Floor Statements

Mr. President, Monday the Senate will be in a period of morning business until 2:30 p.m. At 2:30 p.m., the Senate will begin consideration of the Defense authorization bill. The chairman and ranking member of the Armed Services Committee will be here on Monday to begin working through amendments to the bill. Chairman Warner and Senator Levin have indicated they will have an amendment to be voted on at approximately 5:30 on Monday. Therefore, the next rollcall vote will be at 5:30 on Monday afternoon.

It is the leader's intention to complete action on this bill next week. Therefore, Senators who wish to offer an amendment are encouraged to contact the bill managers as soon as possible so they can schedule floor time for consideration of amendments.

Also on Monday we are hoping to consider the bioshield legislation under an agreement. Senators Gregg and Kennedy will be here and available to begin consideration of that bill shortly

after noon, if that agreement is reached. If we are able to consider the bioshield legislation on Monday, we would delay passage of the bill until Tuesday.

Moments ago cloture was filed on the nomination of Marcia Cooke to be a district judge for the Southern District of Florida. If necessary, the cloture vote on the Cooke nomination will occur on Tuesday, May 18 at 2:15 p.m. In addition, yesterday we locked in a short time agreement on H.R. 3104, providing medals to our soldiers participating in Operating Enduring Freedom and Operation Iraqi Freedom. The vote on passage of this bill will occur on Tuesday as well.

We have a very busy agenda for the next week, and the majority leader encourages all Members to plan for votes throughout the week.

Mr. President, if there is no further business to come before the Senate, I ask unanimous consent the Senate stand in adjournment under the previous order.

I would also like to congratulate the senior Senator from New Hampshire for his success in getting this legislation this far through hard work and bipartisanship. We recognize that securing consensus necessitated compromise on a position we all share: that schools should be able to maintain a single standard for discipline. Like Senator McCain, I am very pleased that this legislation repeals the ``stay-put rule,'' a major priority of Superintendent Horne and other education leaders in our state.

I certainly understand the concern that this provision could have unintended consequences. I hope that in conference this language can be clarified to focus on the achievement of outcomes through the development of a sound remedial plan, overseen by the Department of Education. Many of us have expressed concern over the cumbersome litigation sometimes associated with IDEA. This language could make the status quo worse--tying up critical personnel and diverting scarce resources, without ensuring positive outcomes.

The Chairman of the Committee on Health, Education, Labor and Pensions, perhaps drawing on his experience as a Governor, has been eloquent in detailing the burdens this Federal statute has placed on States. I trust that as the final bill language is crafted, he and his colleagues will be striving to ensure that the need to provide parents with appropriate mechanisms for vindicating their due process rights will be balanced appropriately against the imperative not to impose excessive new burdens on state governments.

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

Mr. President, we are here this afternoon debating the nomination for the position of Ambassador to Iraq, the nomination of Ambassador-nominee Negroponte, a career diplomat who probably has as long and good a record in the United States as any person who has served in our Foreign Service.

He started in 1960 representing the United States. He has had an amazing array of important posts, including being Ambassador to the Philippines and Honduras and Mexico, and serving in a variety of other international organizations.

I hope, at the conclusion of our debate today, the Senate will, in fact, confirm the nomination of Ambassador-designate Negroponte.

We need the very best in Iraq. It is a challenging situation. There is no doubt about that. We need somebody of his caliber there. I am delighted the President has found it possible to find such a good person to be the first ambassador to this newly freed country. I hope, as I said, we will be able to confirm him quickly and that he will be able to assume his post.

I think a lot of the Members have found this as an opportunity to discuss the larger issue of the war in Iraq and how it is going and particularly in light of the events of the recent days regarding the revelations of the treatment of certain prisoners in Iraq. I think it is appropriate we all reflect on that, but I also think it is important we keep it in perspective.

I just gave a radio interview in which the questioner asked questions that suggested maybe the wheels were coming off the wagon, that the entire effort might not be worth it; that one of our colleagues in the House had indicated that maybe we are losing the war and we ought to recognize that right now.

I want to focus a little bit on that because, as we have a new ambassador about to assume the position there, he might rightly ask the question, What am I getting into here if we are about to lose a war? And the question is, Are we? And, of course, the answer is, No, we are not. I think it would be well for Americans to stop and think before they talk in those terms because the mere discussion of the issue in those terms gives solace and encouragement to our opponents.

Unlike a war that we fought in the past--you could choose your examples--this war on terrorism includes components that have a lot to do with psychology, with what the enemy believes he can accomplish using asymmetric force against far superior forces of the allied coalition. Therefore, it is important what the enemy reads into what we are saying about the war ourselves. That is why, in effect, the floor of the Senate and the media are other fronts in the war.

When we ask what we can do to help our troops, one thing we can do is think clearly about this and speak in a constructive, positive way, which is not to say we should never express disagreement with each other or with the administration or offer constructive suggestions about what to do better. All of that is fair game in a democracy and makes us what we are and makes for a better conduct of any kind of operation, including a military one. But there is a way to do it that does not give encouragement to the enemy.

When you begin to suggest that because of what a very small handful of Americans did to some Iraqi prisoners, that it somehow suggests we are losing the war, we have gone way off track. I realize most people are not saying that. I hope they don't. That is the kind of expression that will be the beginning of the end of our effort to conduct the hearts and minds part of this war on terror which is almost in some respects as big a part of it as is the military conquest we were so successful in achieving in Iraq.

How should we be conducting ourselves? We are part of this war effort. We are not carrying a gun. But people listen to what we have to say. The terrorists take away from what we say either encouragement or discouragement.

I return to the memo we intercepted from a fellow by the name of Zarqawi. He was sending a memo to his fellow terrorists connected with al-Qaida saying: We have a real problem here. The Americans are winning in Iraq. They are defeating our brothers, and we need more allies. We need people to pour into Iraq to assist us. I fear we are losing the battle because we can't get enough help and the Americans are too tough. They are winning the country over, and before long they are going to have a new government set up here and we will have lost this effort.

That was this terrorist's assessment of the situation. I like that assessment. What it shows is the planning and execution of our military effort and the followup of the military effort after we took Baghdad and had conquered the country, that that has largely succeeded. For most of the country we know it has.

We have two pockets of significant resistance with which we are dealing. There the tension is between going in and doing collateral damage or trying to negotiate, which is what we are being urged to do by people on the ground, Iraqis who, after all, are making a point that they might have some idea about how to do this since they know the folks involved and it is their country. They are going to have to take care of this in the future. So we are paying attention to what they suggest. We are trying to walk a careful line in dealing with these two situations.

But by and large, the point is, the country has been pacified. There has been so much constructive accomplished there in terms of getting the country's infrastructure back to work, getting oil production going, getting the schools and hospitals back up to speed, all of the other aspects that have begun to return the country to normalcy, that we tend to forget all of the good and tend to forget that the security of the country has largely been obtained when we see on the nightly news only one thing and that is the latest explosion that killed either an American soldier, perhaps, or innocent Iraqis, because a lot of the people who are being killed are Iraqis themselves. That is the bad news.

Notwithstanding the news that we get all of the time, the terrorists are saying: We are about to be beat here because the Americans and the other allies have been able to marshal the military power to subdue our brothers. Without new reinforcements, we are likely to lose this battle.

That is a nice assessment. It gives us encouragement that if we continue on this path, we will prevail. We have a strategy laid out to turn authority over to the Iraqis to govern themselves on June 30 and proceed to have elections in the country next January. Hopefully, we will continue to consolidate the security and so on. We are aware of those things.

Therefore, it is especially distressing when people who are important people in America, perhaps elected officials, speak out on television and suggest that, because of these most recent events, somehow we can't win this battle; We can't win this war; We can't continue to consolidate the gains we have made, continue to provide security, continue to help in the reconstruction of the country, and continue on the path of turning it over to the Iraqis so they can freely govern themselves.

Let's take each of those points. First, no one in America condones or in any way expresses anything but disgust for what we have seen on television and what we have been reading about. It is un-American to treat people the way these Iraqi prisoners were treated. It doesn't make any difference what they might have done. Americans don't do that.

The President today, in meeting with King Abdullah, publicly said he was sorry for this. He was also sorry that a lot of people in the world would take this incident as manifesting what Americans and America are all about. He said that bothers him, and it obviously bothers all of us because we know that is not what we are about. The question is, This aberration, as it has been described, should that in any way suggest to us that we can't win this conflict? I fail to see a connection.

I understand that among a lot of Arabs and, frankly, the rest of the world, including in the United States, people are appalled. But anyone with an open mind who has any understanding of the United States and of Americans understands that this is not

the way Americans act and, in point of fact, that we have a system which encourages reporting of such incidents and which immediately ensures that the perpetrators will be dealt with in an appropriate way.

It is my understanding--and we will find out a lot more about this as time goes on--that the day after the report of the incident the inquiry began which resulted in military action, court-martial action being taken against several of these perpetrators, and subsequent to that, action has been taken against several people and that there are some that are still pending to be resolved. It is also my understanding that within the same month of January, a command had already been set up to investigate whether this was endemic or widespread, whether it really was an aberration and, to the extent that it demonstrated that there were flaws in our system that permitted this to occur, that they be fixed, and that things have been implemented to ensure this will not happen again.

I suspect as we are briefed on all of this we will learn a lot more of the detail, and we might be more comfortable with the way the military has handled this. This is what America is all about.

There is some fault, not only for the people who actually did what we have seen but also for the way it was handled. What I regret is that many in the political world have tended to focus on this. I would hope that opponents of the President would not seize upon this to try to gain partisan advantage. It is something that reflects on the entire country. It is not a Democratic or Republican kind of issue.

There have already been calls for the resignation of Secretary Rumsfeld. This, obviously, would not help the President politically, but is it appropriate? The Secretary will be presenting open testimony tomorrow before the Senate Armed Services Committee. He will tell his story. Until he does, I think it would be wise for people to withhold their judgment. Since we have not even been briefed on the issue--and that is one thing people complain about--would we have a right to call for somebody's resignation before we have even heard what they had to say or been briefed? Is that an American way to do things or is it an expression of partisanship?

I suggest to the extent it might be the latter, people should hold their fire and wait until the facts come in, and we can discuss this in a nonpartisan and a constructive way rather than a way that might be misread by our enemies, because the more this kind of criticism occurs, the more the enemy may take from it that America is divided and we no longer have the commitment or the will to see this conflict to an end; that therefore if they continue to try to nip away at us the way they have been, they will be able to drive us out, and they will have the country left to them to resume the kind of rule that Saddam Hussein exerted in that country for decades.

We cannot allow that to happen. I think there is a legitimate question about when the people in the policymaking part of the Government--and that includes the Assistant Secretary, Secretary of Defense, National Security Council, the President, and Vice President-- became aware of things like the existence of photographs and other things which, if made public, would certainly significantly detract from our effort. These policymakers would clearly have understood that is the kind of thing that can undo countless hours of good work by thousands of military and non-military personnel in the country. Just one incident like this can undo all of the good that literally hundreds of people do.

We have all seen the acts of kindness as well as bravery by our troops. We have seen soldiers helping kids in school--saving a little child in one case and a woman in another case--from being in the line of fire, one of whom had been wounded. There are countless Americans acting unselfishly and, frankly, selflessly, putting themselves in danger to help Iraqi people. That is a message that obviously needs to be conveyed, but all of that is, in a sense, forgotten the minute you have an incident like this, especially with the photographs showing this.

I can understand how someone who committed these atrocities, unthinkingly, would have no idea about how this might affect the entire war effort when it becomes known, but people higher up certainly would have that sense. It was important that they get this information so they could then decide what to do with it. Undoubtedly, in America, ordinarily, we understand that the best way to deal with bad news like this is to deal with it in an open, honest fashion. I suspect that had we been able to do that, a lot of the outcry here might have been averted. That might have been included in briefing Members of Congress. But if the Secretary of Defense didn't even know of the existence of the photographs, it is kind of hard to brief Congress about it.

I suggest that the bottom line on this point is that we find out what the facts are by asking the people directly. Let's stop condemning them publicly and calling for their resignation and stop assuming facts we don't know.

During a radio interview that I just had, the questioner asked me about a certain situation. I said: I don't know that to be true. Do you? He said: No, but that is what we have heard. Let's see what the truth is, and we can act in a calm, compassionate, and firm way with those who did wrong.

My final point is that in the fog of war a lot goes wrong. Individual people make bad judgments. Americans are just as prone to that as anybody else. There is a lot of pressure and emotions run high, and it is certainly possible for people to do wrong. One of the candidates for President this year talked about atrocities he committed, or saw committed, in another war in our history. It happens. It is not right, and people should be called to account for it when it happens.

But let's remember, too, that everything in war is not coming up roses every day, and that there will be days of bad news. If you stop to think about World War II, for example, or about Korea, or any other wars we have fought in, you can find some very bleak days, days when Americans were being pushed off the Korean peninsula, days when we were being pushed off Omaha Beach, or times when we were making no progress and were taking thousands of casualties on the Pacific islands. Our own prisoners were horribly mistreated, and there must have been a sense that this may not be worth the effort.

Americans understood the stakes and we persevered. In war there are going to be times that are bad. We understood that. Sometimes they are caused by enemy action and sometimes by mistakes we ourselves might have made. This is one of those times when we have a real problem because of mistakes that Americans made. But we have the capacity as a Nation to correct those mistakes if we will do that in a constructive way. That is the key. But if we do it in a partisan way, in a destructive way, we will only play into the hands of our enemies, who are looking for that kind of signal so they can succeed in their effort.

As we conclude debate on the nomination of a critical position at this time in our history, the ambassadorship to Iraq, it is good to reflect on these issues. The Ambassador will have a very difficult job. I hope as we consider his nomination and how to support him when he assumes this role, we will all agree it is important to do so in a constructive way, always giving him our best judgment, but not undercutting him with premature judgments or actions that might be construed as political and might be misunderstood by our enemy.

If we conduct ourselves in that way, I am confident that, despite the fact there will be days we feel very challenged in this country and, as the President said, things we are very sorry for, nonetheless, because of the kind of people and Nation we are and the values and principles for which we are fighting, we will in the end prevail, and we will prevail not only to the benefit of Americans and our national security, but for the cause of freedom of people throughout this world.

I thank the Senator from Iowa and I thank the Senator from North Dakota.

Mr. President, it seems to me the amendment of the Senator from North Dakota does both too little and too much. A lot of thought went into crafting the bill before the Senate by staff and members on the Finance Committee. It is hard to get this exactly right. We have done that. This is very complicated.

What I mean by doing too little and too much is this: The amendment only affects about 7 percent of the products according to the Commerce Department; 7 percent of the goods and services these multinational corporations produce are imported back into the United States. That is the only part of the new deferral rule that would be affected.

In that sense, it probably does not do much to accomplish the purposes of the authors of the amendment. But it does too much in the sense that anything that impedes the competitive advantage of the U.S. corporations and the quality of their products is going to hurt their ability to do business.

What we have tried to do with the deferral rules is to even the balance between the European corporations, for example, and the American corporations, so our companies are not taxed more than their competitors. This would, to the extent it changes these deferral rules, impose a higher tax on American businesses than their European counterparts are required to pay. In that sense, it changes this competitive balance. It is exactly what we are trying to get away from.

I urge my colleagues to reject the amendment of the Senator from North Dakota, acknowledge the work of the Finance Committee which, as I said, very carefully tried to get this balance right and ensure American companies would not be at a competitive disadvantage vis-a-vis their European competitors.

I urge my colleagues to defeat the amendment of the Senator from North Dakota and support the Finance Committee.

Mr. President, speaking before the UN General Assembly in September, President Bush asked the Security Council to take a firm stand against the proliferation of weapons of mass destruction, WMD. President Bush asked for a Security Council resolution that would call on all nations to criminalize proliferation, enact strict export controls and secure these terrible weapons within their own borders.

Seven months later, on April 28, the UN Security Council unanimously passed Resolution 1540 fulfilling the President's goals. Those who have argued that this administration has turned its back on the international community need only look at the diverse group of nations--from Algeria to Angola, Chile to China, Pakistan to the Philippines--that stood with the United States in this important battle in the war on terror to dispel such notions.

It is now up to the members of the United Nations to follow the Security Council lead and enact the provisions that will help stem the flow of dangerous weapons and technology.

This resolution is the culmination of the administration's hard work, led by Under Secretary of State John Bolton, to halt the proliferation of chemical, biological and nuclear weapons. The President's proliferation security initiative, launched last March, embodies these efforts. It has brought together nations from North America, Europe, Africa, and Asia to interdict shipments of WMD around the world. This resolution endorses such important collective action and I urge all nations to join in the effort.

I applaud the administration and the Security Council for helping take an important step to building a safer, more secure world.

Mr. President, I ask unanimous consent that the time for the two leaders be reserved for their use later in the day.

Mr. President, I rise to speak to the legislation we are going to be taking up when we go back to S. 1637, called the Jumpstart Our Business Strength Act, which will attempt to modify the law relative to how we treat manufacturing firms in tax policy to comply with rulings of the World Trade Organization and related legislation.

There is an amendment pending that will be offered by Senator Harkin that relates to final regulations issued last week by the Department of Labor. I would like to speak to why we should quickly dispense with that Harkin amendment to move on with the S. 1637 and not get bogged down in the regulations that were issued by the Department of Labor.

The regulations issued a final rule to update the previous regulations that implemented the Fair Labor Standards Act. That act implements rules guaranteeing overtime pay for certain nonwhite collar workers--in other words, when somebody works longer than the period they would ordinarily be required to work, what circumstances the employer is required to then pay overtime pay for that additional work. The rules the Department of Labor has had in effect have not been modified for over a quarter of a century. The salary levels to which these regulations apply have not been changed since 1975. The duties test has actually not changed since 1949. That is the test that tries to define whether a worker is a white collar worker who would be exempt from this requirement or a blue collar worker who would be guaranteed overtime if they worked longer than they are supposed to. What this has done is to leave employers with very obsolete job classifications, things such as straw boss and leg man, other titles for work that have not been performed for years. That needed to be fixed.

The Department of Labor had been struggling to try to bring it up to date and get final rules into place, which now has been done. A lot of the concerns expressed by supporters of the Harkin amendment are based on interpretations or misreadings of the previously proposed rule. But a lot of that has now been cleared up in the final rule made effective last week. Much of the criticism should fall by the wayside.

Let me describe what the final rule does. It would guarantee overtime benefits to 1.3 million low-wage workers who before were not entitled to overtime pay. Under this rule, 6.7 million new employees must be paid overtime regardless of their duties. That is 1.3 million more than is currently the case. It would raise the minimum salary level at which workers are ensured overtime pay from $155 to $455 a week or $23,660 annually. That is the largest increase since the law was enacted in 1938. Under the previous regulations, individuals earning the minimum wage, which would be about $10,700 a year, were not guaranteed overtime.

They must be classified by their employers as nonexempt in order to receive overtime. The previous regulations guaranteed only employees earning less than $8,000 a year a nonexempt status--in other words, guaranteed minimum wage. This regulation updates all of that.

The work the Department of Labor has done is going to help a lot of Americans. Over 6.7 million Americans will now be guaranteed this overtime pay and a lot more than that will probably get it, depending upon exactly what kind of work they perform. Under the new regulations, employees who earn more than $100,000 annually would be exempted, but here again, even they would only be exempted if they regularly and customarily perform executive, administrative, or professional duties. Even somebody with earnings over $100,000 a year could get overtime pay. The Department of Labor estimates only about 107,000 employees who earn $100,000 or more could be reclassified as white collar employees and potentially lose their overtime pay. Those who earn between $23,660 and $100,000 will remain eligible for overtime pay if they meet the so- called ``short test,'' which determines whether they are exempted white collar employees or not.

Let me respond to some of the misinterpretations. There was a view that a lot of folks would not be guaranteed pay. The new rules explicitly define certain groups as being guaranteed pay. For example, first responders, police officers, firefighters, paramedics, emergency medical technicians, and similar public safety officers are entitled overtime pay.

I ask unanimous consent to print in the Record a statement from the Fraternal Order of Police relating to these regulations.

The Fraternal Order of Police is one of the groups very interested in this issue. It is the largest organization of sworn law enforcement officers, and obviously they are in support of the first responders being exempt from the nonguarantee--in other words, being guaranteed overtime pay.

Another group is nurses. The licensed practical nurses and other similar health care employees will be entitled to overtime pay under the new regulations. Originally unions had asserted to the contrary, but that is not the case. With respect to registered nurses, they are already exempted professionals under current law. The new rule will not change that. Explicitly blue collar workers are identified as entitled to overtime pay.

There was a question about cooks. They are entitled to overtime pay. The only people in that group that might not be are college degree chefs who have degrees in culinary arts, who supervise others in work they do. Paralegals will be entitled to overtime pay. Public sector inspectors, people such as building inspectors, will be entitled to overtime pay. Union courts, collective bargaining agreements in States will not be affected by the rule. This is another area that has been grossly misrepresented.

The bottom line is this final rule will bring clarity. It defines specific categories of people who will be guaranteed pay and, therefore, shuts down a lot of the litigation that has been based on the fact that the law has not been explicit or very clear. The confusing and outdated current or previous regulation has been a gold mine for trial lawyers, and there are a lot of articles that have recently been published that point out some of the abuses. The number of lawsuits in this area has doubled since the 1990s. Class action lawsuits have tripled since 1997. The number of these suits has actually surpassed the EEOC class action lawsuits in number.

While the trial lawyers have made out very well off of the confusion of the previous regulations, the plaintiff's benefit is significantly smaller. For example, in a recent Oregon lawsuit, which the Presiding Officer will be interested in, fast food restaurant workers each received $1,300, while the trial lawyers received $1.5 million. In a similar California case, workers got $2,800

while the trial lawyers were awarded almost $4 million.

Let me conclude by making a point that part of the confusion is due to objections by the AFL-CIO. Even before the final rule was made public, they were criticizing it, producing TV advertisements, misrepresenting the effect of the new rule. This is especially distressing given the fact--I know this personally from the Secretary of Labor, who had spent untold numbers of hours working on this--it was their intention to try to take in all of the criticisms and comments and blend them into a rule that made sense for workers. She did this, and then to have it attacked before it is finalized, with misrepresentations, is very unfair.

Prior to drafting a rule, the Department of Labor held over 40 stakeholder meetings with 50 different interested groups, including 16 different unions, and invited 80 groups to participate in these so- called stakeholder meetings. It was not as if this were done without the input of people clearly interested in it.

The amendment that is in order when we take up the bill is the Harkin amendment. It is unclear precisely what the wording of the amendment will be, but obviously the intent is to preclude the regulations from fully taking effect.

I urge my colleagues, after they review that language, to quickly dispose of the amendment so we can move on to the important business of passing the underlying JOBS bill. As we know, the only group of employees that is not going to be guaranteed overtime under the new regulations is those making over $100,000 or more. The theory there is they are in a position to negotiate their own salary.

Just to conclude, if this new rule is not allowed to go into effect, the biggest winners under the new rule, which are the low-income workers, will be the biggest losers. We need to put this into effect, clear up the confusion, and create the specific categories that are guaranteed overtime pay or these people are going to lose. The police, the firefighters, the lower income people, the blue collar workers are not going to be assured overtime pay. Remember, it only previously would guarantee anybody with $8,000 or less the overtime pay they should be entitled to.

The effect of the Harkin amendment will be to hurt workers, not to help them. It is my hope that, again, we can quickly dispense with the Harkin amendment, defeat that amendment, support the regulations, the new rules that have been adopted by the Department of Labor, let them go into effect, and see how they work; in the meantime, move on with S. 1637, the underlying legislation, the purpose of which is to finally get our manufacturing industry back on even par with our competitors, particularly in the European market. That is legislation we have to pass because of the tariffs that are being imposed each month until we comply with the ruling of the WTO.

Mr. President, reserving the right to object, there is a division of time between the two sides. Could I suggest that regarding the remarks of the Senator from Florida with the Senator from Nevada, that they get together and figure out the time to speak if it will not be under leader time? Is that acceptable?

I will object to the request and try to talk to the Senator.

Mr. President, I ask unanimous consent that following the remarks of Senator Nickles we proceed to consideration of the legislation which the leader announced so that Senator Feinstein can commence her presentation and hopefully have her first presentation concluded before 1 o'clock.

Madam President, it isn't always possible for us to schedule matters in the Senate in a convenient way. I am aware Senator Feinstein must leave to attend another meeting. It is my hope she will able to be here before we vote.

While she is still here, I must say I share her sentiment that some of the most gratifying work I have done in the Senate has been my work with Senator Feinstein and her good staff in putting together a constitutional amendment and working hard to try to get it passed and preparing for the hearings--speaking with the victims, meeting with the Justice Department--literally hundreds of hours of time we have spent together working on this issue. It has helped to foster a bond of trust and friendship between us that I think could be used as a template for our colleagues in this body to work together in a bipartisan way.

I can never thank Senator Feinstein enough for her work on this amendment. I know the many victims who are here in the gallery share that sentiment.

This legislation would not be before us today without Senator Feinstein. That is simply a fact. For all of the hard work we have put in with her cooperation and her commitment to this, I thank Senator Feinstein deeply. She knows that bond of trust will continue to exist between us.

Madam President, I ask unanimous consent that Senators Nickles and Inhofe be added as original cosponsors of the legislation.

Madam President, I join Senator Feinstein in supporting S. 2329, which is the statutory version of the constitutional amendment we have prepared and about which Senator Feinstein has spoken.

The legislation, as I will describe in a moment, will attempt to accomplish as much as possible the same goals the constitutional amendment which has been pending before us would have accomplished.

But before I discuss the details of that, there are several people I would like to thank. In addition to Senator Feinstein--again it is impossible to express my appreciation enough for all of the hard work she put into this effort. We simply couldn't be here, because in order to get things passed in the Senate it is critical there be a bipartisan consensus, especially so for something that requires a supermajority. Without Democrats and Republicans working together, we would have never gotten to this point. Certainly Senator Feinstein was largely responsible for the work on the Democratic side of the aisle.

I appreciate all of my colleagues' understanding and support on this as well.

Senator Frist, who is willing to trust us in scheduling this for time on the floor--and there is very little time to take up matters, as the Presiding Officer knows--understood this was a very important commitment we had made to the victims of crime. During Crime Victims' Rights Month was the time to try to accomplish this. I appreciate his support.

I appreciate the support of Senator Hatch who throughout the years has never stood in the way but always lent us a hand in setting up a hearing and getting a time and a room for markup on the constitutional amendment and supporting its passage.

Again, it is not easy to get a constitutional amendment through even the Judiciary Committee, let alone to get it adopted. But Senator Hatch was supportive of that effort. I very much appreciate his cosponsorship of the statutory version of this amendment, as well as the support of Senator Leahy.

I think I would be remiss if I didn't make the point that the first cosponsors of this legislation were Senator Feinstein, myself, and Senators Hatch and Leahy, chairman and ranking member of the Judiciary Committee.

Obviously this legislation has very strong support. We anticipate it will pass overwhelmingly and will be quickly sent to the House for action there, and hopefully to the President, who I am confident will be supportive of it and will sign it.

Let me at this point thank some of the victims' rights organizations. Again, they were responsible for bringing the issue to our attention and for providing a lot of the information we needed to be able to make the cases and for, frankly, the moral support to keep going. When Senator Feinstein and I would get discouraged, after meeting with victims' rights groups we were no longer discouraged; we were even more committed to pursue this head on. Some of them are headed by remarkable people. There is a whole page of groups I will thank.

Specifically, I thank Mothers Against Drunk Driving, the National Organization for Victim Assistance, Parents of Murdered Children, and Force 100, and especially Colleen Campbell for her leadership of Force 100. Senator Feinstein has already spoken of Colleen Campbell, and this pin in memory of Mickey Thompson speaks volumes about her leadership of this effort.

The fact this is Crime Victims' Rights Month and week I think is important. President Reagan actually had the first recognition of crime victims in a week that was designated for that purpose.

I think it is important at this time we especially recognize the victims of crime all over America; that with this year's memorial of victims' rights, America's values will be vindicated to some extent with the passage of this legislation.

It is especially poignant we would be waiting at this time to recognize these rights of victims of crime. Indeed, it is right to take up this issue. The right to fairness for crime victims and the right to notice and presence and participation are deeply rooted concepts in the United States of America. This country is all about fair play and giving power to the powerless in our society. It is about recognizing the values of liberty of the individuals against encroachments of the Government.

Fair play for crime victims, meaningful participation of crime victims in the justice system, protection against a government that would take from a crime victim the dignity of due process--these are consistent with the most basic values of due process in our society.

I was involved in Arizona issues for victims of crime even before I ever ran for the U.S. House of Representatives, so this was to some extent a cause for me before I became a public official. It was after I became a public official and people really came to me with these stories that I realized I had an opportunity to do more than the things I had done before. I have come to see the need for these protections as critical for our country.

While engaged in all of the other important activities, at bottom, it is a country about individuals who have inherent rights recognized and given to us by God. That is the basis for the creation of this country. Human dignity and the right that all people are made in God's image is such an important part of the foundation of our country that we would be remiss if we did not recognize that concept, that value, especially for those who have been victimized in our society because we could not as a government provide adequate protection for them.

I came to realize in many cases these victims were being victimized a second time because while we were asking them sometimes to come into court and testify against the perpetrators of the crime so they could be incarcerated or dealt with in an appropriate way for the further protection of society, we were not helping these victims at all. They were suffering through the trauma of the victimization and then being thrown into a system which they did not understand, which nobody was helping them with, and which literally prevented them from participation in any meaningful way. I came to realize there were literally millions of people out there being denied these basic rights, being victimized by our criminal justice system.

Let me mention two circumstances, but we will discuss all of the rights in a moment. The one circumstance that seemed to be the most frequent is: My mother was murdered, my daughter was murdered--whatever the situation--and I could not attend the trial. That is what our system says today.

While there are statutes in States and even some State constitutional provisions that purportedly guarantee a victim will not be denied access to the courtroom, it is still the case today that the victims, the victims' families, cannot even go into the courtroom. The defendant is there, the defendant's family is there seated in a reserved row seats, but the victim and the victim's family cannot be present. That is fundamentally wrong. We are not talking even about them saying anything. Obviously, everyone in the courtroom has to behave. The judge can throw anybody out if they do not behave or if they express emotions or try to communicate with the jury. That is not the issue.

They could not attend sometimes because the defendant's lawyer would say: It would be prejudicial to my client if the victims are seen in the courtroom. This was one of the circumstances that I could not believe our criminal justice system was imposing. It is one of those things that is fixed in this statute.

The other circumstance--and there is an especially telling, emotional case in Arizona I became familiar with which induced me to pursue this with all the vigor I could--is the circumstance where a crime has been committed, the perpetrator has been convicted and is in prison or jail, but unbeknown to the victim and the victim's family, the individual gets out of jail. The individual escapes, has some kind of a parole hearing or in some other way is able to leave before the sentence is up, and the victims are not even notified, let alone given an opportunity to appear before that parole board and say: Wait a minute, this person has a 15-year sentence and you are letting him out after 8 years. Let me tell you what he did to me.

Not to go into detail but to finish that story, in one of the Arizona cases with which I am familiar, the woman having been brutally raped and slashed and left to die recovered. Her perpetrator was convicted and put into prison. He had a parole hearing and the parole board decided to release him prematurely. She got no notice of that. She got no opportunity to be present.

By not quite coincidence but enormous alertness and compassion on the part of an individual in the Governor's office at the time routinely reading through the notices of the parole board, a staff person saw this and again almost coincidentally thought, Wait a minute, I don't think that is right under our law. He tracked down this individual who had by then moved to California and asked her if she would like an opportunity to appear before another parole board hearing if that could be arranged. She said yes. The parole board agreed to revisit the issue in a subsequent hearing and she testified. She told her story. After she told her story, the parole board reversed its opinion.

I asked her later: Were you afraid he would come after you if he were released? She said: No. My victimization was random. I was trying to hitchhike. I should never have done it.

He--and, by the way, his wife--picked her up and she was then brutalized as I described it. She said: It was random. I don't think he would come after me again. What I was concerned about was knowing the nature of the kind of individual that commits this kind of crime, he would do it again to somebody else. I didn't want him to have that opportunity to hurt somebody else like he hurt me.

That tells you about the motivation of these victims of crime who are willing, despite the hurt that it causes them, to participate in the criminal justice system--not just for themselves because they get nothing out of it--because they know what it is like and they want to prevent that harm to others.

Those are the kind of people whose portraits are behind me and who Senator Feinstein was talking about. That is why we are trying to do something about righting this wrong, about balancing the scales of justice. Rightly, defendants in this country are protected better than in any country in the world through constitutional amendments that give them rights. We are not trying to take one single right away from any defendant. That would be wrong under our system. But we do think it is time to balance the scales of justice. That was the motivation for Senator Feinstein and me.

Let me talk about some of these individuals. Senator Feinstein talked about Duane Lynn. Duane is from Arizona. I will not repeat the entire story, but he enjoyed the Navy as a young man. He performed in the military. He had a successful career as a highway patrolman upholding the laws of the State of Arizona. He and his wife Nila literally fell in love as teenagers and had been married 49 years and 9 months, just 3 months shy of their 50th anniversary when she was brutally murdered as Senator Feinstein talked about. They had left their home to attend this homeowners' meeting and just happened to be in the wrong place at the wrong time because the murderer, who was a disgruntled and enraged former resident of the community, burst into the room saying, I am going to kill you, and he started shooting.

As I said, Duane and Nila had been married not quite 50 years when she was brutally murdered. In anticipation of the golden anniversary of their parents, the Lynn children had secretly been saving money to throw a surprise anniversary party, and that money was used to pay for Nila's casket.

It is at this point that Duane's journey through the legal system really started. As Senator Feinstein recounted, he did not really understand what it meant to participate in the judicial system at that time but at least understood that he would have some voice in what happened.

Under the Arizona law and constitution, he had a right, for example, to make a recommendation to the judge when the judge sentenced the perpetrator. But despite having that right in the Arizona Constitution--and, by the way, Arizona judges are pretty good about enforcing these rights--he was denied the right to even appear at the time of sentencing to tell the judge the sentence he thought the perpetrator should get.

He lost an appeal to the Arizona Supreme Court and a petition for certiorari to the U.S. Supreme Court. They all told him his rights were unenforceable because for him to speak would violate the defendant's eighth amendment rights against cruel and unusual punishment.

Now, that is one of the reasons that Senator Feinstein and I believed that a constitutional amendment was necessary, because as long as the defendant's rights are always asserted as Federal constitutional rights, a mere statutory right, such as we are creating today, is going to be subservient to that. It will be very difficult for victims to win in cases where the defendant's right is asserted under the U.S. Constitution.

Even as a State constitutional right, Duane Lynn was denied the right to speak because the court perceived that the Federal eighth amendment superseded the Arizona State Constitution. So we may still have problems, even with the adoption of a statute here. But Senator Feinstein and I are committed to moving the cause forward, to see whether it is possible to make statutes work, so that we do not need a Federal constitutional amendment. If, as it turns out, we do, then we will revisit the issue, as she said. Hopefully, we will not need to do that.

Just a final I think paradoxical or ironic ending in the Duane Lynn matter. He wanted to speak at the time of sentencing, not to urge the court to impose the death sentence but to impose life without parole. That recommendation was denied because, as I said, the court held that the defendant's rights outweighed his rights.

Let me talk about some of the other victims. I just briefly want to mention Louarna Gillis, because John Gillis, her father, who was a Los Angeles police officer at the time, is now a very important person in our Government in protecting victims' rights because he heads up the Office for Victims of Crime in the Department of Justice.

One of the reasons the Attorney General and the President wanted him in that position is because he felt firsthand the sting of being a crime victim when his daughter was killed, picked out at random by a gang member because the gang member, to be initiated in the gang, had to kill the child of a cop. She just happened to be a child of a cop and she was killed.

John could not be here today, but his wife Patsy is in attendance. I commend her for her support of this effort as well.

Their family has suffered further tragedy in the very recent death of their only other child, their son John. So it reminds us that it is important not only for people to have rights as victims of crime, but to recognize that these very people are the people who are willing to take up the cause here to right this injustice.

By John Gillis' efforts, he literally became the person in charge of this issue in our Government. He is doing an incredibly great job. Part of this legislation is to give him some additional responsibility and a little bit more in the way of resources to see to it that our Federal Government, through the Department of Justice, the Attorney General, and the Office for Victims of Crime, can continue to support the effort of crime victims. I applaud John Gillis very much and appreciate his wife Patsy being with us today.

Let me mention three other people, because this legislation is named for five people--the two I mentioned and then the other three I will mention. Let me discuss each of them.

Roberta Roper is also in attendance. There is nobody who has pursued the cause for victims' rights more strongly than Roberta Roper. She has made numerous trips to Washington. She has testified before the Judiciary Committee in support of the constitutional amendment. She has given us incredible advice and strength. What she did, after her victimization, when her daughter Stephanie was murdered at the age of 22, was to start a foundation in her daughter's name, and that Stephanie Roper Foundation has been a tremendous asset in pursuing the cause of victims around the country.

Her daughter, on April 3, 1982, was kidnapped and raped, tortured and dismembered by two men. The killers had just come upon her when Stephanie's car had been disabled. They had kidnapped her and over a period of 5 hours had repeatedly tortured her. She tried to escape but was caught and killed in a most brutal manner.

Her parents were not even notified of the many continuances that were granted in this case. They were excluded from the courtroom for the entire first trial that occurred. They could not even go into the courtroom. In 1982, the defense convinced the court that the victims would be emotional, irrelevant, and probable cause for a reversal of an appeal. The court agreed and, therefore, denied Vince and Roberta Roper the right to be a voice for their daughter.

That is one of the things that will be corrected by this legislation. We hope a statutory correction will serve to be sufficient.

Roberta Roper is in attendance, and I thank her from the bottom of my heart. She and Collene Campbell--who I will mention next--have been two of the real troopers in this battle.

I also want to say, with regard to Collene Campbell, when Senator Feinstein discussed the death of her son Scott, it is unfortunately the case in many of these situations that more than once people are victimized. Collene and Gary Campbell have been victimized twice. Collene's brother was killed as well and that has been discussed as well.

One of the killers of their son Scott was released from prison. By the way, the circumstances of Scott's murder were especially gruesome. He met an individual who was going to fly him to North Dakota, and somewhere between Los Angeles and Catalina Island, Scott Campbell was killed. His body was literally thrown out of the airplane into the ocean and has never been located.

His parents were not permitted to enter the courtroom during the trials for the men who murdered their son. They were not even notified of a district court of appeals hearing. When one of the killers was released, as I said, the Campbell family was not notified. They only learned of the developments through the newspaper.

You can argue that a defendant might be prejudiced in certain situations by victims having certain rights, but to treat victims this way is not to treat them with the fairness and dignity any American deserves under our values as a nation. Even when these rights exist in statute, when they are not observed, it is time for the Congress to act. That is why we act here, so that no one else will have to suffer through this kind of unfair treatment.

Scott Campbell is shown in this picture. I mentioned Nila Lynn before, as shown in this picture. Roberta Roper's daughter Stephanie is this beautiful young lady shown in this picture right here. As I said, her mother is with us today.

I would also like to mention Robert Preston. In the case of Bob Preston's 22-year-old daughter, Wendy--the beautiful young lady shown in this picture right here--she was murdered in his home on June 23, 1977. She was killed when a man broke into the home to steal money to buy drugs. Her body was found 6 days later. Wendy's murderer was arrested and charged with first-degree murder. Her parents were told that the State of Florida was the victim in the case and they would be notified if and when they were called as witnesses. That was it.

After nearly 6 years, the murderer was allowed to plead to a second- degree murder charge, and he was sentenced to life in prison. In 1987, the Florida Supreme Court overturned the killer's conviction, and in the decision also held that the victims had no rights. This is the kind of example that needs to be brought to light so Americans can appreciate that it is time for Congress to act.

This is Wendy Preston, yet another example of victims being treated unfairly.

There are a lot of other cases we could talk about. Wendy Preston and Stephanie Roper, Scott Campbell, Mickey Thompson, Nila Lynn, and Louarna Gillis are the best of America. We owe them our best. Our best is to ensure the families of future victims will not suffer through the same indignity their families have had to endure.

That is why Senator Feinstein and I began the effort to try to persuade our colleagues a constitutional amendment was necessary to protect these rights, because the defendant's right was always constitutional. Unless we had an equal constitutional right, there was no chance in a conflict the court would ever afford the victim an equal right. That is why we still have reservations about a statutory remedy.

But a lot of our colleagues have said, try a statutory remedy and let's see if by bringing these situations to light, by providing incentives for States to follow the Federal example, by embodying these same rights that were in the constitutional proposal in a statute and giving the victims a right to sue, a remedy, a mandamus remedy, let's see if that can work.

After 8 years of work on the Federal constitutional amendment, supported by President Bush and the Attorney General, we were able to schedule, after we passed the bill through the Judiciary Committee, that constitutional amendment for floor action today. Knowing we would not have the 67 votes to pass it, we decided it was time to get something tangible in statute to protect the rights of victims, and accompanying it could be a modest appropriation of money to help actually support these victims in court when that was necessary and called for. We believed despite the potential that it would not serve adequately, it was time to try something, to be successful, and to at least move the ball forward.

As Senator Leahy said in a press conference we had earlier: The Judiciary Committee of the Senate will provide very strong oversight of implementation of this statute so we will know if it is not working. If it does not work, we will be able to come back and pursue the constitutional remedy. But we consulted with the victims' rights groups that have been most active in support of this. They concurred it was time to pursue the statutory remedy, if we could get some assurance we would be successful in that pursuit and that it would not be simply a fool's errand.

Through the significant help of an individual who I am sure all would acknowledge has been the national leader of this effort, Steve Twist, a lawyer from Phoenix, AZ, communicating with the various victims' rights groups, the consensus was reached it was time for us to convert the constitutional proposal into a statute. This occurred within the last 48 hours. Through the cooperation of Senator Leahy, Senator Hatch, staff, and several other Senators, but most importantly because of the very hard work done by Senator Feinstein's staff and mine, they were able to literally convert these rights in the constitutional proposal into the statutory proposal for submission. That is what is before us today and what we will be voting on.

These are the rights that are set forth in the new statute: That the victim would be reasonably protected from the accused; afforded reasonable, accurate, and timely notice of any public proceedings involving the crime or any release or escape of the accused; included in public proceedings; ensured proceedings are free from unreasonable delay; that they could confer with the attorney for the government in the case; that they would be given a voice to be heard at any public proceeding involving release or plea or sentencing.

I ask unanimous consent to take time from the time under the control of Senator Feinstein.

I noted in a rather inaccurate Washington Post editorial of yesterday that somehow victims would have a right to speak to the jury. That is what the Washington Post thought. They were very wrong, as they were in other comments in the editorial. There is nothing in here about anything like that. It is only during the time of a release, like the parole hearing I talked about earlier, or sentencing or pleading there would be an opportunity to speak.

They would have a right to full and timely restitution in appropriate cases, and the right to be treated fairly, with respect for their dignity and privacy. Most importantly, they would be granted the right to enforce these rights. They would have legal standing to enforce their rights in court with the appropriate writ procedure to be able to take the court's decision to the higher court. That is one of the problems with existing Federal law which

the Tenth Circuit Court of Appeals noted did not grant the victims the standing to sue. So that had to be corrected here.

Finally, we authorized an appropriation of funds to assure the proper oversight of these rights is exercised, that moneys would be made available to enhance the victim notification system, managed by the Department of Justice's Office for Victims of Crime, and the resources additionally to develop state-of-the-art systems for notifying crime victims of important states of development.

To pursue that a moment, all courts notify attorneys for the defendant, the prosecutor's office, and it is a relatively simple matter to add another name and telephone number or address to that list. That is what we are talking about here. It is now being done electronically. It is very easy. So the notice to victims of crime is not something that should be seen as an impediment.

I would like to conclude by thanking some people. Since I know Senator Feinstein did have to attend another meeting, let me thank some folks. Before I do that, I ask unanimous consent to add Senators Lott and Nickles as original cosponsors.

As soon as Senator Leahy is here, I will relinquish the floor to him.

I do want to thank President Bush and Attorney General Ashcroft; the Office for Victims of Crime Director John Gillis and the administration for their help; Colleen Campbell and her husband Gary; Roberta Roper; Bob Preston; Duane Lynn; Earlene Eason from Indiana, whose son Christopher was murdered; Sally Goelzer from Arizona, whose brother was murdered; Myssey Hartley from Arkansas, whose brother was murdered; Dee Engles, also from Arkansas, a family member murdered; the National Organization for Victim Assistance, especially Beth Rossman, president, Marlene Young, executive director, and John Stein, deputy director, who has been a tremendous help; the National Organization of Parents of Murdered Children, Nancy Ruhe-Munch, executive director; Mothers Against Drunk Driving, Wendy Hamilton, president, and Stephanie Manning; Professor Douglas Beloof, director of the National Crime Victim Law Institute, one of the entities integral to ensuring these rights are enforced--he has done a tremendous job in Oregon in setting up the programs and the lawyers who can defend victims' rights-- Attorney Meg Garvin, lead staff attorney at NCVLI; Attorney General Jane Brady and the National Association of Attorneys General--this has been a bipartisan effort and almost every attorney general in the country has signed on; the National District Attorneys Association; the Fraternal Order of Police, strongly in support of what we are doing; the International Association of Chiefs of Police; the National Restaurant Association; U.S. Chamber of Commerce; Maricopa County attorney Rick Romely and county attorney Barbara LaWall in Arizona, who have helped me a lot in this effort; District Attorney Josh Marquis; the Arizona Voice for Crime Victims.

On Senator Hatch's staff, I thank Grace Becker, and on Senator Cornyn's staff, Jim Ho. On Senator Feinstein's staff, I can't thank enough Steve Cash and David Hantman who have been tremendously helpful in providing great advice and counsel, particularly in the last 3 or 4 days, helping us to convert the amendment to a statutory provision and in working on the Democratic side to make this a truly bipartisan process.

Without their assistance, we would not have the statute before the body either.

I have a couple legal interns, Tom Stack and Kevin Wilson, who provided tremendous help to me, and finally I wish to thank my chief person on my staff, Stephen Higgins and I mentioned Steve Twist.

All of these organizations and individuals have been of tremendous help in getting to this point and ensuring we will be able to get this statutory provision passed and sent over to the House for action.

Madam President, I am going to conclude with a couple of points. As soon as Senator Leahy arrives, I am going to relinquish the floor to him because Senator Feinstein has the remainder of the time, and I advise colleagues, if anyone wishes to speak, they should do so right away because I suspect at the conclusion of Senator Leahy's remarks and anything Senator Hatch and Senator Feinstein wish to say, we will proceed to the final passage vote.

The act before us, in addition to setting forth the rights and providing a remedy for the victims of crime, has an authorization of funding. Let me describe that authorization.

In the first year, fiscal year 2005, $16.3 million will be available to the U.S. Attorney's Victims Witness Office for the Victims of Crime Office in the Department of Justice; $300,000 is for the Office of Victims of Crime to administer these new rights; $7 million to the Office of Victims of Crime for the National Crime Victim Law Institute to provide grants and assistance to lawyers to help victims of crime in court. It is the only entity in the country that provides lawyers for victims in criminal cases, and it will provide for two new regional offices and nine specific clinics. Finally, borrowing a provision from a bill Senator Leahy had earlier, there is $5 million for grants to States to develop and implement state-of-the-art victim notification systems.

In the following 4 years, there will be each year authorized an appropriation of $26.5 million generally to the same entities and offices to ensure that these programs are carried out, that victims will have the support they need, and that the notice that is guaranteed in the legislation will be provided. Those are the authorizations for the funding. That is a description of the legislation.

I will close by again referring to the people who have driven this effort, the people who represent the families and who are themselves victims of crime, who did not simply retreat into a shell following the tragedy that befell them but who were willing to muster the courage and the strength to do something about the issue, not necessarily so that they could receive any particular kind of vindication, but so future victims would not have to suffer through the same kind of problems and the same indignities they did.

This is the real spirit of great people, of leaders, and it is the spirit of America. I commend all of these victims for the leadership role they have played in being willing to step out in very difficult circumstances to prod those of us in the legislative body to move this process forward and to get this legislation adopted. They are the ones who deserve the primary thanks today.

The victory, when we pass this legislation, will be largely a victory for them and all of the future victims who will never have to suffer the same kind of indignities that they did.

Mr. President, as the sponsor of this bill, I would like to enter into a colloquy with the Senator from California. She is the primary cosponsor of this bill. After extensive consultation with our colleagues, we have drafted a bill with a broad bipartisan consensus. It is not the intent of this bill to limit any laws in favor of crime victims that may currently exist, whether these laws are statutory, regulatory, or found in case law. I ask Senator Feinstein if she agrees.

I would like to address the notice provisions of section 2, (a)(2). The notice provisions are important because if a victim fails to receive notice of a public proceeding in the criminal case at which the victim's right could otherwise have been exercised, that right has effectively been denied. Public proceedings include both trial level and appellate level court proceedings. It does not make sense to enact victims' rights that are rendered useless because the victim never knew of the proceeding at which the right had to be asserted. Simply put, a failure to provide notice of proceedings at which a right can be asserted is equivalent to a violation of the right itself.

Equally important to this right to notice of public proceedings contained in this subsection is the right to notice of the escape or release of the accused. This provision helps to protect crime victims by notifying them that the accused is out on the streets.

For these rights to notice to be effective, notice must be sufficiently given in advance of a proceeding to give the crime victim the opportunity to arrange his or her affairs in order to be able to attend that proceeding and any scheduling of proceedings should take into account the victim's schedule to facilitate effective notice.

Restrictions on public proceedings are in 28 CFR Sec. 50.9, and it is not the intent here today to alter the meaning of that provision.

I ask Senator Feinstein, if she can comment on her understanding of section (a)(2)?

Yes. That it is my understanding as well. There may be organized crime cases or cases involving national security that require procedures that necessarily deny a crime victim the right not to be excluded that would otherwise be provided under this section. This is as it should be. National security matters and organized crime cases are especially challenging, and there are times when there is a vital need for closed proceedings. In such cases, the proceedings are not intended to be interpreted as ``public proceedings'' under this bill. In this regard, it is not our intent to alter 28 CFR Sec. 50.9 in any respect.

Despite these limitations, this bill allows crime victims, in the vast majority of cases, to attend the hearings and trial of the case involving their victimization. This is so important because crime victims share an interest with the government in seeing that justice is done in a criminal case and this interest supports the idea that victims should not be excluded from public criminal proceedings, whether these are pretrial, trial, or post-trial proceedings.

This right of crime victims not to be excluded from the proceedings provides a foundation for the next section, section 2, (a)(4), which provides victims the right to reasonably be heard at any public proceeding involving release, plea, or sentencing. This provision is intended to allow crime victims to directly address the court in person. It is not necessary for the victim to obtain the permission of either party to do so. This right is a right independent of the Government or the defendant that allows the victim to address the court. To the extent the victim has the right to independently address the court, the victim acts as an independent participant in the proceedings. When a victim invokes this right during plea and sentencing proceedings, it is intended that the he or she be allowed to provide all three types of victim impact--the character of the victim, the impact of the crime on the victim, the victims' family and the community, and sentencing recommendations. Of course, the victim may use a lawyer, at their own expense, to assist in the exercise of this right. This bill does not provide victims with a right to counsel but recognizes that a victim may enlist counsel on their own.

It is not the intent of the term ``reasonably'' in the phrase ``to be reasonably heard'' to provide any excuse for denying a victim the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to appear personally and directly address the court. This section would fail in its intent if courts determined that written, rather than oral communication, could generally satisfy this right. On the other hand, the term ``reasonably'' is meant to allow for alternative methods of communicating a victim's views to the court when the victim is unable to attend the proceedings. Such circumstances might arise, for example, if the victim is incarcerated on unrelated matters at the time of the proceedings or if a victim cannot afford to travel to a courthouse. In such cases, communication by the victim to the court is permitted by other reasonable means. Is this the understanding of the Senator of this provision?

Yes. The intent of this section is just as the Senator says. This right to confer does not give the crime victim any right to direct the prosecution. Prosecutors should consider it part of their profession to be available to consult with crime victims about concerns the victims may have which are pertinent to the case, case proceedings or dispositions. Under this provision, victims are able to confer with the Government's attorney about proceedings after charging.

I would like to turn now to the section on restitution, section 2, (a)(6). This section provides the right to full and timely restitution as provided in law. This right, together with the other rights in the act to be heard and confer with the Government's attorney in this act, means that existing restitution laws will be more effective.

I am interested in the Senator's views of this restitution provision.

I concur in the Senator's comments. I would add that the delays in criminal proceedings are among the most chronic problems faced by victims. Whatever peace of mind a victim might achieve after a crime is too often inexcusably postponed by unreasonable delays in the criminal case. A central reason for these rights is to force a change in a criminal justice culture which has failed to focus on the legitimate interests of crime victims, a new focus on limiting unreasonable delays in the criminal process to accommodate the victim is a positive start.

I would like to turn to section 2, (a)(8). This provision contains a number of rights. The broad rights articulated in this section are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct Government agencies and employees, whether they are in executive or judiciary branches, to treat victims of crime with the respect they deserve.

Does the Senator agree?

Yes, it is.

Turning briefly to section 2, (c), there are several important things to point out in this subsection. First, where there is a material conflict between the Government's attorney and the crime victim, this provision protects crime victims' rights. This means that if Government lawyers interpret a right differently from a victim, urge a very narrow interpretation of a right, or do not believe a right should be asserted, they are in conflict with the victim and this provision requires that they inform the victim of this and direct the victim to independent counsel, such as the legal clinics for crime victims contemplated under this law. This is an important protection for crime victims because it ensures the independent and individual nature of their rights. Second, the notice section immediately following limits the right to notice of release where such notice may endanger the safety of the person being released. There are cases, particularly in domestic violence cases, where there is danger posed by an intimate partner if the intimate partner is released. Such circumstances are not the norm, even in domestic violence cases as a category of cases. This exception should not be relied upon as an excuse to avoid notifying most victims.

Is that the Senator's understanding of this section?

Absolutely. The enforcement provision the Senator addressed is critical to this bill. Without the ability to enforce the rights in the criminal trial and appellate courts of this country any rights afforded are, at best, rhetoric. We are far past the point where lip service to victims' rights is acceptable. The enforcement provisions of this bill ensure that never again are victim's rights provided in word but not in reality.

I want to turn to section 2, subsection (d)(2) because it is an unfortunate reality that in today's world there are crimes that result in multiple victims. The reality of those situations is that a court may find that the sheer number of victims is so large that it is impracticable to accord each victim the rights in this bill. The bill allows that when the court makes that finding on the record the court must then fashion a procedure that still gives effect to the bill and yet takes into account the impracticability. For instance, in the Oklahoma City bombing case the number of victims was tremendous and attendance at any one proceeding by all of them was impracticable so the court fashioned a procedure that allowed victims to attend the proceedings by close circuit television. This is merely one example. Another may be to allow victims with a right to speak to be heard in writing or through

other methods. Importantly, courts must seek to identify methods that fit the case before that to ensure that despite numerosity of crime victims, the rights in this bill are given effect.

Does the Senator agree with this reading of the bill?

Absolutely. Without the right to seek appellate review and a guarantee that the appellate court will hear the appeal and order relief, a victim is left to the mercy of the very trial court that may have erred. This country's appellate courts are designed to remedy errors of lower courts and this provision requires them to do so for victim's rights. For a victim's right to truly be honored, a victim must be able to assert the rights in trial courts, to then be able to have denials of those rights reviewed at the appellate level, and to have the appellate court take the appeal and order relief. By providing for all of this, this bill ensures that victims' rights will have meaning.

I would like to turn our attention to section 2, subsection (d)(4) because that also provides an enforcement mechanism. This section provides that in any appeal, regardless of the party initiating the appeal, the government can assert as error the district court's denial of a crime victim's right. This subsection is important for a couple of reasons. First, it allows the Government to assert a victim's right on appeal even when it is the defendant who seeks appeal of his or her conviction. This ensures that victims' rights are protected throughout the criminal justice process and that they do not fall by the wayside during what can often be an extended appeal that the victim is not a party to.

Is that the Senator's understanding of the bill?

Yes, it is. We have, over the years, tried to reassure those that oppose victims' rights that they are not an attempt to undermine defendants' rights. This provision reiterates that. It is important for victims' rights to be asserted and protected throughout the criminal justice process, and for courts to have the authority to redo proceedings other than the trial such as release hearings, pleas, and sentencings where victims' rights are abridged, but to not tread upon defendant's rights against double jeopardy in the process. Victims' rights are about a fair and balanced criminal justice system--one that considers defendant's rights as well as victims' rights. This provision protects that careful balance.

I want to turn to the definitions in the bill, contained in section 2, subsection (e). There are a couple of key points to be made about the definitions. A ``crime victim'' is defined as a person directly and proximately harmed as a result of any offense, felony or misdemeanor. This is an intentionally broad definition because all victims of crime deserve to have their rights protected, whether or not they are the victim of the count charged. Additionally, crime victims may, for any number of reasons, want to employ an attorney to represent them in court. This definition of crime victim allows crime victims to do that. It also assures that when, for any reason, crime victims are unable to assert rights on their own, those rights will still be protected.

Is that the Senator's understanding of the bill as well?

Yes.

Let me comment briefly on section 4, Reports. Subsection (a) requires the Administrative Office of the U.S. Courts to report annually the number of times a right asserted in a criminal case is denied the relief requested, and the reasons therefore, as well as the number of times a mandamus action was brought and the result of that mandamus.

Such reporting is the only way we in the Congress and other interested parties can observe whether reforms we mandate are being carried out. No one doubts the difficulty of obtaining case-by-case information of this nature. Yes, this information is critical to understanding whether Federal statutes really can effectively protect victims' rights or whether a constitutional amendment is necessary. We are certain that affected executive and judicial agencies can work together to implement effective administrative tools to record and amass this data. We would certainly encourage the National Institute of Justice to support any needed research to get this system in place.

Is this Senator Feinstein's understanding?

Yes, that it is my understanding.

Mr. President, I anticipate Senator Leahy's arrival. I suggest the absence of a quorum.

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

I ask unanimous consent Senator Kohl be added as a cosponsor to the legislation pending.

Mr. President, notwithstanding the previous order, I ask the technical amendment which is at the desk be considered and agreed to and--I withhold on that request for a moment.

I withdraw the request until it is clear.

I suggest the absence of a quorum.

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

Notwithstanding the previous order, I ask the technical amendment at the desk be considered and agreed to and the motion to reconsider be laid upon the table.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that Senator Shelby be added as a cosponsor of the legislation.

Mr. President, on behalf of Senator Hatch, I yield back the time that he has remaining.

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

Mr. President, I ask unanimous consent that Tom Stack and Kevin Patrick Wilson be granted the privilege of the floor during the course of debate on S. 2329.

I want to express my great disappointment with this conference agreement and to explain why I will vote against it.

This legislation, H.R. 3108, was originally intended to provide a temporary solution to a legitimate and serious problem facing all defined benefit pension plans--the interest rate used to calculate funding liabilities, the 30-year Treasury bond, is no longer being issued by the Federal Government, and consequently the rate has dropped to a point that companies would be forced to contribute far in excess of what is necessary to their pension plans if Congress does not provide a remedy. I have always supported efforts to make this necessary change to the interest rate and, in fact, I believe that President Bush put forward a reasonable permanent solution last year.

Because of disagreements over that permanent interest rate change, however, Congress was forced to seek a temporary solution to give us additional time to resolve our differences. H.R. 3108, as originally approved by the House, only included temporary interest rate relief; and that is all it ever should have included.

When it came time for the Senate to consider H.R. 3108, it was viewed as a ``must do'' bill, and thus attracted additional items that I believe should not have been included.

My primary concern is that the Senate added relief from the ``deficit reduction contribution'' for certain severely underfunded plans. The DRC is a special catch-up contribution that seriously underfunded plans--generally, plans that are 90 percent funded or less--are supposed to make to bring their plans back to full-funding. When the Senator began discussing adding DRC relief for airlines, steel companies, and possibly other industries, I expressed my opposition.

I believe that the DRC relief is harmful to workers, unfair to healthy pension plans, unfair to competitors who are not receiving the relief, and exposes taxpayers to unacceptable risks.

Underfunded plans are harmful to workers because they jeopardize expected pension benefits--especially for workers who are to receive larger pensions than the Pension Benefit Guarantee Corporate--PBGC-- will guarantee, such as airline pilots. Companies should be required to fund their pension promises to their employees, they should not be excused from these promises.

DRC relief is unfair to healthy plans because an underfunded plan that fails will pay benefits using the insurance premiums paid to the PBGC by healthy plans. Further, many plans have made the difficult yet responsible financial decisions to fully fund their pensions. It is unfair to excuse other companies, who may have been less responsible, from these same promises.

The DRC waiver in the conference agreement applies only to certain airline and steel companies. The DRC waiver is really a back-door bailout for some companies and is unfair to their competitors that cannot benefit from the waiver, either because they have fully funded their pension plans or because they offer a different kind of retirement benefit to their employees.

Finally, the DRC waiver exposes taxpayers to a greater risk that the PBGC will require a taxpayer bailout. The PBGC recently reported a deficit of $11.2 billion in its single-employer insurance plan for fiscal year 2003--a record. While the PBGC estimates it will have sufficient assets to meet obligations for years to come, the failure of several large plans could change that.

Further, PBGC estimates that the sum total of all single-employer pension plan underfunding is about $400 billion. And Congress--meaning the U.S. taxpayers--would certainly bail out the PBGC, rather than allow the entire insurance system for defined benefit pension plans to collapse.

Because the Senate was insistent upon providing some DRC relief, however, I worked with my colleagues in the Republican leadership and on the Senate Finance Committee to scale back the relief so that it would cause less damage to our pension system, would be less harmful to competition, and would expose the taxpayers to marginally less liability. I worked to reduce the DRC waiver to 80 percent of the DRC liability in the first year and 60 percent in the second year. The idea was that by the second year, and with the interest rate relief, plans should begin turning their finances around such that they can make a greater percentage of the necessary payments to bring their plans back to full funding. This is what the Senate approved in its version of H.R. 3108 and I am very disappointed that the Senate position was abandoned during the conference negotiations.

I am also disappointed that we could not agree to protect the taxpayers from increased liabilities that could occur as a result of the DRC waiver. At a minimum, we should have stipulated that the PBGC would be ``held harmless'' for any benefit increases that occur during the waiver period. I believe we should have protected healthy plans and taxpayers by adopting a ``hold harmless'' provision for the PBGC. One of the big dangers with the DRC waiver is that the plans claiming the waiver will fail anyway in the near future, and by granting these plans a DRC waiver their funding situation will be even worse when the PBGC assumes these plans. A ``hold harmless'' provision would have mitigated this harm and limit the drain on healthy plans.

The DRC waiver is exactly the wrong thing to do. The system of DRC payments was devised because companies were habitually underfunding their plans. We should not aid and abet habitual underfunders by waiving much of their DRC liability. I must vote against the conference agreement because the DRC waiver is more comprehensive than what was approved by the Senate; because it fails to protect taxpayers; because the waiver is unfair to healthy plans that have responsibly funded their promises; and because the waiver provides a back-door bailout to certain airlines and steel companies, which is unfair to their competitors. I agree that there may be problems with the DRC system and that reforms may be in order. But we should make any reforms through a more thoughtful and deliberate process, taking into consideration the experience and recommendations of the PBGC.

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

Mr. President, I would like to speak for a moment about the historic day tomorrow, which is the 1-year anniversary of the liberation of Iraq, and the experience which Senator McCain and Senator Chambliss and Senator Cochran and I just had with a few others in meeting the Ambassador-designate from Iraq, Ambassador-designate Rend Al-Rahim.

She has been a leader in the movement for women's rights in Iraq, and has been designated by the Iraqi Governing Council to represent her country here in the United States at this historic time. In listening to her message, it simply should remind all of us of the importance of what we, as Americans, have been doing in support of freedom for the Iraqi people.

I wish to share a few of the comments which she made to us, and a bit of the response to that. First, she is a remarkable woman in her own right; she, as I said, has been fighting for Iraqi rights for a long time. It is no surprise that someone with her background and qualifications has been selected to represent her country in the United States.

Her first remarks were to thank the United States for helping to free the Iraqi people and making an opportunity available to them to govern themselves. She said that the main

word in Iraq today is the word ``democracy,'' that is what the Iraqi people are talking about, and they are going to be ready and, indeed, demand that when June 30 comes, they will be able to take control of the political affairs of their country.

This is something they have been waiting for a long time to accomplish, and they are very grateful to the United States for making this opportunity available to them. She made the point that democracy died in Iraq 35 years ago; that under the repressive regime of Saddam Hussein there was no freedom of expression, no ability to debate, political parties ceased to exist; he would not permit anyone to question him. But today she talked about the 150 new newspapers that have cropped up, debating all sorts of issues in the country, and the opportunity for people to present their views on free television.

She said throughout the country of Iraq today there is free and robust debate about the political future of their country; that political parties have grown, and the ability of Iraqis to govern themselves, in her view, is not in doubt.

She made the point the security problems the United States and coalition and Iraqi forces are facing today, while grave and serious, are not representative of any kind of popular uprising in the country as a whole; that in her view they represent a very thin slice of the Iraqi population, and Americans should not view this as the view of the Iraqi people in general. Indeed, the opposite would be the case; that most Iraqis support the presence of the United States, appreciate what we are trying to accomplish with the help of the Iraqi people there, and that this relatively small group of disaffected people does not represent the view of the Iraqi people as a whole.

In fact, her quotation, almost exactly--and she repeated it three times--was that the vast, vast, vast majority of the Iraqi people reject this point of view and support the presence of the United States and assistance to the people.

It was a remarkable performance by the Ambassador-designate who told us about the condition in which they found the Embassy when they came in and simply reminded us that we have a lot to do in supporting this new government and helping it to be a viable force, not just in the country of Iraq itself but in representing itself to the rest of the world, and most especially in the United States.

I was also moved by the strong statement made by my colleague from Arizona, Senator McCain, who had talked about his experience in Iraq and his experiences elsewhere in admonishing all of us to remember that there is no alternative to victory in this war on terror, and especially in the front we are conducting in Iraq today. Defeat is not an option. The consequences of defeat for the United States and the West and our position in the war on terror would be catastrophic. Our credibility would be lost, and that credibility is our primary asset in dealing with terrorism around the world.

Our ability to affect the future with respect to the terrorist threat would be diminished significantly if we were not to persevere and complete our job in Iraq. This means, as Senator McCain pointed out, we will have to acknowledge the hard reality that it will not be easy, and it will not be cheap. There will be casualties, and it is going to take a long time.

Remember President Bush first told us that when this war commenced, and in his State of the Union speech, pointing out that it would be a long, difficult struggle and that the American people would have to be prepared to persevere. The American people have persevered.

We are at a crossroads now. There are some among us who are raising questions. That, in and of itself, in a democracy is not only fine but critically important. The question is the tone of the criticism and the effect that it can have both on the morale of the Iraqi people and our own troops fighting there, as well as the message it conveys to the enemy terrorists. If the criticism is constructive and goes to questions of how we should be doing what we are doing, it could be very beneficial.

If, on the other hand, it suggests political motives for the President and the administration, suggests there is no support for the position we are taking, and suggests what little support there might be will erode to the point that we will not be able to sustain our position, then people begin to wonder. The people of Iraq who are still not secure, who are still fearful there are those among them who would cause them harm if they only had a chance, including the old Baathists, are going to be less secure and bold going forth with their new government and less willing to continue to support the United States.

Our allies, the same message. Our troops would wonder, Is this a fight worth fighting; their families wondering, Is it worth my son or daughter dying? Of course, the message to the terrorists, If we wait these people out, these Americans have shown that they are willing to only fight for so long, and then they will cut and run if we make life difficult enough for them.

This is a message we cannot afford to send. It is important the tone of the debate, the content of debate, the motives ascribed to leaders in this country all take into account the way the message is portrayed elsewhere, the way it will be played on Arab television, for example. These are not small matters. These are matters of fine-tuning a debate in the United States so that it will not adversely affect the way we can conduct the war on terror generally, and on operations in Iraq specifically.

I think sometimes we fail to take into account how our words are listened to all over the world. I know as a Senator, it is still hard for me to appreciate, knowing who I am and where I came from, that when I speak, my words may have pretty significant consequences to an awful lot of people. It is hard for me to remember that. I don't look at myself any differently than I did when I was a lawyer 20 years ago. But we in the United States tend to forget that others view us very closely, and everything we do they pay a lot of attention. So the words we speak in this Chamber and in other forums are going to be parsed very carefully by others around the world for meaning.

When those words suggest either there is a lack of support in this country for the policies being pursued, that were overwhelmingly supported by the Members of this body, the House of Representatives and, of course, the administration, when there is a suggestion that there is a lack of support for that policy or that support is eroding, and if terrorists continue to ply their trade they can undercut us to the point we will cut and run, when the words are interpreted in that way, then they undercut not just our policy but the people who are fighting for us in that region, and the people on whose behalf we are trying to help secure freedom.

That is why it is so important for us to conduct this debate in a civil and measured and responsible way. I urge all of my colleagues to try to approach the subject in that fashion. I criticize no one for raising questions or even for criticizing the President or the administration. It is perfectly appropriate in our country to do that. There is certainly no right or wrong in exactly how we are approaching each of these issues. The decisions are made in the fog of war. Many of them are somewhat gray.

I would only ask my colleagues, as we conduct this debate, that we consider the tone so it doesn't have an adverse effect on the actual war on terrorism itself.

As my colleague, Senator McCain, said, defeat is not an option. It is impossible, given our military power, for us to lose the war in Iraq, but it would be possible to lose that war at home if we don't conduct ourselves in the same fashion and same spirit we ask our troops to conduct themselves when they are fighting for us abroad. That is an important responsibility we take on.

When I listened to the words of the Ambassador-designate today about looking at the future of her country with such optimism and such courage and such hope, it rekindled in me the desire to come and talk about the fact that we have to do our part. Our troops are doing their part. We have to do our part as well. We need to make wise decisions. We need to support the troops. We need to support the administration

to the absolute extent we can. Our partisanship should stop at the shores, as it historically has.

I know in an election year it is going to be difficult for us to discipline ourselves in that way, but we have to do so because of the stakes involved.

I find after 1 year of the liberation of the Iraqi people, great cause for hope.

We should not minimize the difficulties that lie ahead. I think we need to be extraordinarily candid about the problems we will continue to confront. But at the end of the day, if we persevere as we know we can, if we have the same resolve and strength of character our young men and women do who are there fighting right now--and you only have to talk to a few to be imbued with their spirit--then I have no doubt the United States will stay strong, our great ally Great Britain will do the same, as well as other members of the coalition that have assisted us so strongly; and in persevering and staying the course, we will be able, No. 1, to turn over political control of Iraq on June 30 to the Iraqi Governing Council and, No. 2, we will be able to stay for as long as it takes to help secure that country.

Just as we have had the opportunity to govern ourselves, the Iraqi people will have the same opportunity. That will, in turn, show others in the region how they too can govern themselves democratically, they can live in an environment of freedom, and that is infectious and probably would do more than any other single thing to ensure that region of the world can enjoy peace, and that peace can even come to the troubled relationship between the Palestinians and Israelis. It is something to be hoped for. It all depends on our ability right now to persevere, stay the course, and to maintain the hope and optimism we had when we began this operation.

I suggest the absence of a quorum.

Mr. President, tomorrow we will cast an important vote for our constituents. Once again we have come back to the Senate floor to press for legislative change on an issue that is critical to health care for all Americans. Time and again we have attempted to stop skyrocketing health care costs due to the runaway tort system under which trial lawyers abuse the court system with spurious claims that drive up insurance premiums for physicians and hospitals and drive them to practice expensive defensive medicine; in other words, performing costly and unnecessary procedures to be sure they won't be sued.

Last year I was a cosponsor of S. 11, the Patients First Act of 2003. The Democratic minority precluded us from completing work on that legislation. In February, we targeted a very narrow range of the medical profession to try to see if our colleagues would help us out in one area, the OB/GYN specialty, with S. 2061, called the Healthy Mothers and Healthy Babies Access to Care Act. Again the Democratic minority denied us cloture so we could not consider the bill.

It is time to stop this obstructionism. Here we are again. This time I hope my colleagues will join in voting for cloture so we may enact the needed reforms to the medical liability system.

This legislation addresses lawsuits for health care liability claims related to the provision of obstetrical, gynecological, emergency, or trauma care. With good reason, we again include the OB/GYN specialty. The dramatic increase in OB/GYN premiums--more than 160 percent over the last 16 years--has greatly outpaced the rate of inflation, and many physicians and hospitals have been unable to keep up with these escalating costs. In my State of Arizona, OB/GYN practices face premiums averaging $67,000, up 16 percent in just 1 year's time. Think of this for a moment. I am not sure what the average salary or wage of an American earner is today, but it is nowhere close to $67,000. That is what your OB/GYN doctor has to pay before he or she can even think about delivering your baby. That is the cost we have driven up.

My colleague from Iowa talked about the large number of people who can't afford health insurance. This is one of the reasons they can't afford health insurance. We have so driven up the cost of practicing medicine and the cost of health care by virtue of this broken tort system that a lot of people can't afford insurance and, in fact, employers can't afford to provide insurance for them. Let's do something about it. This legislation does something about it.

I would like to share the account of a physician in Paradise Valley, AZ, a woman with whom I spoke about 3 or 4 weeks ago who told me the story of her desire from the time she was a preteen to deliver babies and how she worked hard all through school to get good grades so she could go to medical school and eventually complete her residency. She did that. She had started out as a little girl volunteering in the hospital. She always wanted to deliver babies. After hard work and her degree, she ultimately delivered more than 5,000 babies over the course of 17 years. By the way, the vast majority were without any complications, and she has one of the best reputations as a physician in our community.

On one occasion, much to the surprise and dismay of the labor and delivery team, a baby was delivered with complications and cerebral palsy. While a group of doctors conducted a peer review of the case and determined there was no fault on the part of any of the physicians, the doctor who delivered the baby--this woman of whom I speak--3 years after the incident got sued.

Initially the plaintiff requested $2 million which was her insurance policy limit. Deciding it was better to settle and avoid long, costly litigation, the insurance company persuaded her to offer to settle the case, which she did. But then the plaintiff asked for $10 million from the physician and another $5 million from the hospital. This highly competent, highly dedicated, and motivated physician found herself consciously practicing medicine differently. For instance, performing a lot more cesarean deliveries in order to lessen the risk of complications to the baby, just in case. She was filled with a new anxiety that had never been present before. Frankly, she said it took a lot of joy out of the work she had enjoyed so much for the previous 17 years.

Eventually she stopped delivering babies because of the skyrocketing insurance premiums due to the claim that had been filed against her and, candidly, because of the trepidation she felt now she had been sued and the fact she might be sued again. Incidentally, her case was ultimately settled for less than the policy limits. But here is a

physician who was a tremendous contributor to the profession, to our community, to the health of mothers, and the health and viability of a lot of new babies. She is no longer practicing her profession because of the tort system. This physician's story is far too common. It needs to be addressed, and we can address it through the legislation before us.

In addition to the reforms for obstetricians and gynecologists, S. 2207 will cover physicians who treat patients in emergency circumstances--not just in the emergency room but in any emergency circumstance--from frivolous lawsuits. Many physicians find themselves distanced from what led them into the profession in the first place-- their desire to help people, just as the physician I talked about. Emergency rooms and trauma centers are flooded with patients who need help from accidents and disasters, all very unfavorable situations. These professionals give their very best to try to address the patient regardless of the circumstance, without even asking whether they have the ability to pay, focused on stabilizing the patients and providing excellent care.

Imagine the effect on the physician and the hospital when after treating a patient in an emergency situation, they are faced with a lawsuit, particularly a lawsuit that does not have merit or seeks an excessive award. The result is frequently the emergency rooms are understaffed, sometimes even have to close. The trauma centers are losing specialists and, in some cases, closing. The physicians are not there to provide this kind of emergency care.

Since no one knows exactly whether and where an emergency will take place, this legislation covers emergency services anywhere, not just those that occur in the emergency room. For example, if a family practitioner assists a person in an emergency at a mall where somebody had a heart attack, the doctor would be subject to the protection of this bill. If an internist helps a person in an automobile accident at the side of the highway and assists that individual, that care would also be protected by this legislation.

The benefit of this legislation is while it makes specific reference to the OB/GYN doctors, it also addresses any emergency services, not just those performed by emergency room physicians or in a trauma center.

As with previous bills, this legislation will hold physicians and insurers accountable for medical expenses in instances when they are clearly wrong. S. 2207 will maximize returns to the patients instead of the trial lawyers by setting percentage caps on contingency fees. These are the fees the lawyers receive. The bill would allow lawyers to be well compensated for their work but not at the unfair expense of the plaintiffs. Patients would have 3 years from the date of injury to bring forth a claim. In the case of minors, that statute of limitations would be extended.

The bill will allow for unlimited awards of economic damages but place reasonable caps on the so-called noneconomic damages or pain and suffering damages. If we can pass S. 2207, we should therefore see tremendous benefits: a reduction in the backlog of these cases in our courts; a reduction and perhaps elimination of these excessive jury awards; a reduction in the amount of money paid by the insurance companies to settle the cases. They incur great expenses in defending the cases in court and even processing the claims for settlement. Even those that are dismissed cost money. Physicians spend a large amount of money to defend themselves even in those cases they win. A large number of these cases are settled out of court to prevent the so-called mega award, the big award that can bankrupt a practice.

But something else will happen if we pass this bill. As I said, my colleague from Iowa complained about too many people not having insurance and one of the reasons why is because it has been expensed beyond their ability to pay or their employer's ability to pay. Why? Because the insurance company has to take into account these malpractice awards, even the possibility a physician will be sued. Imagine this: When a physician has to pay $67,000 in premiums for the ability to deliver babies, think about how that additional cost has to be shifted to the beneficiaries, the patients, the people who receive the care, because the insurance companies have to make sure whatever happens, their costs are covered.

So if we are going to talk about making it easier for people to get insurance, making it easier for physicians to be able to continue their practices, for hospital emergency rooms to continue to stay open, and all of the other kinds of care to be provided, even that situation where you have a wreck on the side of the road and a doctor stops and renders emergency care to you--any one of those situations--then we need to deal with this bill tomorrow.

This has been around far too long, and tomorrow is our opportunity to right this wrong, vote for cloture, and enable us to take a final vote on the bill. We should not condone a system that literally forces physicians to retire early, as the physician from Paradise Valley I spoke of had to do. Sometimes they relocate to a different State with friendlier laws. We should not force that either. Sometimes they drop high-risk services or they go into teaching or hospital administration. We lose a lot of very competent physicians that way. This leads not just to improper staffing among physicians, obviously; more important, it compromises patient care.

We have heard the patient and physician stories and we have seen the charts about the skyrocketing costs. We know of the facilities that have had to close, emergency rooms and labor and delivery sections--all as a result of the high cost of a broken tort system. I ask my Senate colleagues to join me in support of S. 2207 so we can provide quality health care to citizens across this Nation.

Mr. President, our constituents deserve nothing less, and that is all we are asking for tomorrow--to give our constituents a chance to receive the best health care they can receive, the best health care our system can provide. That is not occurring today and, far worse, it is going to continue to deteriorate in the future if we allow the trial lawyers and those who serve the trial lawyers to continue to obstruct this commonsense legislation.

I urge my colleagues to end the obstructionism, end the partisan bickering. Our constituents sent us here to accomplish and work together for sound results. Everyone knows we need this kind of reform. The vote tomorrow is a vote to determine whether there will be a final vote on the bill. It only takes 40 Senators on the other side to say, no, we won't allow a vote to occur. That is a filibuster. That is obstructionism. That is a negative, partisan unwillingness to allow the will of the majority to work on behalf of the people of this country.

I urge my colleagues tomorrow to please support the cloture vote, which will enable us to get to a final vote on this important bill. If we do that, I think we can go home this fall and all be very proud, whether we are Democrats or Republicans, or others, tell our constituents we accomplished something for them in the area that perhaps, other than freedom, is most important for every one of us, and that is quality health care. We owe our constituents nothing less.

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