Floor Statements

Mr. President, I ask unanimous consent that the ``Global Internet Freedom Act of 2003'' be printed in today's Congressional Record.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, at this point I want to talk to the general subject of the two second-degree amendments offered by the Senator from California which will be pending for us to vote on later this afternoon. They both have to do with the requirement under the underlying amendment to impose an ethanol requirement for gasoline throughout the country and to not allow States to opt in or opt out of that mandated ethanol requirement.

One of the amendments by the Senator from California is to allow an opt-in, so that States that believe this will help them deal with their problems of ozone and the environment or other environmental pollution can opt into this program and take advantage of it; but for those States that believe it would be harmful to their environment, they would not have to opt in. The other amendment would require findings with respect to whether or not it would help the environment.

I want to comment about that because the State of Arizona is one of the States that would be adversely affected by a requirement to use ethanol. Partly, this is as a result of the fact that the climate in Arizona is very warm, shall we say, particularly in the summertime. Our summer runs essentially from April through October. During that period of time, ethanol does not work well in communities such as Yuma, AZ, and Tucson, AZ, because of the way it interacts with the surrounding hot air, and the product that is produced, the moisture from the tailpipe of the automobile, interacts with the air to in fact produce ozone, which is the very thing we are trying to prevent by the use of oxygenated fuel. As a result, Arizona has used an MTBE substitute oxygenate that doesn't create the same problem ethanol creates in the hot environs of the climates in Yuma or Tucson, AZ.

As you know, MTBE is associated with some environmental damage to aquifers, where MTBE has spilled into them inadvertently and, as a result, MTBE is being phased out.

Arizona receives all of its gasoline from refineries in California. Therefore, decisions California makes pretty well impact on what Arizona has available to it for its vehicle use. This is why, naturally, the points of the Senator from California are exactly the points I make, because they apply to the refineries in her State and the same kinds of climatological requirement that my State of Arizona has with respect to environmental protection.

So let me refer to several points with respect to the ethanol mandate and begin with that point of environmental impact. Ethanol is an extremely volatile fuel. It breaks down very quickly. In fact, it is virtually impossible to transport by pipeline because of this. It has to be transported by truck. Obviously, it is not produced in the West, in States like Arizona. It would have to be trucked in from other places such as the Midwest. This adds to the cost of the fuel, but that is another matter. Ethanol has been used as an additive in gasoline sold in the Phoenix and Tucson areas. But according to the Arizona Department of Environmental Quality, the State agency of the State of Arizona that is responsible for environmental protection in the State of Arizona, this mandate would be very bad for communities, as I said, like Yuma and Tucson, probably causing those areas to violate the 8- hour ozone standard under the Clean Air Act. This would have dramatic effects in Arizona. Those communities would be out of compliance.

There are a whole host of economic negative effects from finding a violation of the ozone standard. How can it be that the use of an oxygenate such as this would create more ozone? Because of the unique climate in Arizona in the summertime where, instead of reducing the amount of ozone particulate, it increases it.

Given the fact that there is no evidence that the use of oxygenates like ethanol would help improve the quality of air in Arizona, it seems to me a finding from the Arizona Department of Environmental Quality that says Arizona communities would likely violate the 8-hour ozone standard by being forced to use ethanol is a very powerful argument for the Governor of the State of Arizona having the option of opting into this program.

Why would the other States force on Arizona a program which our own Department of Environmental Quality says is going to make the air worse, not better--in fact, so much worse it will be in violation of the Clean Air Act? It is not as if the committee and the proponents of the underlying amendment have not understood that the mandate should not apply to all States. In fact, two States are specifically exempted--Hawaii and Alaska--from this mandate.

Why, if it is appropriate to exempt two States, is it not appropriate to at least afford other States the option of submitting themselves to this mandate or not, depending upon whether this mandate would make their air quality worse or better? It seems to me if we are really talking about environmental quality here, rather than a subsidy for the corn industry in the Midwest, then we would be looking at the environmental impact of a mandate of this sort. Since we have already decided that two States should not be required to comply with this mandate, we have already crossed the bridge of saying it is appropriate to exempt some States. Why not allow those States, with their departments of environmental quality having said they would be harmed, the ability to opt out, or the requirement that they opt in, in order for the program to be effective in the State? Why not allow that option for those States? What is so important about this mandate that every single State, except two--and I don't know why these two were exempted--is not at least given the opportunity to exempt itself from the provision?

It seems to me there has to be something else involved here. I suspect it has to do with the desire of the corn producers and the people who transform the corn into an ethanol kind of product to make a buck. But we already provide them a lot of bucks through the subsidy for ethanol that has already been voted on by the Congress, has already been in existence for many years, and which will increase in this bill. I could understand--I would not agree with it--a subsidy to try to produce more of something we think we want to produce. Even though I don't think that is a good idea, I could at least understand the theory that if we want more of something, we are going to have the Government provide a subsidy to produce more of it. I could also understand the alternative, which would be that this is such a good idea that we are going to force people to do it; we are going to mandate it because we in Washington know best, of course, and therefore irrespective of what the environmental quality people in your own State believe, by golly, we know better, so we are going to make them do it.

What is a little hard for me to understand is why we still need the subsidies if we are going to have this mandate. The purpose of the subsidies was to try to encourage this production, but we do not need the subsidies if people are going to be required to use ethanol. It is a mandate. We do not need the incentive or the encouragement anymore.

Clearly, this is about special interest money influence, and I will be that specific because the environmental benefits, especially to an area such as mine, have not been demonstrated. At least the point is made by an agency of my State that it would actually degrade the air quality of some parts of the State--in fact, pull them out of compliance with the Clean Air Act, and yet

the mandate would be imposed at the same time we continue to provide this subsidy. Something is drastically amiss here.

There is an old phrase, ``Follow the money,'' so maybe that is what we should do here. Let's take a look at the money part of this issue.

Currently, refiners use approximately 1.7 billion gallons of ethanol annually, and the underlying provision would increase that to 5 billion gallons annually by the year 2012.

There is no question that gasoline prices would increase, based on data from the Energy Information Administration. It has been estimated that the increase in gas prices caused by this mandate could be between $6.7 billion and $8 billion a year. So that is the price we as a country, as consumers of this product, will be paying simply to enrich the people who produce the product.

Arizonans will, according to this estimate, be paying on average 7.6 cents more per gallon of gas. Is that fair, Mr. President?

I speak very plainly about the subsidies to the ethanol industry. According to the Congressional Research Service--this is an unbiased source--the ethanol and corn industries have received more than $29 billion in subsidies since 1996 and could receive another $26 billion more over the next 5 years.

CBO, another unbiased source, has a different estimate for a different time period. They have estimated, based on a review of S. 791, the basis of the underlying amendment we are debating, $2.3 billion just between the years 2004 and 2008.

We also know there is an impact on the highway trust fund because every gallon of gas containing ethanol--10-percent blend--gets a 5.3- cent subsidy in the form of reduced gas taxes. This amounts to a 53- cent-per-gallon ethanol subsidy to the industry at the expense of the highway trust fund, and the Energy Information Administration has estimated that this will reduce the annual gasoline excise tax collections by an average of $892 million between the years 2006 and 2020.

Again, my State is a donor State already. Arizonans send $1 in taxes to the Federal Government and for highway transportation-related needs receives in return only 90.5 cents. So to the extent total revenues to the fund are reduced, the Arizona highway program will obviously be significantly impacted.

There are a lot of general points that I could discuss. There are disputes between authorities on the subject of whether or not it takes more to produce a gallon of ethanol than the gallon actually contains in terms of Btu content; in other words, do you actually have a net loss in net energy value. There are disputes about that. Some experts say about 29 percent more energy is used to produce a gallon of ethanol than the energy in a gallon of ethanol. The National Corn Growers Association, not exactly an unbiased source, disagrees with that. I do not know where the truth lies. Clearly, it seems to me the science is at best in dispute.

In any event, we would all have to agree that taking into account all costs, not just the energy cost, that clearly it costs a great deal to produce a gallon of ethanol or they would not need the subsidy which Congress has generously provided for its production.

I have already talked about the environmental benefits being questionable. It is not just my own State environmental agency but also a National Research Council report found that oxygenates have little or no impact on ozone formation, and there are a lot of refineries that claim they can actually produce similar environmental gains without the use of oxygenates. In fact, that is what we are going to have to do in Arizona because we cannot use MTBE, and we would hope not to have to use the ethanol, as a result of which we would have to find a different blend and would be committed to doing that.

It seems to me the ethanol industry, which enjoys this 5.2-cent-per- gallon exemption on the ethanol blend, or gasohol, from the 18.4-cents- per-gallon Federal excise tax on motor fuels, with the resulting mandate that the Congress is going to impose for the increase in the number of gallons used, would no longer need to be supported by this subsidy, which, as I said, works out to be 52 to 53 cents per gallon for pure ethanol.

The General Accounting Office estimates the tax exemption has deprived the highway trust fund--a slightly different number than I gave before--of between $7.5 billion and $11 billion over the 22 years it has been in place. This is a very costly subsidy and would be a very costly mandate.

Because the underlying amendment is costly, is not necessary, is contradictory with the subsidies that are already provided, and because the amendment of the Senator from California would simply provide the opportunity for States that would be adversely affected by this mandate to deal with their pollution problems in some other way--remember, they still have to comply with the Clean Air Act; nobody is exempting anybody from the Clean Air Act; they simply have to find a different way to comply--it seems to me it would be appropriate for us to support the amendment of the Senator from California and allow States to tailor their blends to the unique situation in their particular States.

Everybody would still have to meet the Clean Air Act but we could each do so in a way that best suits our individual purposes. For that reason, I hope my colleagues will support the amendment of the Senator from California.

Mr. President, can we have order?

Mr. President, let's make it clear that every State still has to comply with the Clean Air Act. The question is how they each choose to do so. In Arizona, the Department of Environmental Quality, the department of the State that is required to cause the State to be in compliance, says this mandate will actually cause two of our larger communities, Yuma and Tucson, to be in noncompliance with the ozone standard during the summer months. Each State can meet the requirements in the ways they deem best under the amendment of the Senator from California. Let's not mandate a one-size-fits-all--oh, excuse me, except for Alaska and Hawaii--for every State. Give the Governors who are responsible people the ability to decide whether this is the best way for their State to meet the Clean Air Act standards.

Mr. President, I rise today to express my support for H.R. 2, the Jobs and Growth Tax Relief Reconciliation Act of 2003.

Former President Ronald Reagan often said, ``If you want more of something, subsidize it. If you want less of it, tax it.'' In recent polls, the American people have consistently said they want more job creation and more economic growth. This legislation, which President Bush is expected to sign into law this weekend, is specifically tailored to achieve these very important goals--by reducing taxes in the right way, it will enable businesses to create jobs and it will spur greater economic growth. It will also help American families keep more of their hard-earned money to spend or save, as they see fit.

One of the most important things the legislation does is accelerate the tax rate cuts already scheduled to take effect. In 2001, Congress passed a law that set in motion a series of income tax rate reductions that were scheduled to be phased in over the next several years. Because of the slow phase-in, the 2001 tax cuts had a muted impact on the U.S. economy and taxpayers felt little benefit. The bill we pass today will make all of those rate reductions effective this year. Taxpayers will see their withholding adjusted almost immediately and will begin reaping the benefits right away.

A key component of this provision is that it brings the top tax rate down to 35 percent--the same rate that corporations pay. While opponents claim this will only benefit wealthy taxpayers, I suggest that they look at what kind of taxpayers fall into the top bracket. The overwhelming majority--nearly 80 percent--of taxpayers in the top bracket have small business income. Small businesses, which are pass- through entities that are taxed at individual rates, are responsible for the creation of at least half of all jobs in the economy; reducing their tax burden will help them expand and create more jobs. Fairness and sound economics dictate that we should not tax small businesses at a higher rate than we tax big corporations. This bill fixes this so that the top small business rate will be the same as the top corporate rate.

Our bill also significantly reduces the taxes individuals pay on dividends they receive from corporations. In order to change investment behavior--and we know that the ongoing economic troubles are almost exclusively related to a collapse in business investment, not to a problem of consumer demand--taxpayers must see a meaningful and permanent reduction in rates at the margins. The bill we pass today does that.

Under current law, a corporation pays taxes on its earnings, usually at a rate of 35 percent, and its shareholders

will pay ordinary income rates--currently, the top rate is 38.6 percent, on any dividends distributed by the corporation. President Bush said we should end this double taxation by eliminating entirely the tax on individuals. I fought hard for the original Senate bill that would have done this, and I still believe that is the best tax and economic policy. However, the conferees from the House were unwilling to agree. The compromise we settled on will reduce the individual tax rate for dividends to 15 percent--a significant improvement over current law. I will continue to work to eliminate the double tax on dividends.

The bill we pass today also reduces the capital gains rate from 20 percent to 15 percent, the same rate we will now apply to dividends. I believe this is also good policy and I hope we can work to eliminate the tax on capital gains too. The dividend and capital gains tax relief should boost stock values significantly and should make it much less costly for businesses to expand and create jobs. Nearly 420,000 Arizona taxpayers will benefit from the dividends and capital gains tax relief.

This legislation also includes a number of provisions designed to provide much-needed tax relief to American families. It increases the child tax credit to $1,000 per child, with a good portion of the tax benefits being sent to families as early as this summer. It also provides additional relief from the marriage penalty. In Arizona alone, nearly 450,000 families will benefit from the child credit increase and more than 600,000 will benefit from the marriage penalty relief.

As I have said, I believe this is a very good bill that will do much to encourage job creation and economic growth, but I believe it could have been better. If the House had been willing to accept some offsets, we could have paid for the $20 billion in temporary State aid this bill provides. I also believe we should have held firm to the Senate position and eliminated the double tax on dividends. Regardless, I am very proud of the business, individual and family tax relief we have provided in this bill.

It is my understanding that the debate has been going back and forth. Senator Allard was in the queue but has graciously allowed me to get in front of him. What I would like to do is propound a very limited request. I ask unanimous consent that after I speak, Senator Akaka be recognized to speak, and after he has completed, Senator Allard be recognized to speak.

Senator Akaka would be after me, and then Senator Allard, then Senator Reed.

Madam President, I appreciate the cooperation of my colleagues. This is a very serious debate. We need to be careful of the language we use and the arguments we make. I would like to respond to a couple arguments just made. I think we can clearly be sending some very bad signals to some very bad countries of the world in the Senate. When a Member of the Senate speaks about low-yield nuclear weapons as ``nuts,'' we make a grave mistake.

The majority of the Armed Services Committee of the Senate, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the Secretary of Energy--these are very serious people who have a very serious reason for asking that this language be retained in the bill.

The reason low-yield weapons research is being sought is because the world has changed since the time we developed these huge megaton nuclear weapons that can kill millions in just a few seconds. Instead of wanting to use those kinds of weapons, the United States would prefer, if it had to, to use a much smaller weapon, a low-yield weapon.

There are several potential uses for this kind of weapon. To digress for a moment, we used to have a lot of these. They are called tactical nuclear weapons. Russia still does. The United States got rid of ours. Russia says it is going to be getting rid of its tactical nuclear weapons as well. Tactical nuclear weapons are not new. Low-yield nuclear weapons are not new. But the United States, in order to have a credible deterrent against a strategic nuclear attack, developed these very robust weapons that can take out cities, that can take out huge military targets with one weapon. One of the reasons was because we were not very accurate 20 years ago when the weapons were designed. We could get pretty close but nothing like the precision with which our weapons can be targeted today.

In the most recent conflict in Iraq, we literally saw missiles flying through windows of buildings in downtown Baghdad. The kind of precision we have today enables us to use much smaller yield weapons to achieve the same results that large conventional weapons are being used for today. But they can do so much more effectively. For example, we know that some so-called conventional bunker busters were used in an attempt to decapitate the Iraqi leadership in the early stages of the war. We were impressed with the fact that these missiles could actually go through a hole in the floor board by one missile and then three or four more in the same hole and destroy a lot below. But it did not do the job. As good as they were, apparently the leadership of the Iraqi regime lived on. So

we cannot say we have the capability, even in dealing with that regime, to destroy those kinds of targets.

What we know from intelligence is that there are a lot of other nations in the world that know one thing: If you get deep enough underground with enough concrete and steel above your head, they can't get you. That is exactly the kind of facility being built by our potential enemies today. There is only one way to get those, and that is through a precise low-yield nuclear weapon. The design of those weapons is certainly in the mind of our scientists. And if they are allowed to think about this, to do some research on it, we think at least we would be prepared, should the Pentagon decide that it wants to ask the Congress for the authority to go forward with the program, to be able to do so.

The point has been made adequately, this does not authorize anything. This merely removes a self-imposed prohibition on the United States. No other country in the world is suffering under this same prohibition. We legislated this restriction on ourselves. Russia does not have it. China does not have it. Great Britain does not have it. France does not have it, nor do the countries of the world that are proliferating or building weapons of mass destruction, including nuclear weapons in violation of the Nuclear Non-Proliferation Treaty.

There may be a reason for us to need these kinds of weapons in the future. It has also been noted that they could be very useful in the destruction of chemical and biological agents or weapons which are not easily destroyed by conventional weaponry and in any event where the fallout can be more dangerous than the weapon just sitting there on the ground. If you put a large conventional explosion on top of chemical or biological agents, you could end up dispersing those agents in a very dangerous way over a far greater area than if the enemy actually tried to use the weapon. But with a precise low-yield nuclear weapon, you might well be able to destroy that biological or chemical agent or weapon. In this new world there may well be reasons to have these weapons. For somebody to suggest it is nuts is simply an uneducated approach to this very serious issue.

I made the point that this is not an authorization. All we are doing is removing a self-imposed restriction on thinking about this, on doing research. If the researchers conclude it could be done and the Pentagon decided it should be done, Congress would still have to authorize such a program and fund it through appropriations. So I don't think we should be against thinking in the Senate, against researching something that we may well wish we had down the road.

This could save lives. Think about the application of such a weapon as we have today on one of these targets. We would risk killing millions, and there is no point in doing that. It would be immoral to do that.

A second point made earlier was to demonstrate the ICBMs that have been destroyed and to suggest that if we now move forward with rebuilding some nuclear weapons, we would be signalling to other nations that it is OK to build these nuclear weapons. Let's parse that a little more carefully.

The reason we are destroying nuclear weapons is because we want to get rid of some of these very large nuclear weapons that we don't think we need anymore because circumstances have changed. Frankly, I don't think it is a very credible deterrent for us to say--I will say this regarding Iraq because that is over and so I think one can safely talk about the situation there. I don't want to talk about potential future situations--to Saddam Hussein, if you use chemical weapons against our troops, since we have foresworn chemical weapons and we have foresworn the use of biological weapons--we don't even have them; our only big ticket type here is a nuclear weapon--we won't take any option off the table. We just might use a nuclear weapon if you use biological or chemical weapons against us.

We threatened that once before, and some say it worked to deter his use of those chemical weapons. Would it work today? Does anybody really believe the United States would kill maybe 3 or 4 or 5 million innocent Iraqi citizens by bombing Baghdad with one of our big nuclear weapons today? Those are the kinds of weapons we have. They kill lots of people real fast. As a deterrent when the cold war was going on, we wanted to let the Soviet Union know that they better not launch against us because they would suffer just as much destruction as we would and, therefore, we could deter their actions.

Would it really deter a Saddam Hussein from using biological or chemical weapons against us? Would he really think we would use one of our great big nuclear weapons? I don't think so. So, ironically, these great big weapons are too big to use.

The deterrent may not be credible. As a result, it makes sense for us to destroy a large number of those weapons, to take them out of our inventory and keep only enough that we think would really be necessary in the event we needed to deter a nuclear-armed country, such as Russia or China today. The other legal nuclear countries, of course, are France and Britain. In addition, we have India and Pakistan, which are not part of the Nuclear Non-Proliferation Treaty.

So we say we can deter an action by a Saddam Hussein with a far smaller, less destructive kind of weapon. If he knows that we have a low-yield nuclear weapon that can bust his bunker and all of the other leadership, maybe he will think twice before he orders the use of chemical or biological weapons.

Today, the experience in Iraq shows that we could not get the leadership of Iraq. So what does this teach other potential enemies? If you burrow deep enough underground and put enough steel and concrete over your head, like Saddam Hussein apparently did, you are not going to be able to get him, or get us, and therefore we have nothing to fear. That is another reason we need these weapons. We are willing to get rid of our great big weapons; that is the signal we are sending. We also will continue to have a credible deterrent with much smaller kinds of weapons.

I mentioned the Nuclear Non-Proliferation Treaty. I will make this point. The nuclear countries of the world that signed the NPT agreed we would be the nuclear powers; but in exchange for other countries that signed up, including countries such as Iran, we said we would provide them with information and assistance regarding atomic energy--the peaceful uses of nuclear energy. We have done that.

When countries have come to us and asked, we have provided that assistance because that is what the NPT calls for. We have abided by it; they have not. What makes anyone think that a self-imposed congressional limitation on the United States has deterred countries such as North Korea and Iran--or India and Pakistan for that matter-- from developing weapons in contravention of the NPT?

Obviously, our action hasn't prevented them from developing these weapons. So what kind of an argument is it that this law on the books has been effective at stopping other countries? It didn't stop Saddam Hussein, Iran, or North Korea; and other countries are also trying to work on a nuclear capability.

So let's not kid ourselves. This isn't stopping proliferation. What will stop it is a strong signal from the U.S. that it will not be countenanced, because if you have signed the NPT, like Iran, you don't have any right; you signed that right away for something we gave you. We are going to have a credible deterrent to your use of such a weapon.

Finally, I am astonished at the argument that was made earlier that we should be ``setting our priorities straight,'' we should be willing to spend money on hunger in Africa rather than defending the United States of America. That was the argument made on this Senate floor. I am concerned that we are sending the wrong signals to the world-- especially our potential adversaries--if that kind of a statement is left unresponded to.

The U.S. Government has an obligation above all others, and that is to protect and defend the people of the United States of America. That is our primary obligation as Members of this body. If it is necessary not to spend one nickel but simply remove a provision of the law that prevents our scientists from even thinking about this problem, and if we are saying that has a lower priority than spending money on hunger in Africa, then something is gravely wrong.

Fortunately, we are not going to do this. The Armed Services Committee understood the need to remove the restriction on thinking. The Secretary of Defense, the Chairman of the Joint Chiefs, and Secretary of Energy have said to remove that restriction so our people can think about this problem. I think that is the priority here. That is why we should support the action of the Armed Services Committee. It should not be illegal to think of ways of defending America.

I will conclude with this statement. Everybody would like to see a day when there are no nuclear weapons. But we cannot disinvent the nuclear weapon. Either we have confidence in the United States of America as a power that can help do something to stop the wrong people from acquiring these weapons and using them, or we do not. If we have so little confidence in America that we don't trust ourselves with these weapons to be used as a way of stopping the likes of Saddam Hussein, then we have lost our way indeed.

Americans must have the confidence that we will do the right thing as a government. Members of the U.S. Congress make this kind of policy. Do we have so little confidence in ourselves that we are not willing to let our scientists think about this problem?

We hold the decision in our hands to authorize a program, to appropriate the money for a program. So it is not as if we are giving anything up by allowing our scientists to think about this.

Yet that is what the opponents of the committee bill would have us do. I find it incredible that we would, like the Luddites of old, say we don't want to know any more about this because nuclear weapons are really icky things. Well, they are not nice, but somebody needs to have the ability to deter others from gaining their capability or, God forbid, invoking the use of these weapons.

Only a country that is willing to think about what kinds of deterrents may be required in the future is going to be able to provide that degree of stability in the world. That burden rests upon the United States of America. I gladly accept it as a representative of the Government that I think we can trust.

That is what it boils down to today. Do we trust the President, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and a majority of the Committee on Armed Services or don't we? I think we can put our trust in them. I do, and I urge my colleagues to support the committee action and defeat the amendment against the committee action.

Mr. President, speaking on behalf of Senator Grassley, this is a complete substitute and therefore, obviously, will have to be opposed. It strikes all of the good work from the committee bill regarding the child credit, marriage penalty, AMT, reduction of rates for individuals and small businesses, as well as the dividend relief.

We certainly appreciate the Senator's concerns about unemployment insurance and relief for the States. Obviously, we are committed to addressing the unemployment insurance issue. As everyone now knows, we have $20 billion for State aid in the bill, and therefore we will have to make a point of order. The matter is not germane to the measure now before the Senate. Therefore, I make a point of order that the pending amendment violates section 305(b)(2) of the Congressional Budget Act of 1974.

Mr. President, is there an order for me to speak to the Kyl amendment at this point?

Mr. President, this is the amendment that would return money to the States from the tobacco company payments to trial lawyers, money that exceeded reasonable fees as determined by a common standard in the courts and an IRS Code provision.

What we have done in this amendment is to apply it only prospectively, not retroactively. The fee is a reasonable fee plus 500 percent, and in any event the lawyers are guaranteed--and, colleagues, please note this--$20,000 per hour. That is what the lawyers are guaranteed in those cases, those 10 to 15 cases per year to which this would apply.

Those fees were not set by contract. They were not set by courts. The money is going to be paid by the tobacco companies. The only question is, are these excess fees going to be paid to the tobacco lawyers or are they going to be paid to the States?

I will have at both desks a chart which shows how much money each of the States would receive. It is between $6 billion and $9 billion in total. You can see the amount listed on this sheet. I ask you to consult that because that is money your States would receive if this amendment is adopted.

Mr. President, I move to waive the provision. I ask for the yeas and nays.

Mr. President, I move to reconsider the vote.

Mr. President, I have spoken to the Senator from Louisiana. I know the chairman is appreciative of her efforts along with the Senator from Alabama. He is anxious to continue to work with her on this matter. He appreciates their very strong interest in trying to rectify this situation. On behalf of the chairman, I can say he will be willing to work with her.

Mr. President, we added the tuition provision in the bill 2 years ago, and it is obviously supported by a broad number of people in the body. The problem is that this addition is way too expensive and comes out of the top rate reduction from the bill that is on the floor, the acceleration of the marginal income tax rate provision of the bill.

Obviously, we have to oppose this particular amendment. This is a matter that could be dealt with in a different way but not by paying for it in the manner it is paid for. It is not germane. Therefore, I raise a point of order under 305(b)(2) of the Congressional Budget Act of 1974.

Mr. President, I at least want to compliment the sponsors of this amendment for not having a gimmicky amendment. This is a flat out, straight assault. It simply abolishes all the tax cuts in the bill. So I do compliment my colleagues on their very straightforward approach. However, that makes the vote pretty easy. I urge my colleagues to vote this amendment down.

Mr. President, this is another amendment where we essentially voted on this concept several times, of taking money from the reduction in the tax package, in this case the top rate. Again, I would urge my colleagues to vote no.

Mr. President, again, this is another amendment which eliminates the reduction of the top income tax bracket acceleration. Therefore, I urge my colleagues to vote no.

For my colleagues, this is another amendment which takes tax cuts from the tax cut bill; therefore, I urge my colleagues to vote no.

We would all like to accomplish what the distinguished Senator proposed, but under the reconciliation procedures and the balanced budget amendment we do have sunsets that we have to contend with. Whether it is 10 years or 5 years or 3 years, it is not possible to permanently adopt many of these changes we are considering. It would be nice if we could, but under our rules, obviously, we cannot.

Secondly, there are times when it is important to be able to phase a program in because you cannot accomplish all of the changes within the very short period of time allotted for the first year. For example, the dividends proposal we approved earlier this evening falls into that category.

While what the Senator says is laudable, as a practical matter it cannot be accomplished.

I urge my colleagues to vote against his amendment.

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

Mr. President, let me speak in opposition to this amendment. There are some problems, as the distinguished Senator from North Carolina has pointed out. But this is a very big deal that affects a lot of people. It is not something we should be dealing with without the proper debate that should attend it. As a result, in addition to the fact that it is not germane, I urge my colleagues to vote against it.

I make a point of order that under section 305(b)(2) of the Congressional Budget Act of 1974, the measure is not germane.

Mr. President, this amendment will undermine our efforts to ensure that those who owe taxes will pay them. There is over $250 billion in uncollected debt. The IRS, obviously, has the primary responsibility. But over 40 States and the Department of Education use private collectors, and they must abide by the various rules that apply, including the Taxpayers' Bill of Rights and the Fair Debt Collections Act. Therefore, there is an opportunity to collect money that is owed the Treasury as a result of this provision.

So striking this provision would not only be bad policy but also would, unfortunately, lose about $1 billion in revenue from the underlying bill. As a result, the reduction in revenues in excess of the levels set out in section 202 of H. Con. Res. 95, the fiscal year 2004 concurrent resolution on the budget, would raise a point of order, and I do raise a point of order under section 202 of that resolution.

I ask unanimous consent that the pending business be set aside for the purpose of offering an amendment.

Mr. President, I send amendment No. 575 to the desk and ask for its immediate consideration.

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

I ask unanimous consent that this amendment be designated the Kyl-Cornyn amendment and that Senators Alexander and Ensign be listed as original cosponsors.

Mr. President, I will address this amendment for a few minutes, and then I am going to speak on the dividends proposal that will be offered tomorrow and that hopefully the Senate will approve as one of the perfecting amendments of the legislation that passed out of the Finance Committee.

The first thing I would like to do is to describe the amendment that I have just laid down. I know Senator Cornyn is coming a little bit later, and he will be talking about it, too.

This amendment is known as the tobacco tax lawyers amendment. The technical name is different than that, but the gist of this amendment is that about $9 billion could be returned to the States, the clients in the tobacco litigation, from the attorneys who overcharged those clients. This legislation ensures that overcharging be recognized in law so that the States can apply for that refund.

How does that work? There is an existing IRS Code provision that says if one is the trustee of a trust, and they overcharge that trust, they take too much in the way of fees out of it, they have to return those fees. The IRS will enforce that.

In fact, the Secretary of the Treasury is involved in that process. We simply apply that same existing IRS Code provision to this situation where attorney's fees have been charged in excess.

The common thread is a fiduciary relationship, the legal term which applies where a trustee or a lawyer to a trust or to a client has a responsibility above and beyond a mere contractual responsibility. As the court cases all attest--and I will quote a couple in a moment-- whereas a contract between two regular people is enforceable in law, with respect to a trustee or a lawyer, where you have a fiduciary responsibility to the client or to the trust, that contract is not the most important thing. The most important thing is the fiduciary responsibility, which the law will enforce, above the contracted for fee. That is what would apply in this particular case.

As a result of the tobacco litigation we are all familiar with, the fees are being paid to these lawyers at the rate of about $500 million a year. That exists for 30 years until the year 2028, possibly forever if the lawyers win their argument for an inflation adjustment. Some attorneys are receiving fees--if we can believe this now--in excess of $150,000 an hour.

Senators make about $150,000 a year, and there are a lot of people who think Senators are overpaid. Think about instead of earning $150,000 a year, a person earned $150,000 every hour. That is what some of the attorneys in this tobacco litigation are earning. It is unconscionable, and no contract that provides for that can be enforceable in law. It is clearly a breach of the fiduciary responsibility.

Congress enacted this Tax Code provision in 1996 in response to two very famous people. I will not mention their names, but they set up a trust and then proceeded, basically, to pay themselves as trustee most of the money out of the trust. Congress said: That is not right. We do not care what the contract says. It is wrong. The IRS can tax you on that overage.

That is the same provision we would use. The Congress can tax you on that overage, and I will describe in a minute how we actually describe what the overage is.

I will first assure my colleagues that the money that would be returned by the tobacco lawyers is not returned to the tobacco companies. They have to pay the money. They either pay it to the lawyers or they pay it to the States. The money would be returned to the States. As I said, under the original bill that Senator Cornyn and I introduced, it is about $9 billion. That is the securitized value of this income stream of over half a billion dollars every year for 30 years, and maybe in perpetuity. So $9 billion is the reduced-to-present value of this fee award.

I have a chart, which I do not think I will bother to put up on the easel, which shows what every State would get. My State, for example, would receive about $164 million, and it could use that money. Since it is based purely on population, if that is what Arizona, with a little over 5 million people, received, my colleagues can figure out what their State would receive.

I will go back to describe what the tobacco settlement really did because most people are not aware of what happened in the tobacco settlement. Attorney's fees were not awarded in the tobacco settlement pursuant to contract. So for those people who say we are trying to abrogate contracts, as I said, we are not talking about contracts. We are talking about a fiduciary responsibility. In any event, in the tobacco settlement, there was not a contract. Nor were they awarded by a court, which is the other way that ordinarily attorney's fees are awarded as a result of successful litigation.

So it was not awarded by a contract, and it was not awarded by a court. Instead, after the tobacco companies' initial offer to settle the litigation and that offer failed and Congress rejected a legislative settlement, which some of my colleagues will recall, the tobacco companies and the lawyers agreed to a $246 billion settlement, with a special provision for attorney's fees. So this was not between the lawyers and clients. It was between the lawyers and the other party, something about which courts always raise a red flag.

That provision included a very unusual agreement by the tobacco companies to pay the fees of these lawyers who represented their opponents, the States. The fees were ostensibly set by a panel of three arbitrators, and there are some very interesting articles about how this would occur that would make your blood boil. Two of the majority were effectively chosen by the lawyers.

In this agreement, the tobacco companies and lawyers agreed to immunize all fee awards from judicial review. In other words, it stipulates that it cannot be reviewed by a court. And all proceedings were concealed from the public. That is what we are talking about--a secret deal by which the tobacco companies agreed, as part of how much money they had to pay out, that they would pay these substantial fees to the lawyers.

It does not take too much imagination to figure out that it was in the best interests of two parties that this arrangement exist--the lawyers and the tobacco companies. They got together and they concocted a secret deal which was never reviewed by a court, is not pursuant to a contract, and which, by the precedence of this Congress, can be limited.

Now, the amendment we have proposed guarantees that none of these lawyers receives less than $20,000 an hour for their services. Is that generous enough? None of them will get less than $20,000 an hour. How much is a plumber charging these days? A hundred dollars an hour? I am not sure what it is. How much does a schoolteacher get these days? Probably not $100 an hour when you add it all up. These lawyers would be guaranteed $20,000 for every hour they put in. Some claim to have put in 10,000 hours, 20,000 hours, 30,000 hours. Add it up. They will not have to sell their yachts.

As I said, there are a lot of descriptions of this, and I will put some of this in the Record at the appropriate time.

I wanted to note, if anyone thinks I misspeak, in one of the articles it is noted that in the case of Michigan, for example--I will be very specific--the fee worked out to $22,500 an hour for this particular firm. These lawyers would therefore have to take a little bit of a cut. Instead of getting $22,500 an hour, they only get $20,000 an hour.

Now, The Economist, a respected magazine published in Great Britain, notes that tobacco settlement ``arbitration is a mere figleaf. The money going to the lawyers was clearly part of the overall amount that the tobacco companies were willing to pay to settle the case. Whatever the lawyers get, the States do not.''

That is the bottom line. So the money has to be returned to the clients, the States, not the tobacco companies.

As I said, the proposal is based on the intermediate sanction tax, an existing provision of the Tax Code that applies a punitive tax to the excessive portion of a fiduciary's fee and effectively forces the fiduciary to restore the excessive portion of the fee to the client. Our amendment applies the same tax formula to the excessive attorney's fees in the mega-lawsuits.

The suit would have to be $100 million or this provision would not apply. We are talking about a very minute number of lawsuits per year; probably 15 to 20 litigations a year, at most, according to experts, would qualify. You have to exceed $100 million as part of the settlement or judgment.

Let me note, because one of my colleagues said you have to have contingent fees in the big complicated cases, that is very true, lawyers will take tough cases on a contingent fee. In the early stages of this litigation, it was tough litigation, that is true. So sometimes lawyers will take a third, sometimes even 40 percent. I have seen fees as high as 50 percent of the settlements.

What have experts and courts said about that? Courts have made clear that fee agreements based primarily on the size of the recovery tend to become unreasonable when judgments reach the $100 million mark, which is the mark we use here. As one court stated:

In much smaller cases, a fee award of 33 percent does not

present the danger of providing the plaintiff counsel with

the windfall that would accompany a mega fund settlement of

$100 million or upwards, but it is quite different when the

figure hits the really big time.

Whereas the Third Circuit Court notes:

Courts have generally decreased the percentage awarded for

attorney fees as the amount recovered increases and $100

million seems to be the informal marker of a very large

settlement.

It is one of the reasons we chose the $100 million mark.

The logic of avoiding judgment-based awards in the very largest lawsuits is straightforward:

It is not 150 times more difficult to prepare, try, and

settle a $150 million case than it is to try a $1 million

case, but the application of a percentage comparable to that

in a smaller case may yield an award 150 times greater.

Another said:

There is considerable merit to disallowing standard

percentage awards as the size of the recovery fund increases.

In many cases the increase in the recovery is merely a factor

in the size of the class and has no direct relationship to

the efforts of counsel.

That certainly was the case in the tobacco litigation.

Before the trial lawyers or some of their allies say this is a Republican lawyer-bashing amendment, I say two things. First, I am a lawyer. I am not trying to bash any lawyers. A guaranteed fee of $20,000 an hour would be considered extraordinarily generous by the standards of most of my colleagues. Second, the fee formula used in this situation allows attorneys to receive up to 500 percent of what courts usually determine as reasonable hourly rates but not less than $20,000 an hour. So you take what a court determines as a reasonable rate, add 500 percent--no one can contend that is unfair--and that is the standard used in this typical type of case.

Before you say this is Republican lawyer bashing, this came from probably the most liberal court in the country, the Florida Supreme Court, which in a specific case tried to determine what would be a fair fee in a situation like this.

What it said was that the maximum multiplier that it thought was appropriate was this multiplier of 5, or 500 percent.

Here is what the court said:

We set the maximum multiplier available in this common-fund

category of cases at 5. . . . [A] multiplier which increases

fees to five times the accepted hourly rate is sufficient to

alleviate the contingency risk factor involved and attract

high level counsel to common fund cases while producing a fee

that remains within the bounds of reasonableness. We

emphasize that 5 percent is a maximum multiplier.

I take this as the most liberal of standards, the reasonable attorney's fees, plus 500 percent, and then say, but we will guarantee you that you do not get anything less than $20,000 an hour if it turns out not to satisfy that. I challenge any of my colleagues, if you vote against this amendment, you are going to have to justify paying lawyers $20,000 an hour rather than returning that money to the States.

The original of the bill Senator Cornyn and I filed has this provision effectively from June of last year. To avoid any question that it is retroactive, we made it effective on the effective day of the act, so it is only prospective.

There is one more thing I want to summarize. This act does not alter the considered fee award standards of any jurisdiction in the country. Rather, it is intended to enforce those standards and to correct the occasional extreme outlier. What we are doing is enforcing the court- imposed law relating to fiduciary responsibilities.

Let me quote a couple of these courts. This is from the Illinois Supreme Court:

A fiduciary relationship exists as a matter of law between

attorney and client.

The New Jersey Supreme Court:

An attorney's freedom to contract with a client is subject

to the constraints of ethical considerations.

The Massachusetts Appeals Court:

While freedom of contract is the guiding principle

underlying contract law, contractual freedom is muted in the

lawyer-client and lawyer-lawyer context.

That comes from a law professor, Joseph Perillo.

Here is another court:

[A]n attorney is only entitled to fees which are fair and

just and which adequately compensate him for his services.

This is true no matter what fee is specified in the contract,

because an attorney, as a fiduciary, cannot bind his client

to pay a greater compensation for his services than the

attorney would have the right to demand if no contract had

been made. Therefore, as a matter of public policy,

reasonableness is an implied term in every contract for

attorney's fees.

As I noted before, in this case, in the tobacco litigation, you don't have a contract between the client and the attorney. The contract is between the attorney and the opposing parties, the tobacco companies, which make it even more suspect.

Again, as I said, this does not change the substantive law. It simply enforces preexisting fiduciary standards that bind every attorney in every State.

I urge my colleagues when we vote on this amendment tomorrow to just consider the alternative. These lawyers are all going to get a ton of money, hundreds of millions of dollars, guaranteed $20,000 per hour that they work. Most of them worked, they claim, thousands of hours on this case. But we are able to return somewhere, depending upon how the payment for this amendment is done, between $6.5 billion and $9 billion to the States. The States could use this money at this time. The tobacco companies have to pay the money one way or the other.

After compensating lawyers on the basis of a reasonable attorney fee plus 500 percent, but at a minimum at least $20,000 an hour, the remainder would be returned to the States. I submit this is a responsible thing for us to do.

The final comments I would like to make relate to the amendment that will be offered tomorrow relating to the dividend section of this bill. The proposal is to join the President in finally bringing to an end the pernicious practice of taxing dividends in this country twice, which puts us at a competitive disadvantage with our trading partners, which is unfair in anybody's book, which drives corporations to fund their investment by debt rather than equity investment, which reduces the transparency of corporations because they do not have to account to shareholders, and which diminishes the value of stock because the shareholders are going to have to pay a tax on the dividends even after the corporation has already done so.

Those are the reasons President Bush understood that this double taxation of dividends had to be addressed in this tax bill. The beauty of his proposal is that when combined with two of the other provisions of the act, the acceleration of the write-off for small business and, most important, the acceleration of the reductions in the marginal income tax rates, we will produce in this country 1.4 million jobs next year, and we could produce half a million jobs this year.

The proposal that is going to be offered tomorrow is ingenious in that it puts the bulk of this relief right up front where it will do good for the economy right now; and, second, it sends an unmistakable message to the stock market that we mean business about reducing the tax to zero.

What the proposal does is, for this current tax year, before we could put this all in effect, it gives all of the dividend holders a 50- percent deduction on their dividends. So for this tax year we are in right now they can write off half of what they would otherwise have to pay, and starting next year, 2004, and going into 2005 and 2006, in other words for 3 straight years, the tax rate for them goes to zero on these dividends. It is repealed. It is gone.

I challenge anybody at the end of that period of time to suggest at that point we try to reinstate the double taxation of dividends. It is not going to happen.

So the message to the stock market, when the vote occurs tomorrow and you have seen that the Senate is willing to follow the President and repeal the double taxation of dividends, the message is that you can finally begin to see the light at the end of the tunnel with respect to the recovery.

What do economists tell us? One economist, a very prominent economist, told us at a dinner the other night that he could expect to see at least a 20-percent increase in the value of stock as a result of this. The average of the economists we have talked to is closer to 10 percent. But take 10 percent. I think we would all like to see a return of that much value in our stock portfolio. This exists whether or not we are holding stock that issues dividends because of the general value of the market, or increased value of the market that would result from this. Obviously, those taxpayers who receive dividends from their corporate holdings would receive a direct benefit in the reduction of their liability for taxes, in addition to the increase in the value of their stock.

Obviously, this is going to be very good tax policy. It puts us in a better competitive position. Do you know that the United States has the second worst tax rate on dividends in the entire world of economically developed countries? Only Japan has a slightly higher rate. And every other country in the economically developed world has a lower tax rate on dividends than we do. No wonder we are having a problem right now.

But another point I would like to make with regard to this whole issue is that dividends obviously work in two good ways. By putting money back in taxpayers' pockets, they can do with those dividends whatever they like. The distinguished Senator from Florida who was speaking a moment ago talked about the need for consumers to have more money in their pockets. This is a way for consumers, and specifically senior citizens, to get more money in their pockets. There are about 10 million seniors who would receive relief under this proposal, just under $1,000 a year in terms of the average value they would receive. This is money in their pocket. This is money with which they can do one of two things: They can either spend it or they can invest it. In either case they are helping the economy.

For those who think we need to have people who can spend more, they can spend more. For those who think we need more investment, obviously some seniors invest some part of their income.

I would like to make a point in response to the Senator from Florida because he referred to my beloved home State of Arizona and showed a photograph of some airplanes sitting out on a tarmac, airplanes that were mothballed. If you come out to Tucson, AZ, you will see a very interesting sight. There are literally hundreds if not thousands of these airplanes. Most of them are military, but there are some commercial airplanes as well.

The point he was trying to make was this is a consumer-driven recession and therefore we need to put money in the pockets of consumers. The two big things we do here is accelerate the marginal income tax rate--that puts money in the pockets of consumers--and don't double tax dividends so the people who invest in stocks have that money to spend. Even for those who believe this is a consumer-driven recession, which it is not, what the President has proposed, and what we will be voting on tomorrow, helps put money in the pockets of consumers.

But there is a fundamental misunderstanding, if you look at airplanes and say, therefore, because people are not flying as much, this is a consumer-driven recession. There are two problems: First, regarding 9/ 11, the airline industry is almost unique among the businesses in this country. The airline industry and associated industries went into a nose dive that they still haven't recovered from because the traveling public has not traveled as much after 9/11. But the airlines will tell you a second factor has contributed to their bad financial situation. In addition to the fact that some people do not travel as much as a result of 9/11, and we have increased security costs placed upon them, the biggest single factor, they will tell you, is they have lost the business traveling public.

The business travelers who buy the first class or business class tickets and fly a lot are not flying as much. Why? Because the corporations are trying to save money. Why? Because they can't get enough money to invest in their businesses. Why? Because there is a capital asset deficit. This recession, the first of the 21st century, is the first nonconsumer recession. It is a capital asset deficit recession. It is a recession that understands that investment income is what is lacking.

Over the last 2 or 3 years, we have seen, by the count of some economists, almost $10 trillion sucked out of the stock values of this country. Something has to be done to put back that value. The way you put it back is by creating more investment opportunities. Most of the economists we have talked to said the single best thing you can do to add to that investment opportunity is to repeal this double taxation of dividends.

My colleague, Senator Voinovich from Ohio, quoted Alan Greenspan a while ago, who said if you are going to do something like this, get rid of the double taxation of dividends. That will help spur investment. He also said to Congress, stop spending so much money.

This chart on my left demonstrates the situation here. Last year, consumer spending didn't go down. Those of you who have refinanced your home or tried to buy a car at 0 percent interest know people are still buying. Consumer spending went up 3.4 percent last year, and it was up the year before as well. This green line shows consumer spending continues to go up. From 1999 to 2002, you can see that consumer spending is increasing.

It hasn't fallen off. What has fallen off? The gross private investment is what has fallen off--the investment in our businesses in the United States. After reaching the peak just after the year 2000, we all know what happened. We read the paper and see what is happening to the stock market. You can see investment in the market has plummeted, and it hasn't come back very much. It will come back if we give people the means to invest and the incentive to invest because they are not going to have their profits from their investment in corporations taxed after the corporation has already paid the tax.

This is clearly a capital asset problem and not a consumer spending problem, as has been alleged by so many of those on the other side of the aisle.

Finally, I want to say this: My colleague from Florida said, ``The President's handling of the economy''--the end of the quote, but the gist is the President's handling of the economy is why we are in the bad economic situation.

Under current circumstances, would that the President could handle the economy. But as all economists know, fortunately 250-plus million people drive the economy in this free market country of ours. They make millions of decisions every day. The President

doesn't run the economy in the United States of America. He has very little that he can do to change the economic situation in the country except try to lead by persuasion. He is trying very hard to do that.

The other thing he can do is to propose to the Congress that we try to do things he thinks will help the economy and he has done that. But my colleague who spoke these words a moment ago wants to deny him the ability to put his plan in effect. On the one hand, they complain he is not doing anything to handle the economy, and on the other hand, they are going to disagree with whatever he proposes to do. Of course, we know the truth. He doesn't handle the economy. But he has some influence over the direction we go by getting his best advisers together and trying to figure out how we can create the most jobs and produce economic recovery. He has done that. Most of the Republicans in this body have agreed his proposal is the best way for us to create jobs.

Therefore, tomorrow what will be offered is very close to what he proposed. With this dividend, this elimination of the double taxation of dividends, we will be able to go a long way toward giving the President the plan he has asked for--not so that he can handle the economy, but so we as leaders can help lead the country toward at least some degree of recovery in this year of 2003.

As I said before, some people say the President's reelection depends on whether the economy is strong or not. I don't think he would be proposing something which he thinks won't work. He is proposing something which he believes will work, and we believe it will work. That is why I hope my colleagues will support the proposal that will be offered tomorrow in support of the President's program to eliminate the double taxation of dividends.

Mr. President, this will be the beginning of the debate on the legislation the Senate will be considering this week on an economic growth and jobs package. The legislation that came out of the Senate Finance Committee will be debated, as will other proposals and amendments. That will all be laid down a little bit later, but actually we will begin the conversation right now.

I will begin by noting something rather political, and that is that over the weekend talk shows I noticed a lot of pundits talking about what was good for the economy and what was good for the President. It got me thinking a little bit about the difference between some of our colleagues on the Democratic side and most of us on the Republican side who support the President's proposals for economic growth and job creation.

The point is this: Those pundits were saying if the economy is in pretty good shape next year, the President should have a pretty good chance of being reelected, but if the economy is not good, then it will be more difficult for the President to be reelected. That is not exactly rocket science, but it makes the point that many of us on this side have been making: The President would not propose a package for economic growth and job creation he did not think was not going to work. The whole point of his package is to help get the economy growing, to create jobs so people will be in the mood to reelect him President.

Obviously he wants to do good for the country, for the people of this country, for the senior citizens, for the economy at large, for American families. If he can get reelected, that would be a good thing. My point is that the President is not proposing something he thinks is going to be bad for the economy, because that would be the worst possible thing for him to do in terms of his reelection possibilities.

So it stands to reason that he really believes what he is proposing will work, and so do I. So do the majority of us. We would not be proposing this if it was not obvious to us that the best way to get the economy moving again, the best way for economic growth and job creation, is to reduce taxes in those areas of the economy which would provide the best economic growth with that tax relief.

We know, for example, that one of the best ways to get reinvestment is for people to have more of their money to invest, obviously. The best way for them to have more money is not to pay so much to Uncle Sam in taxes. That is what tax relief is all about.

Two years ago, we passed the tax relief President Bush suggested, but we phased it in over time. What the President is now proposing is, let's accelerate those tax reductions, those marginal rate income tax reductions, so they take effect immediately. If, as the President said, it is a good idea to do it in 2 years, it is an even better idea to do it now when we need that money in our pockets to invest so our businesses can create jobs and help with economic growth.

The first point of the President's plan is to take those tax breaks on the income tax marginal rates for each of the brackets we were reducing, and reduce them this year rather than waiting 2 years from now. It makes great economic sense. It will help families, it will help small businesses, and it will enable those businesses to take that money that is being saved and invest it in new jobs and in new business.

The second feature of the President's plan is to eliminate something very unfair in the current Tax Code. As a matter of fact, the United States is second only to Japan in having the worst possible tax policy on corporate dividends. Only one country in the world taxes dividends more than the United States: Japan. Every other country in the world that has developed economies has a much lower tax rate on dividends. So we have put ourselves at a competitive disadvantage with all of these other countries in the world. The reason we have such a disadvantage is because we do not just have one tax on corporate dividends; we repeat the tax. We tax the corporation the first time around when the income is earned, and as soon as they pay the dividends out to the shareholders, we tax it again. So it is a double taxation. No wonder our rate is so high. It is 70 percent.

As I said, only one country in the world, Japan, which is having huge economic difficulties at the current time, has a worse tax rate on dividends than we do. So the President logically says, let's get rid of that double taxation. The way he chose to do it was to repeal the tax on the dividends that are earned by American citizens, investors. The corporation still pays the tax, but it is not taxed the second time around.

There are many advantages to doing it that way: First, it really helps the senior citizens in this country who derive a lot of their income from this dividend income. Secondly, it really helps to spur economic growth because not only will the dividends then be used for reinvestment into business, but it also helps the stock market generally by infusing capital back into the stock market. The economists we have talked to all make the point that it is not just the corporations that choose to issue dividends that will benefit from this, and their taxpayers, but it is all of the stocks because of the general increase in the value of equities. I think we have seen that in the way the market has responded to the President's proposal.

A third side benefit of this elimination of the double tax of dividends is the impact it will have on corporate governance. We all know the problem that was revealed over the course of the last couple of years about certain corporations, not corporations that were paying dividends but corporations that were putting money into the hands of their executives, in some cases in a very bad way. Fortunately, the President cracked down hard on them, as did the Congress, with the Sarbanes-Oxley legislation. The idea is to create transparency, to let the stockholders know what is going on in corporations, and to give them an incentive not to create more debt but to finance their expansion through equity; that is to say, through offering stock to the public, which the public then buys, the money then enabling the corporation to invest in expansion of the business, hiring more people, for example, rather than going to the bank to borrow the money to do that.

Today, our Tax Code gives the incentive to go borrow because corporations get to deduct the interest on the money they borrow. That is the way corporations treat that when they pay the income tax. We need to give them at least an equal incentive and perhaps a greater incentive to finance their corporate expansion not through borrowing but, rather, through the issuance of stock, which then Americans can acquire.

What is one way to do that? By ensuring that if they pay dividends on that stock, the purchasers of the stock are not going to have to pay a tax on the dividends they receive. It is a way of providing an incentive for the corporations to finance their expansion that way.

For all of these reasons, the economists we have talked to are pretty clear that eliminating the double taxation on dividends would provide a real spurt in investment in business, would enable the businesses to expand, would create something like 500,000 jobs this year, 1.4 million jobs next year. That is real job creation.

There are those on the other side who say that is impossible. There are not going to be that many jobs created. The economy is not going to get better with the President's proposal.

I go back to my first point. The President has a very personal reason in mind, as well as the good of the country, when he talks about a program that will really improve the economy. He wants to be reelected. He would not be doing this if he thought it would be bad for the economy.

There is a misperception by some that this recession we are in right now is a recession that should be dealt with not by allowing businesses to have more money to reinvest to create jobs; that is to say, it is not a capital deficit problem but, rather, it is a matter of consumer spending. If only we would give more money to people, they would spend it and that would make everything better, create more demand for products, they would buy more, and so on. That just does not happen to be true.

Here are the statistics. Consumer spending has been going up. It went up 3.1 percent in the year 2002, 2.5 percent the year before that; disposable personal income has increased, up 4.3 percent last year.

The problem is not disposable personal income; it is not consumer spending that has been going on. We know from personal experience, people have been able to refinance their homes, they have been able to buy cars at zero percent interest. There are a lot of factors we are personally aware of that confirm it is not a matter of consumer spending but, rather, a capital asset problem. Businesses cannot get the money to expand.

What happened? We all know what happened in the stock market in the last several years. According to some people, $10 trillion in value in stocks has essentially disappeared, evaporated. The stocks were way up here, and now they are down here. What is the difference? It is $10 trillion in value, in assets, in money that corporations do not have anymore. They do not have that value, and therefore they cannot go to the bank and borrow. They cannot sell their stock for a good price; people are not buying. And the question is how do you get more capital assets into the business sector, which is the sector which provides the jobs. Whether it be small business or big business, it is the same; it is a capital asset deficit, not a consumer spending problem.

I will emulate my good friend from North Dakota, the master of charts. He has a chart for everything. I will produce a big chart, but I will now show the small version that will make the point. The upper line is the line increasing, and that is consumer spending. It shows that from 1999, the first year up to the current time, consumer spending has continued to increase. It went up 3.1 percent last year. We do not have a demand problem, a consumer spending problem in this country; we have a capital asset problem.

Here is what has happened with capital assets. Here is the big stock boom. With everyone investing in the stock markets, the corporations had a lot of value. And here is what happened to the stock. We all know what happened. A lot of that value was taken out as the market plunged. That is what this line shows. It hit the bottom and is just barely beginning to move up.

This is what we have to make up. This is the area we need to improve. It is the area of providing more capital to our businesses so they can expand and create more jobs. Again, how do you do that? They basically have two ways. They can try to borrow the money--not good policy, but besides that, they do not have the leverage to do that these days because the Federal institutions are looking at them and asking: How exactly are you going to repay us? How will you do something good with this money? We are not convinced yet that the value is there that they want to lend the money at a reasonable rate. Or they can go to the public and say: Here is some more stock; would you please buy it.

In the past, the public said: We are not sure we want to invest anymore in the stock market because you are not doing that well. So along comes the President's plan. He says: We will accelerate depreciation for small business, we will end the double taxation of dividends, and we will accelerate the marginal income tax relief we passed 2 years ago.

Just like that, we have created an opportunity for people to take the money they have saved, put it into the stock market, put it into businesses, or put it into small businesses that are not publicly traded and create those jobs. That is the genius of the President's program. It is nothing new. The same concept has been used before in tax relief that has been provided to investors who turn around and reinvest that in the businesses that create the jobs.

The problem is this recession is not like the old recessions, and that is why I understand those who are stuck in the last century in looking at this as a consumer or demand recession. This is the first 21st century recession, the first high-tech recession, and it is the first capital asset deficit recession. It is not a consumer recession. That is why it does not do any good, as the Democrat leader's plan essentially does, to just drop money out of an airplane and say: Here is money, consumers; go ahead and spend it on something. That is not the problem. That is not going to help. What we need is for those businesses to acquire capital so they can expand, create jobs, and therefore the economy can grow and we can all benefit.

There are those who want to demagog the issue, and I would never accuse colleagues on the other side of the aisle of this, but I have seen folks on TV say that is giving money to the rich, to the elite. First of all, over half of the American people today are investors. Senior citizens, in particular, are very large investors, and a significant amount of the tax relief the President is proposing would go to our seniors. As a matter of fact, under the President's jobs and economic growth plan, 13 million elderly taxpayers would receive an annual tax cut of $1,384 this year. One of every two senior filers receives dividend income, and as a group seniors receive half of all the taxable dividends paid to shareholders. So elimination of the double taxation of dividends provides average relief of $991 for the more than 9 million seniors who include dividend income on their tax return in the year 2003. That is a real benefit to the seniors in our society. It is a real benefit to the American taxpayer at large.

I will have more to say on this subject later. I appreciate my colleague from Wyoming allowing me to open this debate, and I look forward to hearing from my colleagues on the subject.

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

Mr. President, I appreciate the opportunity to take up this bill. It is under a unanimous consent agreement. Pursuant to that agreement, we are going to have some opening statements. I will take about 15 minutes and then Senator Schumer, the cosponsor of the amendment, will be presenting his remarks. After that, anyone who would like to speak for or against this bill can do so.

There will be two amendments in order. One will be an accepted amendment offered by the Senator from Wisconsin, Mr. Feingold, and another will be offered by Senator Feinstein of California on which there is, I believe, a total of 4 hours authorized for debate. I do not think we will need that much time, but when the time comes, I urge my colleagues to oppose and defeat the Feinstein amendment so we can go to final passage of this legislation.

I will briefly describe what the bill does and why we need it. Then I will get into some of the procedure involved. It is actually very simple. It involves an existing law that we passed in 1978 called the Foreign Intelligence Surveillance Act, known by the acronym FISA. FISA allows us to get warrants, among other things, and allows us to surveil people we suspect of committing acts of terrorism against us; for example, to get a warrant to search their computer or their home.

There are two instances where the law currently applies. The underlying predicate is that there has to be probable cause that somebody is committing, about to commit, or planning to commit some kind of criminal act, a terrorism kind of act. It applies to two kinds of people: somebody who is either working for a foreign government or somebody who is working for a foreign terrorist organization.

That leaves a little loophole because there are some terrorists who are not on the membership list, shall we say, or who are not card- carrying members of a foreign terrorist organization or a foreign government; people such as Zacarias Moussaoui, for example, whom we now believe to have been loosely involved in the al-Qaida attack of September 11.

At the time, it was not possible to prove that he was involved with a foreign intelligence organization. It may

well be that at the end of the day he was, in fact, a lone wolf, operating on his own, but very loosely affiliated with the radical Islamic movement which has underpinned a lot of the terrorism which threatens the United States and the rest of the world today.

The law as written in 1978 was intended to apply to a very specific group of people, the Soviet spies, for example, or the Baader-Meinhof gang or the Red Brigade or the Red Army. There were a lot of these organizations back then, and they were very tightly knit organizations. If somebody was involved in one of these groups, they were involved. But today's radical Islamic movement around the world that associates itself with terrorism is much more amorphous. As I factitiously said, these people do not have cards identifying themselves as members of these organizations. They are people who hate the West and the United States. They move in and out of the different countries of the world. They will take training in a certain place. They will affiliate a little while with a group and then move on to support some other group.

The bottom line is that it is very difficult, sometimes impossible, to prove that they are affiliated with a specific group. In some cases, they are not. They are simply acting on their own. But they are still terrorists. They are still foreign terrorists. They still mean to do us harm on the international stage and should be covered by the Foreign Intelligence Surveillance Act.

We close this loophole by providing that not only does it cover the person working for a foreign government, or who we can prove at that point is working for a foreign terrorist organization, it also includes the so-called lone wolf terrorist, or the individual we cannot yet prove is directly affiliated with one of these amorphous groups. That is really all the bill does.

I will give a specific example. I mentioned Zacarias Moussaoui. Remember all of the criticism. He was a person who was taking flying lessons. It was under very suspicious circumstances. We understood this prior to September 11. There were people who wanted to get a Foreign Intelligence Surveillance Act warrant to search his computer. It went to the FBI, and somebody in the FBI concluded that, yes, all of this information looked good in the warrant except that they could not specifically tie him to a specific international group. Quite a bit of time was used following up leads that led to some group of Chechen rebels, but that ended up to be kind of a dry hole. Meanwhile, the attack of September 11 occurred.

Immediately after that attack, we were able to get the warrant. His case is pending in Northern Virginia at this time. He was not able to hook up with the attackers of September 11, but clearly his is an example of a case to which this kind of provision should apply.

I will quote something from some of the testimony that we had with regard to the need for this legislation. Spike Bowman, who is the Deputy General Counsel of the FBI, testified at a Senate Select Committee on Intelligence hearing on the predecessor bill to the one that is before us right now. I will quote at length from his testimony. He said:

When FISA was enacted, terrorism was very different from

what we see today. In the 1970s, terrorism more often

targeted individuals, often carefully selected. This was the

usual pattern of the Japanese Red Army, the Red Brigades and

similar organizations listed by name in the legislative

history of FISA. Today we see terrorism far more lethal and

far more indiscriminate than could have been imagined in

1978. It takes only the events of the September 11, 2001, to

fully comprehend the difference of a couple of decades. But

there is another difference as well. Where we once saw

terrorism formed solely around organized groups, today we

often see individuals willing to commit indiscriminate acts

of terror. It may be that these individuals are affiliated

with groups that we do not see, but it may be that they are

simply radicals who desire to bring about destruction.

We are increasingly seeing terrorist suspects who appear to

operate at a distance from these organizations. In perhaps an

oversimplification, but illustrative nevertheless, what we

see today are (1) agents of foreign powers in the traditional

sense who are associated with some organization or

discernible group, (2) individuals who appear to have

connections with multiple terrorist organizations but who do

not appear to owe any allegiance to any one of them, but

rather owe allegiance to the International Jihad movement,

and (3) individuals who appear to be personally oriented

toward terrorism but with whom there is no known connection

to a foreign power.

This phenomenon which we have seen . . . growing for the

past two or three years, appears to stem from a social

movement that began some imprecise time, but certainly more

than a decade ago. It is a global phenomenon which the FBI

refers to as the International Jihad Movement. By way of

background we believe we can see the contemporary development

of this movement, and its focus on terrorism, rooted in the

Soviet invasion of Afghanistan.

During the decade-long Soviet/Afghan conflict, anywhere

from 10,000 to 25,000 Muslim fighters representing some

forty-three countries put aside substantial cultural

differences to fight alongside each other in Afghanistan. The

force drawing them together was the Islamic concept of

``umma'' or Muslim community. In this concept, nationalism is

secondary to the Muslim community as a whole. As a result,

Muslims from disparate cultures trained together, formed

relationships, sometimes assembled in groups and otherwise

would have been at odds with one another[,] and acquired

common ideologies. . . .

Following the withdrawal of the Soviet forces in

Afghanistan, many of these fighters returned to their

homelands, but they returned with new skills and dangerous

ideas. They now had newly acquired terrorist training as

guerilla warfare [had been] the only way they could combat

the more advanced Soviet forces.

Information from a variety of sources repeatedly carries

the theme from Islamic radicals that expresses the opinion

that we just don't get it. Terrorists world-wide speak of

jihad and wonder why the western world is focused on groups

rather than on concepts that make them a community.

The lesson to be taken from how [Islamic terrorists share

information] is that al-Qaida is far less a large

organization than a facilitator, sometimes orchestrator of

Islamic militants around the globe. These militants are

linked by ideas and goals, not by organizational structure.

The United States and its allies, to include law

enforcement and intelligence components worldwide[,] have had

an impact on the terrorists, but [the terrorists] are

adapting to changing circumstances. Speaking solely from an

operational perspective, investigation of these individuals

who have no clear connection to organized terrorism, or

tenuous ties to multiple organizations, is becoming

increasingly difficult. The current FISA statute has served

the Nation well, but the international Jihad movement

demonstrates the need to consider whether a different

formulation is needed to address the contemporary

terrorist problem.

Of course, the different way we are approaching it is by adding a third element to the FISA statute. If you are a non-United States person and otherwise we have probable cause to believe you are planning an act of or executing an act of terrorism, we have the right to seek a warrant in the FISA court to search you, surveil you, whatever the warrant might request.

That is the essence of this legislation. As I said, when FISA was enacted in 1978, this international movement around an idea had not yet evolved and we were focused on organizations. Now we need to add to the statute, in addition to nations and specific organizations, non-United States persons--in other words, foreign persons--who we believe are carrying out some terrorist plan with international roots, directed at the United States, sufficient to bring it under the aegis of the FISA statute.

It is the responsibility of Congress to adapt our laws to these changes. It is this challenge that Senator Schumer and I are attempting to address by this amendment.

I introduced this bill with Senator Schumer in the 107th Congress on June 5, 2002, so it has been around almost a full year. The current bill is the identical bill introduced in the previous Congress. We held a Select Committee on Interrogation hearing July 2002, the testimony from which I just quoted, and we heard testimony from six witnesses.

There was no Judiciary markup in the previous Congress, but in the 108th Congress, when we reintroduced the bill January 9, the Senate Judiciary Committee held a markup. This bill, by the way, was cosponsored by Chairman Hatch, Senators DeWine, Schumer, myself, Chambliss, Sessions, and there may be others of whom I am not aware.

March 6, the Judiciary Committee marked up the bill at an executive session and adopted a substitute amendment, which is the bill we have before the Senate now, rejected a Feingold amendment by a vote of 11 to 4, and voted to report the bill unanimously by a vote of 19 to 0 to the Senate. That is where we are today.

We hope to call anyone who has an interest in this to the floor to express their ideas. As I say, we are going to

accept one amendment and we will be debating a second amendment, which I hope we defeat. There will be a break in our consideration here for some other business in the middle of the day. We will return in midafternoon to complete the work on the bill. It should be done by the late afternoon.

Until Senator Schumer arrives, I make another point. There has been a worry on the part of some that this expands the Foreign Intelligence Surveillance Act to private American citizens. I make it crystal clear that is not true.

By definition, we could not do that. This is a law that is only justified because it relates to international terrorism. So if you come here from a foreign country, you are a non-U.S. person, you come from a foreign country, intending to do harm to Americans, as part of this international movement, whether you are a member of some specific organization or not, the act will be allowed to be used to determine whether we should take further action against you. It is not pertaining to U.S. citizens; it is only to non-U.S. citizens and only in this particular context.

Second, you cannot just do this willy-nilly, like every other warrant. Whether under FISA or not, we have to have probable cause. That requirement is not changed one iota. If anyone suggests there is anything improper, certainly it is not unconstitutional, but to the extent anyone suggests that we are ready to recite the reasons why, that is not true.

I note the Department of Justice has sent a letter announcing its support for this legislation. Among those testifying in favor of it, the U.S. Attorney General, the Director of the Bureau of Investigation, former CIA Director, and any number of officials in our intelligence and law enforcement community have endorsed the bill.

I direct Members' attention to a letter I will later put into the Record, dated July 31, 2002, which presented the Department of Justice's views on the bill and announced its support for the legislation. It provides a detailed analysis of this question about the fourth amendment and whether or not there would be any constitutional issues.

The Department concluded that the bill would satisfy constitutional requirements specifically related to the fourth amendment. In particular, the Department emphasized that anyone monitored pursuant to the bill would be someone who had at the very least been involved in terrorist acts that transcends national boundaries in term of the means they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which the perpetrators operate or seek asylum.

As a result, it would still be limited to collecting foreign intelligence for the international responsibilities of the United States and the duties of the Federal Government to the States in matters involving foreign terrorism, to wit, protecting the American citizens from people who come here to do us harm.

Let me conclude these remarks by noting that I have enjoyed the cooperation, as usual, of my colleague who serves on the Judiciary Committee, the Senator from New York, Mr. Schumer, who has been a strong advocate of this kind of provision for a long time and whose assistance in this matter has been extraordinarily helpful.

I yield the floor.

Mr. President, I ask unanimous consent that Senator DeWine be recognized at 1 p.m. for 15 minutes of morning business.

Mr. President, I ask unanimous consent that in the debate on the pending business involving the Foreign Intelligence Surveillance Act, a letter from the Department of Justice dated July 31, 2002, be printed in the Record.

Mr. President, I would like to advise Members that under the unanimous consent agreement for the consideration of this bill there is a period of 2 hours general debate and 4 hours equally divided on the Feinstein amendment. We would like to ask Members who have comments to make about this legislation to come to the floor and express themselves so that we can conclude this bill today under the unanimous consent. I will continue to discuss the bill. But if other Members would like to come, I will yield the floor to them. I would ask that those who have amendments that are authorized by the unanimous consent agreement to lay those amendments down so Members who wish to speak to those amendments could also address that.

In the meantime, let me continue some of the conversation Senator Schumer and I had before. We are talking about a bill which would plug a loophole in the existing law--the Foreign Intelligence Surveillance Act--which currently authorizes warrants to be obtained in two specific situations. We make it clear that there is a third situation as well. The two specific situations are where you either have somebody you suspect is involved in international terrorism because they work for a foreign government--that is a situation like the old Soviet spy--or they work for some international terrorist organization. Remember that this law was created at the time when we had organized groups such as the Red Brigade and the Meinhof gang, and those types of groups. That is why those two definitions in the statute were included in the way they were. What was not anticipated is that we would also have people coming from abroad to the United States to commit acts of terrorism against American citizens as part of this rather amorphus Islamic Jihad movement rather than an organization of people affiliated around a culture or an idea or a movement.

As a result, the statute needs to include that third group of people, as we know, after September 11. We have specific cases of people in which warrants were sought but were not obtained because we couldn't make that connection to either a specific country or a very specific terrorist organization. Instead, the individual had relationships with various people and organizations involved in terrorism but certainly we couldn't say he was a card-carrying member in the sense that the statute was originally drafted. So the same requirements, as Senator Schumer said, would pertain. It doesn't apply to U.S. citizens. It only applies to foreign terrorism. But it would include a person coming here from another country--not a U.S. citizen--and we have probable cause to believe is engaged in or about to engage in an act of terrorism.

In that case, the law enforcement authorities can go to the court and seek a warrant just as they do in any other criminal court. But the difference here is the Foreign Intelligence Surveillance Act. One of the reasons a special

court is set up for that is because the information which the Justice Department frequently presents is highly classified. Clearly, here you are dealing with foreign threats--either an international spy spying on us from another country or some kind of terrorist like Zacarias Moussaoui, and the information you have that enables the warrant to be sought was obtained obviously through intelligence work. You don't want to compromise either the sources or the methods of intelligence. As a result, you can't just file publicly in the regular court system for a warrant.

That is why the Foreign Intelligence Surveillance Act court was established. These are judges just like any other judge, but they have special intelligence clearances. They have been cleared to handle classified material. By the rules of the court, that material is kept in the court. Once allegations have been filed against people, then the matter can be debated in camera, which is to say in private--not in public hearings. Proceedings remain classified, at least until the matter is included; perhaps thereafter as well.

This is the way in which these highly sensitive intelligence matters are handled. It takes a special procedure and a special court to do that. But there is nothing antithetical to a constitutional right simply because we have to handle it that way.

There are other situations, as well, in which in our court system can handle things nonpublicly. There are sometimes sensitive matters between litigants that have to be handled in camera; that is to say, in effect in the judge's chambers and not out in public. Certainly, I think everybody can recognize that in some of the big spy cases and international terrorism cases you just can't take the evidence you gathered by the intelligence mechanism which we have and produce all of that information in open court. That is why you have these special procedures. But the underlying legal requirements to obtain the warrant remain essentially the same. They are slightly different in the classified court than in a regular court.

In all candor, they are a little bit easier to obtain. But the basic element of probable cause and belief that a crime is being committed or is about to be committed or is planned remains. Nothing is changed.

As Senator Schumer pointed out, our legislation doesn't change anything relating to the standard of proof, the burden of proof, or anything of that sort in the existing law that works so well. What we do is ensure that the warrant can be obtained not just against the spy for a specific country, or the terrorist whom you can identify as a member of a particular terrorist organization--sort of an anachronistic concept in today's terrorist situation--but also pertains to the non- U.S. citizen, a foreign person who comes here from abroad with the intent to commit some act of terrorism against U.S. citizens.

When you have those elements, you have the same foreign terrorist nexus to the law that our Constitution permits included within the Foreign Intelligence Surveillance Act for purposes of obtaining warrants or obtaining other surveillance of the individuals. That is all we do. That is all that is done by this legislation.

So those of us--including I think every one of us on the Judiciary Committee--who consider ourselves civil libertarians need not be concerned that this statute or that this legislation, in any way, would impact on our constitutional rights, nor that it would diminish the constitutional rights of non-U.S. persons who are not engaged in terrorism. But if we have probable cause to believe you are engaged in an act of terrorism, then, yes, you would be subject to provisions of this law.

This legislation has an interesting history, as I alluded to earlier, because it was assigned to the Intelligence Committee, and it was almost included as a part of the Intelligence Authorization Act of last year. And the chairman of the Intelligence Committee this year was kind enough to offer to include it in this year's legislation as well.

Since we were able to also have the bill marked up in the Judiciary Committee and brought to the floor as a result of that markup, that was not deemed necessary. That is why the bill is here--actually as a result of action by the Judiciary Committee.

So both the Intelligence Committee and the Judiciary Committee have been involved in this legislation, the former having a hearing and the latter having marked up the bill. Having been a member of the Intelligence Committee and sitting, as I do, on the Judiciary Committee, I can tell you it was also the subject of additional comments and hearings that were held for broader purposes of examining the terrorism issue. That is why I mentioned the fact that the legislation had actually been supported publicly by various Government officials who testified before either the full Judiciary Committee or the subcommittee I chair on terrorism and technology. They had testified before our committee on terrorism issues generally, and I specifically asked whether they supported the legislation in question; the response to the questions, of course, was that they did.

Another interesting hearing, which was a joint hearing, as I recall, between the Judiciary and the Intelligence Committees had testimony from Coleen Rowley, referred to by Senator Schumer earlier. You will recall, she was the agent from Indianapolis who was very exercised about the fact that she could not get a warrant against Zacarias Moussaoui and complained bitterly that the FBI headquarters had prevented her from doing that. She thought the conditions warranted the issuance of the warrant.

It is a debatable point. But it would not have been debatable if our proposal had been law. It would have been very clear. We had the probable cause. The only question was, Can we tie this person to some international terrorist organization? As I said before, we spent a lot of time and a lot of effort trying to run around tracing his contacts with Chechen rebels, and at the end of the day it just was not specific enough to be able to use the statute to get the warrant against him.

Right after 9/11, when essentially the same warrant was sent forward, then we had additional information of contacts this individual had, as a result of which the warrant was obtained. But that would not have occurred had September 11 not occurred--or at least it is doubtful it would have occurred. Let me put it that way.

Would that have prevented the September 11 attacks? No one knows for sure. I suspect not, but at least a plausible case can be made that we would have known a lot more about the planning of September 11 had we been able to get into Moussaoui's computers and questioned him and ascertained what he was up to and, furthermore, traced the contacts we were later able to trace from Moussaoui to others involved in the al- Qaida movement that would have painted a much clearer picture of what was being planned prior to September 11 than the information that we had.

The point is, we do not want to be in that position again. So whether it would have prevented 9/11 is really beside the point. We had the ability to get information which can protect the American people against acts of international terrorism. Why wouldn't we want to take advantage of that opportunity?

As I said, the Judiciary Committee unanimously voted this bill out of committee to send it to the floor so we could deal with that precise issue. I am certain my colleagues will agree that this is important to do and that we will do it a little bit later on this day. When we do, I think we can be very proud of the fact that this is another in a series of things we will have done to help prepare our country against the international terrorist threat.

We know that in the whole matter of homeland security you can only provide so much defense, that it really is about taking the fight to the enemy. Because our country is so big, it is so open, we have such broad freedoms in this country--and thankfully so--it is virtually impossible to absolutely protect us from a terrorist who would come here to do us harm. One of the ways we can help to protect against that is by getting good intelligence on people who come here from abroad and who we find out mean us ill. This provision today is a way to help us do that.

So this is a tool in the war on terror that will really help us ensure that we deal with as many of these threats as we possibly can. Are we always going to find out enough to even get a warrant? Not necessarily so. That is why

the efforts of the administration to go after these terrorists all around the world are so important.

But what has helped us in that regard is that we have had cooperation from other governments. And as much as we have been critical of some of our allies for not supporting us as we would like to have had them do-- such as the situation in Iraq--I will tell you, virtually every country in the world has been supportive in one way or another in supplying us with information about terrorists in their countries or terrorists of whom they are aware who might be affiliated in some way in this international movement that threatens us all.

One of the things we discovered, however, in talking to legislators and parliamentarians from these other countries, and intelligence officials, and law enforcement officials, is that they have legal inhibitions just like the United States does. Their laws only permit them to go so far in tracking down these terrorists in their country.

In the case of Germany, for example, which has been very helpful to the United States, they were able to change one of their laws to make it easier for them to go after these terrorists. There was another law they also needed to change, and at last count I do not recall whether they were able to get that done.

But the point is, if we are able to change our law, as we did with the Border Security Act and the USA Patriot Act, we can demonstrate a seriousness of purpose to these other countries to convince them that all of us need to make these kinds of changes in our laws so that we can go after these terrorists.

The analogy is, we won the war in Iraq in a most amazing way. We sent our troops with the best equipment and the best training ever in the history of the world. And I wish I could share some of that, the information about that equipment publicly. But I think we have all, through the embedded reporters, come to appreciate how just one American soldier, with all of the technology at his disposal, can make a tremendous difference.

We also have helped protect them. They have special flak vests, bulletproof vests that protect them against a lot of incoming. We try to protect them with the special chemical gear in the event of a chemical attack, and so on.

We want to send our troops into battle protected in the very best way and with the very best means of accomplishing their mission. Why would we deny our law enforcement and intelligence officials the very same kinds of weapons in the battle that we send them out to win?

I guarantee you that the next time there is a case like Zacarias Moussaoui or some other terrorist about whom we have some information but we don't go after strongly enough, and he does something to us, the recrimination will be great. Oh, the accusations will fly: Why didn't we do something about that when we could have?

So our response today is going to be: We did. We came together as a Senate and we enacted another law, another piece--it is a small piece, but it is an important piece--to help us fight this war on terror. We did not shirk our responsibility. When we became aware of the loophole in the law, we acted to fill it.

Now, we have to do that in order to be able to take this credit, obviously, but I believe strongly that the House of Representatives will act similarly and that we will be able to get this to the President's desk in very short order, so at the end of the day today we can say we have done something very important to advance our ability to fight the war on terror and protect the American people.

Again, I urge my colleagues, if there is no opposition--and I hope there isn't--that is fine. But anybody, either in opposition or in favor of the legislation, come forward so that we can have whatever debate is necessary. And I especially ask the proponents of amendments to come forward so that we can begin to debate them.

I will take this moment to press some of the comments that will be made about the two amendments.

Senator Feingold has proposed an amendment that we will accept and the Senate should accept which requires that the warrants obtained under this law generally--not just the provision we are talking about today, but if we obtain a warrant under either of the other provisions as well, that the information be compiled and shared with the Senate; specifically, that the information be sent to the Intelligence Committee--it is classified information, obviously--and that the cleared people on the Judiciary Committee who are appropriate to view the information have full access to that so we can evaluate whether these provisions are being used, abused, how often they are being used, how effectively, and so on. I believe his amendment calls for an annual report which we could examine. That is very useful information for us to have.

One thing we found was that prior to 9/11, this statute had not been used very often. It is not a particularly easy statute with which to comply. You do really have to have your information together before you seek the warrant because you don't ever want to be turned down. I don't believe the Justice Department ever was turned down. That is evidence of the fact that they were careful. Since 9/11, there have been a lot more cases in which this has been used. That information will be available to us, and therefore I will support Senator Feingold in offering the amendment.

The other amendment that is in order under the unanimous consent agreement, with all due respect to my great friend and colleague Senator Feinstein, would gut the bill and would be bad. It would really undermine the whole FISA process. We should reject it. I know she offers this amendment not for that purpose. Of all the people in the Senate with whom I have worked who share my strong conviction that we need to do everything we can to support our intelligence and law enforcement communities, Senator Feinstein is equaled by none. She is the ranking member of the Terrorism Subcommittee, and she and I have cosponsored numerous bills or amendments designed to enhance law enforcement and intelligence capabilities. She is a very strong advocate of giving our intelligence and law enforcement communities the very best tools possible.

She just has a different point of view about how this FISA warrant process should work. I will let her describe it. I will offer my view that it has no place in the FISA situation. What her amendment purports to do really might have some applicability in a court setting because it talks about a presumption. As lawyers know, presumptions arise when you have two parties to litigation and one party comes forward with a particular piece of evidence or allegation which then changes the burden of going forward with the evidence or the burden of proof in the case. A presumption is established, and then the other side has to overcome it. That has no place in an ex parte hearing where the Government is seeking a warrant against a party who is not even aware that the warrant is being sought. Obviously, you don't get a search warrant by notifying him that you are about to do that.

What her amendment pertains to does not really have application to the situation presented in an application for a FISA warrant and would seriously undermine the Government's ability to obtain it. You could either read it one of two ways. Either it would be totally meaningless--and I know that that is not intended--or else it would be very pernicious because it would create the suggestion in court that the material presented to it is not, is no more than a presumption, that it is not to be accepted on its face.

Specifically, the Government would be asserting that the person against whom the warrant is sought is a non-U.S. citizen, a foreign person under the definition of the statute. If that information is presented in sufficient form for a court to issue the warrant, it makes no sense at all to have the information merely a presumption that the individual is a foreign person. How does that advance the ball? How does it help the court? How does it protect anybody? The court is still going to have to answer the very same question: Do I believe the information the Government is presenting to me that this is a non-U.S. citizen? Either he is or he isn't. It is not a matter of a presumption.

If the court is not convinced that the Government's information is correct,

then the court is not going to issue the warrant. It would be improper to do so. If the court is convinced that the person is a non-U.S. citizen, then the court can issue the warrant if the other requirements are met. I don't believe Senator Feinstein attacks the other requirements.

Either you are a foreign-born person, or a non-U.S. person, or you are not. The court has to make that decision. And creating a presumption about it is really irrelevant to this particular process. If it is more than irrelevant, there is some kind of a problem. Obviously, you don't want the court to have to somehow independently verify the information that is presented to it by the Justice Department. That is not a part of; that is not the way the court works. The court does not do this sua sponte, or on its own. The court has the information before it, and it either has to accept the information or not. It doesn't have to accept the Justice Department's word for it. The Justice Department cannot simply make the assertion. It has to offer the proof. If the proof is not satisfactory, the warrant will not issue. Later, if it is found that the evidence was not satisfactory, then there is always some question about whether the evidence obtained, of course, could be used, say, in a later prosecution.

The bottom line is that that amendment does not help. It could seriously hurt the application of the entire FISA statute. It is not just limited to the amendment we are offering today. I urge my colleagues, when the time comes, to reject the Feinstein amendment, not because it is not well intended--I am confident that it is--but, rather, that its effects are ill understood at best and, at worst, would be pernicious to the application of the statute.

I have said all I need to say at this point on the legislation. I would note that time will run against the time allotted under the bill. Since both Senator Schumer and I control the time, anyone who wishes to come to speak to the legislation either for or against, I ask unanimous consent that if neither Senator Schumer nor I are here, they should be permitted to do so without specific acquiescence by Senator Schumer or myself.

Unless there is someone else who wishes to speak at this time, I ask unanimous consent that the time consumed in the quorum call be equally divided.

I suggest the absence of a quorum.

Mr. President, this morning I noted in detail the provisions of this amendment, why I supported the amendment and why I thought it was a good thing, and therefore any reference to further discussion on it can be made to the comments I made on it this morning.

Mr. President, first let me address Senator Feingold. He is correct about the misstatement I made this morning. I do recall making this statement that the Feinstein amendment would apply generally to the section of law rather than just S. 113. The Senator from Wisconsin is correct. What I said was in error. It does not detract from my primary argument, but that is correct, and I appreciate him pointing that out.

I wish to respond to the three primary arguments we have heard. First

of all, Senator Leahy primarily was making the point that we should see if the Patriot Act is working before we make the changes that Senator Schumer and I and others are trying to make.

First, I note that the vote in the Judiciary Committee was 16 to 0. It was unanimous. I appreciate the bipartisan support from people such as Senator Leahy and would note that we have had that kind of bipartisan support from the very day that Senator--in fact, 2 years ago it was Schumer-Kyl, now it is Kyl-Schumer, for obvious reasons.

Secondly, this has nothing to do with the PATRIOT Act. The FISA law was put into effect in 1978, I believe it was. So this is a law that has been in effect for a long time. The problem with it is that a significant change has occurred on the international stage. As has been pointed out, the law was originally intended to deal with Soviet spies, foreign powers, or international terrorist organizations such as the Red Brigade, the Baader-Meinhof gang and people like that.

In that day, it was a tight-knit group of people who actually worked as a terrorist organization. But today, as the testimony before the Intelligence Committee went into in detail, it is now a worldwide Islamic jihadist movement. It is about a cause rather than an organization.

The FBI Director, whose testimony I read this morning, went into a great deal about how, therefore, the people who work in this international cause are very different from the old members of the gangs or the Soviet spy network, and to try to pigeon hole a FISA warrant against these individual people into the provisions of the law as it was originally drafted is really not possible. That is why the FBI would not go after a warrant for Zacarias Moussaoui. It is why Agent Rowley was very upset about it. But at the end of the day, headquarters was probably right not to try to make out the case that Zacarias Moussaoui was somehow connected to an international terrorist organization. They found some tenuous connections with some Chechen rebels but at the stage that the warrant was corrected they could never tie it into an international terrorist organization. We now know subsequent to the issuance of the warrant that there were some ties to al-Qaida, but he may be a good example of the lone-wolf terrorist.

So that is why times have changed. The law has to change to keep up with this. Otherwise, we would not be suggesting this rather modest change in the law.

The people against whom we are now directing our surveillance with respect to international terrorism are a very different group of people. Much of the time they do not act in concert and sometimes they enact as lone wolves.

That gets me to the next point. As I understand it, Senator Feingold's primary argument is that we should have this kind of surveillance against agents of foreign powers, but that we should not have it against lone wolves. Of course, the Feinstein amendment provides a presumption that the lone wolf is an agent of a foreign power.

That is not our point. We are not trying to prove the lone wolf is an agent of a foreign power. I do not want to have a presumption in there that presumes something that we are not even alleging. Sometimes our U.S. Government is going to say, we do not have any reason to believe this person is connected to an international terrorist organization or a foreign power, country. We are not alleging that. We are alleging that he is a person engaged in or about to engage in a terrorist action, we have probable cause to believe that. That standard remains the same and, therefore, we want to, what, prosecute him? No, get a warrant to see what else he is doing.

So this amendment does not match up with what we are trying to do. We are not trying to prove that they are agents of a foreign power. We are providing the court with evidence that a non-U.S. person is engaging in or about to engage in activities involving terrorism against the United States and, therefore, the court is warranted in allowing us to investigate it further. We do not want the presumption because in many cases that is not what we are trying to prove.

The important point is a point I would like to make in response to Senator Feingold and that is that there still has to be international terrorism involved. It is not as if we are going after people because we do not like their nationality or something of that sort. We are dealing with a very sophisticated court that is not a kangaroo court; it is the FISA court, and they have not turned down warrants because the Justice Department has been very careful to make sure they have all the evidence that is needed.

I will tell my great friend Senator Feinstein and just make a footnote--I said it this morning but I will say it again--I cannot remember a time that she and I disagreed on a matter involving intelligence or law enforcement activities. It just does not happen except this one time. I guess the exception proves the rule. There is nobody in the Senate with whom I have enjoyed working more on these matters. Witness the fact that Senator Feinstein and I have been the chairman and ranking member alternately of the Terrorism, Technology, and Homeland Security Subcommittee of the Judiciary Committee ever since I came to the Senate. It has been a wonderful relationship, and there is nobody in this body that I admire more.

So I want to answer this question very specifically, because if I understood one of her arguments, it was that we have changed the probable cause standard, and we have absolutely not done that. In fact, in response, I think to a suggestion of one of our Democratic colleagues, we had the language exactly tracked in the statute, and I will read it precisely. This is in 50 United States Code, section 1801, the definitions section under foreign power. I will not read the whole thing, but No. 4 is ``a group engaged in international terrorism or activities in preparation therefor.''

Then, under ``agent of foreign power''--and, remember, this is where we have the definition of a non-U.S. person. We had the third category. We tracked the language precisely--``engages in international terrorism or activities in preparation therefor.'' It is the exact same language.

So the probable cause standard remains identical. In very simple terms, this is what the U.S. attorney would have to say: Judge, here is my affidavit and what it says is that Joe Blow is a non-U.S. citizen. Here is the documentation for that, and here are the activities that we have probable cause to believe he is engaging in.

So it is the probable cause standard. What would satisfy that test? Let me be very precise in the order that I present this.

Under this section of definitions--and our bill is the same as S. 2568, which the Justice Department was referring to when it made this comment, someone who is involved in terrorist acts:

That transcend national boundaries in terms of the means by

which they are accomplished, the persons they appear intended

to coerce or intimidate, or the locale in which their

perpetrators operate or seek asylum.

This is quoting from 50 United States Code, section 1801(c)(3):

As a result, a FISA warrant would still be limited to

collecting foreign intelligence for the international

responsibilities of the United States, and the duties of the

Federal Government to the States in matters involving foreign

terrorism.

That is quoting from a court case that interpreted the provision.

Therefore, according to the Justice Department, the same interests and considerations that support the constitutionality of FISA as it now stands would provide the constitutional justification for S. 2568, which is the predecessor to S. 113, which is the bill before us.

So the definition is the same, the probable cause standard is the same, and the nexus to international terrorism is the same. None of that changes. The only thing that changes is that we add non-U.S. person so you can get to the lone wolf and do not have to either assert that the person is involved with an international terrorist organization or foreign power or presume that the individual is, because that person may well not be.

Finally, Senator Feinstein made the point that under proper circumstances, S. 113 would allow the search of a solo international terrorist and the answer is, yes, that is exactly what it would allow. And especially with today's

weapons, which allow even a solo terrorist to be able to cause enormous destruction, the FBI should be able to monitor such a terrorist if it can convince the court that probable cause exists that would otherwise be the standard in any kind of FISA warrant request.

I think those are the answers to the allegations that have been made in support of the Feinstein amendment. I think it gets right down to what Senator Feingold said, which is that there is simply disagreement about whether the lone wolf should be the subject of this statute. Obviously, if the amendment were to be adopted, we have our purpose, which is to add the third category.

If I could, the Senator from California has been talking about discretion, and I guess I begin by asking a question.

Does the Senator intend the presumption language would apply both to the definition of the individual as an agent of a foreign power and relative to the activities in which the individual is allegedly engaging?

There are two things the court will have to determine. First, that this is a warrant that should be issued, that there is probable cause the underlying crime is being committed or activities engaged in for the preparation of a crime. And second, it lies against a particular kind of person we are talking about. In regular title III court you do not have the second requirement, but in FISA court you have to prove the person is either an agent of a foreign power or foreign intelligence organization, and we are adding this third criteria.

So the court has to make a 100 percent determination in both of those matters. If the court cannot find any evidence in the affidavit that the individual is not a United States citizen, for example, the court would have no discretion and have to deny the warrant. But if the court found part of the warrant was satisfied, this person is clearly a non- United States citizen, then, number two is satisfied; go back to number one, which is the question, Do we have probable cause to believe the person is engaging in the kind of activities that the statute discusses here.

That is not necessarily a matter of discretion so much as it is a matter of a court weighing the affidavit presentation and determining whether it is sufficient to meet the probable cause standard.

If I could respond to the last point.

The matter about which the court has some degree of discretion is in the way it weighs the affidavit presentation relative to the underlying predicate for the warrant, the activities that are being engaged in, the purchase of the ticket, the presence of box cutters, all that information. The court weighs all that. It is presented in the affidavit, and the court makes a decision. It is enough or it is not enough. To some extent, you can say that is discretion. It is really applying the evidence to the probable cause test, weighing it and determining whether the evidence meets the case. In any event, that is where the court has some leeway to decide.

Where the court does not have any leeway is to something that is either a fact or it is not. That is, Does this person qualify or not? That is to say, is the person an appropriate subject for the warrant or not?

If you were asserting, for example, that the individual was a member of the Baader-Meinhoff gang, there would have to be evidence in the affidavit that is clear enough for the court to reach that conclusion or the court would say, sorry, this person does not qualify for a FISA warrant. I cannot find enough evidence in here that he is a member of the Baader-Meinhoff gang or a spy for the Soviet Union.

But with respect to whether this person is a non-United States person, that is something that will either be fairly true or not. It is either going to be true or not. The court is either going to be faced with a situation where the evidence is overwhelmingly clear in the affidavit and the United States attorney says it is very clear this person is not a United States citizen, here is the evidence we have, and the court will say, I agree. Or the court will say, all you have done is assert that the person is a non-United States citizen. I don't have any basis to know that or not. Where is your evidence to know that he is a non-U.S. citizen? So I am not going to grant the warrant. But that is the basis on which the court is going to make that judgment.

The court is not going to say there is a provision here that says I can presume that this individual is an agent of a foreign power and therefore I can have some leeway here to decide whether or not the warrant lies against this individual. The Government is either going to assert that the person is an agent of a foreign power or not. If the Government is saying no, we don't think this person is working for some foreign power, we think he is working on his own or at least we don't have any evidence to suggest he is anything other than an international terrorist traveling all around the world training and picking up different things and so on, but he is a dangerous guy and here is the reason we believe he is dangerous, a presumption at this point doesn't get you anywhere.

The court has no direction to go in. If you say there is a presumption that he is an agent of a foreign power and the Government is not trying to prove he is acting for a foreign power, what has this definition gained us? There are situations in which the Government simply isn't going to allege that the person is an agent of a foreign power; it is only going to allege that he is a lone wolf, but look at all the bad things he has done or is doing. If they are sufficient to grant a warrant, if there is probable cause there, the court can do it. If the court says it is not quite sufficient yet, get some more information, then he will deny the warrant.

Mr. President, first of all, I thank Senator Feingold for the kind words he had for me and my colleague from Arizona, Senator McCain. I just spoke with Senator Feinstein.

I don't think either of us has a whole lot more to say here. I think Senator Rockefeller may wish to speak and there may be others.

I urge anyone who would like to speak to this amendment to come to the floor and speak because otherwise I think we are getting close to the time when we could vote.

I inquire of the Chair, how much time remains on both sides on this amendment?

I think there is a little time left on the debate time as well, but I am prepared to yield that back when we are done with this amendment, as would Senator Schumer.

We could either note the absence of a quorum and wait a few minutes for somebody else or I could yield the floor to someone?

Mr. President, first, I ask unanimous consent to have printed in the Record a letter dated April 30, 2003, to Chairman Orrin Hatch from the Department of Justice relative to this legislation, and specifically an analysis of the amendment proposed by Senator Feinstein on pages 5 and 6.

Mr. President, the proponents of the bill urge our colleagues to vote against the Feinstein amendment. And from our perspective, I think we are ready to have that vote.

I ask Senator Feinstein if she is ready, as well?

Mr. President, I yield back the remainder of my time on both the amendment and on the bill itself.

Mr. President, I rise in strong support of this resolution of ratification for the expansion of the North Atlantic Treaty Organization.

The accession to NATO of these seven new democracies--Estonia, Latvia, Lithuania, Slovakia, Romania, Bulgaria and Slovenia--is an historic event that will have far-reaching and, in my view, very beneficial consequences.

Just a dozen or so years ago, these countries were under the boot of Soviet domination and communist dictatorship. Against their will, they were arrayed against NATO as members of the now defunct Warsaw Pact. Today, they stand ready and willing to join forces with NATO, the organization that played such a major role in bringing freedom to their part of the world.

We are striking a blow for freedom here today. Millions of people in eastern Europe live free today because of the commitment, patience and firmness of America and her allies during the cold war. And through their accession to NATO, those millions will now be able to live in greater security, as well as take part in the noble pursuit of defending the liberty of others.

The expansion of NATO into eastern Europe will serve American interests in several ways. For starters, these seven nations, I believe, will help reinvigorate NATO's sense of purpose; which is, first and foremost, the defense of liberty.

With memories of tyranny so fresh in their minds, the people of these nations no doubt have a deep appreciation for the freedom that is sometimes take for granted in the West. Thus, they are apt to have fewer reservations than some of our other allies about confronting the aggression of those who are hostile to our way of life. This appreciation for freedom--and for those who helped them during the cold war--was unquestionably a factor in the strong support that each of these seven nations gave us in Operation Iraqi Freedom.

Most of the prospective members have very limited military capabilities, and we will certainly expect them to invest properly in their armed forces in the coming years. But many of these countries already possess excellent specialized capabilities, such as the Polish special forces who fought in Iraq or the Slovak WMD defense unit now serving in the Gulf. Over time, I am confident that each of these countries will find it own niche in NATO.

Expansion of the NATO alliance to these countries will also offer us the opportunity to diversify and reorder our basing arrangements--the need for which, I believe, has been demonstrated by 9/11 and the runup to the Iraq War. In the future, it is clear that U.S. forces will need more flexibility--both geographic and political--than ever. It thus behooves us to review our basing structure in Europe with an eye toward relocating some--though certainly not all--of our forces.

NATO expansion serves that end. Many of the prospective members-- Romania and Bulgaria in particular--are located closer to where U.S. forces are likely to see action in the future. Their governments are known to be actively interested in hosting U.S. forces. Polls indicate strong pro-American sentiment in these countries.

Mr. President, 65 years ago, Eastern Europe began a horrific descent into darkness with the deal that was struck at Munich. Yalta then solidified what was to be another 45 years of communist tyranny for these nations. Those tragic mistakes are being rectified here today, and we should be proud.

But make no mistake, the expansion of NATO is more than just a rearward-looking act of humanity. It is also a forward-looking act of statemanship that will serve U.S. interests well in the future.

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

I suggest the absence of a quorum.

Mr. President, I rise in morning business for a moment to speak about the nomination of Priscilla Owen of Texas to the Federal bench.

This is really an extraordinary nomination. It is very troubling to me that it appears most of our colleagues on the other side of the aisle are willing to keep Justice Owen from getting a vote. In the past, even with very controversial votes on Justices to the Supreme Court--and I have, for example, Justice Clarence Thomas in mind, and there was significant opposition to the confirming of Justice Thomas, primarily by Members of the other side of the aisle--the leaders of the Democratic Party understood that tradition called for a vote--probably knowing they would lose the vote. They, nevertheless, refused to support any kind of filibuster and they voted against Justice Thomas's confirmation. But he was confirmed 52-48.

I always respected the things they said at or about the time of that confirmation--that they would not ever support a filibuster, regardless of their particular feelings about the nominee. I thought that took courage, and I respected it, coming, as it did, from some of the key leaders of the Democratic side of the Senate. It confirmed to me that the tradition of the Senate relationship of comity we have with the President in dealing with his nominees, and the importance of our responsibilities with respect to confirming Justices of the Supreme Court and members of the Federal bench generally, is such that partisanship and tactical advantage could be laid to the side for the good of the country and these nominations could be voted on.

Now, there have been votes--sometimes--where the nominee lost. Most of the time, when votes are allowed to happen, the nominees prevail. But the new situation we have in this body, starting out with the President's nomination of Miguel Estrada--and now sadly, it seems, with the nomination of Priscilla Owen--we are going to require that unless 60 Members of the Senate agree to allow a vote, we don't get a vote. A filibuster, in other words, becomes the benchmark, the standard for confirmation of judges.

It has never been that way. There has only been one successful filibuster, and that was a very strange situation. There has never been a partisan filibuster in this body until now. It is especially remarkable because, in the case of Justice Owen, for example, one cannot claim, as has been claimed with regard to Miguel Estrada, that her record is unknown or unclear, or that there is more information that needs to be gleaned. She appeared not once but twice before the Judiciary Committee. The reason I wanted to take the floor briefly today is to say to my friends I don't think I have ever seen a nominee who handled herself or himself better than Justice Owen did at those hearings. She was forthcoming, brilliant in her exposition of the law, measured, and she clearly has the temperament to be a good judge.

She has been serving as a justice of the State Supreme Court of Texas. She has the support of another former justice of that court, Judge Gonzales, who obviously is now acting as the President's counsel, and the support of Democrats and Republicans alike.

The American Bar Association, as with Miguel Estrada, has recommended her for confirmation. She stayed at the hearing for as long as Members wanted her to stay. She answered all of the questions. So the same argument cannot be made that has been made about Miguel Estrada.

In fact, one of my colleagues on the other side of the aisle made it clear, in discussing the nomination of Miguel Estrada, that the only thing standing in the way of a vote--they would not necessarily commit to voting for him but at least allowing a vote on him--was producing this information which they say they want from the Justice

Department about his prior employment. But for that, that vote could occur, seeming to suggest that the same thing would be the case with any other nominee--that as long as the information was forthcoming and they knew about the individual, that therefore they could vote.

In fact, the last line, after this colleague talked to others in the Democratic Party, states: Look, if we can just get this information, do you think we can vote? And the answer was: Affirmative, to a person, because, frankly, then we would know for whom we were voting.

There was no commitment to vote for Miguel Estrada but at least they would allow the vote to go forward because they would then know ``for whom we are voting.''

Well, we do know who we are voting for in the case of Justice Owen. Her record is out there for everyone to see. There has never been a suggestion by anybody that she needs to produce more in the way of a record. It is there to be evaluated.

I suspect the reason Members on the other side of the aisle will not allow her to come to a vote is because they fear she will be more conservative as a justice than they would like to see. Let's be honest about it.

I voted for numerous circuit court nominees of President Clinton knowing they were far more liberal than I am. On my own circuit, the Ninth Circuit Court of Appeals, I voted for several who I knew were more liberal, and their voting record subsequently has borne that. They were confirmed. I voted for them. I felt President Clinton was the President; he was elected by all of the people. He had the right to nominate his own people, and if they were otherwise qualified, then I ought to vote for them. That has always been the tradition, that has always been the standard, by which we have judged these candidates for circuit court. So it is very troubling now to have a new standard imposed on us.

I come this morning to note that we are soon going to go back to the nomination of Priscilla Owen. I implore my colleagues to think about what they are doing by creating the 60-vote standard. There is no way that can be the standard only for Republican Presidents and not Democratic Presidents. It is either going to be the standard or it is not. If it becomes the standard for all Presidents, then I believe it is only a very short period of time before the confirmation process is going to grind to a halt because there will always be political differences.

By and large, that is what divides the Democrat and Republican Parties. We view life a little bit differently. We are all great Americans. We all support the troops and all want the judiciary to succeed, but we have some philosophical differences. That is fine, but they should not be the basis for not confirming judges or, more importantly, for requiring 60 votes to confirm because it is a very rare Senate in which one party has more than 60 votes in controlling the Senate. So it is basically going to grind the confirmation process to a halt.

That is a breach of our comity to the judicial branch; it is a breach of our obligations to the American people, to ensure justice is done. We know that justice delayed is justice denied. We have already heard from the Supreme Court Chief Justice about the emergencies that exist because we cannot fill these vacancies.

We have a crisis. We have to find a way to resolve this crisis. I suggest that the simplest way to do this, that is fair to everybody, is the way we have always done it: Express yourself, allow the vote to occur, vote your conscience and then move on. But do not hold up the votes simply because you have a philosophical disagreement with the President who nominates these candidates.

I urge my colleagues to think carefully because in the case of Priscilla Owen, as the bar association found, as the Judiciary Committee concluded in its most recent action by passing her out on the Executive Calendar, she is a fine justice. She would make a fine member of the Federal bench. There is no legitimate reason to oppose her.

I urge my colleagues to think about this as we focus on her qualifications, on the relationship between the Senate and the House, and on the obligation we have to the courts and to the American people. This is serious and we ought to be acting in a serious way. I urge my colleagues to support the nomination of Justice Priscilla Owen.