Floor Statements

Mr. President, I urge all of my colleagues in the U.S. Senate to reject the nomination of Janice Rogers Brown to the District of Columbia Circuit Court of Appeals. I strenuously oppose this nomination because I believe that her appointment to a lifetime tenured position on the D.C. Circuit Court will lead to the destruction of so many of the achievements we have struggled to achieve during the past 70 years--the creation of a social safety net, the advancement of civil rights for all Americans, and the protection of workers throughout our country. When I say achievements I am talking about many of the laws passed by the U.S. Congress, for during the past 70 years we have created the heart of what is today our modern American government. Congress has set the standard for our Nation--from social security and minimum-wage laws to homeland security and regulation of the business industry--by establishing laws that provide tremendous benefits and protections for all Americans.

I am deeply troubled by the nomination of Janice Rogers Brown, a jurist who has made no secret of her disdain for government and her desire to overturn many of the most important laws passed by Congress during the past 70 years. She will dismantle the foundation of our democracy, challenging the right of Congress to pass laws to help our citizens. Keep in mind that when I speak about Congress, I am not discussing people from one political party or the other; rather, I speak of the collective will of the American people, which is forged so often through bipartisan agreement and compromise between legislators from both political parties. And so I ask, who is Justice Brown to try to dismantle the very laws that we have forged over time through debate and consensus to protect our rights and keep us safe in America today?

During the past 9 years, Justice Brown has made her legal philosophy clear through both her public speeches and her legal opinions as a Justice on the California Supreme Court. She has, time and time again, demonstrated that she will be a movement judge--someone who will determine the ultimate outcome of a case based on her political beliefs instead of on the facts and law before her. Justice Brown has been inconsistent in her interpretation of the law, following precedent when it helps her to arrive at a desired result and rejecting precedent as non-binding when it will not achieve her desired ends. This is precisely the type of individual who should not receive a seat on the D.C. Circuit Court of Appeals, which is considered the second highest court in the country and a stepping-stone to a seat on the U.S. Supreme Court.

We should not approve any individual for a lifetime tenure position as a Federal judge who would use her position to achieve results consistent with an extreme political philosophy regardless of the facts and law. And I believe this to be true regardless of what the extreme political philosophy may be. Our goal must always be to ensure the independence and fairness of our courts. This is the very reason that Federal judges receive lifetime appointments: to guarantee that they will not be susceptible to political pressure or undue influence. Our goal must be to sustain this level of independence so that all citizens can be confident that, when they bring a case in Federal court, they will receive a fair hearing, based on the facts and law and not upon one individual's political beliefs.

We must place the value of an independent judiciary above the partisan politics of the day and refuse to approve purely partisan political nominees such as Janice Rogers Brown. The U.S. Senate has a constitutional obligation to advise the President on judicial nominations. As part of this obligation, the Senate must fight to ensure the continued existence of an independent and fair judiciary. We must never forget that our courts depend, first and foremost, on the judges who hear arguments, preside over trials, and issue rulings each and every day. The only way we can maintain a strong judiciary is if we approve only the most qualified individuals to lifetime appointments as Federal judges. And so we must approve nominees who possess the very traits we value most in our judiciary--fairness, independence, and an allegiance to the rule of law. That is why I urge my colleagues to reject Janice Rogers Brown, an individual who has consistently failed to demonstrate these traits. An individual who would, in my view, insert her extremist legal

philosophy into the courts in an attempt to undo years of Congressional legislation and legal precedent.

There should be no doubt that Justice Brown espouses an extreme legal philosophy far outside the mainstream of American legal thought. The President has selected a number of appellate court nominees, including Justice Brown, who embrace a radical legal theory frequently referred to as the ``Constitution in Exile.'' The ``Constitution in Exile'' theory is based on arguments put forth by Judge Douglas Ginsburg and Professor Richard Epstein. Ginsburg and Epstein believe that individuals have certain rights and liberties, including ``economic liberties'', and that any government that infringes upon these so- called liberties is ``repressive.'' This theory, advocated by Justice Brown, argues that the U.S. government represses its citizens when it takes land to build schools and pays the owner fair market value, establishes worker safety and minimum-wage laws, and institutes zoning and other regulations. Indeed, the ``Constitution in Exile'' theorists call into question the decisions of some of the most important government agencies--the EPA, the FCC, the SEC, and even the Federal Reserve--and argue that these agencies are themselves unconstitutional.

This legal theory is so far outside the mainstream that even the most conservative jurists on the U.S. Supreme Court recently rejected its premise. A unanimous Supreme Court--including conservative justices such as Scalia and Thomas, with whom I don't generally agree--handed down a decision on May 23, 2005, in Lingle v. Chevron, No. 04-163,-- S.Ct.--, 2005 WL 1200710 (May 23, 2005) that squarely rejects the ``economic liberty'' theory of takings asserted by ``Constitution in Exile'' theorists.

Lingle addressed questions of economic liberty in the context of challenges to Hawaii's rent-control regulations. The case tested whether the ``Constitution in Exile'' theory operates within the mainstream of American legal thought because advocates of the theory, including Richard Epstein, argued that the Supreme Court should look more critically on economic regulations and give less deference to legislative judgments. The Supreme Court strongly rejected this approach; writing for the Court, Justice O'Connor dismissed the argument that the Court should adopt a more critical approach to economic regulations and noted the strong need for deference to the judgment of state legislatures. O'Connor further stated that ``'government regulation--by definition--involves the adjustment of rights for the public good.''

Lingle demonstrates that Justice Brown stands far outside the legal mainstream. Beyond the defeat of the general principles espoused by the ``Constitution in Exile'' theorists, the Lingle decision serves as an explicit rejection of the legal theory set forth by Justice Brown in a lone dissent--one of her many--on the California Supreme Court. In San Remo Hotel L.P. v. City and County of San Francisco, a case contesting the legality of a San Francisco development fee used to promote affordable housing, Justice Brown issued a dissent espousing the same legal argument outlined by Epstein in Lingle--that the court should look more critically on economic regulations and give less weight to the wishes of the legislature. In rejecting the principles of the Constitution in Exile theorists, the Supreme Court explicitly rejected the argument set forth by Justice Brown in her San Remo dissent. Although there should be no need for additional evidence that Justice Brown's legal philosophy falls outside of the mainstream, the decision in Lingle provides powerful proof that Justice Brown falls far outside the boundaries of established legal thought.

For all these reasons, let me again urge my fellow colleagues to reject the nomination of Janice Rogers Brown. We must reject extremist judges like this who fall outside of the mainstream and who will use the federal judiciary to dismantle so many of the progressive accomplishments we have fought so hard to achieve during the past 70 years.

Mr. President, I rise today to introduce the ``Campus Fire Safety Right-to-Know Act of 2005''. I first introduced this legislation in the l07th Congress in response to a tragic fire at New Jersey's Seton Hall University that claimed the lives of three students and injured more than fifty others. This legislation is designed to curb the epidemic of dangerous college campus fires.

Since the Seton Hall fire, campus fires have continued to take the lives of our college students and their families. According to the Center for Campus Fire Safety, more than 75 fire-related deaths have occurred in student housing at colleges across the country since January of 2000. Campus fires have claimed lives in nearly half the States of this Nation, from New Jersey to Texas, Indiana to Pennsylvania, and Ohio to right here in Washington, DC. This legislation will finally bring to light the extent of this tragic danger facing our Nation's best and brightest.

The ``Campus Fire Safety Right-to-Know Act'' requires disclosure of fire safety information on campuses as well as a report from the Secretary of Education to Congress on the depth of the problem and possible solutions. The bill implements the same procedure that requires schools to disclose crime statistics and other safety information. While the bill does not mandate colleges to upgrade their systems, it does offer a powerful incentive for them to do so by providing prospective students and their parents the opportunity to review and compare the quality and record of fire safety protections at all colleges and universities.

Only 35 percent of university-sponsored student housing that suffer fires are equipped with sprinkler systems.

Each year, approximately 1,600 fires break out in dormitories, fraternity and sorority houses, and other housing controlled by student groups. Parents and students deserve to know what steps their school has taken to prevent and prepare for these harmful and often fatal catastrophes.

The ``Campus Fire Safety Right-to-Know Act'' will put important fire safety information in the hands of students and their parents who entrust their children to our Nation's colleges and universities. I believe this bill will make important strides in the effort to make our college campuses safer and I urge my colleagues to support it.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the ``Campus Fire Safety Right-to-Know Act of 2005''. I first introduced this legislation in the l07th Congress in response to a tragic fire at New Jersey's Seton Hall University that claimed the lives of three students and injured more than fifty others. This legislation is designed to curb the epidemic of dangerous college campus fires.

Since the Seton Hall fire, campus fires have continued to take the lives of our college students and their families. According to the Center for Campus Fire Safety, more than 75 fire-related deaths have occurred in student housing at colleges across the country since January of 2000. Campus fires have claimed lives in nearly half the States of this Nation, from New Jersey to Texas, Indiana to Pennsylvania, and Ohio to right here in Washington, DC. This legislation will finally bring to light the extent of this tragic danger facing our Nation's best and brightest.

The ``Campus Fire Safety Right-to-Know Act'' requires disclosure of fire safety information on campuses as well as a report from the Secretary of Education to Congress on the depth of the problem and possible solutions. The bill implements the same procedure that requires schools to disclose crime statistics and other safety information. While the bill does not mandate colleges to upgrade their systems, it does offer a powerful incentive for them to do so by providing prospective students and their parents the opportunity to review and compare the quality and record of fire safety protections at all colleges and universities.

Only 35 percent of university-sponsored student housing that suffer fires are equipped with sprinkler systems.

Each year, approximately 1,600 fires break out in dormitories, fraternity and sorority houses, and other housing controlled by student groups. Parents and students deserve to know what steps their school has taken to prevent and prepare for these harmful and often fatal catastrophes.

The ``Campus Fire Safety Right-to-Know Act'' will put important fire safety information in the hands of students and their parents who entrust their children to our Nation's colleges and universities. I believe this bill will make important strides in the effort to make our college campuses safer and I urge my colleagues to support it.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I will be voting against the nomination of John Bolton to be Ambassador to the United Nations.

When the President first nominated Mr. Bolton for this position, I expressed deep disappointment and concern. First, because of his repeated expression of disdain for the organization. But, more importantly, because Mr. Bolton is as responsible as any member of the administration for the needless confrontations with the rest of the world and for the international isolation that plagued President Bush's first term and for the shaky credibility we carry today. At a time when we need to be strengthening our alliances and making full use of international institutions to achieve our foreign policy goals, sending Mr. Bolton to the United Nations sends the exact wrong message. I do not accept his view that the U.N. is a vehicle to be used by the U.S. ``when it suits our interests and we can get others to go along.'' Diplomacy in most people's minds requires attention to more than just coalitions of the willing.

Over the past month, the Senate Foreign Relations Committee has uncovered a pattern of behavior on the part of Mr. Bolton that has only confirmed my concerns. Most disturbing to me is the evidence of Mr. Bolton's troubled and confrontational relationship with our intelligence community.

In speeches and testimony, he has appeared to stretch the available intelligence to fit his preconceived views. On three separate occasions, he tried to inflate language characterizing our intelligence assessments regarding Syria's nuclear activities. He sought to exaggerate the intelligence community's views about Cuba's possible biological weapons activities. His track record, on these and other matters, was so bad that the Deputy Secretary of State made an extraordinary order--that Mr. Bolton could not give any testimony or speech that was not personally cleared by the Deputy Secretary or the Secretary's chief of staff.

He also dampened critical debates among professionals on important policy issues by retaliating against analysts who presented a different point of view than his own. For example, on three occasions over a 6 month period, he sought to remove a midlevel analyst who disputed the language he tried to use about Cuba. The proliferation of weapons of mass destruction is a serious matter. I would not criticize Mr. Bolton for asking intelligence analysts hard questions about proliferation issues, nor should policy makers refrain from challenging the assumptions of those analysts. But Mr. Bolton was doing something far different. He made it clear that he expected intelligence analyses that conformed with his preconceived policy views. Rather than welcome contrary intelligence analyses as essential to an informed debate, he retaliated against those who offered contrary views.

Mr. Bolton's approach to those around him has been harshly criticized by those who have worked with him. Larry Wilkerson, the chief of staff for Secretary Powell, called him a ``lousy leader.'' Carl Ford, former head of the State Department's Bureau of Intelligence and Research, referred to Mr. Bolton as a ``quintessential kiss-up, kick-down sort of guy.''

This is not the person we need at the United Nations. Good diplomacy, like good business, relies on a great team and a good leader. Good leaders listen. They listen to their troops, they make reasoned decisions, they take responsibility, and they build the respect and loyalty of their staff. Management by fear is a recipe, in both public service and the private sector, for getting only the information that you want to hear. Shoot the messenger and other messengers will not volunteer to deliver the bad news. And I submit that Mr. Bolton has developed a reputation for shooting the messenger.

We must begin to learn the lessons of Iraq. It should be more than clear by now that our national interests are damaged when policy makers bend intelligence. And we should all understand by now that accurate, objective intelligence requires analysts who are free to offer differing views. We face serious threats, from international terrorism to the proliferation of weapons of mass destruction. We have serious foreign policy concerns to address, from genocide to global climate change. Protecting our national security interests demands policymakers who seek objective intelligence on these and other challenges. Given his track record, John Bolton is clearly not that policymaker.

Another lesson of Iraq is the critical importance of American credibility. The inaccurate presentations made by our Government to the international community have done serious damage to our interests. If we are to gain the active support of other nations in confronting common threats such as terrorism and weapons of mass destruction, we will need to convince those nations of our views. To do so, we will need their trust. This challenge is especially complicated at the United Nations, where Secretary of State Colin Powell gave what turned out to be an almost entirely inaccurate presentation on Iraq, and where the administration dismissed all alternative views, including those of UN inspectors. Mr. Bolton is not the person to repair this damage. His record makes it extremely unlikely that he could rebuild our credibility in the international community in its most visible forum-- the U.N.

The nomination of John Bolton is a lost opportunity for this administration to regain American leadership at the United Nations. It is also dangerous. Failure to gain support in the UN for our policies puts us at unnecessary risk. Simply put, we cannot afford an ineffective Ambassador at the United Nations.

Mr. President, today I will be voting against the nomination of John Bolton to be Ambassador to the United Nations.

When the President first nominated Mr. Bolton for this position, I expressed deep disappointment and concern. First, because of his repeated expression of disdain for the organization. But, more importantly, because Mr. Bolton is as responsible as any member of the administration for the needless confrontations with the rest of the world and for the international isolation that plagued President Bush's first term and for the shaky credibility

we carry today. At a time when we need to be strengthening our alliances and making full use of international institutions to achieve our foreign policy goals, sending Mr. Bolton to the United Nations sends the exact wrong message. I don't accept his view that the U.N. is a vehicle to be used by the U.S. ``when it suits our interests and we can get others to go along.'' Diplomacy in most people's minds requires attention to more than just coalitions of the willing.

Over the past month, the Senate Foreign Relations Committee has uncovered a pattern of behavior on the part of Mr. Bolton that has only confirmed my concerns. Most disturbing to me is the evidence of Mr. Bolton's troubled and confrontational relationship with our intelligence community.

In speeches and testimony, he has appeared to stretch the available intelligence to fit his preconceived views. On three separate occasions, he tried to inflate language characterizing our intelligence assessments regarding Syria's nuclear activities. He sought to exaggerate the intelligence community's views about Cuba's possible biological weapons activities. His track record, on these and other matters, was so bad that the Deputy Secretary of State made an extraordinary order--that Mr. Bolton could not give any testimony or speech that was not personally cleared by the Deputy Secretary or the Secretary's Chief of Staff.

He also dampened critical debates among professionals on important policy issues by retaliating against analysts who presented a different point of view than his own. For example, on three occasions over a six month period, he sought to remove a mid-level analyst who disputed the language he tried to use about Cuba.

The proliferation of weapons of mass destruction is a serious matter. I would not criticize Mr. Bolton for asking intelligence analysts hard questions about proliferation issues, nor should policy makers refrain from challenging the assumptions of those analysts. But Mr. Bolton was doing something far different. He made it clear that he expected intelligence analyses that conformed with his preconceived policy views. Rather than welcome contrary intelligence analyses as essential to an informed debate, he retaliated against those who offered contrary views.

Mr. Bolton's approach to those around him has been harshly criticized by those who have worked with him. Larry Wilkerson, the Chief of Staff for Secretary Powell, called him a ``lousy leader.'' Carl Ford, former head of the State Department's Bureau of Intelligence and Research, referred to Mr. Bolton as a ``quintessential kiss-up, kick-down sort of guy.''

This is not the person we need at the United Nations. Good diplomacy, like good business, relies on a great team and a good leader. Good leaders listen. They listen to their troops, they make reasoned decisions, they take responsibility, and they build the respect and loyalty of their staff. Management by fear is a recipe, in both public service and the private sector, for getting only the information that you want to hear. Shoot the messenger and other messengers will not volunteer to deliver the bad news. And I submit to you that Mr. Bolton has developed a reputation for shooting the messenger.

We must begin to learn the lessons of Iraq. It should be more than clear by now that our national interests are damaged when policy makers bend intelligence. And we should all understand by now that accurate, objective intelligence requires analysts who are free to offer differing views. We face serious threats, from international terrorism to the proliferation of weapons of mass destruction. We have serious foreign policy concerns to address, from genocide to global climate change. Protecting our national security interests demands policy makers who seek objective intelligence on these and other challenges. Given his track record, John Bolton is clearly not that policy maker.

Another lesson of Iraq is the critical importance of American credibility. The inaccurate presentations made by our Government to the international community have done serious damage to our interests. If we are to gain the active support of other nations in confronting common threats such as terrorism and weapons of mass destruction, we will need to convince those nations of our views. To do so, we will need their trust. This challenge is especially complicated at the United Nations, where Secretary of State Colin Powell gave what turned out to be an almost entirely inaccurate presentation on Iraq, and where the administration dismissed all alternative views, including those of U.N. inspectors. Mr. Bolton is not the person to repair this damage. And his record makes it extremely unlikely that he could rebuild our credibility in the international community in its most visible forum-- the U.N.

The nomination of John Bolton is a lost opportunity for this administration to regain American leadership at the United Nations. It is also dangerous. Failure to gain support in the U.N. for our policies puts us at unnecessary risk. Simply put, we cannot afford an ineffective Ambassador at the United Nations.

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

Mr. President, I come to the floor to speak briefly about the compromise agreement reached on judicial nominees and about the pending circuit court nominees.

Let me begin by saying that I am pleased that, through the agreement reached this week, we were able to protect the rights of the minority in this body to have our voices heard. That is consistent with the best traditions of the Senate. I certainly believe it is consistent with the constitutional principle that gave each State two Senators, regardless of their number of citizens. So, for example, California has 36 million people and Wyoming has a little more than 500,000 citizens. But our forefathers saw to it, in an effort to protect the rights of the minority, that each State would have two Senators to represent their interests.

I also believe that the agreement, at least at this time and place, preserves our constitutional system of checks and balances. So I compliment my 14 colleagues who reached this agreement and, in so doing, protected two of the most essential principles of American government--the rights of the minority and our system of checks and balances.

Let me also say that I am particularly proud of Senator Reid's leadership in pushing towards this compromise.

That said, my enthusiasm for this compromise is tempered by the reality that I see before us. For while I am cautiously optimistic about the immediate outcome, I am aware that, like in so many things, the devil is in the details. Time will test the meaning of the term, ``extraordinary circumstances'',

that was included in the compromise agreement but has not been explicitly defined. And as we all know, compromises come with many challenges and I am certain that this compromise will be tested through the course of time.

Indeed, I have been deeply troubled by what has been said by some of my colleagues on the Senate floor, including comments made by the majority leader, that the so-called nuclear option is still on the table. I was also distressed by the suggestion made by some of my colleagues that judicial nominees in the future may only be blocked if they have personal or ethical problems. I look at the agreement and come to a very different conclusion about what the term ``extraordinary circumstances'' means. So I am deeply troubled when I hear that the nuclear option is still on the table, except under circumstances where the nominee has personal or ethical issues. I believe that interpretation is inconsistent with the spirit and intent of this delicate compromise. And, I note that the agreement specifically--and clearly--states that it is up to each individual Senator--using his or her own discretion--to decide when a filibuster is appropriate and what constitutes extraordinary circumstances. So I believe it requires a lot of vigilance and attention as we go forward with judicial nominations for appellate and Supreme Court vacancies, jobs that come with lifetime appointments. We must ensure that our courts retain the independence that has been, and should continue to be, the hallmark of our judiciary. The stakes could not be any higher.

Mr. President, let me now turn specifically to the nominees who are before the Senate. I believe many of these individuals are outside the mainstream of legal thought. That is why I have opposed them, and that is why I supported the filibuster. I believe these individuals--and I recognize that they may be very good individuals on a personal level-- have demonstrated, through their judicial records and their public communications, that they are outside of the mainstream and that they have taken positions that may be fairly labeled, in my view, as extremist.

Likewise, these judicial nominees have shown a willingness to put their own political views before the rule of law as set forth in established precedent. We need judges who are fair and impartial and are absolutely committed to maintaining the credibility and independence of our judicial branch. What we do not need are judges who substitute their own political views for fact, law, and precedent. That would undermine the federal courts and remove the impartiality, independence, and fairness that American citizens have come to expect in our democracy.

It is essential that we look for these very qualities--impartiality, independence, and fairness--in our judges. We have not seen that, unfortunately, in many of the nominees currently before the Senate. I believe strongly that we need to oppose these nominations because of that--not because of their personal character--but because, in my view, they have operated outside of the mainstream and endeavored, through judicial activism, to inappropriately alter the law.

As to Priscilla Owen, I intend to vote against her because of her activist judicial opinions. She has consistently voted to throw out jury verdicts favoring consumers against corporate interests and she has also dismissed suits brought by workers for job-related injuries, discrimination, and unfair employment practices. Her record demonstrates that Judge Owen operates outside of the mainstream. She is outside of the mainstream, both in Texas and in the United States as a whole. I note that some of her colleagues on the Texas Supreme Court have taken issue with her attempts to disregard generally accepted legal precedents and to interfere with the authority of the state legislature.

In addition, I intend to vote against Janice Rogers Brown, William Pryor, and William Myers. I intend to vote against them not because of their character or their ability to think through problems but because of what I believe is their espousal of a legal theory that is far outside the mainstream--called the Constitution in Exile theory. This theory has been very eloquently argued by a number of jurists but, in my belief, falls far outside of the mainstream of legal thought in this country. Basically, it is an intent to roll back many of the socially progressive actions flowing out of the New Deal and to rescind Government protections that have been well established under the law.

And it is important, in my view, that we consider an individual's legal philosophy when we talk about extraordinary circumstances, and particularly when we are debating the nomination of someone who intends to use that philosophy as a vehicle to change the law. That is judicial activism and I believe that it is inappropriate. I also believe that this level of judicial activism in a nominee justifies the use of the filibuster as we go forward. Not everyone will agree, but I think it is absolutely essential that we take this into consideration as we debate these nominees.

I hope we can all move forward within the framework of the compromise, which I am very pleased we were able to reach. The compromise agreement encourages increased consultation between the White House and Republicans and Democrats in the Senate with regard to judges. I sincerely hope this will come about. In New Jersey, we have been fortunate to have had a good dialogue with the White House on judges and have been able to reach a consensus on both district and circuit court judges. We currently have additional vacancies--four on the district court and one on the circuit court--and I hope we will be able to have the same kind of dialogue so that we may reach a consensus on these nominees. I am hopeful that we can agree upon judges of whom we can all be proud. That is what advise and consent is all about.

If we follow that spirit, the compromise stands a much better chance of working. Again, we need to make sure--and I certainly will be making the case--that legal philosophy is taken into consideration when we discuss extraordinary circumstances in the future and that we are not limited to using the filibuster only when a nominees has personal or ethical problems.

Finally, I am pleased that my colleagues worked so hard--and I again compliment all 14 Senators who were a part of that process--to make certain that we can get back to working on the issues that the folks I know in New Jersey care about. They are getting a little hot under the collar about gas prices. They are very concerned as we see the number of men and women who have come home either injured or who have sacrificed their lives for our country.

We are about to go into Memorial Day to say thank you to all those who throughout the years have protected our country. We have hundreds of thousands of individuals now on the ground in Iraq and Afghanistan who are protecting us. People want us to be focused on what we are doing regarding national security, homeland security, making sure we are doing everything we can to keep those troops safe, and trying to ensure affordable health care. So I am pleased that we may now open up the floor for debate on those issues.

For a lot of reasons, I am very grateful about this compromise, but I do hope that, as we go forward, there is a true commitment to allowing for real debate on the meaning of extraordinary circumstances.

I appreciate very much the opportunity to speak on this and look forward to our continuing debates in the days and weeks ahead.

Mr. President, today, along with Senator Lautenberg, I am introducing legislation, the Musconetcong Wild and Scenic Rivers Act, to designate portions of the Musconetcong River in New Jersey as a component of the National Wild and Scenic Rivers System. I am proud to be joining my New Jersey colleague, Representative Scott Garrett, who has introduced this legislation in the House of Representatives, with the support of Congressmen Robert Andrews, Michael Ferguson, Rodney Frelinghuysen, Robert Menendez, Frank Pallone, Donald Payne and James Saxton.

This is important legislation to help preserve and protect one of the most valuable natural resources in the State of New Jersey. The Musconetcong River is a 43 mile river that runs westward from Lake Musconetcong to the Delaware River. It provides many ecological, recreational and scenic benefits to the northwestern portion of our State. In addition, it is also home to a number of archeological sites and other historic areas, including one site in Warren County where scientists have discovered stone knives and other weapons dating back at least ten thousand years. Finally, it feeds acquifers that provide many residents in Hunterdon and Warren counties with quality drinking water.

Unfortunately, the beauty and value that the Musconetcong provides is at risk. The river faces pressures, for example, from the development that is occurring on or near its shores. This has caused water quality to deteriorate from increased levels of bacteria, silt and runoff from roadways. Further, many of the municipalities that lie along the river lack the financial resources to adequately protect the river for future generations.

The Musconetcong Wild and Scenic Rivers Act would help state, county and local officials begin to address these concerns, working alongside environmental and public interest groups. By including this river in the Wild and Scenic River System, it would allow New Jersey to implement a management plan for the river that has the support of three counties and 13 municipalities. In addition it would make the river eligible for financial, planning, and technical assistance to help preserve and protect it. The goal is to encourage uses and development that is compatible with the river.

The Wild and Scenic River System already includes the Maurice and Great Egg Harbor Rivers in New Jersey as well as the lower and middle portions of the Delaware River

I will work hard in the 109th Congress to see that the Musconetcong is added to this list. I hope my colleagues will support this legislation, and I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today, along with Senator Lautenberg, I am introducing legislation, the Musconetcong Wild and Scenic Rivers Act, to designate portions of the Musconetcong River in New Jersey as a component of the National Wild and Scenic Rivers System. I am proud to be joining my New Jersey colleague, Representative Scott Garrett, who has introduced this legislation in the House of Representatives, with the support of Congressmen Robert Andrews, Michael Ferguson, Rodney Frelinghuysen, Robert Menendez, Frank Pallone, Donald Payne and James Saxton.

This is important legislation to help preserve and protect one of the most valuable natural resources in the State of New Jersey. The Musconetcong River is a 43 mile river that runs westward from Lake Musconetcong to the Delaware River. It provides many ecological, recreational and scenic benefits to the northwestern portion of our State. In addition, it is also home to a number of archeological sites and other historic areas, including one site in Warren County where scientists have discovered stone knives and other weapons dating back at least ten thousand years. Finally, it feeds acquifers that provide many residents in Hunterdon and Warren counties with quality drinking water.

Unfortunately, the beauty and value that the Musconetcong provides is at risk. The river faces pressures, for example, from the development that is occurring on or near its shores. This has caused water quality to deteriorate from increased levels of bacteria, silt and runoff from roadways. Further, many of the municipalities that lie along the river lack the financial resources to adequately protect the river for future generations.

The Musconetcong Wild and Scenic Rivers Act would help state, county and local officials begin to address these concerns, working alongside environmental and public interest groups. By including this river in the Wild and Scenic River System, it would allow New Jersey to implement a management plan for the river that has the support of three counties and 13 municipalities. In addition it would make the river eligible for financial, planning, and technical assistance to help preserve and protect it. The goal is to encourage uses and development that is compatible with the river.

The Wild and Scenic River System already includes the Maurice and Great Egg Harbor Rivers in New Jersey as well as the lower and middle portions of the Delaware River

I will work hard in the 109th Congress to see that the Musconetcong is added to this list. I hope my colleagues will support this legislation, and I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today to address the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals and to oppose the majority's challenge to our Nation's constitutional framework of checks and balances. I also rise to protect the rights of the minority in our political system.

This debate is historic in the context of American constitutional practice, and it deals with the core of necessary consensus building that has united and strengthened America throughout our political life.

Though I have come to the floor on a number of occasions this year to speak on vital domestic and national security concerns affecting New Jersey's and America's citizens, today, with disappointment, I rise to speak--not about issues such as the safety of our troops in Iraq; protecting our citizens at home from terrorist threats, whether it be at chemical plants or ports or airports; ending genocide in Darfur; strengthening Social Security; providing access or cost control to health care; lowering gas prices, combating global warming; or building affordable housing--all vital issues to the American people--instead, I am here because some in this body think it is their responsibility and right to eliminate minority rights when it comes to approving lifetime appointments to the U.S. Court of Appeals and to the U.S. State supreme court.

I rise to protest this attack on our constitutional system and our Senate traditions. In short, it is an attack that I think supports the view that breaking the rules is the way to change the rules. We are here today because a number of my colleagues, many in good faith, wish to ignore the principles embedded in the U.S. Constitution and allow the will of the majority to reign supreme. Absolute power is often said to corrupt, and limiting the checks and balances of the right to debate on the Senate floor can most certainly facilitate that abuse.

There was a reason our Founders gave two votes to each State. That fundamental principle was debated as the Founders wrote our Constitution. Today, there are two Senators from California, a State with 36 million citizens. Similarly, there are two Senators from the State of Wyoming, which has slightly more than 500,000 citizens. Our Founders believed strongly in the right of minorities to have a voice on the floor of the Senate and embedded this principle in our Constitution. It is absolutely one of the most essential compromises that was a part of creating our Constitution. In fact, it has been the framework that has allowed the Constitution to work so effectively for some 217-odd years.

At a practical level, this overreach--some might call abuse--by the majority is unfortunate for those of us who have been pleased to work well with the White House in building a consensus on judicial nominations. It has happened in our State. For example, New Jersey Senators have met and agreed to a set of five judges, including, by the way, a circuit court judge who reflects the best of our legal community and who travels well within the mainstream of legal thought.

Over my 4\1/2\ years in the Senate, the White House and I have agreed on an outstanding package of jurists of whom we can all be proud. And we are currently working with the White House on another package--for district court judges and one additional circuit court judge.

Let me be clear, while many of these judges would not have been my first political or philosophical choice, I have worked, together with Senator Lautenberg, and before him with Senator Torricelli, with the White House to come to an agreement on smart, fair, and hard-working judges for the Federal bench in New Jersey--people clearly in the mainstream, people of whom we will all be proud to have as lifetime judicial appointments. All of these are judges committed to the rule of law and not to promoting their own political views or trying to rewrite law through judicial activism.

I have voted many times for judges with whom I disagree on important issues--issues as fundamental to me as choice or worker protections. But I have voted for them because they respect the law and precedent. What I cannot and will not agree to are nominees who are political ideologues people who let us know that they will challenge precedent in order to promote their political beliefs and what I believe is an extremist agenda. They want to change the law. The job of writing laws is the job we have right here on the Senate floor.

This debate is particularly important in a practical sense to me because there is a vacancy currently on the Third Circuit Court of Appeals due to the retirement of Michael Chertoff, now the head of our Nation's Department of Homeland Security. I fear this Third Circuit vacancy is in jeopardy of going the way of what we have seen with the nomination of these activist judges--jurists with views outside the mainstream, with extremist views, who believe that it is their right to make the law as opposed to interpret it or apply it.

If these activist individuals want to make law--and they may have remarkable resumes--they should run for Congress or the Senate rather than accept a nomination to the Federal bench.

That is why my support for the filibuster in the judicial nominating process is not about anything but the fundamental constitutional principles established by our Founders.

It is not about getting even. It is not tit for tat. I am not suggesting Democrats should block nominations because Republicans have used process and procedure to stop Democratic nominees, which, in fact, has been the case. The hard facts show that the Senate has approved 208 of President Bush's 218 judicial nominations. That is a 95-percent rate of approval--not too bad; as a matter of fact, I think most people would think if you were hitting at that level in baseball, you would be doing pretty good.

President Clinton's nominees were often held up before they even had a chance for debate in committee, a different procedural process that led to about over 60 of the Clinton nominations being blocked. But again, I don't think this issue is about tit for tat or getting even.

It is misplaced for others to argue that Democrats are being obstructionist because we refuse to serve as rubberstamps. I was not elected by the people of New Jersey to be a rubberstamp. Actually, they don't like that kind of thing in New Jersey.

Republicans may one day see a change in their majority status, and many of my Republican colleagues may not like this change at another point in time. I don't think they would seek to be a rubberstamp in the judicial nomination process at that time.

This is not about an up-or-down vote, as Republicans suggest. That argument is intended to divert the attention of the American people from the real issue--the rights of the minority in the Senate, as developed by our constitutional Founders, the U.S. system of checks and balances, and, frankly, the principle of fundamental fairness, that you don't change the rules in the middle of the game.

Here is the argument that this is not about an up-or-down vote. The majority blocked over 60 of President Clinton's nominees. They never allowed them to have an up-or-down vote on the Senate floor and, frankly, they never allowed them to have an up-or-down vote in committee. They just used different rules and different procedures, at different time, but they accomplished the same thing.

Additional evidence that this is not about giving nominees an up-or- down vote is the simple fact that historically the filibuster has been used as a Senate procedural tool, often to prevent Democratic judicial nominees from receiving an up-or-down vote in the Senate.

Since 1968, at least according to the legal scholars I have talked to, we have seen Republicans use the filibuster six times to block judicial nominees, perhaps the most visible being the nomination of Abe Fortas to be Chief Justice of the Supreme Court. The Fortas nomination was successfully filibustered and was never given an up-or-down vote.

But just to put it in a broader historical perspective, 20 percent of the nominations to the Supreme Court from our birth as a nation have never gotten an up-or-down vote in the Senate.

One has to put this into a historical perspective. This is something that should be debated on a more fundamental level of what it is that one can draw from the reading of our Constitution. I go back to the fact that there are two Senators for every State, regardless of its size. The intent was to make sure minorities were fully represented.

Looking at this from another perspective, a more political perspective, I accept that Republicans hold 55 seats in the Senate and that President Bush won reelection. However, neither of those facts goes against the constitutional history of the right to speak your mind as a minority. And neither of those facts give the majority the right to break the rules to gain more power. The rules are the rules adopted. A ruling from the Chair without consultation with the Parliamentarian would be an extraordinary action, certainly contrary to anything I have seen in the 4\1/2\ years I have been here, certainly contrary to what I hear among my colleagues.

A rule change under extraordinary procedures is why it has been labeled the nuclear option. I would argue if the majority were to adopt this procedure they would be breaking the rules to make the rules. We all know we are setting an extraordinary precedent--and frankly, this could become a slippery slope for this legislative body, particularly when it sets a precedent that may be expanded upon to include legislative filibusters, which I hear almost everyone argue is not something they would embrace. It could be a slippery slope and a dangerous precedent for a thriving democracy and an August body that has served America well by providing for checks and balances through the fullness of our political life.

Our U.S. system is based on the competition of ideas between the two main political parties. Clearly, each side seeks to prevail. What the majority is doing now goes beyond a simple desire to prevail. What is going on here is an attempt by the majority to break the rules to change the rules. That violates the principle of fundamental fairness and actually attacks in a fundamental sense the rule of law under which our Nation operates. You don't break the rules to win in America. That is not the American way.

The American way is to play fairly and consistently by the rules. That is all that I believe we on this side of the aisle are asking for. We are asking for the right to play by the established rules that have been historically in place, consistent with precedent, ones that have existed for decades, to challenge people who we believe are fundamentally unqualified or judicially outside the mainstream to be Federal judges either because of their views, which are inconsistent with precedent, or because of their activist judicial records.

Let me be specific as to the judicial nominees before the Senate: Justice Priscilla Owen and Justice Janice Rogers Brown. Both may be remarkable people in their own right, but that is not my concern. Good people may not be fit to serve as federal judges because of their interpretation of the Constitution, how they apply it or don't apply law, and the activist approach they take.

Let's start with Justice Owen. This is a judge who has consistently inserted her political views into judicial opinions. That is how I read the record. She has had a record distinguished by conservative judicial activism. Justice Owen has consistently voted to throw out jury verdicts favoring workers and consumers against businesses and she has dismissed cases brought by workers for job-related injuries, discrimination, and unfair employment practices, making decisions that are inconsistent with established precedent.

Justice Owen has participated in cases involving companies that have been involved in her own political activities, including Enron and Halliburton decisions. But the real issue, the Houston Chronicle concluded, was that ``Owen's judicial record shows less interest in impartially interpreting law than in pushing an agenda.'' I believe this is a record that is outside the mainstream. That justifies my position and, I believe, that of my Democratic colleagues.

As for Justice Janice Rogers Brown, a California Supreme Court justice nominated to the DC Circuit, she has spent the better part of her time as a judge attacking America's social safety net. The California Bar Commission found Justice Brown unqualified in part because of her tendency to interject her political and philosophical views into her opinions. I don't have a problem with people having political and philosophical views. Most of the folks who speak here on this floor have political views. But when you go to the bench, you are asked to bring an impartiality, an independence as to how you deal with a case and how you apply the law and interpret the law. Justice Brown, through her opinions as a judge has made it clear that she has a disregard for legal precedent. Justice Brown has called Supreme Court decisions upholding the New Deal ``the triumph of our socialist revolution.'' I believe that is outside the mainstream. Let us not forget, by the way, that one of the main components of the New Deal was the creation of Social Security, which is now having a debate in this Nation. It is hardly a socialist initiative.

Justice Brown has also--always in dissent--used constitutional provisions or defied the legislature's intent to attempt to restrict or invalidate laws that she doesn't like--as, most notably, she did with California's anti-discrimination statute. And so I believe that this is a case where there is reason to believe that Justice Brown would operate outside of the mainstream if confirmed as a federal judge.

I simply cannot support placing such an immoderate judge on the Federal appeals court for a lifetime tenure.

In closing, let me return to where I began. Yes, this is an important debate--maybe one of the two or three most important in the last few years. I think it goes at the core of our constitutional system. It is unfortunate we are not here debating the real problems that face our Nation and the citizens of my State, which include health care costs, gas prices, education, energy costs, and the safety of servicemen. Those are the issues that people talk to me about when I am out and about in my home State. But the people of my home State--and I suspect it is true of people of every State in the Nation--expect us to defend our constitutional liberties. They expect us to stand for checks and balances and for the rights of those in the minority so that we can build a consensus to unite, not divide. They expect us to speak strongly to preserve those rights on the floor of this Senate. I think that is what this debate is about. This debate is a fundamental one and, therefore, truly one of the most important we can have.

I want us to move on to the real issues of the day, and they are challenging for our Nation, for all of us. Men and women are losing their lives. But there is an absolute responsibility for all of us to make sure that our system works with the kind of care and thoughtfulness and the kind of checks and balances that have served our Nation so well.

It is our responsibility to stay tuned to the historical traditions of the Senate and to the principles our Founders put together that said minorities in this Nation have a right to be heard. The Founders established that principle clearly with the Philadelphia Compromise. We must sustain this principle in the days ahead in our debate.

I yield the floor.

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

Mr. President, I ask unanimous consent that Anne Milgram be granted floor privileges for the duration of the presentation.

Mr. President, I rise today to discuss the transportation reauthorization legislation that is pending before the Senate, the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005 or SAFETEA. I commend the managers of this bill, Senators Inhofe and Jeffords for producing bipartisan legislation that will help address the safety and congestion needs on our Nation's roads, rails and bridges. I thank the managers for their hard work.

Under SAFETEA, New Jersey will see a 56 percent increase in mass transit formula funds from fiscal year 2005 to fiscal year 2009. It will also see an increase its return on the highway dollar from the current 90.5 cents on the dollar, which is the absolute minimum, to 92 cents on the dollar.

This money is sorely needed. New Jersey is the most densely populated State in the Nation. This is causing gridlock on our roads. According to the latest study by the New Jersey Institute of Technology, the average New Jersey driver now spends 45 hours a year stuck in traffic. I repeat, 45 hours a year. All this time spent behind the wheel does more than hurt New Jersey's quality of life. It also costs us an average of $1,255 per driver in wasted gasoline and lost productivity-- for a total cost of $7.3 billion a year. That is a huge blow to New Jersey's economy.

I have spent 25 years of my life commuting from northern New Jersey into New York City. I have seen firsthand how tough the commute is getting. People are getting caught in gridlock on roads and bridges that are overcrowded and in need of repair. According to the New Jersey Department of Transportation, to fix New Jersey's 13 most seriously deteriorating bridges will cost $2.03 billion. And we are facing $1 billion in pavement and surfacing needs for our highways alone.

New Jersey is the most densely populated State. We need a greater share of funding to repair our roads and bridges. Thanks to the leadership of Senator Inhofe and Senator Jeffords, we will begin to see some of that funding under SAFETEA.

However, I must say that I was disappointed when the Senate last week refused to pass the amendment Senator Lautenberg and I offered on protecting States from corruption in transportation contracting, a practice commonly known as ``pay-to-play''. I

believe that this was due in large part to false statements that were made by certain groups and repeated on the floor of the Senate. I would like to take a moment to address both these comments and the continuing need for this measure.

The criticisms fall into three areas: First, that this measure was not needed to ensure fair and open competition for highway and mass transit contracts. Second, that Senator Lautenberg and I were trying to impose New Jersey's pay-to-play law on the rest of the Nation. The third criticism was that New Jersey did not need a change in Federal law in order for its own pay-to-play measures to be implemented. All of these points are wrong and I will address each in turn.

The first criticism was that our amendment was unnecessary. The U.S. Chamber of Commerce and certain members of the Senate argued that competitive bidding rules already guarantee fair treatment for all contractors, without any favoritism. That is not true. Governments can and do enact unfair conditions to restrict who may bid. Sometimes those conditions can be subtle, such as requiring a certain size for a company that receives a contract. Sometimes they can be more overt, such as overly burdensome licensing requirements. As a result, the playing field is hardly level for those who would like to compete for contracts.

The second criticism was that Senator Lautenberg and I were trying to create a national pay-to-play rule that would apply to every State in the country. That is also not true. We were not establishing a Federal pay-to-play rule in Federal highway contracting. We were merely asking the Senate to respect the rights of states to establish and maintain their own state contracting practices. Further, this only impacts contributions to state level candidates. Federal campaign finance laws are in no way affected.

Finally, opponents argued that New Jersey does not need a Federal fix for its pay-to-play problems. That is not true as well. New Jersey enacted a statute that limits contributions from a corporation or individual who does business with the state to no more than $300. While this is a valuable tool in ensuring that contracts are awarded solely on the basis of merit, a gaping loophole exists due to the fact that the U.S. Department of Transportation will not allow this law to apply to highway and mass transit contracts that use Federal funds. As a result, New Jersey faces a situation where nearly $900 million in the contracts for Federal highway and mass transit projects that it awards annually are susceptible to corruption. This is a ``corruption tax'' that New Jersey's citizens must continue to pay, thanks to the Senate's actions last week.

A number of States and cities have enacted pay-to-play statutes that are similar to New Jersey's. This includes South Carolina, Kentucky, Ohio, West Virginia, and New Jersey, and now Hawaii. In addition, pay- to-play measures have been enacted in the cities of Los Angeles, San Francisco, Oakland, Chicago, and 24 local jurisdictions in New Jersey. Pay-to-Play bills are also pending in Illinois, Connecticut, and New York City. Let me be clear, the Senate's actions have put all of these laws in jeopardy.

It is time for the Senate to ensure that both highway and mass transit contracts can be awarded without the taint of government corruption. We owe the taxpayers nothing less.

Mr. President, I want to take a moment to acknowledge the passing of Congressman Peter Rodino.

We have lost a great man, a great New Jerseyan, and a great American.

I had the most profound respect for Congressman Rodino's wisdom, fairness, honesty and sense of justice. He emerged a leader during one of the most difficult times in our Nation's history and he was more than equal to the task.

Congressman Rodino was born in Newark, NJ. The son of Italian immigrants, he rose to prominence from humble origins, working his way through law school and attending classes at night to earn his degree.

During World War II, he served his country with distinction, earning a Bronze Star. He returned a captain after having been promoted in the field.

Upon his return, he sought public office. He was elected to the House of Representatives in 1948 and would serve in the House for 40 years. And during those years, Congressman Rodino earned the respect of his colleagues and the loyalty of his constituents. He sponsored the Civil Rights Act of 1966 and authored its fair employment practices amendment; he played an integral part in the drafting of numerous pieces of civil rights legislation. We can also thank him for sponsoring the bill making Columbus Day a holiday.

Many, however, remember Congressman Rodino most for his role in Watergate as chairman of the Judiciary Committee.

During Watergate, a tumultuous period for our country, we needed a touchstone for honesty, fairness, and bipartisanship. Congressman Rodino was that touchtone. Tip O'Neill said of his fellow representative: ``He's enhanced the stature of Congress when we were at a low ebb.'' He earned the trust and respect of his fellow Democrats and Republicans.

He was a public servant in the truest sense of the phrase. We all can only hope to serve as he would and to represent our constituents with equal honor and grace.

My heartfelt sympathies go out to his family and friends. We all mourn his passing.

Mr. President, I rise today, along with Senators Lautenberg, Bingaman, Dodd, Durbin, Feingold, Inouye, Kerry, Boxer and Kennedy, to speak about a resolution supporting National Child Care Worthy Wage Day. It is my hope that it will bring attention to early childhood education and the importance of attracting and retaining qualified childcare workers.

Every day, approximately 13 million children are cared for outside the home so that their parents can work. This figure includes 6 million of our Nation's infants and toddlers. Children begin to learn at birth, and the quality of care they receive will affect them for the rest of their lives. Early childcare affects language development, math skills, social behavior, and general readiness for school. Experienced childcare workers can identify children who have development or emotional problems and provide the care they need to take on life's challenges. Through the creative use of play, structured activities and individual attention, childcare workers help young children learn about the world around them and how to interact with others. They also teach the skills children will need to be ready to read and to learn when they go to school.

Unfortunately, despite the importance of their work, the committed individuals who nurture and teach our Nation's young children are undervalued. The average salary of a childcare worker is just under $18,000 annually. In 1998, the middle 50 percent of child care workers and preschool teachers earned between $5.82 and $8.13 an hour, according to the Department of Labor. The lowest 10 percent of childcare workers were paid an hourly rate of $5.49 or less. Only one third of our Nation's childcare workers have health insurance and even fewer have

pension plans. This grossly inadequate level of wages and benefits for childcare staff has led to difficulties in attracting and retaining quality caretakers and educators. As a result, the turnover rate for childcare providers is 30 percent a year. This high turnover rate interrupts consistent and stable relationships that children need to have with their caregivers.

If we want our children cared for by qualified providers with higher degrees and more training, we will have to make sure they are adequately compensated. Otherwise, we will continue to lose early childhood educators with BA degrees to kindergarten and first grade, losing some of our best teachers of young children from the early years of learning.

In order to bring attention to childcare workers, I am sponsoring a resolution that would designate May as National Child Care Worthy Wage Day. On May 1 each year, childcare providers and other early childhood professionals nationwide conduct public awareness and education efforts highlighting the importance of good early childhood education.

I encourage my colleagues to join me in recognizing the importance of the work and professionalism that childcare workers provide and the need to increase their compensation accordingly. The Nation's childcare workforce, the families who depend on them, and the children they care for, deserve our support.

Madam President, I ask unanimous consent that the pending amendment be set aside so the Senate may consider amendment No. 606.

I thank the Senator from Oklahoma for his courtesy. I suspect that my statement will be somewhere in the neighborhood of 10 minutes and Senator Lautenberg an additional 5 minutes.

Mr. President, I once again thank the Senator from Oklahoma.

Before I begin, I echo the remarks of the majority leader and minority leader congratulating and thanking the members of the Capitol Police for their efforts in protecting all of us, which they so ably do day in and day out. It is a testimony to their forethought that we were so efficiently able to move from the Capitol and protect folks. We are blessed with their efforts. I also thank the Sergeant at Arms and the Secretary of the Senate for their efforts and look forward to saying ``thank you'' personally to all of the individuals involved.

I think I have asked that the pending amendment be set aside and we move to amendment No. 606, if I am not mistaken. Is that correct?

Mr. President, I rise today with my colleague, Senator Lautenberg, who will be joining me in a minute, to offer an amendment to the SAFETEA Act, S. 732. Our amendment addresses a serious problem where Federal highway and mass transit contracts are awarded by States, those situations where Federal money and State money are intermixed in contracting administered by the State. These contracts are often or can be influenced, either by perception or reality, by political contributions. The Government contracting issue I am speaking of is commonly known as ``pay to play.''

To address this issue in situations where States administer these contracts with both Federal and State money or where Federal money is administered by the State, Senator Lautenberg and I are offering this amendment to allow States to set contracting rules that limit campaign contributions by contracting providers. This is something that has been in Federal law for over 50 years where there are straight Federal contracts. Unfortunately, there have been far too many cases across the country where in these circumstances businesses have made contributions to public officials or campaign committees and then expected to influence the awarding of Government contracts. It is not an attractive situation.

Last year, two Governors lost their careers in public service due to pay-to-play scandals in their States. Other high-profile instances of pay-to-play corruption have occurred across the Nation, particularly in my home State where, on a bipartisan basis, our State legislators and Governors have reacted. But this is not unique to New Jersey. It has gone from New Jersey to California, from Philadelphia to Los Angeles and beyond. The problem is widespread and needs to be addressed.

Corrupt practices of pay-to-play have serious implications for the public. They have the effect of limiting competition in many ways because those who give political contributions then get the edge on those who might want to compete to do the business. They often reduce the quality of infrastructure projects--I will talk about a couple of situations that we see, particularly in my home State--and they lower the confidence of the public in elected officials and in public service in general.

Finally, and most important--this certainly is the case in my State-- they raise the cost of doing business for the government and ultimately to the taxpayer.

This practice is often more like legalized bribery than I think any of us would like to admit, and it results in a corruption tax that all citizens end up bearing. So I think there is a reason to make sure that we act.

I regret to say this disease has really impacted my State of New Jersey. It is something that, unfortunately, has infected both sides of the aisle in the State, both parties. It really needs to be addressed.

Just last month, dozens of local public officials--and I mean dozens, both Democrats and Republicans in one of our counties--were indicted for soliciting or taking bribes from people doing business with their towns, and it was often in conjunction with political contributions. Sadly, New Jersey taxpayers have been hit with this hidden corruption tax, higher costs of doing business in our State, and I think it needs to be moved against.

Our Governor, with bipartisan support in both Houses, was able to institute a serious pay-to-play ban that requires that any political contribution be less than $300 from anyone who wants to do business with the State. It is a straightforward, easy situation.

Honestly, time after time we have had the public trust broken in this contracting procedure, where Federal and State funds have been misused. We had a motor vehicle inspection contract where there was only one bidder. It was a cost-plus contract that ended up being over $200 million above cost. It ended up costing the Federal Government and the State a lot more than was necessary. Again, it is a corruption tax. We have had other places--the EZ-Pass toll collection system--where politically favored vendors were able to win no-bid contracts. It seems to me we need to make sure we put competition on a level playing field. That is what this amendment is all about.

Fortunately, New Jersey and several other States, as I suggested, have, on a bipartisan basis, addressed this issue. It is about contracting law, however, not campaign finance. It is setting the rules for who has the ability to bid. Unfortunately, the Department of Transportation recently informed the State of New Jersey that these commonsense limits may not apply to highway or mass transit contracts that use Federal funds. The Department of Transportation argued that it might limit competition when, in fact, I do not understand how limiting the amount of a campaign contribution has anything to do with whether someone is going to qualify to participate in a contracting bid. The State is now seeking an injunction in the Federal courts and there will be all kinds of litigation about this over a period of time. Whether it gets overruled or not, I think it is appropriate to institute the possibility that, if a State legislature wants to take the stand that they

would like to set rules for contracting, on contracts they administer, they have the ability to do it.

I think this is important, both for promoting competition but also for ensuring that there is clarity and confidence in the public bidding process, not only in my State but in a number of other States which have also bought into these kinds of rules. It is really a cross- section across the country in various places.

I have here a series of States--Illinois, Kentucky, Ohio, West Virginia, South Carolina--a number of places. These are States, as shown in the light green, that already have bills before their State legislatures. There are an enormous number of local jurisdictions that have also done it: Los Angeles, San Francisco, Oakland, Chicago--24 jurisdictions in my own State of New Jersey.

We think this is an important States rights issue. We should be able to enact laws that fight corruption without interference from the Federal Government. I hope we will look at this in a context that we want to make sure that what would work in those individual States is actually attended to.

Banning pay-to-play is consistent with current Federal practice when it is only Federal contracts that are being awarded. The Government already bans pay-to-play for Federal contracts that are awarded directly.

The Securities and Exchange Commission, along with a municipal rulemaking board, prevents pay-to-play when Government bond issues are at stake--again, a contracting issue, not a campaign contribution rule. In fact, I was instrumental and involved in this as an employer on Wall Street 10 years ago, to ban contributions from bond underwriters because it interfered too regularly with the overall process.

We think we can make a difference. These rules have worked when they have been instituted. They certainly have in the bond underwriting business, and they have Federal rules. The Federal Government is refusing to allow States such as New Jersey to enact similar contract reforms. I think this is an important step going forward.

I want to clarify something about this amendment. We are not establishing a Federal pay-to-play rule in Federal highway contracting. Some of the opponents would have you believe that. Those rules are already set by the Federal Government. It is merely respecting the rights of the State to establish and maintain their own State contracting practices. It only impacts contributions to State-level candidates, not Federal-level candidates. Federal campaign finance laws are in no way affected.

This commonsense measure has the support of a number of groups that work to protect the integrity of government spending: Public Citizen, Common Cause, the Brennan Center for Justice.

I ask unanimous consent to have letters of endorsement from these groups printed in the Record.

Mr. President, I also want to note the House of Representatives included a similar measure in its version of the Transportation bill. It was a bipartisan amendment sponsored by New Jersey colleagues, Frank LoBiondo, a Republican, and Bill Pascrell, a Democrat. This was passed unanimously, the same language, by the House.

In my view, this is an imperative step to allow States to have better control and more transparency and honesty in their contracting processes. I think it will move to save money for our States and put in place a greater sense of credibility for the public when it deals with its oversight of public contracting. I think we owe the taxpayers this, and I urge my colleagues to support the Corzine-Lautenberg amendment. We should join the House, in my view, in instituting this ability for States to control their own contracting process.

I yield the floor.

I understand my colleague, Senator Lautenberg, along with our other colleagues who left the Senate at the time of the recess, will be returning to speak to this amendment. I will yield the floor, but I would appreciate it if we could reserve the right of Senator Lautenberg, upon his arrival, to come back and be next on the queue to speak.

If I might ask the Senator from Missouri, if he has read the New Jersey legislation, in no way by my reading of that legislation does it supersede the competitive bidding requirement.

Yes.

I see the Senator from Missouri is no longer in the Senate, but I make very clear the amendment Senator Lautenberg and I are proposing in no way undermines the standard that there need be competitive bids in the Federal highway funds or in Federal funds that mix both State and Federal dollars.

This is about contracting rules that would encourage competition, not discourage competition. I believe if we were put side to side with Kentucky and West Virginia, we would find the New Jersey contracting rules are parallel. We would find this is one of the reasons the House unanimously agreed to this because it is an additional step that in no way undermines the standards that exist by the Federal Government.

Again, it reflects the desires of the State legislature and the Governor to have stronger, stricter rules on contracts administered by the State.

I yield the floor.

Mr. President, I appreciate the comments. I can understand the point of view if the bipartisan legislation from the State of New Jersey would in any way interfere with low-bid, sealed contracts on Federal projects. I would not be in favor of this, either. No-bid contracts should not be an accepted way of doing business in government. At least from the legal advice and understanding that I have of the New Jersey legislation, it does the opposite. It requires that it would conform both to Federal regulations and adds the additional element that there be restrictions on those participating who have contributed more than $300 in a contract that is over $17,500.

Practically speaking, the reality is that the Department of Transportation, and Republican and Democratic administrations in New Jersey--and I suspect this can very well be the case in other places-- sets specifications. Those who both lobby and contribute often arrange those specifications, so there are situations where those who have the ability to participate in the bidding contracts are limited and those specifications are written in a way that gives a bias to the contracting exercise. All this legislation that the State of New Jersey is asking for, its States rights ability to impose, are supplemental to the rules and regulations that the Department of Transportation is taking, and I believe it will protect the public and enhance the confidence for the State of New Jersey.

It is not an imposition on any other State. They do not impose these pay-to-play rules. It has no impact on another State. We are only asking for the ability of the State of New Jersey to put down the rules that the State legislature, on a bipartisan basis, believes will lead to lower costs and greater transparency to the bidding process.

I understand there is a difference of view, but I feel strongly about it and ask my colleagues to consider the fact that this is a supplemental and in no way undermines Federal regulations, does not impose this standard on any other State, and does go a long way toward dealing with concerns that people on both sides of the aisle in my State believe are undermining public trust and raising the cost to the Federal Government and the State government in doing business in our State.