue. The senior Senator from New Jersey and others have said that Judge Alito somehow believes in making the executive more powerful than the legislative and judicial branches. One wonders how many times this misstatement has to be corrected. Judge Alito made clear during his testimony that his past comments regarding the unitary executive theory only--only, Mr. President--dealt with who has the power to control executive agencies. As he said repeatedly, insofar as this theory deals with the scope of Presidential power, he does not--repeat, does not-- subscribe to it. What else can he say? He has made this extremely clear. He has said it repeatedly.

Mr. President, there have been other misstatements and mischaracter- izations of Judge Alito's record. I can only respond to so many. I will simply encourage future students of this debate to look at the cases in question, and to carefully review the Committee record, before reaching conclusions based on floor debate.

I look forward to Samuel Alito serving on the Supreme Court for many years to come.

Mr. President, earlier this week, our Nation celebrated Martin Luther King Day. The Reverend Dr. Martin Luther King, Jr., would have been 77 years old on January 16. It was a day to reflect on the life of a man admired for the dream he dreamed for America, and for his words and deeds in pursuit of it.

He dreamed, as he famously said, ``that one day this nation will rise up and live out the true meaning of its creed: `We hold these truths to be self-evident: that all men are created equal.' '' Dr. King argued, in words that stir the heart, that racial segregation must end in the South and that Black Americans must be granted their citizenship rights throughout the land and throughout our institutions: in education, in employment, in housing, and in the voting booth.

His role in the push for full voting rights for African Americans is well known but bears repeating. In the spring of 1965, a national television audience was shocked by broadcasts of State troopers and sheriff's deputies brutally repulsing voting rights protesters in Selma, AL. Hours later, Dr. King declared: ``No American is without responsibility.'' He went to Alabama and led a march, under Federal protection, from Selma to the State capital. The event garnered national support and provided momentum for congressional passage of the Voting Rights Act later that year.

Dr. King appreciated the blessings of freedom; he wanted them for his people, and for all people. We remember this Protestant minister's eloquence and also his sense of spiritual mission--he was an ecumenical religious leader who brought people of all faiths, all races, together in mutual respect for one another.

As Taylor Branch, his biographer, put it: ``His oratory fused the political promise of equal votes with the spiritual doctrine of equal souls.''

His belief in nonviolent protest convinced those who listened to him that here was the high road to vindicating the rights of Black people in this country. It is a bitter fact that he lost his life to violence--he was only 39 when an assassin's bullet cut him down in Memphis--and it makes us understand his great courage in taking on the burden of leadership.

In officially celebrating the life of Dr. King, we celebrate the end of legal segregation and the many inroads we have made against racism and discrimination. Of course, there is more we must do to make sure all Americans enjoy the blessings of freedom. He would tell us that, if he were here. He would also insist that we continue on in his way: with passion and with civility, calling on our fellow human beings to act on their best instincts, not their worst.

Dr. King, who won the Nobel Peace Prize in 1964, is a model here and around the world--from China, and the 1989 antigovernment protests in Tiananmen Square, to South Africa, where apartheid rule gave way in 1990 without provoking the civil war many had feared. In encouraging the holding of free elections and the formation of institutions of civil society in faraway places today, we promote the idea that Martin Luther King put forward so well: that the nonviolent settling of differences among men is the bedrock of democracy.

Let us all take inspiration from the King legacy this week, Mr. President, and every week.

Mr. President, I ask unanimous consent to have an item printed in the Record.

Mr. President, I ask unanimous consent that the attached editorial by the Arizona Republic, dated January 24, be printed in the Record of this debate on the confirmation of Judge Samuel Alito to the U.S. Supreme Court. The editors' support for Judge Alito is welcome, and their statement that ``Judge Alito is a superior candidate for the high court regardless of his political leanings'' is absolutely true.

Mr. President, I rise in support of Judge Alito's nomination to the Supreme Court and urge my colleagues to quickly confirm him.

I begin by observing that the party-line vote in the Judiciary Committee yesterday raises a troubling question for the full Senate, and it is basic to our deliberations. What is the proper test for determining whether to confirm a nominee to the Supreme Court? Until very recently, the Senate has evaluated whether the nominee was qualified--that is, whether he or she possessed the requisite experience, integrity, and temperament to serve. But a new test has been proposed by Judiciary Committee Democrats: will the nominee provide assurances that he or she will rule a particular way on cases sure to come before the Court?

Before I discuss the ramifications of that troubling question, though, I would like to apply the traditional test--the proper test--to the nominee before us.

A Supreme Court Justice should be an experienced judge. Samuel Alito has more Federal judicial experience than all but one nominee in U.S. history, Horace Lurton, who was nominated by President Taft. In 15 years of service, Judge Alito has authored more than 360 opinions and participated in more than 4,800 decisions. It is an extensive record.

A Supreme Court Justice should be deeply familiar with American constitutional law. Judge Alito has spent his entire professional life grappling with constitutional jurisprudence--serving as a Federal prosecutor at both the trial and appellate level, as the government's lawyer before the Supreme Court, and as a constitutional lawyer in the Justice Department before becoming a judge. Nobody who watched Judge Alito's testimony would deny that he is a brilliant legal thinker with a deep and textured understanding of our Nation's jurisprudence.

A Supreme Court Justice should have unassailable integrity. Here, I look to those who know him best.

First, the American Bar Association, in finding him unanimously ``well-qualified'' to serve, conducted more than 300 interviews with people who know Judge Alito on a professional and personal basis. They have reported that the high praise for Judge Alito's integrity was ``consistent and virtually unanimous.'' I repeat, it was ``unanimous.''

Second, let's look at what the judges of the U.S. Court of Appeals for the Third Circuit had to say. Seven current and former judges testified on Judge Alito's behalf--judges who were nominated by Presidents Johnson, Nixon, Reagan, the first President Bush, and Clinton. Collectively, they have served with Judge Alito for more than 75 years. They praised his fairness, his integrity, his open- mindedness, his temperament, his intellect, and his devotion to the rule of law.

Finally, a Supreme Court Justice must know the difference between the judicial role and the legislative or executive function. This qualification is sometimes difficult to decipher, but there are several clues that can guide us.

First, a long judicial record helps, and Judge Alito gives us that. There is not a trace of judicial activism in his record.

Second, a judge cannot have a policy agenda. He or she must defer to the political branches on policy questions. Judge Alito agreed, testifying, ``We [judges] are not policymakers and we shouldn't be implementing any sort of policy agenda or policy preferences that we have.'' Judge Alito's colleagues on the Third Circuit appeals court confirmed this. For example, Judge Aldisert testified that ``at no time during the 15 years that Judge Alito has served with me and with our colleagues on the court, and the countless number of times that we have sat together in private conference after hearing oral argument, has he ever expressed anything that could be described as an agenda.''

Third, a judge must not twist statutes or constitutional provisions to reach a result he favors. As Judge Alito testified, ``Judges don't have the authority to change the Constitution. The whole theory of judicial review . . . is contrary to that notion.'' In

other words, a judge must accept that the Constitution will sometimes require him to make rulings that he might disagree with. Politicians are free to vote their convictions; judges must put their personal views aside. I will have more to say about this issue in a few moments.

Fourth, the judge must have the right understanding of the ``living Constitution.'' Our Constitution must always remain alive to new situations that the Founders did not contemplate. But the judge must apply the constitutional provisions in the way that most closely approximates the meaning of the text and the underlying principles as understood when drafted. The Constitution is not infinitely malleable. It is not a blank slate for the judicial branch to draw upon. It has no ``trajectory'' or ``evolutionary theme.'' It is a text--words with meanings. If the Constitution can be twisted to mean anything, then it ultimately means nothing, and then we live under the rule of judges, not the rule of law.

Judge Alito respects the proper divisions within American constitutional government. As he explained in his testimony, the judiciary ``should always be asking itself whether it is straying over the bounds, whether it's invading the authority of the legislature [or] making policy judgments other than interpreting the law.'' He emphasized that judges have a duty to police themselves through what he called the ``constant process of re-examination on the part of the judges.'' If all judges engaged in this process of re-examination, the quality of justice in this Nation would improve dramatically.

Judge Samuel Alito is not going to legislate from the bench or bend the Constitution to suit any political preferences that he might have. He is not going to rely on foreign law, but will look to our American traditions. He is not going to apply the Constitution as he wishes it might be, but as it is written. In exercising this judicial restraint, Judge Alito will protect the people's ability to govern themselves--and that is ultimately what is at stake.

That is why I support Judge Alito. Here is a man who is the son of an immigrant, comes from a modest background, and has a keen sense of patriotic duty. He is highly intelligent, undeniably experienced, and imbued with character and personal integrity. He has a low-key, patient, and respectful personality--the model of what we have come to call the ``judicial temperament.'' He believes in judicial restraint and has proven it for the past 15 years. He deserves my vote and I will proudly give it to him.

This is the analysis we have applied in the past, and its application has resulted in confirmation for most nominees. It was certainly the analysis used to evaluate President Clinton's nominees to the Supreme Court. So it is in this context that I want to discuss what is evolving as a new test--a ``results-oriented'' test.

The minority members of the Judiciary Committee did not question Judge Alito's qualifications. Rather, they tried to get him to commit to certain results in cases that are sure to come before the courts. They want to see certain policy goals enacted into law. Now, we all want our policy goals to become law, but our aim should be enacting constitutional legislation, not relying on the courts to enact our policy preferences.

In my September statement supporting Judge Roberts, I explained that this same dynamic had played itself out during his hearings. It is apparent that there is now a fundamental difference between the majority and the minority parties on this matter. We believe the courts should not try to impose policy results in their decisions; they should just decide the questions of statutory interpretation and constitutional meaning.

For the Supreme Court, the results are--or should be--simply a function of the proper application of the Constitution and law to the facts of each case.

To the minority, however, that's not enough. As many minority Senators have expressed, they are not going to vote for a nominee who will not assure them that he will vote the way they want in future cases. I submit that that is wrong. As Judge Alito testified, ``Results-oriented jurisprudence is never justified because it is not our job to produce particular results.''

Yesterday's meeting of the Judiciary Committee illustrates that many Senators have adopted this results-oriented approach to the confirmation process. The wrong questions are being asked, and the wrong answers are being demanded. The right question is how the nominee will do his job, not what the nominee will decide. This fundamental point is getting more and more lost with each passing confirmation battle.

Let me give a few examples. Yesterday a Senator said that it was necessary to vote against Judge Alito because that Senator believes in a right to abortion and there is no guarantee that Judge Alito will agree with that position in a future case dealing with abortion regulations.

That Senator took the same approach when discussing the just-decided case of Gonzales v. Oregon, which dealt with the Attorney General's promulgation of regulations in response to a state physician-assisted suicide statute. The Attorney General had said that, despite the Oregon statute, physicians could not use Federally regulated drugs to kill patients.

The case, therefore, did not turn on the Court's views on physician- assisted suicide, but, rather, on the interpretation of the underlying statute. The majority made this clear in the first paragraph. Justice Kennedy explained:

The dispute before us is in part a product of this

political and moral debate, but its resolution requires an

inquiry familiar to the courts: interpreting a federal

statute to determine whether Executive action is authorized

by, or otherwise consistent with, the enactment.

The Supreme Court had not ruled on the wisdom or appropriateness or constitutionality of physician-assisted suicide, but the Senator was critical of Chief Justice Roberts because he had not voted to uphold assisted suicide, and the Senator didn't think Sam Alito would either. One could fervently agree with the Senator on the policy issue, yet interpret the statute in a way that requires a different result. But, it appears, results are all that matter.

As another example from yesterday's committee meeting, a Senator said that protecting wetlands was very important, and wanted to make sure that Judge Alito would allow the Federal Government to protect them under the Clean Water Act. The Senator acknowledged that the underlying constitutional question was the extent of Congress's power to regulate non-navigable waterways which, arguably, are not in interstate commerce. That is a thorny constitutional question. But, rather than acknowledging that Congress might have gone too far in exercising its power to regulate interstate commerce, the Senator was troubled that Judge Alito's future votes on protecting wetlands could not be predicted.

Now, I don't mean to single out any one Senator, because the same thing happened throughout the committee meeting. Senator after Senator would bring up the results of decisions by Judge Alito without any regard as to why he reached a certain result, such as their procedural disposition, the proper standard of review, the governing case law of the Supreme Court or the Third Circuit, or the legal reasoning that Judge Alito used. It was all about results.

As a final example, another Senator wanted Judge Alito to tell him that it was unconstitutional for the President to take major military action against Iran or Syria absent prior congressional authorization. He was exasperated that Judge Alito wouldn't just prejudge the question, which the Senator called ``basic,'' and say that the President could not do so. But Judge Alito gave the judge's answer. It was anything but ``basic.'' Judge Alito explained that he needed to consider the political question doctrine first, then to analyze the scope of the President's Article II War Powers, the history of the use of force absent congressional authorization--it's a very complicated history--and then apply it to the facts before him. The Senator wanted a politician's answer, a policymaker's answer. In other words, he wanted to know how that case would turn out, before it was briefed and argued. But all we should be asking, is how he would approach the question. What principles would Sam Alito apply, not what kind of results Sam Alito will deliver.

Abortion, executive power in a time of war, congressional power, State sovereign immunity, the 4th amendment,

wetlands regulation, the death penalty--many Senators have constructed a confirmation standard that revolves completely around predictions about how cases related to issues such as these will come out. We cannot allow our public policy aspirations to cloud our view of the judicial function.

If our process evolves into results-oriented voting, votes will inevitably become partisan. Indeed, it appears that it has already become partisan. The confirmations of Ruth Bader Ginsburg and Stephen Breyer speak volumes about how this results-oriented approach is, in fact, a problem centered within the democratic caucus. Both of these nominees had a long history of liberalism. Both were Democrats with ties to the political left. Ginsburg was the former general counsel to the ACLU who had advocated taxpayer funding of abortion, and Breyer had been Senator Kennedy's chief counsel and an academic promoter of an expansive regulatory state. Yet both received unanimous support from the Judiciary Committee. Justice Ginsburg received 96 votes on the floor, and Justice Breyer received 87 votes. They have served for more than a decade on the left side of the Supreme Court, exactly as Republicans suspected that they would when they voted to confirm them. But Republicans evaluated their judicial qualifications favorably, trusted their commitments to approach cases with an open mind, and gave deference to the President's choice. After all, he had won the election.

We haven fallen a long way since Justice Breyer was confirmed in 1994. The Republicans who put aside their policy goals and supported liberal Democratic nominees have been rewarded with unprecedented filibusters of qualified nominees to the lower courts and the adoption of a results-oriented confirmation standard for the Supreme Court.

I say to my Democrat colleagues--is this really the path you want to put us on? You have already dramatically increased the chance of future filibusters. Do we really want Senators to vote against any nominee who will not prejudge cases and guarantee results? I know that the most ideological activists on both sides of the spectrum would prefer that path, but do you? Does the Senate? Does the Nation?

As I said, for now this is a Democrat problem. But it is naive to think that, someday, Republicans won't decide that what is good for the goose is good for the gander. And while your ``no'' votes on Judge Alito will not keep him from the Supreme Court, I say to my Democratic friends--what if President Bush had lost the 2004 election but there were 55 Republicans in the Senate? If Republicans today were applying your results-oriented, litmus-test-based standard to a Democrat President's nominees, would it be possible to confirm anybody even vaguely as liberal as Ginsburg or Breyer. If we followed your path, the answer would clearly be ``no.'' This is a terribly dangerous road to travel.

We all know that the Supreme Court confirmation process has taken on political campaign-like elements, with television advertisements and grass roots activism. That development, plus this results-oriented approach to confirmation, represents the subtle rejection of the very idea of a non-political, independent judiciary. What else can we conclude when Senators won't vote for a nominee who even they say is qualified and has high integrity, just because they want to guarantee certain results out of the Court? That's not law. That's politics. It is the antithesis of the rule of law and constitutional government. Do we really just want policy makers in robes? I remember when President Clinton's former White House Counsel, Lloyd Cutler, testified before the Judiciary Committee. His answer was a resounding ``No.''

In conclusion, I remind the Senate of something Justice O'Connor said last September: the rule of law is ``hard to create and easier than most people imagine to destroy.'' That warning speaks directly to what we face today. If a partisan block of Senators continue down this path of politicization, it cannot be expected to apply to only one party. The ultimate loser will not be Republicans or Democrats, but the rule of law itself.

``Hard to create, and easier than most people imagine to destroy.'' My friends, please--take a step back. The man is qualified. He has high integrity. He is fair. He deserves your vote.