Floor Statements

Reserving the right to object, I was going to speak at 6 o'clock. My understanding is the minority leader and the majority leader wanted to intercede with a brief colloquy or comments. In order for my scheduling purposes, I would like to know what the

timing then might be. Can the distinguished minority leader give me some idea?

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 President I ask unanimous consent that the order for the quorum call be rescinded.

Might I inquire of the distinguished minority leader, the majority leader will be here shortly?

Mr. President, I will go ahead and in between the sandwich we will have the meat which will be the conversation between the two leaders, but I will proceed with my remarks.

Now I am told the leader is indeed on his way, so I will suspend and yield to the distinguished majority leader.

Mr. President, very briefly, before I address the primary subject of my presentation, I would like to do two things. First, I ask unanimous consent to have printed in the Record, after my remarks, the Washington Times op-ed piece by a former majority leader of the Senate, Bob Dole, dated Thursday, May 19, 2005.

Secondly, I would like to very briefly remind my colleagues of the fact that when we talk about the numbers of judges President Bush has nominated who have been confirmed, it is important for us to remember that there has never been any controversy with respect to district court judges. Almost all Presidents' district court judges are confirmed. Those are recommended for nomination usually by Members of the Senate, and it is rare, indeed, that we would object to each other's recommendations. Instead, for all Presidents there is a very high number of district court judges confirmed. And indeed, that was the case with President Clinton and has been the case so far with President Bush.

So when talking about the numbers of judges confirmed, and wondering what the fuss is all about, our constituents might want to focus on the fact that what the other side usually does not talk about is the fact that the judges that are not being confirmed are circuit court judges. These are the judges directly below the U.S. Supreme Court. There are not very many of them. They are very important. And these are the judges who are being filibustered by the minority.

How many? Well, in the case of President Bush, in his first term--and none have been confirmed now at the beginning of his second term, so this is the full story--35 of the President's 52 nominees have been confirmed. That is only a confirmation rate of two-thirds or 67 percent. And that puts that at the lowest percentage of any President in our modern history. This chart says ``ever.'' And that is what we are talking about here, the 10 filibusters and 6 other threatened filibusters last year of the President's circuit court judges who have been filibustered and, as a result, have never received an up-or-down vote. That is what is troubling us.

So I want folks to understand that instead of talking about almost 200 judges confirmed, and only a very few rejected, what we are talking about is the circuit court judges. And of those, only 35 of 52 have been confirmed. That is what this is all about. And these are the judges directly below the position of the U.S. Supreme Court.

What I want to talk about today is a very simple and yet a very momentous question. Does the Senate have the power to govern itself? Does the Senate have the power to govern itself? Specifically, can a majority of the Senate establish how we are governed? I have heard a lot of careless talk over the last few months and days. Some have charged the Senate will soon break the rules to change the rules and destroy the Senate as we know it. Some Senators claim the Senate is about to abdicate all constitutional responsibility, is becoming a rubberstamp. Others

raise the specter of lawlessness and banana republics. Worst of all, Senators speak figuratively of detonating nuclear bombs and shutting down the Senate's business.

This kind of hysteria does a tremendous disservice not only to the Senate but to our Nation as a whole. Not only are the claims blatantly false, but they add to the already unacceptable level of incivility in our political affairs. It is often said we should disagree without being disagreeable. That is a sentiment with which I wholeheartedly concur. A good first step would be for my colleagues to stop making outrageous claims that Republicans want to destroy this institution.

The reality is the Senate is now engaged in a historic debate and, I believe, a historic effort to protect constitutional prerogatives and the proper checks and balances between the branches of our Government.

Republicans seek to right a wrong that has undermined 214 years of tradition--wise, carefully thought out tradition. The fact that the Senate rules theoretically allowed the filibuster of judicial nominations, but were never used to that end, is an important indicator of what is right and why the precedent of allowing up-or-down votes is so well established. It is that precedent that has been attacked and which we seek to restore.

Fortunately, the Senate is not powerless to prevent a minority from running roughshod over its traditions. It has the power--indeed, I would say the obligation--to govern itself. As I will demonstrate today, that power to govern itself easily extends to the device that has come to be known as the constitutional option.

The Constitution is clear about the scope of the Senate's power to govern itself. Article I, section 5, clause 2 of the Constitution states that each House may determine the rules of its proceedings.

The Supreme Court of the United States has rarely interpreted this clause, but one case is important for our purposes, the case of the United States v. Ballin, a case decided in 1892. That case dealt with the power of the majority of the House of Representatives to make rules, and it contains two holdings that bear on our situation today.

First, the Supreme Court held that the powers delegated to the House or the Senate through article I, section 5, clause 2 are powers held by a simple majority of the quorum. The Constitution states that a majority of Members constitutes a quorum, and the Supreme Court, therefore, held that ``when a majority are present the house is in a position to do business.''

The Supreme Court continued:

All that the Constitution requires is the presence of a

majority.

Thus, a majority is all the Constitution requires for us to make rules, to set precedents, and to operate on a day-to-day basis. The Supreme Court made this clear.

Second, the Supreme Court held that the power to make rules is not one which, once exercised, is exhausted. It is a continuous power, always subject to being exercised by the House. By ``House,'' the court means the House of Representatives or the Senate. The import of this statement is crucial for present purposes. The power of the majority of Senators to define Senate procedures is one that exists at all times, whether at the beginning, the middle, or the end of Congress.

The constitutional background is simple and uncomplicated. We can govern ourselves. We can do it by majority vote, and we can do it at any time. Let me repeat: The Supreme Court has held that we have the right to govern ourselves, that we can do it by majority vote, and we can do it any time.

Let's look at how the Senate employs its constitutional power to govern itself. There are four basic ways that the Senate does so: In standing rules, precedents, standing orders, and in rulemaking statutes. I will discuss each briefly in turn.

First, the Senate has adopted standing rules to govern some but not all Senate practices and procedures. I have seen much confusion in the press and even, sadly, in this body about those standing rules. Some argue that the standing rules are the be-all and end-all of Senate practice and procedure. The confusion might be understandable outside the Senate, but Senators know that these rules are but one aspect of the overall set of tools, the broader rules that the Senate uses to govern itself.

That brings us to the second way the Senate exercises its constitutional power: the creation of precedents. Precedents are created whenever the Presiding Officer rules on a point of order, when the Senate sustains and/or rejects an appeal of the Presiding Officer's ruling on a point of order, or when the Senate itself rules on a question that has been submitted to it by the Presiding Officer.

As former Parliamentarian and Senate procedural expert Floyd Riddick has said:

The precedents of the Senate are just as significant as the

rules of the Senate.

Let me repeat what Mr. Riddick said:

The precedents of the Senate are just as significant as the

rules of the Senate.

Indeed, as we will see, precedents have sometimes been created that directly contradict the Standing Rules of the Senate. I will return to that point later, but I want everyone to remember what Mr. Riddick said.

A third way that the Senate exercises its constitutional power is through standing orders which can be adopted by legislation, Senate resolutions, or run-of-the-mill unanimous consent agreements. It is worth pausing to note that the Senate regularly overrides the standing rules and precedents of the Senate through unanimous consent agreements. You saw that a few minutes ago. Our leaders get together and decide, for example, to change the time to hold a cloture vote, even though rule XXII mandates that the vote shall occur 1 hour after the Senate comes into session on the second day after the cloture petition is filed. Yet the leaders move the votes in direct contradiction of the rules.

Of course, a unanimous consent agreement is formalistically unanimous. But that temporary rule change, if you want to call it that, is done completely outside the standing rules.

How can we do this? How can the Senate ignore the Standing Rules of the Senate? The answer is simple. It goes to the essence of the situation before us today. As the Supreme Court held, the Constitution gives the Senate the power to make rules and govern itself on a continuous basis. We are not held hostage to the standing rules, nor are we required to go through the cumbersome process of amending the standing rules when it is necessary to get something done. This has always been true.

A fourth way that the Senate exercises its constitutional power is through rulemaking statutes. For example, for 30 years the Budget Act has been placing severe restrictions on the rights of Senators to debate. Indeed, the Congressional Research Service has identified 26 rulemaking statutes that somehow limit the ability of individual Senators to debate and/or amend legislation. Think about that for a moment. We hear much pontificating on this floor about the supposedly sacred and untouchable right of Senators to debate on an unlimited basis. Yet, arguably, our most important function, that of ensuring that government services are budgeted and receive funding, is subject to carefully crafted restrictions of that right of debate. We have 50 hours of debate, followed by a majority vote, period. For generations, Senators have judged some limits on debate are necessary just as a matter of common sense. This is one of them.

Parenthetically, no matter how many times a few Senators say otherwise, this controversy before us now has nothing whatsoever to do with free speech, as the minority leader himself has acknowledged. This dispute has never been about the length of debate. It is about blocking judicial nominees. We will have plenty of debate on all of the nominees, as much as anyone wants.

I would like to move to another important aspect of this discussion: The role of tradition and norms of conduct in the day-to-day functioning of the Senate. This is crucial. Although it is frequently said that the unique features of the Senate are individual Senator's rights to demand and amend, there is another even more central aspect to Senate procedure. As I see it, the overriding feature of the Senate is the mutual self-restraint and respect for the settled norms of this body. I would like to consider a few examples.

Senators limit their speech on an informal basis every day. We cut short

remarks so that others can speak. We did that a few moments ago. We acquiesce in unanimous consent agreements that will have the effect of denying ourselves any chance to speak on a subject. We decline to object to procedural unanimous consent requests even though we might have good reason to want to slow down Senate business. We acquiesce in our leader's floor schedule. We work with bill managers to limit amendments so that the Senate can function, so that each individual Senator's rights do not become an impediment to the task of governing. Senators have rights, but we also have obligations to each other and to the Nation.

So we limit our rights on the basis of mutual respect and a belief in good government but, candidly, also out of fear of retaliation. If I assert my rights too forcefully, I not only disrespect my colleagues, but I threaten my own public policy goals. The result is a complicated mutual truce of sorts that allows us to do the people's business in an orderly way. In a word, we gain institutional stability.

In short, the Senate is institutionally stable, not just because of rules, precedents, or the standing order, or the rulemaking statutes I discussed. The body is stable because we respect each other's prerogatives. We understand that any breach of the truce will produce a reaction. And it is that basic understanding of physics, action, and reaction, coupled with a genuine goodwill that allows us to function even with the many individual rights that we possess. The rights only work because we so often choose not to exercise them. So it is not just rights that define the Senate but also restraint.

Which brings us back to the filibuster of judicial nominations. It is certainly the case that the Standing Rules of the Senate do countenance the filibuster of judicial nominations, but it is equally the case that the longstanding norms of the Senate do not. Until 2003, no judicial nominee with demonstrable support of a majority of Senators had ever been denied an up-or-down vote on the Senate floor through a filibuster. Even on the rare occasions where there were attempts, they failed on a bipartisan basis. And why? Because the filibuster of judicial nominations used as a minority veto was not part of our tradition and never had been. Again, out of respect for fellow Members, for the President, and for the judiciary, and out of a recognition of the long-term impact of such tactics, the Senate had always declined to march down this path.

When I entered the Senate in 1995, I had grave concerns about some of more activist nominees that President Clinton sent to us.

But I listened to Chairman Orrin Hatch, Majority Leader Trent Lott, and many others. They taught that we had a longstanding Senate tradition against blocking Senate nominations by filibuster. So I joined Democrats and Republicans alike in making sure there were no filibusters.

Ironically, some point to those successful cloture votes for confirmed judges and claim those nominees were filibustered. Well, all that establishes is that both parties ensured a supermajority to end debate, precisely to adhere to historical norms. We took the steps to ensure those judicial nominees who reach the Senate floor received the fair up-or-down votes to which they were entitled. Again, the standing rules might have permitted such obstruction, but the Senate norms and traditions did not.

To the extent the rules technically permitted such obstruction, the traditions had rendered the power obsolete and inert. In common law, there is a doctrine called desuetude, which means that obsolete or unenforced laws shall not have effect in the future even if not formally repealed. In other words, a law that is de facto unenforced may be treated as ineffective de jure as well.

We faced a similar situation in the Senate. In fact, our tradition was our rule. To minimize the traditions of this body is to display a naive and legalistic misunderstanding of the institution. To say we are a body of traditions is meaningless if we do not acknowledge that our traditions have content and meaning. There can be no question that the filibusters of the last Congress broke that Senate tradition and, therefore, the set way this body had governed itself. By breaking traditions of the Senate, members of the minority should have known they would force the Senate to react. Tradition should never change without consensus, and a consensus requires, at a minimum, a majority. The question is, what are we to do when norms and traditions are changed by the minority? What do we do when there is no consensus, just a minority with a determination to exploit dormant rules to further partisan end? The Senate can do one of two things: Let our traditions be transformed and permit rule by minority or we can insist that the Senate maintain traditional norms and take action to protect them.

That brings us to the constitutional option itself. The constitutional option is nothing more than the Senate governing itself, as the Constitution provides, by acts of majorities of Senators. The Senate has been in this situation before 4 times over a 10-year period, when the Senate majority reacted to a minority using rules that had not traditionally been used to obstruct Senate business. My colleague Senator McConnell will discuss each instance in depth. I address one in particular by way of illustration.

In 1977, two Senators attempted to block a natural gas deregulation bill after cloture had already been invoked. They were succeeding through a strategy of ``filibuster by amendment.'' Post-cloture debate time had lapsed, but the obstructing Senators could still call up amendments, force quorum calls, and force rollcall votes on the amendments. Rule XXII prohibited dilatory or nongermane amendments, but Senate procedure did not rule these amendments out of order. True, a Senator could raise a point of order against one of these dilatory amendments, but any favorable ruling could be appealed. A rollcall vote could then be demanded on that appeal. And once that rollcall vote began, the obstructing Senators could accomplish their slowdown in a different way--filibuster by rollcall vote. To make matters worse, in 1977, before any point of order could even be made against an amendment, the amendment in question had to be read by the clerk. By objecting to the routine courtesy of waiving the reading of the amendment, the obstructing Senators delayed the business of the Senate even further.

That all may seem complicated, but there is one undeniable truth about what these obstructing Senators were doing. It was all completely permitted under the standing rules and the precedents of the Senate. At the same time, however, these tactics were in violation of settled Senate norms and practices. So what was the Senate to do?

The answer came when the then-Democratic majority leader made the decision these new tactics were dilatory, in violation of the traditional norms, and could no longer prevail. He asked then-Vice President Walter Mondale to sit in the chair in his capacity as President of the Senate. The Democratic majority leader made a point of order that ``when the Senate is operating under cloture, the chair is required to take the initiative under Rule XXII to rule out of order all amendments that are dilatory or which on their face are out of order.'' Mondale sustained the point of order, even though it had no foundation in the rules or precedents of the Senate. Another Senator appealed the Mondale ruling, and the Democratic majority leader moved to table. The Senate then voted to table the appeal. In doing so, the Senate created a new precedent. But that precedent ran directly contrary to the Senate's longstanding procedures which had required Senators to raise points of order to enforce Senate rules. Under the new precedent established by the Senate, no such point of order would be necessary.

Again, this may seem complicated, but these small changes had dramatic effects. The Democratic majority leader began to call up each of the dilatory amendments so the Chair could rule them out of order. One by one, the Chair obliged. Under normal circumstances, an appeal would have been in order, but the majority leader exercised his right of preferential recognition to block any appeal. He quickly called up every remaining amendment, Vice President Mondale ruled them out of order, and all of the amendments were disposed of.

Nearly 20 years later, the Senator who orchestrated those events in 1977

explained to the Senate what he had done. He explained:

I asked Mr. Mondale, the Vice President, to go please sit

in the chair; I wanted to make some points of order and

create new precedents that would break these filibusters. And

the filibuster was broken--back, neck, legs, and arms. So

there should be no confusion about what happened on that day.

That was the constitutional option in action. The Senate faced a situation where a minority of Senators was frustrating Senate business in an untraditional way. The majority wished to proceed. The majority did not propose any formal rules change, refer the proposal to the Rules Committee, wait for its action, and then bring it to the floor under rule XXII's cloture provisions for such rule change proposals. That procedure was not followed. Instead, the majority leader recognized that the Senate had the constitutional power to bypass that route, which is exactly what the Senate did.

As I mentioned earlier, that same Democratic leader would create several other precedents while serving as majority leader, in each case because he concluded the existing standing rules and precedents of the Senate were inadequate, and that a majority of Senators had the power to alter the way the Senate governs itself. In 1979, for example, a new precedent was created to prevent legislation on appropriations bills, in direct contravention of the text of the standing rules at that time. In 1980, the Senate used the constitutional option to eliminate the ability to debate and filibuster the motion to proceed to a particular item on the Executive Calendar. That situation is remarkably similar to the one we face today. In 1987, in a complicated set of maneuvers, the Senate created new precedents to limit minority rights and declare that certain dilatory tactics during the morning hour were out of order.

I will not examine each of these historical events in detail today. Instead, I ask unanimous consent to have printed in the Record a copy of the policy paper prepared by the Republican Policy Committee, which I chair, which examined each of these events in great detail.

These precedents--in 1977, 1979, 1980, and in 1987--bear directly on the situation the Senate faces today. In those instances, Senate business was being obstructed by dilatory tactics that had not traditionally been employed but which were permitted under the rules. The Senate faced the same conundrum as it does today: Must the Senate permit rule by the minority, or can it exercise its constitutional power to restore traditional practices? In

each case, the Senate did the latter. It created precedents that altered the practices and procedures and, in some cases, operation of the standing rules themselves in order to ensure that tradition was upheld.

What did not happen as a result of these earlier exercises of the constitutional option?

Well, first, the Senate did not collapse or become ``like the House of Representatives,'' which is the fear of many Senators today.

Second, Senators' speech rights are just as strong as ever. Nor were Americans' free speech rights injured, as some Senators say will happen.

Third, minority rights were not destroyed. The Senate minority is as vibrant as ever and has been remarkably successful in obstructing the business of the Senate, whether we are talking about the Energy bill, medical liability lawsuit reform, asbestos reform, tax relief, or other issues.

Before I close, I would like to address concerns that some of my conservative friends have recently expressed. Some are fretting that Republicans are taking a dangerous step by restoring the traditional up-or-down vote standard for judicial nominees. My friends argue that Republicans may want to filibuster a future Democratic President's nominees. To that I say, I do not think so. And even if true, I am willing to give up that tool. It was never a power we thought we had in the past, and it is not one likely to be used in the future, unless that longstanding tradition is abdicated.

I know some insist we will someday want to block judges by filibuster, but I know my colleagues. I have heard them speak passionately, publicly and privately, about the injustice done to filibustered nominees. I think it highly unlikely that they will shift their views simply because the political worm has turned, again, if we sustain the tradition of the Senate. So I say to my friends what you say that we Republicans are losing is in fact no loss at all.

My friends also argue that the legislative filibuster will be next. I have even seen some media outlets insist that this exercise of the constitutional option for judicial filibusters will automatically apply to the legislative filibuster. This is completely false. Moreover, no Republican Senator wants to eliminate the legislative filibuster and few, if any, Democrats do. Some once did, but they recently recanted. In fact, the junior Senator from California said she was ``wrong . . . totally wrong'' ever to have thought otherwise.

Everyone here knows that political fortunes change. It is one thing to give this supposed ``right'' that had never been used, such as this filibuster of judicial nominees. It is quite another to be so shortsighted as to eliminate such a powerful legislative tool. In fact, the first vote I ever cast as a Senator was to preserve the legislative filibuster, and I was in the majority.

But I think it is important to acknowledge, in the interest of intellectual honesty, that if the majority wanted to eliminate the filibuster for all matters, including legislation, it would have certainly had that power. It would be wildly imprudent, contrary to tradition, generally destructive of the institution, but that is what the Constitution provides--the power of the Senate to govern itself.

In closing, I say to my colleagues what we are contemplating doing is in the best traditions of the Senate. We are restoring our consensus practices for managing the judicial confirmation process using a tool that has been repeatedly used and has always been available. I look forward to completing this debate so that we can start voting on individual judicial nominees and turn to the pressing legislative matters of the Senate.

Exhibit 1

[From the Washington Times, May 19, 2005.]

A Unique Case of Obstruction

(By Senator Bob Dole)

In the current debate over judicial nominations, some

commentators claim Republicans such as myself are

misrepresenting history by suggesting the current filibuster

tactics of the Democrats are unprecedented.

These commentators cite the 1968 nomination of Abe Fortas

to be chief justice of the United States as an example of how

Republicans once attempted to block a judicial nomination on

the Senate floor. I welcome the opportunity to respond to

this claim, because the more Americans learn about the

history of judicial nominations, the more they will realize

how terribly off-track our confirmation process has become.

In 1968, President Lyndon Johnson sought to elevate his

longtime personal lawyer, then-Associate Supreme Court

Justice Abe Fortas, to be chief justice. I would not be

elected a senator for a few more months, but followed the

news surrounding this nomination closely.

There were problems with the Fortas nomination from the

beginning. Not only did he represent the most aggressive

judicial activism of the Warren court, but it soon became

apparent Justice Fortas had demonstrated lax ethical

standards while serving as an associate justice.

For example, it emerged Fortas had taken more than $15,000

in outside income from sources with interests before the

federal courts. This was more than 40 percent of his salary

at the time, or about $80,000 in today's dollars.

More fundamentally, Fortas never took off his political hat

when he became a judge. While serving as a Supreme Court

justice, Fortas continued serving as an informal political

adviser to the president and even involved himself in Vietnam

War policy. It later emerged Fortas had discussed pending

cases with the president, an obvious violation of

professional ethics.

In fact, less than a year after his nomination as chief

justice was withdrawn by President Johnson, Justice Fortas

was forced to resign from the Supreme Court due to ethical

breaches.

The claim Fortas was not confirmed due to a ``filibuster''

is off-base. A filibuster, commonly understood, occurs when a

minority of senators prevents a majority from voting up-or-

down on a matter by use or threat of permanent debate.

That simply did not happen with Fortas, where the Senate

debated the nomination's merits quite vigorously. Senators

exposed the ethical issues involved and the widespread belief

the vacancy had been manufactured for political purposes.

They sought to use debate to persuade other senators the

nomination should be defeated.

After less than a week, the Senate leadership tried to shut

down debate. At that time, two-thirds of the senators voting

were needed to do so, yet only 45 senators supported the

motion. Of the 43 senators who still wished to debate the

nomination, 24 were Republicans and 19 were Democrats.

President Johnson saw the writing on the wall--that Fortas

did not have 51 senators in support of his nomination--so he

withdrew the nomination before debate could be completed.

The events of 37 years ago contrast markedly with those the

Senate faces today:

(1) Fortas lacked majority support when President Johnson

withdrew his nomination. Today, Senate Democrats block up-or-

down votes on judicial nominees who are supported by a

majority of senators.

(2) Justice Fortas was politically associated with

President Johnson and eventually resigned from the Supreme

Court under an ethical cloud. No such charges have been made

against President Bush's nominees.

(3) The Senate debated the Fortas nomination only for

several days before Johnson withdrew the nomination, versus

the four years some of President Bush's nominees have been

pending. It's clear the Democrats today have no desire to

persuade, and have even complained further debate is a

``waste of time.''

(4) Fortas' support and opposition were bipartisan, with

Republicans and Democrats on both sides of the question.

Today, the controversy is purely partisan--with only

Democratic senators, led by their leader Harry Reid, opposing

an up-or-down vote.

I recall two judicial nominations of President Clinton's

particularly troubling to me and my fellow Republican members

when I was the Republican Leader in the Senate. Despite our

objections, both received an up-or-down vote on the Senate

floor. In fact, I voted to end debate on one of these

nominees while voting against his confirmation. Republicans

chose not to filibuster because it was considered

inappropriate for nominations to the federal bench.

By creating a new 60-vote threshold for confirming judicial

nominees, today's Senate Democrats have abandoned more than

200 years of Senate tradition.

For the first time, judicial nominees with clear majority

support are denied an up-or-down vote on the Senate floor

through an unprecedented use of the filibuster. This is not a

misrepresentation of history; it's a fact.

Mr. President, I rise today to introduce the Preserving Patient Access to Physicians Act of 2005. This bill updates Medicare physician reimbursement for 2006 and 2007 according to the recommendations of the Medicare Payment Advisory Committee (MedPAC). There would be a 2.7 percent increase to the physician payment schedule for 2006 and using the Medicare Economic Index update for the price of inputs, a 2.6 percent increase in 2007.

If the schedule is left alone, the consequences for physicians will be a negative. Instead of the 1.5 percent payment increase for 2004 and 2005 which I helped author in the Medicare Modernization Act, there would be a 4.3 percent decrease.

The sustainable growth rate (SGR) formula used to calculate physician payment depends on a number of factors: the number of Medicare fee-for- service beneficiaries, the volume and type of services provided, the price of services rendered, changes in regulations and laws. The formula also incorporates other factors such as prescription-drug prices and the gross domestic product. The SGR was intended to control expenditures by basing a given year's physician payment rate on the previous year's performance. Instead, it creates an arbitrary deficiency that continues to force Congress to intervene.

There is a debate going on, her CMS has the authority to alter the SGR formula by removing drugs. Setting that aside, though, the fact of the matter is that without Congress stepping in to provide for a physician payment update, it probably will not occur. My Senate colleagues and I have talked for many years about ensuring adequate physician payment because current and past administrations have failed to modify the formula. This formula is not doing what it was intended to do. Therefore, I believe we need to scrap it and start again. My bill is a starting point and proposes amounts for an update, but I would really like to see us go all the way back to the drawing board and answer the fundamental question of how to pay physicians appropriately for their services.

I want doctors to be able to continue to assist our nation's seniors, but it is unfair to expect them to practice and to have their reimbursement decrease. Practice expenses, the costs of medical technology, wages for administrative and clinical staff, and medical liability premiums are all increasing while physicians are on track to receive a payment decrease. They cannot afford to continue practicing medicine while receiving reimbursements that do not allow them to even break even. Many are retiring early or threatening to limit the number of Medicare patients they treat.

The service of physicians all across the country is vital to our seniors. Almost half a million doctors provide treatment to the 42 million people under the Medicare program. Physicians are often the gateway for access to other medical services and treatments. Not being able to consult a physician results in delayed referrals, delayed treatment and delayed care. In sum, the quality of health care continues to erode and our system does not operate efficiently.

Should the scheduled physician reimbursement cuts take effect, the result will be a $710 million decrease in payments to doctors in Arizona over 2006 through 2010. I have heard from virtually every physician with whom I have spoken about the constraints that inadequate payments are placing on their practice of medicine. While many work for hospitals and health systems, in the rural areas, a large number are solo practitioners or in small practices. For these physicians, poor payment hits their practice especially hard.

If Medicare rates for doctors are inadequate, many other health care payors will also lack for adequate reimbursement. Other payors such as Medicaid and private insurers often base their payments on Medicare rates. While this bill only addresses Medicare physician payment, the problem of access to services will be compounded if physicians receive reimbursement from other payors that is below the appropriate levels.

The cost of addressing the physician payment update is not cheap. Estimates on the cost of this bill are between $25 billion to $35 billion over five years. I await an official score from the Congressional Budget Office. But I point out, that doing nothing to solve this problem may cost us more: more money, more health and access problems, and more physicians leaving the profession. Although this legislation provides for a two year update, we must develop a long range mechanism to pay physicians appropriately.

I am grateful for the support of this legislation by my colleague, Senator

Stabenow of Michigan, and encourage my other colleagues to support the Preserving Patient Access to Physicians Act of 2005.

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

Mr. President, I rise today to introduce the Streamlined Procedures Act. This legislation will reduce delays in federal courts' review of habeas corpus petitions filed by State prisoners.

Currently, many Federal habeas corpus cases require 10, 15, or even 20 years to complete. These delays burden the courts and deny justice to defendants with meritorious claims. They also are deeply unfair to victims of serious, violent crimes. A parent whose child has been murdered, or someone who has been the victim of a violent assault, cannot be expected to ``move on'' without knowing how the case against the attacker has been resolved. Endless litigation, and the uncertainty that it brings, is unnecessarily cruel to these victims and their families. As President Clinton noted of the 1996 habeas-corpus reforms, ``it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.'' For the sake of all parties, we should minimize these delays.

The 1996 habeas corpus reforms were supposed to prevent delays in Federal collateral review. Unfortunately, as the Justice Department noted in testimony before the House Crime Subcommittee in March 2003, there still are ``significant gaps [in the habeas corpus statutes] . . . which can result in highly protracted litigation, and some of the reforms that Congress did adopt in 1996 have been substantially undermined in judicial application.''

The Streamlined Procedures Act is designed to fill some of these gaps. First, the SPA imposes reasonable but firm time limits on court of appeals' review of Federal habeas petitions. It requires a court of appeals to decide a habeas appeal within 300 days of the completion of briefing, to rule on a petition for rehearing within 90 days, and to decide a case on rehearing within 120 days before the same panel, or 180 days before an en banc court.

As generous as these time limits are, they would make a real difference in some cases. In Morales v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth Circuit took 3 years to decide the case after briefing was completed. And after issuing its decision, the court took another 16 months to reject a petition for rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the case--and then waited another 27 months to reject a petition for rehearing, for a total delay of almost 4\1/2\ years after appellate briefing had been completed. This is too long for either defendants or victims to have to wait.

The SPA also bars courts of appeals from rehearing successive- petition applications on their own motion--current law bars petitions for rehearing or certiorari for such applications, but some courts have interpreted this restriction to not preclude rehearing by the court of appeals sua sponte. The SPA also bars Federal courts from tolling the current 1-year deadline on filing habeas claims for reasons other than those authorized by the statute, and clarifies when a State appeal is pending for purposes of tolling the deadline.

In addition, the SPA creates uniform, clear procedures for review of procedurally improper claims. Current judicial caselaw creates a series of different standards for addressing claims in a Federal petition that were not exhausted in state court, that were presented in a late amendment, or that were procedurally defaulted. The SPA sets a uniform standard, allowing procedurally improper claims to go forward only if they present meaningful evidence that the defendant did not commit the crime, with all other improper claims barred.

The SPA also expands and improves the special expedited habeas procedures authorized in chapter 154 of the United States Code. These procedures are available to States that establish a system for providing high-quality legal representation to capital defendants. Chapter 154 sets strict time limits on Federal court action and places limits on claims. Currently, however, the court that decides whether a State is eligible for chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these courts

have proven resistant to chapter 154. The SPA would place the eligibility decision in the hands of a neutral party--the U.S. Attorney General, with review of his decision in the DC Circuit, which does not hear habeas appeals. The SPA also makes chapter 154's deadlines more practical by limiting the claims that can be raised under its provisions to those presenting meaningful evidence that the defendant did not commit the crime, and by extending the time for a district court to review and rule on a chapter 154 petition from 6 months to 15 months.

The SPA also eliminates duplicative Federal review of minor sentencing errors that already have been judged by State courts to be harmless or not prejudicial. It limits Federal courts to asking only whether the type of sentencing error at issue is one that could not have been harmless.

The SPA also applies the deferential review standard enacted in the 1996 reforms to all pending cases. Remarkably, some current habeas petitions still are not governed by the 1996 reforms. The SPA corrects this oversight, ending the need to apply the pre-1996 legal regime to any cases that still are being litigated today.

And finally, the SPA limits judicial review of State clemency and pardon decisions, guaranteeing that a State won't be sued for formalizing and regularizing its pardon procedures; it limits defendants' ability to ask Federal courts for investigatory funds without allowing prosecutors to be present and rebut defense allegations; and it guarantees a crime victim's right to be notified of, to be present at, and to speak at a criminal defendant's Federal habeas hearing.

To many people, the issues addressed by the SPA--petitions for rehearing, State remedies exhaustion, procedural default, chapter 154, AEDPA deference--may seem abstract and remote. For surviving crime victims, however, these matters can be very concrete.

A case recently in the news illustrates the importance of these concerns: that of the man who murdered three member of the Ryen family and Christopher Hughes in Chino Hills, California in June 1983. The killer in that case was an escaped convict from a nearby prison. He has since admitted that he spent 2 days hiding in a vacant house next to the home of the Ryen family. After several unsuccessful telephone calls to friends asking them to give him a ride, the killer took a hatchet and buck knife from the vacant house and set out to find a vehicle. The California Supreme Court describes the rest of what occurred, 53 Cal.3d 771, 794-95:

On Saturday, June 4, 1983, the Ryens and Chris Hughes

attended a barbecue in Los Serranos, a few miles from the

Ryen home in Chino. Chris had received permission to spend

the night with the Ryens. Between 9 and 9:30 p.m., they left

to drive to the Ryen home. Except for Josh [the Ryen's 8-

year-old son], they were never seen alive again.

The next morning, June 5, Chris's mother, Mary Hughes,

became concerned when he did not come home. A number of

telephone calls to the Ryen residence received only busy

signals. [Mary's husband] William went to the Ryen home to

investigate.

William observed the Ryen truck at the home, but not the

family station wagon. Although the Ryens normally did not

lock the house when they were home, it was locked on this

occasion. William walked around the house trying to look

inside. When he reached the sliding glass doors leading to

the master bedroom, he could see inside. William saw the

bodies of his son and Doug and Peggy Ryen on the bedroom

floor. Josh was lying between Peggy and Chris. Only Josh

appeared alive.

William frantically tried to open the sliding door; in his

emotional state, he pushed against the fixed portion of the

doors, not the sliding door. He rushed to the kitchen door,

kicked it in, and entered. As he approached the master

bedroom, he found Jessica on the floor, also apparently dead.

In the bedroom, William touched the body of his son. It was

cold and stiff. William asked Josh who had done it. Josh

appeared stunned; he tried to talk but could only make

unintelligible sounds.

William tried to use a telephone in the house but it did

not work. He drove to a neighbor's house seeking help. The

police arrived shortly. Doug, Peggy, Chris, and Jessica were

dead, the first three in the master bedroom, Jessica in the

hallway leading to that bedroom. Josh was alive but in shock,

suffering from an obvious neck wound. He was flown by

helicopter to Loma Linda University Hospital.

The victims died from numerous chopping and stabbing

injuries. Doug Ryen had at least 37 separate wounds, Peggy

32, Jessica 46, and Chris 25. The chopping wounds were

inflicted by a sharp, heavy object such as a hatchet or axe,

the stabbing wounds by a weapon such as a knife.

The escaped prisoner who committed this crime was caught 2 months later. Again, he admitted that he stayed in the house next door, but denied any involvement in the murders. According to the California Supreme Court, however, the evidence of defendant's guilt was ``overwhelming.'' Not only had the defendant stayed at the vacant house right next door at the time of the murders; the hatchet used in the murders was taken from the vacant house; shoe prints in the Ryen house matched those in the vacant house and were from a type of shoe issued to prisoners; bloody items, including a prison-issue button, were found in the vacant house; prison-issue tobacco was found in the Ryen station wagon, which was recovered in Long Beach; and defendant's blood type and hair matched that found in the Ryen house. Defendant was convicted of the murders and sentenced to death in 1985, and the California Supreme Court upheld the defendant's conviction and sentence in 1991.

The defendant's Federal habeas proceedings began shortly thereafter, and they continue to this day--22 years after the murders. In 2000, the defendant asked the courts for DNA testing of a blood spot in the Ryen house, a t-shirt near the crime scene, and the tobacco found in the car. Despite the overwhelming evidence of his guilt, the courts allowed more testing. All three tests found that the blood and saliva matched defendant, to a degree of certainty of one in 320 billion. Blood on the t-shirt matched both the defendant and one of the victims.

One might have thought that this would end the case. Not so. In February 2004, the en banc Ninth Circuit sua sponte authorized defendant to file a second habeas petition to pursue theories that police had planted this DNA evidence. Since the evidence had been in court custody since 1983, the Ninth Circuit's theory not only required police to plan and execute a vast conspiracy to plant the evidence--it also required them to foresee the future invention of the DNA technology that would make that evidence useful in future habeas proceedings.

The Streamlined Procedures Act would have made a difference in this case. For example, it would have eliminated the need to return to state court to exhaust new claims, reducing the delay in the Federal proceedings by nearly 3 years. It would have applied the 1996 reforms to this case, allowing deferential review of state factual findings and legal analysis. It would have placed time limits on Federal appeals court decisionmaking and grants of rehearing. And it would have prevented the court of appeals from ordering rehearing of the defendant's successive-petition application on its own motion, thereby barring the current round of O.J. Simpson-style conspiracy-theory litigation. The SPA could have brought this case to closure a long time ago.

And this case deserves to be brought to closure. One cannot underestimate the grievous impact that crimes like these have on the families of the victims. Mary Hughes, the mother of 11-year-old Christopher Hughes, who was sleeping over at the Ryen house on the night of the murders, has spoken movingly of the loss of her son:

Christopher Hughes loved his bicycle, swimming and showing

off for his mom and dad.

The 11-year-old's bedroom was filled with swimming trophies

and Star Wars collectibles. He was a handsome kid who was

chased by a lot of fifth-grade girls on the playground during

recess at Our Lady of the Assumption in Claremont.

He wasn't short on friends, either.

Christopher really liked Joshua Ryen, an 8-year-old boy who

lived up the street from him. They would trick-or-treat

together on Halloween, play together, and their parents were

good friends.

On the night of June 4 1983, Christopher asked his parents

if he could spend the night at the Ryen house.

It was a decision that would change the Hughes family

forever.

[Mary Hughes'] son Christopher would have been 32 today.

She sometimes wonders who he would have been, what he

would've looked like, and even during her most solemn

moments, she wonders what life would've been like if Cooper

had never gone to the Ryens' house.

``It never really ever gets better,'' she said. ``Kevin

Cooper robbed him of the chance to be a child, to attend his

first dance, to have a girlfriend, and to one day get married

and

have kids of his own. He robbed me of my child.''

Mary Ann Hughes does have one special memory of her son she

holds close to her heart. A week before his death, she took

him to see the movie ``Return of the Jedi.''

``He was so happy. It was such a great day,'' she said.

``It seems like such a small thing, but it's the best memory

I have of both of us.'' (Sara Carter, ``He Was at the

Beginning of His Life When He Died,'' Inland Valley Daily

Bulletin, February 9, 2004.)

In light of how much the surviving family already has suffered, one might expect that all participants in the criminal proceedings would take great concern and care for the feelings of the family. Unfortunately, that has not been the case. The Ninth Circuit has proved willing to turn the appeals into a three-ring circus, allowing continual pursuit of the most frivolous conspiracy theories. The impact of these now 22 years of trial and appeals on the victims' families has been predictable: they feel that they and the victims have become irrelevant to the entire process. Shortly after the Ninth Circuit authorized an additional round of appeals in this case, a local newspaper described what the families have experienced:

For nearly 20 years, since convicted murderer Kevin Cooper

was sentenced to death for the 1983 slayings of a Chino Hills

family and their young houseguest, families of the victims

have waited silently for the day the hand of justice would

grant them peace.

For those families, the last two decades have seemed like

an eternity.

``I lived through a nightmare,'' said Herbert Ryen, whose

brother Douglas Ryen was among those killed, along with

Douglas' wife Peggy, their 11-year-old daughter Jessica, and

her 10-year-old friend Christopher Hughes.

[O]n the morning of Feb. 9, [2004,] the day of Cooper's

scheduled death by lethal injection, word came down that the

9th U.S. Circuit Court of Appeals had decided to block the

execution.

[T]o the Ryen and Hughes families, the stay just hours

before Cooper's scheduled execution at San Quentin State

Prison was nearly incomprehensible. The indefinite delay has

left them in a sort of emotional limbo, questioning whether

the legal system had abandoned them.

``The bottom line is that this whole issue is not about

Kevin Cooper . . . it is about the death penalty,'' said Mary

Ann Hughes, the mother of Christoper Hughes. ``We're so mad--

mad because we feel as though the courts turned their back on

my son.''

``They (Court of Appeals) are holding us hostage,'' Hughes

said.

For Herbert Ryen and his wife Sue, waiting for justice has

taken an equally destructive toll on their lives. The torment

their family experienced following the murders, and the

subsequent years lost to depression, could never be replaced,

he said from his home in Arizona.

Mary Ann Hughes said the pain her family suffers is only

amplified by the seemingly continuous bombardment of

celebrities campaigning against Cooper's execution. She

wonders who will cry out in anger for the victims.

One former television star and anti-death penalty activist,

Mike Farrell of the popular series MASH, spoke of the case on

a recent news program.

``He claimed that we must feel relieved since the stay of

execution was granted,'' Hughes said. ``How can (Farrell)

have the audacity to say he knows what we are feeling?''

Farrell could not be reached for comment.

Since Christopher's death, the Hughes family has chosen to

remain out of the media spotlight. And until recently, their

efforts were successful, due largely to the support of their

surviving children, family members and a strong network of

close friends, Hughes said.

The court's decision Feb. 9 has re-opened the case, forcing

the families to re-live the nightmare they have fought so

hard to leave behind, they say.

Mary Ann Hughes is left wondering about other families who

have had loved ones taken from them, about the legal battles

they have had to endure in their own quests for justice.

She thinks of the parents of Samantha Runion, the 5-year-

old Orange County girl who was murdered in 2003, and of what

her family could face in the next 20 years.

For Bill Hughes, the anguish is intensified--he will

forever know the pain of walking into the Ryens' home the

morning after the murders, and finding his son, dead and

covered in blood near the Ryens' bedroom door. He was also

the first to discover Joshua Ryen, also drenched in blood,

clinging to life.

``It is a memory he will always have to live with,'' Mary

Ann Hughes said.

Indeed, time has been no friend to the victims' families,

as California's recent appellate court ruling has further

denied them closure, she added.

``What this decision has done to our legal system in

California is unthinkable,'' she said. ``Somewhere along the

line, the courts have got to uphold the law, and we will wait

it out until they do.'' (Sara Carter, ``Families of Murder

Victims Wait for Justice in Cooper Case,'' Inland Valley

Daily Bulletin, February 24, 2004.)

Mary Hughes' story demonstrates why the use of Federal judicial power must be measured and fair it illustrates the heavy cost imposed by judicial excess.

No statement, however, better explains the gross cruelty caused by allowing endless litigation and appeals in a case like this than that given by one of the surviving victims of the 1983 attack. Josh Ryen was 8 years old when he was stabbed in his parents' bedroom and his parents and sister were murdered. He is now 30 years old. On April 22, 2005, he gave a statement pursuant to the recently enacted Crime Victims' Rights Act in the federal habeas corpus hearing for his parents and sister's killer. I will close my remarks by asking unanimous consent that Josh Ryen's statement be printed in the Record.

Mr. President, I rise today to introduce the Preserving Patient Access to Physicians Act of 2005. This bill updates Medicare physician reimbursement for 2006 and 2007 according to the recommendations of the Medicare Payment Advisory Committee (MedPAC). There would be a 2.7 percent increase to the physician payment schedule for 2006 and using the Medicare Economic Index update for the price of inputs, a 2.6 percent increase in 2007.

If the schedule is left alone, the consequences for physicians will be a negative. Instead of the 1.5 percent payment increase for 2004 and 2005 which I helped author in the Medicare Modernization Act, there would be a 4.3 percent decrease.

The sustainable growth rate (SGR) formula used to calculate physician payment depends on a number of factors: the number of Medicare fee-for- service beneficiaries, the volume and type of services provided, the price of services rendered, changes in regulations and laws. The formula also incorporates other factors such as prescription-drug prices and the gross domestic product. The SGR was intended to control expenditures by basing a given year's physician payment rate on the previous year's performance. Instead, it creates an arbitrary deficiency that continues to force Congress to intervene.

There is a debate going on, her CMS has the authority to alter the SGR formula by removing drugs. Setting that aside, though, the fact of the matter is that without Congress stepping in to provide for a physician payment update, it probably will not occur. My Senate colleagues and I have talked for many years about ensuring adequate physician payment because current and past administrations have failed to modify the formula. This formula is not doing what it was intended to do. Therefore, I believe we need to scrap it and start again. My bill is a starting point and proposes amounts for an update, but I would really like to see us go all the way back to the drawing board and answer the fundamental question of how to pay physicians appropriately for their services.

I want doctors to be able to continue to assist our nation's seniors, but it is unfair to expect them to practice and to have their reimbursement decrease. Practice expenses, the costs of medical technology, wages for administrative and clinical staff, and medical liability premiums are all increasing while physicians are on track to receive a payment decrease. They cannot afford to continue practicing medicine while receiving reimbursements that do not allow them to even break even. Many are retiring early or threatening to limit the number of Medicare patients they treat.

The service of physicians all across the country is vital to our seniors. Almost half a million doctors provide treatment to the 42 million people under the Medicare program. Physicians are often the gateway for access to other medical services and treatments. Not being able to consult a physician results in delayed referrals, delayed treatment and delayed care. In sum, the quality of health care continues to erode and our system does not operate efficiently.

Should the scheduled physician reimbursement cuts take effect, the result will be a $710 million decrease in payments to doctors in Arizona over 2006 through 2010. I have heard from virtually every physician with whom I have spoken about the constraints that inadequate payments are placing on their practice of medicine. While many work for hospitals and health systems, in the rural areas, a large number are solo practitioners or in small practices. For these physicians, poor payment hits their practice especially hard.

If Medicare rates for doctors are inadequate, many other health care payors will also lack for adequate reimbursement. Other payors such as Medicaid and private insurers often base their payments on Medicare rates. While this bill only addresses Medicare physician payment, the problem of access to services will be compounded if physicians receive reimbursement from other payors that is below the appropriate levels.

The cost of addressing the physician payment update is not cheap. Estimates on the cost of this bill are between $25 billion to $35 billion over five years. I await an official score from the Congressional Budget Office. But I point out, that doing nothing to solve this problem may cost us more: more money, more health and access problems, and more physicians leaving the profession. Although this legislation provides for a two year update, we must develop a long range mechanism to pay physicians appropriately.

I am grateful for the support of this legislation by my colleague, Senator

Stabenow of Michigan, and encourage my other colleagues to support the Preserving Patient Access to Physicians Act of 2005.

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

Mr. President, I rise today to introduce the Streamlined Procedures Act. This legislation will reduce delays in federal courts' review of habeas corpus petitions filed by State prisoners.

Currently, many Federal habeas corpus cases require 10, 15, or even 20 years to complete. These delays burden the courts and deny justice to defendants with meritorious claims. They also are deeply unfair to victims of serious, violent crimes. A parent whose child has been murdered, or someone who has been the victim of a violent assault, cannot be expected to ``move on'' without knowing how the case against the attacker has been resolved. Endless litigation, and the uncertainty that it brings, is unnecessarily cruel to these victims and their families. As President Clinton noted of the 1996 habeas-corpus reforms, ``it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.'' For the sake of all parties, we should minimize these delays.

The 1996 habeas corpus reforms were supposed to prevent delays in Federal collateral review. Unfortunately, as the Justice Department noted in testimony before the House Crime Subcommittee in March 2003, there still are ``significant gaps [in the habeas corpus statutes] . . . which can result in highly protracted litigation, and some of the reforms that Congress did adopt in 1996 have been substantially undermined in judicial application.''

The Streamlined Procedures Act is designed to fill some of these gaps. First, the SPA imposes reasonable but firm time limits on court of appeals' review of Federal habeas petitions. It requires a court of appeals to decide a habeas appeal within 300 days of the completion of briefing, to rule on a petition for rehearing within 90 days, and to decide a case on rehearing within 120 days before the same panel, or 180 days before an en banc court.

As generous as these time limits are, they would make a real difference in some cases. In Morales v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth Circuit took 3 years to decide the case after briefing was completed. And after issuing its decision, the court took another 16 months to reject a petition for rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the case--and then waited another 27 months to reject a petition for rehearing, for a total delay of almost 4\1/2\ years after appellate briefing had been completed. This is too long for either defendants or victims to have to wait.

The SPA also bars courts of appeals from rehearing successive- petition applications on their own motion--current law bars petitions for rehearing or certiorari for such applications, but some courts have interpreted this restriction to not preclude rehearing by the court of appeals sua sponte. The SPA also bars Federal courts from tolling the current 1-year deadline on filing habeas claims for reasons other than those authorized by the statute, and clarifies when a State appeal is pending for purposes of tolling the deadline.

In addition, the SPA creates uniform, clear procedures for review of procedurally improper claims. Current judicial caselaw creates a series of different standards for addressing claims in a Federal petition that were not exhausted in state court, that were presented in a late amendment, or that were procedurally defaulted. The SPA sets a uniform standard, allowing procedurally improper claims to go forward only if they present meaningful evidence that the defendant did not commit the crime, with all other improper claims barred.

The SPA also expands and improves the special expedited habeas procedures authorized in chapter 154 of the United States Code. These procedures are available to States that establish a system for providing high-quality legal representation to capital defendants. Chapter 154 sets strict time limits on Federal court action and places limits on claims. Currently, however, the court that decides whether a State is eligible for chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these courts

have proven resistant to chapter 154. The SPA would place the eligibility decision in the hands of a neutral party--the U.S. Attorney General, with review of his decision in the DC Circuit, which does not hear habeas appeals. The SPA also makes chapter 154's deadlines more practical by limiting the claims that can be raised under its provisions to those presenting meaningful evidence that the defendant did not commit the crime, and by extending the time for a district court to review and rule on a chapter 154 petition from 6 months to 15 months.

The SPA also eliminates duplicative Federal review of minor sentencing errors that already have been judged by State courts to be harmless or not prejudicial. It limits Federal courts to asking only whether the type of sentencing error at issue is one that could not have been harmless.

The SPA also applies the deferential review standard enacted in the 1996 reforms to all pending cases. Remarkably, some current habeas petitions still are not governed by the 1996 reforms. The SPA corrects this oversight, ending the need to apply the pre-1996 legal regime to any cases that still are being litigated today.

And finally, the SPA limits judicial review of State clemency and pardon decisions, guaranteeing that a State won't be sued for formalizing and regularizing its pardon procedures; it limits defendants' ability to ask Federal courts for investigatory funds without allowing prosecutors to be present and rebut defense allegations; and it guarantees a crime victim's right to be notified of, to be present at, and to speak at a criminal defendant's Federal habeas hearing.

To many people, the issues addressed by the SPA--petitions for rehearing, State remedies exhaustion, procedural default, chapter 154, AEDPA deference--may seem abstract and remote. For surviving crime victims, however, these matters can be very concrete.

A case recently in the news illustrates the importance of these concerns: that of the man who murdered three member of the Ryen family and Christopher Hughes in Chino Hills, California in June 1983. The killer in that case was an escaped convict from a nearby prison. He has since admitted that he spent 2 days hiding in a vacant house next to the home of the Ryen family. After several unsuccessful telephone calls to friends asking them to give him a ride, the killer took a hatchet and buck knife from the vacant house and set out to find a vehicle. The California Supreme Court describes the rest of what occurred, 53 Cal.3d 771, 794-95:

On Saturday, June 4, 1983, the Ryens and Chris Hughes

attended a barbecue in Los Serranos, a few miles from the

Ryen home in Chino. Chris had received permission to spend

the night with the Ryens. Between 9 and 9:30 p.m., they left

to drive to the Ryen home. Except for Josh [the Ryen's 8-

year-old son], they were never seen alive again.

The next morning, June 5, Chris's mother, Mary Hughes,

became concerned when he did not come home. A number of

telephone calls to the Ryen residence received only busy

signals. [Mary's husband] William went to the Ryen home to

investigate.

William observed the Ryen truck at the home, but not the

family station wagon. Although the Ryens normally did not

lock the house when they were home, it was locked on this

occasion. William walked around the house trying to look

inside. When he reached the sliding glass doors leading to

the master bedroom, he could see inside. William saw the

bodies of his son and Doug and Peggy Ryen on the bedroom

floor. Josh was lying between Peggy and Chris. Only Josh

appeared alive.

William frantically tried to open the sliding door; in his

emotional state, he pushed against the fixed portion of the

doors, not the sliding door. He rushed to the kitchen door,

kicked it in, and entered. As he approached the master

bedroom, he found Jessica on the floor, also apparently dead.

In the bedroom, William touched the body of his son. It was

cold and stiff. William asked Josh who had done it. Josh

appeared stunned; he tried to talk but could only make

unintelligible sounds.

William tried to use a telephone in the house but it did

not work. He drove to a neighbor's house seeking help. The

police arrived shortly. Doug, Peggy, Chris, and Jessica were

dead, the first three in the master bedroom, Jessica in the

hallway leading to that bedroom. Josh was alive but in shock,

suffering from an obvious neck wound. He was flown by

helicopter to Loma Linda University Hospital.

The victims died from numerous chopping and stabbing

injuries. Doug Ryen had at least 37 separate wounds, Peggy

32, Jessica 46, and Chris 25. The chopping wounds were

inflicted by a sharp, heavy object such as a hatchet or axe,

the stabbing wounds by a weapon such as a knife.

The escaped prisoner who committed this crime was caught 2 months later. Again, he admitted that he stayed in the house next door, but denied any involvement in the murders. According to the California Supreme Court, however, the evidence of defendant's guilt was ``overwhelming.'' Not only had the defendant stayed at the vacant house right next door at the time of the murders; the hatchet used in the murders was taken from the vacant house; shoe prints in the Ryen house matched those in the vacant house and were from a type of shoe issued to prisoners; bloody items, including a prison-issue button, were found in the vacant house; prison-issue tobacco was found in the Ryen station wagon, which was recovered in Long Beach; and defendant's blood type and hair matched that found in the Ryen house. Defendant was convicted of the murders and sentenced to death in 1985, and the California Supreme Court upheld the defendant's conviction and sentence in 1991.

The defendant's Federal habeas proceedings began shortly thereafter, and they continue to this day--22 years after the murders. In 2000, the defendant asked the courts for DNA testing of a blood spot in the Ryen house, a t-shirt near the crime scene, and the tobacco found in the car. Despite the overwhelming evidence of his guilt, the courts allowed more testing. All three tests found that the blood and saliva matched defendant, to a degree of certainty of one in 320 billion. Blood on the t-shirt matched both the defendant and one of the victims.

One might have thought that this would end the case. Not so. In February 2004, the en banc Ninth Circuit sua sponte authorized defendant to file a second habeas petition to pursue theories that police had planted this DNA evidence. Since the evidence had been in court custody since 1983, the Ninth Circuit's theory not only required police to plan and execute a vast conspiracy to plant the evidence--it also required them to foresee the future invention of the DNA technology that would make that evidence useful in future habeas proceedings.

The Streamlined Procedures Act would have made a difference in this case. For example, it would have eliminated the need to return to state court to exhaust new claims, reducing the delay in the Federal proceedings by nearly 3 years. It would have applied the 1996 reforms to this case, allowing deferential review of state factual findings and legal analysis. It would have placed time limits on Federal appeals court decisionmaking and grants of rehearing. And it would have prevented the court of appeals from ordering rehearing of the defendant's successive-petition application on its own motion, thereby barring the current round of O.J. Simpson-style conspiracy-theory litigation. The SPA could have brought this case to closure a long time ago.

And this case deserves to be brought to closure. One cannot underestimate the grievous impact that crimes like these have on the families of the victims. Mary Hughes, the mother of 11-year-old Christopher Hughes, who was sleeping over at the Ryen house on the night of the murders, has spoken movingly of the loss of her son:

Christopher Hughes loved his bicycle, swimming and showing

off for his mom and dad.

The 11-year-old's bedroom was filled with swimming trophies

and Star Wars collectibles. He was a handsome kid who was

chased by a lot of fifth-grade girls on the playground during

recess at Our Lady of the Assumption in Claremont.

He wasn't short on friends, either.

Christopher really liked Joshua Ryen, an 8-year-old boy who

lived up the street from him. They would trick-or-treat

together on Halloween, play together, and their parents were

good friends.

On the night of June 4 1983, Christopher asked his parents

if he could spend the night at the Ryen house.

It was a decision that would change the Hughes family

forever.

[Mary Hughes'] son Christopher would have been 32 today.

She sometimes wonders who he would have been, what he

would've looked like, and even during her most solemn

moments, she wonders what life would've been like if Cooper

had never gone to the Ryens' house.

``It never really ever gets better,'' she said. ``Kevin

Cooper robbed him of the chance to be a child, to attend his

first dance, to have a girlfriend, and to one day get married

and

have kids of his own. He robbed me of my child.''

Mary Ann Hughes does have one special memory of her son she

holds close to her heart. A week before his death, she took

him to see the movie ``Return of the Jedi.''

``He was so happy. It was such a great day,'' she said.

``It seems like such a small thing, but it's the best memory

I have of both of us.'' (Sara Carter, ``He Was at the

Beginning of His Life When He Died,'' Inland Valley Daily

Bulletin, February 9, 2004.)

In light of how much the surviving family already has suffered, one might expect that all participants in the criminal proceedings would take great concern and care for the feelings of the family. Unfortunately, that has not been the case. The Ninth Circuit has proved willing to turn the appeals into a three-ring circus, allowing continual pursuit of the most frivolous conspiracy theories. The impact of these now 22 years of trial and appeals on the victims' families has been predictable: they feel that they and the victims have become irrelevant to the entire process. Shortly after the Ninth Circuit authorized an additional round of appeals in this case, a local newspaper described what the families have experienced:

For nearly 20 years, since convicted murderer Kevin Cooper

was sentenced to death for the 1983 slayings of a Chino Hills

family and their young houseguest, families of the victims

have waited silently for the day the hand of justice would

grant them peace.

For those families, the last two decades have seemed like

an eternity.

``I lived through a nightmare,'' said Herbert Ryen, whose

brother Douglas Ryen was among those killed, along with

Douglas' wife Peggy, their 11-year-old daughter Jessica, and

her 10-year-old friend Christopher Hughes.

[O]n the morning of Feb. 9, [2004,] the day of Cooper's

scheduled death by lethal injection, word came down that the

9th U.S. Circuit Court of Appeals had decided to block the

execution.

[T]o the Ryen and Hughes families, the stay just hours

before Cooper's scheduled execution at San Quentin State

Prison was nearly incomprehensible. The indefinite delay has

left them in a sort of emotional limbo, questioning whether

the legal system had abandoned them.

``The bottom line is that this whole issue is not about

Kevin Cooper . . . it is about the death penalty,'' said Mary

Ann Hughes, the mother of Christoper Hughes. ``We're so mad--

mad because we feel as though the courts turned their back on

my son.''

``They (Court of Appeals) are holding us hostage,'' Hughes

said.

For Herbert Ryen and his wife Sue, waiting for justice has

taken an equally destructive toll on their lives. The torment

their family experienced following the murders, and the

subsequent years lost to depression, could never be replaced,

he said from his home in Arizona.

Mary Ann Hughes said the pain her family suffers is only

amplified by the seemingly continuous bombardment of

celebrities campaigning against Cooper's execution. She

wonders who will cry out in anger for the victims.

One former television star and anti-death penalty activist,

Mike Farrell of the popular series MASH, spoke of the case on

a recent news program.

``He claimed that we must feel relieved since the stay of

execution was granted,'' Hughes said. ``How can (Farrell)

have the audacity to say he knows what we are feeling?''

Farrell could not be reached for comment.

Since Christopher's death, the Hughes family has chosen to

remain out of the media spotlight. And until recently, their

efforts were successful, due largely to the support of their

surviving children, family members and a strong network of

close friends, Hughes said.

The court's decision Feb. 9 has re-opened the case, forcing

the families to re-live the nightmare they have fought so

hard to leave behind, they say.

Mary Ann Hughes is left wondering about other families who

have had loved ones taken from them, about the legal battles

they have had to endure in their own quests for justice.

She thinks of the parents of Samantha Runion, the 5-year-

old Orange County girl who was murdered in 2003, and of what

her family could face in the next 20 years.

For Bill Hughes, the anguish is intensified--he will

forever know the pain of walking into the Ryens' home the

morning after the murders, and finding his son, dead and

covered in blood near the Ryens' bedroom door. He was also

the first to discover Joshua Ryen, also drenched in blood,

clinging to life.

``It is a memory he will always have to live with,'' Mary

Ann Hughes said.

Indeed, time has been no friend to the victims' families,

as California's recent appellate court ruling has further

denied them closure, she added.

``What this decision has done to our legal system in

California is unthinkable,'' she said. ``Somewhere along the

line, the courts have got to uphold the law, and we will wait

it out until they do.'' (Sara Carter, ``Families of Murder

Victims Wait for Justice in Cooper Case,'' Inland Valley

Daily Bulletin, February 24, 2004.)

Mary Hughes' story demonstrates why the use of Federal judicial power must be measured and fair it illustrates the heavy cost imposed by judicial excess.

No statement, however, better explains the gross cruelty caused by allowing endless litigation and appeals in a case like this than that given by one of the surviving victims of the 1983 attack. Josh Ryen was 8 years old when he was stabbed in his parents' bedroom and his parents and sister were murdered. He is now 30 years old. On April 22, 2005, he gave a statement pursuant to the recently enacted Crime Victims' Rights Act in the federal habeas corpus hearing for his parents and sister's killer. I will close my remarks by asking unanimous consent that Josh Ryen's statement be printed in the Record.

The legislation before us amends the apportionment formula for the Congestion Mitigation and Air Quality, CMAQ, program to include non-attainment and maintenance areas for fine particulate matter, so- called PM 2.5, and to make adjustments for the new 8-hour ozone standard. It does not amend the formula, however, to include non- attainment and maintenance areas for PM-10 particulate matter. Would the senior Senator from Oklahoma be willing to explore the question of whether the CMAQ apportionment formula should include factors for this Federal air quality standard as well?

I appreciate the Senator's openness to exploring that question. PM-10 is the greatest air quality problem facing Arizona. There are currently 8 PM-10 non-attainment areas in Arizona and the Phoenix metropolitan area is a serious non-attainment area for PM-10. Our CMAQ apportionment should reflect and help us address our

PM-10 air quality problem. Do I have the Senator's assurance that he and his colleagues are open to considering including PM-10 as part of the CMAQ apportionment formula?

I thank the Senator for his assurance and his consideration.

Mr. President, earlier this month, a class of 25 students from Dobson High School in Mesa, AZ, competed against more than 1,250 students from across the United States in the national finals of the ``We the People: The Citizen and the Constitution'' program. I am proud to note the Dobson students, led by their teacher Joyce Godfrey, received a fourth place honorable mention in this year's competition.

I would like to take a moment to mention the names of those students who competed for Dobson High: Paul Bergelin, Andrew Brown, Lara Cardy, Zach Clark, Brian Hoblit, Katie Hughes, Byunghun Hyun, Valerie Keirn, Patrick Kwan, Alyssa Little, Alex Matyushov, Linh Nguyen, Danielle Rieger, Ralph Robles, Ashley Rogers, Darci Schimschat, Jessica Sims, Drew Snider, Jamie Stall, Tricia Strei, Wing-Yu Tang, Nehal Thakkar, Jana VanMarche, Ashley Wallace, and Jennifer Yan. I would also like to acknowledge their teacher, Joyce Godfrey, the district coordinator, Kathy Williams, and the State coordinator, Susan Nusall.

I wish these budding constitutional scholars the best of luck in the future.

Mr. President, will the Senate Majority Leader yield for a question?

I thank the distinguished Senate Majority Leader. I am pleased to see that the Frist Amendment, adopted by the Senate during consideration of the supplemental appropriations bill, is included in this conference report. The Frist Amendment creates a new E-3 visa sub- classification for Australian nationals. I would be grateful if Senator Frist would clarify a couple of technical points relating to his amendment. It is my understanding that the E-3 visa would not be limited to employment that is directly related to international trade and investment, as are the E-1 and E-2 visas. Could the Senator confirm that this is his intention?

I thank the Senate Majority Leader for these few points of clarification.

Mr. President, first I compliment my colleague from Idaho for bringing to the Nation's attention a problem which does deserve consideration, and that is how to both fulfill our need for workers in this country for difficult labor that some Americans have not been willing to perform and at the same time deal with the very difficult problem of the status of illegal immigrants who are currently in the country and who have been relied upon by employers in the field of agriculture to perform some of this work.

Both the Senator from Georgia and I intend to work with the Senator from Idaho in the future to try to develop the very best kind of guest worker program we can to achieve the objective of providing matching, willing employers and willing employees and at the same time doing it within the construct of the rule of law. We look forward to that debate at a later time.

Earlier in the debate on the supplemental appropriations bill, which is the legislation before us, the Senate adopted overwhelmingly a sense-of-the-Senate resolution that we should not be trying to deal with these immigration problems in this legislation. This bill is too important. It requires that we provide funding for our war efforts in Iraq and Afghanistan. The reason it is called a supplemental appropriations bill is because it is supplemental to the regular process. It accounts for the fact that there are unforeseen expenditures in the conduct of this war we have to fund and we have to get the money to our troops as soon as we possibly can.

With that in mind, the full Senate voted we should be deferring the debate on these difficult and complicated issues such as immigration reform to a later date when we can take that up in the full consideration it deserves and not delay important legislation such as the funding of the war effort. We are already into the second week on the supplemental appropriation for that purpose. We hoped to finish this bill last Thursday.

I provide that as background to simply note this: We have two votes this morning. The first is on an alternative proposal that has been set out by the Senator from Georgia and myself that would provide a way to match these willing employers and employees but to do so without granting amnesty to illegal immigrants. We will then vote on a second alternative of the Senator from Idaho and the Senator from Massachusetts.

The key point I want to make to my colleagues is if both of these propositions are defeated--and they both require 60 votes to pass under the agreement--then we can move on to complete the work on the supplemental appropriations bill and we might be able to finish that bill this week. In fact, hopefully, presumably, ideally, we will finish that bill this week. There is no reason why we cannot do our work and fund our troops. However, if the Craig-Kennedy legislation were to receive 60 votes, we are in for a tough time because that bill is then open for amendment, and we are already aware of numerous amendments that are going to be filed, all of which are going to delay consideration of the supplemental appropriations bill.

Some of my colleagues signed on to this legislation before the bill was actually printed or before they realized it contained amnesty. The point I would make to anybody who is in that position is whether they support the Craig-Kennedy version or the Chambliss-Kyl version of guest worker legislation, it is not the time to be considering that legislation. We voted already to not have that debate but rather to get on to the supplemental appropriation bill. Therefore, anyone wishing to move on should vote literally against the first vote we will have on Chambliss-Kyl and the second vote on Craig-Kennedy. If either one of them gets 60 votes, then we are in for a long time of debate on immigration, with an awful lot of amendments on that subject and delaying the time that we can get back to considering the supplemental appropriations bill.

Even though it argues against an affirmative vote on our proposition, for

those who are interested in moving on to the supplemental appropriation bill, frankly, the correct vote is a ``no'' vote on both of these amendments.

Let me explain to my colleagues a second reason to vote ``no'' on the second vote and ``yes'' on the first vote. The first vote is Chambliss- Kyl. What we have attempted to do in our guest worker legislation is provide an expedited, streamlined, simplified way for employers to hire the people they need in agriculture, something they are not able to do today. We have a law today, but they do not use it because it is so cumbersome, expensive, and time consuming. The idea is to make it more streamlined so it will work.

In that respect, we think we have a much superior product and that is why I think the Farm Bureau supports our legislation, because they realize farmers will actually use it. I am very concerned that they would not use the Craig-Kennedy legislation because it has so many other things built into it that I believe would make it difficult, at least as difficult to use as the current law.

I will cite one of the reasons now. Up to now it has been the law in the United States that Legal Services Corporation does not represent illegal immigrants or illegal aliens. It represents Americans, people who are here either on legal permanent residency status, green card status, or citizens. There is little funding available to begin representing illegal immigrants and I am afraid the representation of American citizens who are residents would significantly suffer if the Legal Services Corporation is now going to begin representing these illegal immigrants as is called for under the Craig-Kennedy legislation. That represents a significant departure from current law and it certainly will make it more complicated for employers to use that law.

I will move to the other point, because the primary question is whether we want to embark on a road to granting amnesty to illegal immigrants.

Folks on the other side will say it is earned amnesty, but it is still amnesty by any name one wants to call it. It reminds me of that old saying, put lipstick on a pig and it is still a pig. The fact of the matter is it is still amnesty and here is why specifically Craig- Kennedy is amnesty.

Under section 101 of S. 359, an illegal alien shall--it is not ``may'' but ``shall''--be given status after working, and then the periods of time are laid out, but essentially in as little as 2\1/2\ weeks, one could accomplish the accumulated 3\1/2\-month labor period, but a maximum of 3\1/2\ months, minimum of 2\1/2\ weeks. They then have a legal status in the country. One year later, they get their green card.

A green card is legal permanent residency, and I underline the word permanent. When one gets their card in this country, they have a status which enables them to live here for the rest of their life. Under existing law, it enables them to do something else. They can also apply for citizenship. They can apply to chain migrate their family into the country.

The point is that while that status should be available to anyone who desires to immigrate to the United States, we believe it should be available to people who abide by the law. We also do not discriminate against those who have violated the law and who seek to apply for this status. We simply urge that they not be given an advantage over those who have done everything right, who have followed the law, applied for the legal permanent residency status from their country of origin, and have sought to get in line the same as everybody else. As the President says, if one wants to come here and stay, they need to get in line with everybody else. They should not be given an advantage. That is what amnesty is. When one is given an advantage over those who have conformed to the law, who have abided by the law, and one is given an advantage because they violated the law, that is frankly a concept I think most Americans would deem not only very unfair but getting on a very slippery slope in this country where people who do it wrong, who violate the law, have an advantage over those who are willing to do it right. That is not the American way and that is the key difference between the Craig-Kennedy legislation and the Chambliss-Kyl legislation.

We say one can work here and continue to work here. In fact, we have three different 3-year periods, one right after the other, in which one can work in the United States. But we say if they seek to become a legal permanent resident, as opposed to a legal temporary resident, that permanent residency should require them to apply for it the same as everybody else. They have to go home, make the application--it takes 1 year to do it--and then they have their green card. Once they get their green card, it is true they can apply for citizenship, but at least they have to follow the rules. They have done it the same as everybody else and they have not gotten an advantage because they came here illegally and stayed in this country illegally.

The final point I want to make is there is another provision of the Craig-Kennedy legislation which I do not understand. It has been alluded to by the Senator from California, Mrs. Feinstein, and others. It is a provision which actually attracts people who have previously violated the law. They snuck in, they came into the United States illegally, they illegally used documents to gain employment, they have been employed illegally in the United States, and the fact of all of those illegal activities is what permits them to come back into the United States. In other words, they have gone home for some reason, and if they can establish that they were here illegally, then they get to come back into the country legally. I don't know of anything that stands the law on its head more than that. Why would somebody try to abide by the law if they realized that, with counterfeit documents, they can simply show up at the border and say, Hey, I worked in the United States illegally and I want to come back in now and get this new status you are creating for me.

It is a magnet not only for counterfeit and fraud but for people to come back into the United States who are now not here illegally, claiming that they have a right to do so on one basis and one basis only--because they violated our law. It seems to me to be totally upside-down to grant legal status to people, to invite them into our country, on the basis that they violated our law when there are not enough visas to grant to people who are trying to do it legally.

This is amnesty, and it is wrong. What we are saying is there is a perfectly legal way to do this, to get all of the employers matched up that we need. We have no cap on the number of people who can apply through our streamlined H-2A process. As many workers as we need, we can get. I think that is why the Farm Bureau supports this. They know whatever labor needs we have in this country, we can fulfill them through a legal process, and there will not be any magnet for illegal immigrants to come to the country anymore.

To conclude, there are two reasons to vote against the Craig-Kennedy legislation and one good reason to vote for the Chambliss-Kyl legislation. The reason to vote against both, frankly, is that unless both of these are defeated, we are going to be on this immigration issue for a long, long time. Who knows when we are going to conclude the supplemental appropriations legislation? We are certainly not going to finish it this week again. This will be the second full week we have been on it.

Second, I don't think at the end of the day we are going to pass legislation--through the Senate and House and have it signed by the President--that grants amnesty to illegal immigrants or invites illegal immigrants back into the United States because of their illegal status. For that reason, we suggest we have a better approach, an approach which can meet our labor needs but do so within the rule of law and without granting a reward to those who have violated our law.

Mr. President, let me respond to a couple of comments which my colleague just made. He characterized his legislation as enabling people to earn the right to stay. This is the earned amnesty provision. But the point is, there is no difference between coming across the border illegally and working here illegally and working under the Craig-Kennedy bill. You are working in the field, and after a period of time you get permanent legal residency. Between 2\1/2\ weeks and 3\1/2\ months, you get legal status. Then a year later you get legal permanent residency by doing the very same thing you are illegally doing today.

I am happy to yield.

The green card is permanent, not temporary.

Will the Senator yield 2 minutes to me on his time?

The answer is yes. We have a much more effective way because we have biometric identifiers, a fingerprint check, or other kinds of biometric identifiers so the individual identifies himself both as being in legal status for employment and being the person he says he is. That, of course, requires documents to demonstrate legality, in the first instance, so we can absolutely confirm that the only people who are being hired are here legally. You can make the card whatever color you want to, but under today's law, legal permanent residency is called green card status. Everybody knows you get a green card when you have legal permanent residency.

Under your legislation, it is, in fact, the case that with as little as 2\1/2\ weeks but no more than 3\1/2\ months a status of legality is granted. After 1 year an application can be made for legal permanent residency. The only question is how much time it takes to complete that application process. That is when you can apply for it, 1 year. It may take several more months to gain the status. Once the application has been made, you are a legal permanent resident in this country.

Mr. President, let me reclaim my time.

The key difference is how you gain the status of legal permanent resident. Under the Craig-Kennedy bill, you get that after working here doing the very same thing that you are doing illegally today. You are not doing anything different. You are just doing it now under a new status as opposed to the old status. Once you do that, you get legal permanent residency. That is the difference. Under the Chambliss-Kyl legislation, you never get legal permanent residency.

Second, under the Craig-Kennedy legislation, I think the Senator from Idaho misspoke when he said we don't grant citizenship. I think it is fair to say we don't grant citizenship, but it is that status of legal permanent residency which entitles you to apply for citizenship under the United States Code--8, United States Code, section 1427(a).

The point is, the granting of the legal permanent status under the Craig-Kennedy legislation automatically entitles you to apply for citizenship. That is the amnesty. You can't do that under the Chambliss-Kyl legislation. There is no path to citizenship for people who violated the law except to go back to the country of origin and do it just like everybody else--to get in line like everybody else.

The final point I want to make is this: I think it is a very dangerous proposition to argue that we can't control our borders. We can. I have talked to the Tucson sector chief of the Border Patrol who says if we have enough resources, we can get control of our borders. It has largely been accomplished in California and Texas. It is not accomplished in Arizona because illegal immigrants came to where we don't have the control. We spent the money in California, we spent the money in Texas, and sure enough they are coming through Arizona. Over half of the illegal immigrants are coming through one sector in the State of Arizona.

The statistic which the Senator from Idaho pointed out is exactly correct in that regard. They are mushrooming.

He is also correct in saying we need two things. I hope he will agree with me we need both. We need both an effort to enforce the law--after all, if the country cannot protect its own borders, it cannot protect its sovereignty. If we do that, we need to devote the resources to do that. We also need enforceable legislation for people who work in this country. We can do that by having a simplified H-2A program and some language similar to what we are talking about here, matching willing workers and employers within the legal construct, and with combined efforts to control the border and enforce those laws we can end up with a legal regime.

But I think it is a very dangerous proposition for us to say we can't, under any circumstances, control our borders. We can, and we must.

Might I ask the Senator from Georgia to yield for a quick question?

I was told a colleague was watching this debate from his office and is under the impression a point was made, under our legislation, a supervisor could apply for citizenship or be granted citizenship or legal permanent residency under the Chambliss-Kyl legislation. I wonder if the Senator would clarify that is not the case.

Mr. President, reserving the right to object, we don't have very much time on our side, and that would mean that we could get out of time without the other side even coming down here until the very end. May I ask the Chair--I would like to pose a parliamentary question--under the agreement that was entered into, the time is not taken equally off of both sides in a quorum call, is it?

Further reserving the right to object, because I think there is only about 10 minutes left on this side and a half hour left on the other side, that would mean our time could be wiped out without another word even being spoken. I would not agree to that at this time.

Mr. President, let me try to summarize the status of this debate over the last couple of hours as pertains to both of these propositions.

The first to be voted on is the Chambliss-Kyl proposal, and then the second will be the Craig-Kennedy proposal. Both need 60 votes to proceed.

The first point I make to my colleagues is that we voted in this body on a sense-of-the-Senate resolution saying we should have this immigration debate later when we can do it right and can take all the time we need, where everybody can participate in it and know how to approach the problem not just from the standpoint of agriculture, in fact, but for a total attempt to solve our immigration reform issues in this country.

We decided that it would not be a good idea to try to have that debate on the supplemental appropriations bill because it would hold up the bill. Guess what has happened. We are in the second week of debate on this bill to fund our troops in Afghanistan and Iraq, and there is still no end in sight. If either one of these proposals gets 60 votes, we are off to the races with lots more amendments, debate time, and I do not know when we will get to finish the supplemental appropriations bill, which the distinguished chairman of the committee has been urging us to get about the business doing. In that sense, it would be a shame if either one of these two propositions got the 60 votes. That is my first point.

The second point is that as between the two, both attempt to reform our immigration system and match willing employer with willing employee, but one of them does so in a way that is going to, in fact, attract people to this country who have been here illegally in the past and under the provisions of the bill would enable them to come back.

People who have already gone home would be able to present themselves at the border and simply claim and try to document that they worked in this country illegally in the past and, therefore, they get to come back in again. I do not know of anything that makes less sense than having an illegal immigrant who worked here illegally go back home and then we invite them to come back into the country to get legal status simply by working in the fields again. That makes no sense.

Secondly, it is very clear that one version is amnesty and the other version is not. One simply cannot argue that when you give an advantage to people who broke the law in terms of obtaining legal permanent residency, which Chambliss-Kyl does not do, and, therefore, a path to citizenship, which Chambliss-Kyl does not do, you cannot argue that advantage given to these people who have broken our laws is not a form of amnesty.

That is the key substantive difference between these two bills. Both try to match willing employer and willing employee. One does it without amnesty and the other does it with amnesty. What we mean by that is amnesty meaning legal permanent residency and a pathway to citizenship which is achieved by virtue of the fact that somebody worked here illegally in the past. That is not, we believe, a good idea and a way to start off with a new guest worker program that we all agree needs to be enforceable and enforced.

We need to control our borders. We need to have a workable law. It needs

to be a law that matches willing employer and willing employee and does not do so with amnesty, and until we are ready to do that, I suggest we should defer that debate, get on with our supplemental appropriations bill, and have that debate when we consider it in the context of overall immigration reform.

Therefore, how do people vote on the first vote? As I said, the first vote is on the Chambliss-Kyl proposal. We urge a ``yes'' vote on that proposal. The second vote is on the Kennedy-Craig proposal. We urge a ``no'' vote on that. If they both fail, then we can get on with the business of the supplemental appropriations bill to fund our troops in Afghanistan and Iraq.

Mr. President, if there is no other speaker, I suggest we yield back all time and proceed with the votes.

I move to lay the motion on the table.

The motion to lay on the table was agreed to.

Committee Meetings

Mr. President, I have an amendment at the desk, No. 555.

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

Mr. President, I move to reconsider the vote, and I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Vote on Amendment No. 387, As Amended

Mr. President, I first wish to express appreciation to the Senator from Georgia for explaining very well both the need for and the description of the legislation on which we will be voting tomorrow, which is our version of the legislation that will help employers in our agricultural sector by including immigration reform which will make it easier for them to obtain workers from both the illegal immigrants who are in the country today as well as those legal immigrants who would be applying under our legislation.

Let me go back to kind of a 30,000-foot elevation view here and describe the reasons we put this legislation together and are offering it at this time. As we have said before, the supplemental appropriations bill, which will be debated again tomorrow as well as later today and which will help pay for our war efforts in Iraq and Afghanistan, is not the appropriate place to be debating immigration. Unfortunately, some of our colleagues saw fit to bring amendments to the Senate floor which related to that subject. One of those amendments is this amendment that deals with agricultural labor. It was at that point that Senator Chambliss and

I had no alternative but to present the alternative view of how to serve those agricultural needs.

The basic difference between the bill Senator Chambliss just described and the other bill, the bill that is primarily offered by Senators Kennedy and Craig, is the difference between a bill that provides amnesty, in the case of their legislation, for illegal immigrants here, and our bill, which provides the workforce within the legal construct of the law but does not grant amnesty to the illegal immigrants who are here. There are a lot of other differences, but that is the prime difference.

Both of us recognize that there is a significant need for a workforce in this country, willing and able to work in agriculture and related occupations, and that cannot be satisfied solely with people who are American citizens today.

The difference is in the way we treat those people who are here illegally today. What the Craig and Kennedy legislation does is to grant those people, very early on, a legal status which permits them to become legal permanent residents. ``Legal permanent residents'' is a term of art under our immigration law. Some people refer to it as a green card. As little as 100 hours' work for 3\1/2\ months entitles someone under their legislation to get a green card. A green card is like gold because it enables you to live for the rest of your life in the United States of America and work here.

But it also means something else. If you have a green card, you can also apply to become a citizen of the United States of America. It is a wonderful thing for people from other countries to get to be citizens of the United States of America. We are very much in support of immigration to this country. As my grandparents came here and as almost all the rest of us have relatives who came to this country from another country, we all support legal immigration. But we do not believe that great opportunity to become a citizen of the United States should be granted to someone on the basis of their illegality; because they came here illegally, because they used counterfeit documents, because they got a job illegally--that on the basis of those factors they should get an advantage over those who are abiding by the law and who want to become U.S. citizens. It is that with which we disagree.

What we say is if a person who is in the country illegally today wants to work in U.S. agriculture or related industries, and the employer needs that person--and there are certainly a lot of them in that category--the employer petitions and that individual can get a different kind of status, a blue card, as Senator Chambliss said. That blue card status enables them to work here, to live here, to travel back and forth to their country of origin. They can go back and forth every weekend, if they desire. There are no restrictions there. They are in the Social Security system. They are protected by our laws. They have to be paid a specific kind of wage, and they have all of the other kinds of protections one would think of in this context, but their status is different from that of a legal permanent resident, a green card holder.

Not only are they not entitled to live here the rest of their lives-- eventually they are going to have to return home--but if they want to become citizens they have to go home and apply for it just like anybody else. What does that mean? They have to be petitioned for by somebody, by an employer in this country. It takes about a year for them to acquire this status of legal permanent resident. That is how long it takes to get it. But once you get it, you can apply to become a U.S. citizen.

We are not punishing people for having violated our laws. Some would say you should not give them the opportunity to become citizens because they broke our laws. As Senator Chambliss pointed out, we are not saying that. If they want to become legal permanent residents and apply for U.S. citizenship, they would have that right. All we ask is that they be treated just like anybody else who wants that right, which is to say they apply from their own country, not from the United States; that they wait the same period of time you would have to wait otherwise, a year; and then, if it is granted, they can apply for citizenship, and all the rest of it works just the same as it would for anybody legal.

What we say is that you cannot use the fact that you came to the United States illegally to get to stay here and stay here during the entire process that you are applying for legal permanent residency and U.S. citizenship. That gives you a big advantage, a leg up over those who are abiding by the law and who did not violate the law and come here illegally in the first place. There are other differences, but that is the most critical difference.

From our colleagues' standpoint, what we are saying is you can vote for a bill which grants a very simple, convenient, economical way for us to get the agricultural labor we need in this country, with all the protections for the laborers which one would expect, without having to grant amnesty to these individuals, and that is a big deal.

The second way the Kennedy-Craig legislation provides for amnesty is that it even provides for someone who came to this country illegally and is employed illegally here and who then went back to their home country to come back into the United States and get those same advantages as those who would otherwise have to wait a year for legal permanent residency and then later for citizenship. So it not only would apply to those who are here illegally today but those who claimed they worked in the United States illegally in the past. And who knows what kind of claims we are going to get there? Because, of course, the counterfeit documents, Social Security cards, driver's licenses, and other kinds of documents used to gain employment in the first instance can also be used to demonstrate the previous status of having illegally worked in the United States of America.

(Mr. CHAMBLISS assumed the chair.)

One of the reasons I believe our bill has more support is that it is more likely to become law, whether it is a stand-alone provision that relates only to agricultural workers or is part of a broader kind of immigration reform. I do not think many people believe the House of Representatives is going to pass a bill with amnesty, so we are trying to be practical about it. We would like to get something done, not simply run an ideological position up the flag pole in order to get a vote on it here in the Senate. That is why the American Farm Bureau is so strongly in support of our legislation and in opposition to our colleagues' legislation.

I ask unanimous consent to have printed in the Record a letter from the American Farm Bureau Federation dated April 13 to the Presiding Officer and myself.

Let me read the opening to give a flavor of what the American Farm Bureau Federation is saying:

The American Farm Bureau Federation strongly supports the

Chambliss-Kyl amendment and urges its adoption when it is

considered on the Senate floor. This amendment would provide

U.S. agriculture a clear, simple, timely and efficient H-2a

program to fill seasonal and temporary jobs for which there

is a limited U.S. labor supply. . . .

This measure also deals sensibly and fairly with illegal

immigrants who are now working in agriculture, who meet

strict criteria and pose no security threat.

This amendment does not grant amnesty to illegal aliens. .

. .

The Chambliss-Kyl proposal strikes a reasonable balance

among employers, hard-working employees who are striving to

better themselves and the need and obligation of our country

to control the flow of immigrants.

The American Farm Bureau Federation supports the Chambliss-

Kyl amendment and we urge your fellow Senators to vote for

this proposal when it is considered in the Senate.

In summary, we are going to have two proposals before us, one offered by the Senators from Massachusetts and Idaho. We urge you reject that proposal because it is not something that is ever going to become law. It provides amnesty for illegal immigrants here. The other is our proposal, which enables us to have a good, workable system for agricultural labor. It can pass both bodies, and it does not include amnesty.

I note when we begin debate on the supplemental appropriations we will have more of an explanation of what we have offered to our colleagues, but at least this way we have opened up the subject.

I yield the floor.

Mr. President, I will speak in morning business to the point discussed by my colleague from Florida. I understand another Senator was going to be here; when he arrives, I will yield the floor.

It is important for my colleagues and for the American people to appreciate a little bit of the background of this issue with respect to judges. My colleague from Florida makes a point that he has voted for most of the President's judicial nominees. Indeed, that has been the case with every Senator for every President.

But until the last 2 years, we have voted both for district court nominees and circuit court nominees. Two years ago, the Democratic minority began filibustering circuit court nominees. That is why President Bush has had a lower percentage of his nominees approved than any President since Franklin Roosevelt for the important circuit court positions. In fact, a third of President Bush's circuit court nominees were filibustered or could not be brought to a vote because they would have been filibustered; fully 17 out of around 35.

So when our colleagues on the other side of the aisle talk about the large number of judges they have approved, they are folding in all of the Federal district court nominees everyone has always voted for. That is not the appropriate measure. The question is, how many circuit court nominees? Never before, in the history of our country, have we seen circuit court nominees or district court nominees, for that matter, but circuit court nominees filibustered in this manner--ten separate judges we could not come to a final up-or-down vote, seven more who would have had the same fate had they been voted for. That has never happened before in the history of the country.

Our colleague from Illinois was discussing the fact that a former Senator from New Hampshire had, in this Senate, talked about filibuster, following a couple of judges for the Ninth Circuit Court of Appeals. In fact, that Senator had said that. The interesting point is, even though he, a single Senator, wanted to filibuster the nominees-- their names were Berzon and Paez--the Republican leader, Trent Lott from Mississippi, made an arrangement with the then-Democratic leader, Daschle from South Dakota, that they would not be filibustered, and we filed cloture, which is the petition to bring the matter to a close so we could take a final vote. Senators on both sides of the aisle supported the cloture motion, so they supported getting to a final vote on those two judges. Of course, cloture was invoked, meaning they were not filibustered.

They were brought up for a vote. Some voted against them--I voted for Berzon and against Paez--but the net result is they are both sitting on the Ninth Circuit Court of Appeals today. They were not filibustered. So there is no case of a filibuster of the circuit court judge. None.

Second, the only other situation in which it is alleged a filibuster occurred was with Abe Fortas, whose name was withdrawn by Lyndon Johnson the day after a cloture vote failed to succeed. As Senator Griffin from Michigan, who was then leading that opposition to Abe Fortas, has told me and others, there was no effort to filibuster because they had the votes to kill the judge. They simply had not had time to debate him, which is why they voted against the cloture, but as a result of the President acknowledging he had no support in the Senate, his name was withdrawn.

There has never been a filibuster of a Supreme Court or circuit court judge in the United States--it simply is erroneous to suggest there has been--nor is it correct to say we have been voting on all of these different judges. If you take the district court judges out, about whom there is no controversy, there is a huge issue because fully a third of the President's circuit court

nominees were not voted on because of this new filibuster by the Democratic minority.

We need to have some perspective. Who is changing the rules? Until 2 years ago, all the judges got up-or-down votes. Judges that could not even get out of the Judiciary Committee with a majority vote were granted the privilege or courtesy of a vote in the Senate. During the debate when Clarence Thomas was being confirmed, several leading Democratic Senators came to the Senate to oppose Judge Thomas. They said they actually had thought about trying to filibuster his nomination but that would be wrong because filibustering judicial nominees is wrong. Senator Leahy, Senator Kennedy, and others came to this floor and said, we do not know whether we will defeat Clarence Thomas or not, but we are not going to defeat him with a filibuster because that would be wrong.

Sure enough, they were correct. They lost the vote, 48-52. He was confirmed. I admired them because they stood for principle. The rule and the tradition of this body had always been we give the nominees an up-or-down vote, but if they could get 51 votes for confirmation, they became a circuit court judge or a Supreme Court justice. That is what happened in the case of Clarence Thomas.

Now, all of a sudden, it has been turned around, and the Democratic minority, almost to a person, has said they believe judges should be filibustered, and the President's nominees are not going to get an up- or-down vote if they decide they want to filibuster a particular nominee.

As I said, at least a third of these circuit court nominees so far have been filibustered. It is our understanding that practice will continue unless we can get back to the way it has always been, the traditional role of the Senate in providing advice and consent with a majority vote, up or down.

It has also been suggested the President is nominating a new, wild variety of lawyers and judges to be circuit court judges, way out of the mainstream kind of people. This, of course, is absolutely ludicrous. The kind of people that President Bush has nominated are respected jurists or lawyers.

The American Bar Association, which used to be the Democrat's gold standard for approving the judicial nominees, has judged all of these candidates qualified. Yet somehow some of our colleagues on the left say they are out of the mainstream. My colleague on the Judiciary Committee, the Senator from New York, for example, has made this charge on several occasions.

I ask, who is probably more representative of the mainstream? A single Senator from a State, for example, like New York? Or the President of the United States who had to get elected with support from all over this country? I don't think anyone would say George Bush is out of the mainstream, that President Bush is out of the mainstream of this country.

Who are some of the people he has nominated? Some are judges who have had to stand for election, for example, in California and Texas, and have received supermajorities, 70 or 80 percent. I have forgotten the exact numbers of support from the citizens of their States. One is a blue State. One is a red State. When well over 50 or 60 percent of the citizens in this State vote to support these judges to continue in office on their State supreme court, you would hardly say these nominees are out of the mainstream. Yet those two particular judges, Janice Rogers Brown from California and Percilla Owen from Texas, are the ones for whom this filibuster has been applied.

It does not make sense to suggest a tradition of this Senate to give people an up-or-down vote is going to be overturned because all of a sudden a President is proposing people who are wildly out of the mainstream.

What has the Republican majority at least considered doing? Simply returning to the way it has always been, to going back to the 200 years--before 2 years ago--and giving people an up-or-down vote. Members can still vote against the nominee. Members do not have to vote for the nominee, but at least give them an up-or-down vote. We do that based upon the precedence that has been set by the then-majority leader of this Senate, the Senator from West Virginia, who, on not fewer than four separate occasions, utilized the precedence of this body to ensure that dilatory tactics could not prevail in this Senate and that we could move forward with the business of the Senate.

It is the very same precedent that would be used to reestablish the up-or-down vote which has been the tradition of this Senate all along. That is not rubberstamping. That is giving due consideration to these nominees and giving them an up-or-down vote at the end of the day.

When Americans look at this sort of intramural battle occurring in the Senate, they have to wonder why this is happening, why it is so important. I suspect it may have something to do with the fact there might be a vacancy on the Supreme Court, and our friends on the other side of the aisle are so afraid President Bush might nominate someone who could gain majority support they are prepared to actually refuse that nominee an up-or-down vote. That would be unprecedented in the history of this body. I don't think it is right.

Some people have called this the nuclear option because they threatened to blow the Senate up if we try to return to the traditional rule of an up-or-down vote in the Senate. That is a very unfortunate name and a very unfortunate threat. No one should be threatening to go nuclear or blow the place up or prevent the Senate from doing its business. Our constituents sent us here for a reason, to get work done, to pass a budget, to pass the appropriations bill, to pass the bill that is before the Senate right now, the supplemental appropriations bill that will literally fund our troops' effort in Afghanistan and Iraq, to pass an energy bill, to pass a defense authorization bill, all of the other important things they want us to do here.

Yet we have some colleagues suggesting, if they do not get their way on these judges, like a school-yard bully who has a call go against him by the referee and picks up his ball and goes home so the rest of the kids cannot play. Is that the threat here; pick up your ball and go home so the rest of us cannot do the business we were sent here to do?

Let me make one final prediction. Last time we met as members of the Judiciary Committee, we could not get a quorum to do business. Not one member of the minority party showed up. We have to have at least one for a quorum. This was not the last meeting but the penultimate meeting. They said there were three members going to the funeral of the Pope; 3 out of 9. I predict, at another meeting on Thursday--and we need to pass the judges out to consider them on the floor--they will not give a quorum then, they will not show up or, if they do show up, they filibuster it so we cannot get the judges adopted. I predict right now the judges that are on the agenda for that meeting this coming week will not be passed out. They might pass out one or two, but they are not going to allow us to pass all of those judges so they can be considered by the full Senate.

It was Members of the minority party who complained, while Republicans never filibustered, they did keep some of President Clinton's judicial nominees bottled up in committee. We will see whether they are willing to pass these nominees--I think there are 6 or 7 pending--we will see whether or not they are willing to show up for the meeting so there is a quorum and enabling the committee to pass them out to the full body so we can debate the nominees or whether they talk and talk and talk until the meeting has to end, no one else is around, and we no longer have a quorum or they simply do not show up for a quorum.

We will see what they do. I predict right now my colleagues are not going to allow us to get those judges to the Senate so we can begin the debate and the consideration of whether they should be confirmed. That will be a real shame and, again, a violation of what this Senate has always done in the past, even when we did not particularly think a nominee should receive an affirmative vote on the floor. I believe Clarence Thomas was in this situation. The committee passed him to the Senate to see what the full body would do to give its advice and consent which is what the Constitution calls upon us to do.

I close by urging my colleagues not to confuse this discussion with erroneous information or talk about things

that are in a history that never was but, rather, to approach it on the basis of moving forward, in a bipartisan way, to fill our constitutional responsibilities to grant these judges an up-or-down vote by our advice and consent so we can put people on the court in these very important positions to serve the American people.

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

Mr. President, I think we are now ready to begin a conversation. There are several colleagues here, including the Senators from Georgia, Alabama, and Idaho, we would like to discuss this issue we are going to be voting on tomorrow. Our colleagues need to have a clear picture of what we will be voting on.

There are two basic versions of legislation to try to make it easier for agricultural employers to hire people who are temporary workers or who have been in the United States illegally and can be employed under the bills proposed here. There are two different approaches. One is the approach of the Senator from Idaho--I will defer to him in a moment to have him discuss his approach--and the other approach Senator Chambliss and I have offered. There are a couple of key differences. They both approach the problem from the standpoint of broadening the way in which legal immigrants can come to the country and be employed legally in agriculture and taking illegal immigrants who are currently not working within the legal regime, using counterfeit or fraudulent documents-- and, everybody knows, being employed illegally--and enabling them to work for a temporary period of time legally in this country.

The primary difference between the approaches is over the question of amnesty. Regarding that, I think everybody would have to admit--and different people have different definitions of what amnesty is-- everybody would have to agree, if there is a difference in how you can become a legal, permanent resident in this country or a citizen, you would have to agree, if someone is granted an advantage over an applicant for legal permanent residency or citizenship status in another country, if they are given an advantage because they came here illegally and counterfeited documents to get employment and worked here illegally, to give them an advantage over people who are seeking to come here legally is giving them an advantage that would amount to amnesty. You should not be able to use, in other words, your illegal status to bootstrap yourself into a position of legal, permanent residency or citizenship.

I pointed out before, under the bill of the Senators from Massachusetts and Idaho, there would be an ability for people not in the United States but who would like to come here to claim they worked in the country illegally, and that would give them an ability to come here and apply for this same status. So, ironically, we would be turning on a neon sign that says come here with documents--they could be fraudulent and you could have defrauded us before--and claim that you worked in the country illegally, and we will let you come back in again.

I don't know how you give people an advantage on the basis they violated our law. You would think you would want to give people an advantage who have played by the rules. That is the second way in which this bill grants amnesty and is not the right approach. As my colleague from Georgia talked about, we would be changing, for the first time, a law to allow the Legal Services Corporation to represent these illegal immigrants, which is something we have not been willing to do in the past. We have to be careful because the reason illegal immigrants are working here is the current H2-A law is so cumbersome to use, it is so subject to abuse and costs money and takes time and you can be sued, and so on, that employers don't like to use it. It is just not worth it to them. If we are going to have a bill that is no easier to use, there is not going to be any advantage over the current law and, as a result, it is going to be difficult for farmers to utilize this new provision if they have to look over their shoulder and wonder if the Legal Services Corporation is going to file a lawsuit.

Yes.

Mr. President, that is a very good question. I think all of us would agree that we cannot be displacing American workers. We are currently not doing that today. There is a need for these employees, and it is really a question of which approach is the better one, to ensure we can match a willing worker with a willing employer without granting amnesty.

Yes.

Yes. We change the wage rate to the prevailing wage. We make it easier for the farmer to demonstrate that there are not American workers available to do the jobs. We make it easier, cheaper, faster, but with protections for the employees.

I think all of that is why the American Farm Bureau Federation has endorsed our legislation as the best way for them to satisfy these employment needs.

Mr. President, I will close and allow my colleagues the opportunity to speak. Senator Craig wants to disagree with us, and I want to give him that opportunity. Let me allow him to describe his bill, and we can have a debate back and forth as to which bill better satisfies our employment needs or requirements but doing so in a way that we can actually get a bill passed and sent to the President; i.e., a bill that doesn't include amnesty.

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

Mr. President, I ask the Senator from Oregon, we have the Senator from Massachusetts here, and the Senator from Alabama has been here, as has the Senator from Georgia been on the floor when there was no one else present. I wonder if we can get some general agreement of going back and forth between proponents or opponents or proponents of the two separate bills so the Chair has some idea of order and the debate participants do as well.

I offer this as a suggestion. I have not proposed a unanimous consent request, but perhaps some of the staff can work this out while the Senator from Oregon is speaking.

Yes.

Let me propose this unanimous consent, Mr. President, if I may. The Senator from Oregon is speaking right now. I ask unanimous consent that after the Senator from Oregon is finished, so there would have been two Members speaking on behalf of the legislation of the Senator from Idaho, that at that point, the debate next go back and forth between proponents of the Chambliss-Kyl amendment and then back to Kennedy-Craig, and anyone offering an amendment can obviously seek to ask unanimous consent to lay the pending business aside, but in the meantime the debate on these two provisions that will both be voted upon tomorrow proceed with speakers on either side rotating.

That is accommodated in the unanimous consent request which I proposed.

I am happy to have my unanimous consent request amended along the lines of what the Senator from Massachusetts said.

They could ask unanimous consent to intervene, and obviously it will be granted.

Let me propound the unanimous consent request again, if I can. I ask unanimous consent that in 15-minute blocks of time Senator Wyden proceed without any of this time coming off his, there then be two 15-minute blocks for the Senator from Alabama and the Senator from Georgia, followed by a 15-minute block for the Senator from Massachusetts, but in the meantime, Senator Bingaman be able to offer his amendments.

Mr. President, I rise today to introduce the Material Support to Terrorism Prohibition Improvements Act of 2005.

Mr. Barry Sabin, the Chief of the Counterterrorism Section of the Justice Department's Criminal Division, testified as to the importance of the material support statute at a September 13 hearing before the Terrorism Subcommittee last year. He emphasized that:

a key element of the [Justice] Department's strategy for

winning the war against terrorism has been to use the

material support statutes to prosecute aggressively those

individuals who supply terrorists with the support and

resources they need to survive. The Department seeks to

identify and apprehend terrorists before they can carry out

their plans, and the material support statutes are a valuable

tool for prosecutors seeking to bring charges against and

incapacitate terrorists before they are able to cause death

and destruction.

The bill that I introduce today expands current law's exclusion from the United States of persons who give material support to terrorism by training at a terrorist camp. The bill makes such persons inadmissible to the United States, they now only are deportable, and applies these exclusions to pre-enactment terrorist training. Mr. Sabin described at last year's hearing the threat posed by persons who have receive training at a terrorist camp:

A danger is posed to the vital foreign policy interests and

national security of the United States whenever a person

knowingly receives military-type training from a designated

terrorist organization or persons acting on its behalf. Such

an individual stands ready to further the malicious intent of

the terrorist organization through terrorist activity that

threatens the security of United States nationals or the

national security of the United States.

My bill would ensure that such persons not only are removed from the United States once they are found

here, but also are prevented from entering this country in the first place.

Today's bill also repeals a 2006 sunset on several recent clarifications that were made to the material-support statute in order to address vagueness concerns expressed by some courts. At the September 13 Terrorism Subcommittee hearing, George Washington University law professor Jonathan Turley said of the original legislative proposal to clarify the statute: ``[t]his proposal would actually improve the current federal law by correcting gaps and ambiguities that have led to recent judicial reversals. In that sense, the proposal can be viewed as a slight benefit to civil liberties by removing a dangerous level of ambiguity in the law.''

There is no reason why this important provision, and other improvements to the material-support statute made in last year's 9/11 Commission bill, should be allowed to expire at the end of this Congress. This bill would make these improvements permanent.

I ask unanimous consent that the text of the bill and a section by section analysis be printed in the Record.

Mr. President, I rise today to introduce the Material Support to Terrorism Prohibition Improvements Act of 2005.

Mr. Barry Sabin, the Chief of the Counterterrorism Section of the Justice Department's Criminal Division, testified as to the importance of the material support statute at a September 13 hearing before the Terrorism Subcommittee last year. He emphasized that:

a key element of the [Justice] Department's strategy for

winning the war against terrorism has been to use the

material support statutes to prosecute aggressively those

individuals who supply terrorists with the support and

resources they need to survive. The Department seeks to

identify and apprehend terrorists before they can carry out

their plans, and the material support statutes are a valuable

tool for prosecutors seeking to bring charges against and

incapacitate terrorists before they are able to cause death

and destruction.

The bill that I introduce today expands current law's exclusion from the United States of persons who give material support to terrorism by training at a terrorist camp. The bill makes such persons inadmissible to the United States, they now only are deportable, and applies these exclusions to pre-enactment terrorist training. Mr. Sabin described at last year's hearing the threat posed by persons who have receive training at a terrorist camp:

A danger is posed to the vital foreign policy interests and

national security of the United States whenever a person

knowingly receives military-type training from a designated

terrorist organization or persons acting on its behalf. Such

an individual stands ready to further the malicious intent of

the terrorist organization through terrorist activity that

threatens the security of United States nationals or the

national security of the United States.

My bill would ensure that such persons not only are removed from the United States once they are found

here, but also are prevented from entering this country in the first place.

Today's bill also repeals a 2006 sunset on several recent clarifications that were made to the material-support statute in order to address vagueness concerns expressed by some courts. At the September 13 Terrorism Subcommittee hearing, George Washington University law professor Jonathan Turley said of the original legislative proposal to clarify the statute: ``[t]his proposal would actually improve the current federal law by correcting gaps and ambiguities that have led to recent judicial reversals. In that sense, the proposal can be viewed as a slight benefit to civil liberties by removing a dangerous level of ambiguity in the law.''

There is no reason why this important provision, and other improvements to the material-support statute made in last year's 9/11 Commission bill, should be allowed to expire at the end of this Congress. This bill would make these improvements permanent.

I ask unanimous consent that the text of the bill and a section by section analysis be printed in the Record.

Mr. President, before the Senator yields, may I ask two quick questions? Will the Senator from California respond? First, the Senator from California is the ranking member on the Terrorism and Homeland Security Subcommittee of the Judiciary Committee, which I chair; is that correct?

Mr. President, let me ask the Senator another question. She talked about the probability of thousands and thousands of illegal immigrants being attracted to come into the country who are not here now. The Senator from Idaho said we will have a cutoff date.

Was the Senator from California, in raising that concern--which I believe to be an absolutely legitimate concern--perhaps talking about section 101(D)(1)(c) of the bill of the Senator from Idaho which actually invites former lawbreakers to return to the United States? In other words, illegal immigrants who have formerly worked in U.S. agriculture.

I do not have the page. It is a section that permits former immigrants, who worked here illegally in agriculture but have since returned to their home, to return to our southern border and apply for the special status that is set up in the bill the Senator from California described earlier in order to file a preliminary application for status as temporary permanent resident if they appear in designated ports of entry with an application that ``demonstrates prior qualifying employment in the United States,'' and then could be granted admission to the United States by the Department of Homeland Security.

That is question No. 1. Is that one of the areas in which additional illegal immigrants would be attracted to come into this country?

Will the Senator from California yield for another question?

Under the provisions we talked about before, which would attract any number of illegal immigrants--and by the way, that is not a term I throw around negatively because they would, in fact, have to say they were illegal immigrants in order to gain entry into the United States. They would have to say they were working illegally in the United States before and now they want to come back. That is the provision of law under which they could actually come back into the United States.

Based on the experience of the Senator from California with the use of illegal documentation--Social Security cards, driver's licenses, all of the other items of identification that can be counterfeited--would the Senator have a view as to whether this particular provision could be taken advantage of by those wishing to commit fraud? Of course, people already committed fraud in this country by coming here illegally and using those same fraudulent documents to gain employment in the first place. Isn't this one that would engender a lot of fraudulent applications to come back into the United States?

If I can conclude by saying to the Senator from California, I think the proposal she and the Senator from Texas have set forth to put this very

important but very complicated discussion off and not have this debate on the bill that helps to fund our war operations in Iraq and Afghanistan is a very good proposal which I intend to support.

As she knows, I welcome the opportunity to work with her and also with my good friend and colleague from Idaho, the Senator who is proposing the bill, which I would oppose but would hope to be able to work on if we have the opportunity to do that outside the kind of activity in which we are engaged on the supplemental appropriations bill.

So I do support the proposal of the Senators from Texas and California and hope the body will approve it.