Floor Statements

Mr. President, if I could ask the Senator a question. Maybe he could help me understand something I am having a difficult time understanding.

I had the privilege of serving as a law clerk in the 1960s to the Honorable John Minor Wisdom on the Fifth Circuit Court of Appeals. Judge Wisdom was among the four Republican-appointed judges who presided over the peaceful desegregation of the South. I have lived in the South and grown up in the South and know something about what those years were like.

I have been mystified, since I am not a member of the Judiciary Committee, by the treatment of Judge Pickering of Mississippi and Attorney General Bill Pryor of Alabama. I do not know Judge Pickering. I have met him briefly only twice. My staff and I studied his record. I have heard insinuations and words that were carefully chosen by the other side to suggest he was guilty of not being sensitive on racial issues. Yet when I looked into his record, I discovered, quite to the contrary. He had been living in Laurel, MS. In 1967, just to cite one example, he had testified in public against the leader of the White Knights of the Ku Klux Klan, which were the closest thing we had to terrorists in the United States of America in the last half century--an act of courage.

So here is a man who throughout his whole life was far out front on issues of race relations. He was living in an area where it was hard to do, and he had not been quiet, he had not been backward, he had been far out front of his neighbors on issues of race relations.

Then I learn about Mr. Pryor, the Attorney General of Alabama, and I realize in hearing Senator Sessions talk that he, too, was a law clerk to Judge Wisdom, the great civil rights judge in the South. I hear it said Mr. Pryor is somehow insensitive to racial and other matters.

Yet looking into his record, I learned he is at the moment seeking to oust the chief judge of Alabama in the case involving the chief judge's failure to obey a Federal court order to remove the Ten Commandments from the State Supreme Court, that the State Attorney General of Alabama wrote all the football players and coaches in Alabama to say they could not pray before football games because the law did not allow it, that he wrote to the district attorneys telling them they could not enforce a law against abortion, that he took a case all the way to the United States Supreme Court that was against the Republican party to which he belonged. It seemed to me here is a man who I recall Judge Wisdom talking about as a wonderfully talented young man. The judge was very proud of him. Here he has this record of upholding the law when it would be enormously unpopular in Alabama and certainly must be against his own views.

What is it about these two southerners, the latter one, the editor in chief of the Tulane Law Review, a law clerk to Judge Wisdom, this distinguished person; and then Judge Pickering, who was a leader for civil rights, endorsed by former Governor William Winter, the Democrat, endorsed by Frank Hunger, Al Gore's brother-in-law. What is it about the other side that will not allow us to have an up-or-down vote on those two southerners who have been nominated by the President to be a judge?

May I ask the chairman, did he not, as Attorney General of Alabama, advise the local district attorneys they could not enforce a law passed by the Alabama State legislature----

Because it would be in violation of a Supreme Court decision?

I wonder if the chairman remembers--I have heard a lot of talk tonight about what a great protection of minority rights the filibuster is.

I am trying to think back to the 1950s and the 1960s. How many rights of African Americans in the South were protected by the filibuster in the 1950s?

In the 1960s? How long was civil rights legislation held up in this very body by the filibuster? What was it that caused the cloture rules to be changed so now it takes 60 to override instead of 67? It was the Nation's anger about the filibuster, denying equal rights for African Americans in the South in the United States.

What is so great about the filibuster in terms of protecting the rights of minorities and individuals if it delayed progress on civil rights for so long in this country?

How much time does the majority have?

Mr. President, insofar as the Senator from Arizona's comments are concerned, he said we gave 168 a fair trial and hanged 4 without a trial. He might have also said we had never done that before this year. That is the point.

Let me step back from this and try to put it in a little different framework. I am new to the Senate. I came here in January for the first time even though I worked here before, 35 years ago, for Senator Howard Baker.

A lot of people ask me, knowing I was a Governor for a while: What do you think of it? How do you like the U.S. Senate?

I suspect the reason they ask that is that some former Governors who have come here have not liked it. It is a very different sort of job. But this has been a great privilege for me. It is hard for me to think of a thing that has not been good about the last 10 or 11 months.

The Senator from Louisiana is here. One of the good things is she and I have worked together on issues that have to do with the environment and energy. So the opportunity to speak, the people with whom I work, the issues I deal with, all those things make serving in the Senate a great privilege.

The only real disappointment I have had is this issue of judges, of the treatment the Democratic side has given to President Bush's appointment of judges. I have been puzzled by that. I have even said to some of my friends on the other side: Before this year, before I got here, the Republicans must have done something awfully bad to you to produce this kind of reaction because I really don't understand it.

I know something about the appointment of judges. As Governor of Tennessee, I appointed about 50 judges. In fact, the other day, I went back to Nashville for the retirement ceremony for Chancellor Irwin Kilcrease. I appointed him in 1980. He was the first African American ever to serve as a chancellor in our State. He served with dignity. I didn't ask him his political party before he was appointed. It turned out he was a Democrat. I didn't ask him his view on abortion. I still don't know what it is. I didn't ask him how he was going to decide the cases before I appointed him. I thought it would be totally inappropriate.

I checked to see if he was intelligent, fair, had good character, if he would respect people who came before him, and I appointed him and he has served with great distinction, as did the others.

I also worked for a great judge. The Senator from Louisiana certainly knows him well, or knew him well. His name was John Minor Wisdom. He lived in New Orleans. When I graduated from law school in the mid- 1960s, he was already considered to be one of the great Federal judges of the country.

He and Judge Elbert Tuttle of Atlanta, Judge Richard Rives of Florida, and Judge John R. Brown of Texas, all appointed by President Eisenhower, Republican judges, presided over the peaceful desegregation of the South in the 1960s and into the 1970s. In 1962, they ordered Ole Miss to admit James Meredith. They are regarded as heroes in the South.

Judge Wisdom was a great judge. I am sure, before he was appointed, no one in the Senate asked him how he would decide the cases he was about to decide.

What is going on in the Senate today reminds me of the old mountain story about the lawyer who came up to the judge at the beginning of the case and said: Judge, may I make a few arguments on the law? May I tell you about the case?

The judge said: You don't need to tell me about the case. I got a phone call last night. I pretty well know the facts. Just give me a few points on the law.

The importance of judgeships in America is that when we go before them, we expect to be treated fairly. We don't believe it is a political exercise. And we accept the results. That is why it is so inappropriate, it seems to me, for us suddenly to be rejecting President Bush's appointments because of their permanent views when it is established by their long records that they are able to apply the law.

Let me especially speak about a couple of cases from the part of the country I know the best, the South. I want to mention first the attorney general of Alabama, Bill Pryor. I want to mention, second, the Federal judge from Mississippi, Charles Pickering.

Let's talk about Bill Pryor. He is a young attorney general, I just learned the other day. I had not really focused on him enough to know exactly who he is. He also was a law clerk to Judge Wisdom. He was editor in chief of the Tulane Law Review. I am certain the Senator from Louisiana would agree that would qualify someone, at least on paper for good starters, to be a good judge. I know Judge Wisdom hired extraordinary people. I know he never hired anyone who wasn't fair. I know he would never tolerate anyone in his office who wasn't committed to civil rights because he was one of the leading civil rights judges in the country. Yet on the other side of the aisle, the argument against Bill Pryor--this is no more than a racial smear--is that he is not sensitive to civil rights, he is a white conservative from Alabama and, therefore, can't be trusted, that is what the point is. But there is nothing in his background that would suggest that. That is made up out of whole cloth. That is not the reason the other side will not give Mr. Pryor an up-or-down vote, something that has never been done in the history of our country until this year with Federal nominees.

Let me just speak about what Mr. Pryor's career has included. When he was appointed attorney general of Alabama, he voluntarily said in his ceremonial remarks he criticized the State constitution for banning interracial marriage. He didn't have to do that. He volunteered that.

What is he doing today? He is trying to oust the chief judge of the Alabama Supreme Court because the judge insists on keeping a copy of the Ten Commandments in the courthouse in violation of a Federal court order. It is not because Mr. Pryor doesn't believe in the Ten Commandments. He believes in the law. He is able to put the law ahead of his own views.

He is a Republican. He took to the Supreme Court of the United States a reapportionment case that worked against the Republican Party in Alabama. He didn't do it because he wanted to hurt the Republican Party, he did it because he was able to put the law above his own political beliefs.

What else did he do? This may be the most serious and difficult act that an Alabama attorney general could do. I am surprised that he is still in office having done it. He wrote a letter to every school district in Alabama--to every superintendent in every school--telling them the football coach couldn't lead a prayer before the football game--not because he doesn't pray, not because he is not religious, but because he believes the law doesn't permit it. He is a Roman Catholic. He said so in the hearing. He is pro-life. But on the issue of abortion, he wrote all of the district attorneys in Alabama and told them they could not enforce an anti-abortion law passed by the State of Alabama because parts of it were unconstitutional. He put the law before his religious beliefs.

Here is someone who was the editor in chief of the Tulane Law Review, a law clerk to the greatest civil rights judge of the last 30 years in the South, who has consistently put the law ahead of his own beliefs, and the other side won't bring him up for a vote. Why would that be?

Let us go to Judge Pickering for a moment, another example in the South.

The suggestion has been made that he is not racially sensitive. Those are code words. That is to suggest that somehow Mr. Pickering is a bigot and is not fair to African Americans. We all know what the slur is, what the slander is, what the implication is. We all know what that means. But what do the facts show?

The facts show that Mr. Pickering was not on the sidelines, that he was not in the background, that he was out front during the great civil rights struggle of the 1960s and the 1970s. He lives in Laurel, MS. He lived at the center of the problems of racial desegregation. He lived in the same town as the head of the White Knights of the Ku Klux Klan, Sam Bowers. The White Knights were organized because they didn't think the Klan was mean enough. The White Knights and Sam Bowers, according to the Baton Rouge Advocate, was the most dangerous, the most violent racists living in the 1960s.

We hear a lot about terrorists today. The terrorists of the 1960s in the United States were the Klan members in Laurel, MS.

What did Charles Pickering do? He testified in public against Sam Bowers, in the courthouse, against the most violent living racist in America, according to the Baton Rouge Advocate. That was 1967. He has had a whole lifetime of commitment to racial progress. It seems as if almost everybody in Mississippi supports him, including most of the Democratic leaders.

William Winter, my friend with whom I served, former Democratic Governor, a beacon for racial progress in Mississippi, strongly supports Judge Pickering. Frank Hunger, who was a law clerk on the Fifth Circuit Court of Appeals where I was--Frank Hunger was President Clinton's Deputy Attorney General, he is Al Gore's brother-in-law, and he strongly supports Judge Pickering.

Why in the world would the other side slur Judge Pickering and suggest that he is guilty of racial insensitivity when he stood up for desegregation? He might have been on the other side that opposed segregation, but he wouldn't. He was out front risking his life, literally, and putting his own children in public schools when others were running off to segregated academies. When we bring him up before the Senate--after sticking his neck out and sticking up, in Mississippi, for desegregation--we cut his neck off in Washington, DC? Why is that being done? I am not sure. I know it is not right constitutionally.

The President nominates the judges. That has always been the way it was. Despite the rhetoric on the other side, until this year, this Senate has never used the filibuster to deny an up-or-down vote to a Presidential nominee who has a clear majority in the Senate. The filibuster has been used for other purposes by the other side.

I was hearing a lot of talk last night about protecting the rights of the minorities. There were not a lot of African Americans in the South in the 1960s who felt really protected when a filibuster was being used by Senators to stop the most important piece of civil rights legislation that was offered here. So it is not that great a device to have.

Why are they doing this? I don't know. One clue is to change the rules, which we may have to do, but the other is the election, which I guess is what I prefer.

In Senate races in Florida, in North Carolina, in South Carolina, in Arkansas, in Georgia, and all across this country, I hope this is an issue. I hope people say: Why was President Bush, for the first time in our history, not given a chance to have up-and-down votes on men such as Charles Pickering and Bill Pryor who were extraordinarily qualified, had the majority vote and were courageous leaders in the South? Is it because they are southerners? I don't know what it is. But the other side is so captured by narrow interests that they are digging a hole so deep that I hope it has an important political result next year.

I would prefer to see us operate differently, and I will pledge to do what the Senator from Utah pledged to do. While I am a United States Senator, if a nominee comes to the floor for a judgeship by any President, Democrat or Republican, I will not participate in a filibuster. I will vote to cast an up-or-down vote on any nominee of any President. I think that is the right thing to do. The sooner those of us on both sides do that, the more we will get back to appointing judges in the way Judge Wisdom was appointed, and the way Judge Kilcrease was appointed. And we would appoint judges we would respect. We would not be asking them how they will decide cases before they come in, and we would not be submitting them to an ideological litmus test before they are appointed.

I yield the floor.

Mr. President, I have been listening to my friend from Iowa. One thing he said that I agree with: The quote from ``Finian's Rainbow'' about making up the rules as they go a long.

The issue before us is a pretty simple one. I think a lot of other Americans think President Bush ought to appoint judges with conservative principles who will not make up the rules as they go along, who will not make up the law as they go along, who will enforce the law as they find it, as Attorney General Bill Pryor does in Alabama, as Judge Pickering does in Mississippi.

The issue here, after all the charts are taken down and all the rhetoric is put aside, is very simply this: For the first time in our Nation's history, the Democrats are using the filibuster to keep us from having an up-or-down vote on President Bush's nominees after they have gotten out of committee, after they have gotten to the floor, and after it is clear they have a majority of votes. That is the first time in our Nation's history.

Second, they are doing it to extraordinarily well qualified women and men. I don't know whether that is grounds to change the rules of the Senate or not. But it surely is grounds for the people of the South and this country to address in the next election. Should a President have the right to appoint judges with conservative principles who will enforce the law rather than make it up as they go along? We believe that a President of whatever party should have that right. The other side, for the first time in 200 years, says: We are going to stop you from having an up-or-down vote on people who have the majority vote.

I ask unanimous consent that Bridget Lipscomb of my staff be permitted the privilege of the floor during the time I am on the floor until 9 o'clock.

Mr. President, today is Veterans Day. It is a time to pay tribute to those who have fought for our freedom and made us the Nation we are today.

On November 11, 1919, Veterans Day began as Armistice Day. It marked the first anniversary of the cease-fire agreement among the Allied powers and Germany to end World War I. It was also to honor the men and women who sacrificed during that conflict.

In 1926, a congressional resolution officially named Armistice Day in the United States. It became a national holiday 12 years later. In 1954, Congress passed a law to change the name from Armistice Day to Veterans Day to honor veterans of all U.S. wars.

As I think about our veterans and all they have sacrificed, I am reminded of a day 6 months ago when I visited Madisonville, TN, to see and participate in the raising of the largest American flag in our State--1,800 square feet.

It was really an awful day. The rain was coming down, there was lightning and thunder, but hundreds of people stood there to participate in that ceremony because we knew we were enduring much less in that rain and in that lightning than men and women from Tennessee who are serving in Afghanistan or Iraq, or had served on the beaches of Normandy, or in the rice fields of Vietnam.

Tennessee is the Volunteer State. From the battle of King's Mountain in the Revolutionary War, through the Mexican War, the Civil War, and our World Wars, Tennesseans have volunteered. We have honored those volunteers, and we have honored them as veterans.

As this Nation devotes a day to our veterans, we honor both Tennessee veterans and Tennessee soldiers because so many Tennesseans-- thousands--are serving in the battle against terrorism--men and women in active duty, as well as men and women in the National Guard and those in the Reserves.

The best thing we all can do on this Veterans Day is to show as much respect and honor to our veterans as our veterans have always shown to our country.

Mr. President, on this Veterans Day I recognize a military public awareness initiative that Mr. K. S., Bud, Adams, the founder and owner of our NFL Tennessee Titans, played a strong role in instituting this past weekend. Mr. Adams, a U.S. Naval Officer during World War II, and five other National Football League owners who also served in the military during that same time, urged NFL Commissioner Paul Tagliabue to launch this campaign to help the hundreds of American families of our brave military servicemen and women who have died for our country in the line of duty in Afghanistan and Iraq. Mr. Adams and his fellow NFL owners urged NFL headquarters to initiate an awareness campaign at NFL stadiums and on NFL game telecasts starting Veterans Day Weekend, November 9-11, to help bring attention to the difficult financial situation that our military dependents face in the days and weeks immediately after a serviceman's or woman's death in the Middle East.

The other five NFL owners who served during World War II are Tom Benson, New Orleans Saints; Wellington Mara, New York Giants; Art Modell, Baltimore Ravens; Alex Spanos, San Diego Chargers; and Ralph Wilson, Buffalo Bills.

As Commissioner Tagliabue said in announcing this new program: ``Our clubs recognize that the men and women of our Armed Forces are tremendous NFL fans. This program is one small way to repay that support to families who lose a loved one in defense of our country in the Middle East. Our NFL owners, coaches and players speak with one voice when it comes to this project.''

The campaign cornerstone is a new national TV and radio announcement produced by NFL Films that aired on every NFL game telecast this past Veterans Day weekend. It is narrated by Vietnam veteran and former Pittsburgh Steelers running back Rocky Bleier. The message encourages NFL fans to support the Intrepid Foundation's Fallen Heroes Fund, which provides an immediate $10,000 grant to military families who have paid the ultimate price with the loss of a member in Iraq or Afghanistan. The following is the text for the television message narrated by Bleier:

The National Football League family is committed to

supporting the courageous men and women serving in the U.S.

Armed Forces in the Mideast.

But the fight for freedom is not without loss.

And the NFL urges you to join us and the Intrepid Fallen

Heroes Fund in supporting the military families of those

heroes who have sacrificed their lives in the service of our

country.

Please visit www.nfl.com/heroesfund and help support those

families in need.

This program--and the $100,000 contribution that the NFL made to kickoff the initiative--is the latest in the NFL's continuing support of our U.S. military personnel. That tremendous NFL support dates back at least to World War II when 638 NFL players served in the military, including 19 who were killed in action. The NFL has worked with the USO for decades in sending NFL players overseas to Vietnam, Korea and more recently Iraq to let our courageous troops know that they are not forgotten.

I hope you will join me in applauding Mr. Adams and the NFL for their latest ``Families Helping Families'' public awareness program and thank them for their support of our brave men and women in uniform.

Mr. President, yesterday, the World Trade Organization upheld its earlier ruling that the steel tariffs imposed in March of last year are illegal and in violation of global trade rules. As a result of this ruling, the European Union threatened to impose trade sanctions on American imports sold in Europe, ranging from footwear to fruits and vegetables. The EU has said that it will impose duties of 13, 15, 30 percent on these imports as soon as December 6 or at the latest December 15, if the steel tariffs continue to remain in place. The EU trade sanctions alone would amount to about $2.2 billion.

Unfortunately though, the EU is not alone. Japan has announced that it will join the EU in retaliatory trade sanctions against the U.S. China, Norway and Switzerland have also notified the WTO that they will possibly impose trade sanctions against the U.S. if the steel tariffs are not removed.

There is plenty of evidence that if the steel tariffs are allowed to continue they will do more harm than good. On September 19, the International Trade Commission released its report on the effects of the steel tariffs on steel consuming industries. Here is what they found.

One-half of the steel-consuming firms that were surveyed reported they had difficulty in obtaining steel in the qualities and quantities they needed.

Almost one-third of these firms relocated or shifted production to foreign plants or facilities after the implementation of the tariff.

One-quarter reported that their customers had shifted to purchasing finished parts or assemblies overseas as a result of the steel tariff.

Almost one-third of these firms also reported their contracts they had in place to purchase steel were broken or modified after the tariff was imposed

and reported a loss in profits due to these problems of approximately $190 million.

One-third of these firms reported longer lead and delivery times.

In addition, the report further highlighted the particular impact the steel tariff has had on auto-parts suppliers. Tennessee is home to over 950 auto-parts suppliers and they make up about one-third of all our State's manufacturing jobs.

Eighty-five percent of the auto-parts suppliers surveyed said that their steel prices in the US were higher than global prices.

Thirty-one percent reported that customers had shifted purchases to buying finished parts or assemblies overseas as a result of the tariff.

Seventy-four percent reported changes in contract prices for steel and 55 percent reported that steel tariff was the only important factor in these changes in steel prices.

Seventy-nine percent reported an inability to pass on steel price increased to customers.

All of these burdens have meant extra costs to steel consuming firms. Extra costs that have affected steel-consuming jobs all across America. The steel tariff may have saved some steel-producing jobs but is has already destroyed a lot more steel-consuming jobs.

The American economy is beginning to recover and I strongly believe that this recovery is a direct result of the President's jobs and economic growth plan. The last thing we need now is any new cost such as the steel tariff on a major manufacturing sector that slows down economic growth. I fear that if the steel tariff remains that we will see more plant closings during 2004 in Tennessee and across America.

I believe the President has made an honest good faith effort to save steel jobs, but that it has backfired by destroying automotive and other steel consuming jobs. I hope that he decides that the best decision that can make for the American worker is to end the steel tariff.

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

Mr. President, I ask unanimous consent to speak in morning business for as much time as I may consume.

Mr. President, Mr. Carper, the Senator from Delaware, is on the floor. He may want to speak in a few minutes. I have a few comments I would like to make about the debate we are having about unfunded mandates and Internet access taxes.

First, I thank Senator McCain, the chairman of the Commerce Committee, who has been working very hard to help bridge what is a fairly big philosophical difference of opinion some of us have, and I express my appreciation to the leader, Bill Frist, because he created some time today and last night for us to debate and talk about the issues. I think we have made some progress.

But here is where we are. As with most of our debates in the Senate, we have two valid principles in which most of us believe: First is, no taxation of Internet access. I have yet to run into a Senator who really wants to tax Internet access. Virtually all of us are willing to keep State and local governments from taxing Internet access.

I am a little bit of a purist on unfunded Federal mandates, with Washington politics telling State and local officials what to do, but the amendment which I have offered, and which Senator Carper and others have joined in, would ban State and local government taxation of Internet access.

That is the first principle. We want the Internet to grow. We don't want local taxation. We don't want taxation that discriminates.

The second principle is, we don't want unfunded Federal mandates. That may be a little bit of a Washington word, but most people know what it means. It means Senators and Congressmen who come to Washington and pass laws and claim credit and send the bill to the school boards and Governors and mayors. Nothing makes local officials madder. This Congress, to its great credit, since 1995, has been very resolved against unfunded Federal mandates. So we don't want to tax Internet access and we don't want unfunded Federal mandates.

We haven't found out how to put the two together. We have offered a solution. There are really two basic ones out there. Ours would be to just take the current law, the current ban on taxing Internet access or allowing State and local governments to make that decision, and extend it for 2 years, and then to make a change to minimize discrimination between providers, providers being phone companies and the cable companies. That is our proposal.

The proposal on the other side was to create a much broader definition of what we mean by Internet access which would create a huge unfunded Federal mandate and take away, we believe, billions of dollars from State and local government tax bases, cause them to cut services or raise taxes on many other things, and make it permanent. That is the proposal.

Our argument is that our 2-year extension of the current law, with one adjustment to level the playing field between telephone companies and cable companies, is better for the country than a permanent installation of a very broad definition. So the issues are duration and definition.

The reasons for our amendment are these. One, we want to preserve the original intent of the Congress. The 1998 law was to keep the basic Internet access tax free. By that we mean, when you hook up your computer to AOL, the intention is that that is tax free. In our amendment, even as the telecommunications industry moves more on to the Internet, that would continue to be tax free. It is really a significant infringement on State and local prerogatives to decide what taxes to raise

on their own. We want to make sure no one will be able to tax e-mail or surfing the Web. We want to make sure that States don't lose the bulk of their telecommunications revenues. Those were our major goals.

The opponents have raised many objections to these ideas. They say the Internet is so valuable that it should not be taxed. Well, we don't tax it any more than it is now. We don't allow taxing any more than it is now. And it makes me wonder. I agree the Internet is valuable. I supported the first moratorium. But it is a grown-up business now. It is no baby in a crib. We had 3 years and then 2 years. Now we are talking about another 2 years.

The telephone is valuable. Television is valuable. Airplanes are valuable. The automobile was a great invention. We don't tell State and local governments what to do about their tax policy for those businesses. The Internet is not a baby in a crib anymore. It can at least afford to hire some of the most expensive lobbyists; we know that.

Then they talk about interstate commerce, that we are messing around with interstate commerce when we talk about telling States what to do about taxing Internet access. I read the Constitution again to make sure I was right. Article I, section 8, says Congress has the power to regulate commerce among the States, but it doesn't say exactly what to do about it. It means Congress can impose limits. They can do some things.

There is also another provision called the 10th amendment which reserves all the powers to the States unless they are specifically delegated to the Congress. That is where the whole prohibition against unfunded Federal mandates came from. That is why, in 1995, this Congress passed as its first bill S. 1 of the new Republican Congress, to stop unfunded Federal mandates--Congress telling Governors and mayors and school boards what services to provide and how to spend their money.

As long as we are allowing States to make decisions about taxation on telephones and telegraphs and bus tickets and airline tickets and severance taxes, all of which are interstate commerce, I don't know why we worry so much about that.

There is the assertion that we might be taxing broadband. That is Internet service delivered by telephone and cable companies. We are really not taxing anything. We are trying to decide whether we should write some rules for what States should do. Broadband is a wonderful thing. It is always just around the bend. We want to it come. What we have said is that except for grandfathered States that now tax DSL Internet phone service, it can't be taxed in the next 2 years. We are just trying to level the playing field for 2 years, as we take the current law and extend it for that period of time.

Multiple taxation would be banned under our amendment, just as it is today. Discriminatory taxation is banned under our amendment, just as it is today. Taxes on e-mail and basic Internet access, banned, just as they are now.

So it seems to us our amendment is a good one. We are willing to continue to visit and talk with the Senator from Virginia and the Senator from Oregon, who have worked very hard and believe very strongly in this. But our arguments are, the Congress has promised not to pass any more unfunded mandates. We have made it a violation of the Budget Act to do so. We should respect that as much as we possibly can. No. 2, their proposal is potentially a huge unfunded Federal mandate which we have promised not to do.

We believe our amendment is better at reconciling two valid principles: One, continuing the ban on basic Internet access and, two, making an adjustment to create a more level playing field between cable and telephone while making a minimum offense to the principle of unfunded Federal mandates.

We also believe that a short term--a couple of years--allows us to craft wise decisions about what is happening in a rapidly changing technology, and theirs would impose an inordinately broad definition of what we mean by Internet access permanently or for an unreasonably long period of time.

There was a letter sent around from the Republican Policy Committee which asserted that the objective of the unfunded mandate law was to stop the Federal Government from imposing affirmative duties or regulations on the States. It basically argues that the Allen-Wyden amendment is not an unfunded mandate. All I can think is that that memo didn't make it all the way through the vetting process. It argues that the unfunded mandate law Congress passed in 1995 doesn't apply to situations where the Congress might say, for example, States may not collect taxes on telephones and telegraphs. If we were to say that, that would mean State and local governments would be deprived of $20 billion of their tax base next year, and they would have to raise taxes on food or medicine or income or property or something else, or cut services.

By the very plain terms of the Unfunded Mandates Act of 1995, it includes both affirmative actions. For example, when we pass a bill that says Memphis shall do thus and so for disabled children but we only pay for half of the cost, that is one kind of unfunded mandate.

But according to the Congressional Budget Office and the plain English in the 1995 law, it also includes the definition of direct cost of a mandate, ``the amounts State and local governments would be prohibited from raising in revenues to comply with the mandate.'' An unfunded Federal mandate also includes our telling the States you cannot raise revenues from these sources. If we think it is so important to do that, we are supposed to pay that.

I am afraid in this case the Allen-Wyden amendment, while they have worked hard to try to narrow it, still raises the possibility many billions of dollars would be lost to State and local tax bases. In other words, we would be imposing a multibillion dollar unfunded Federal mandate on State and local governments.

We believe there is a better way, that we can continue the ban on Internet access, but do it in a way that minimizes the unfunded Federal mandate. Because the leader asked us to, and we want to, we will be working over the weekend, and our staffs are meeting this afternoon. We will be working early next week, and we hope we can come to some agreement in a very short period of time.

I am grateful to Senator Carper for his leadership in helping us come up with a sensible path in the future. I wanted to give that report on the status of where we are.

Yes.

Mr. President, I ask unanimous consent to speak as in morning business for 5 minutes.

Mr. President, as I was listening to Senator Carper, I was thinking about what he just said. I believe I am right about this, but Senator Carper can correct me: What we are saying in our amendment is if the Senator from Delaware or I hook up a computer to the Internet, our amendment would prohibit State and local governments from taxing that event; isn't that right?

That would be true even if Internet access moved over from the current way many people do it--and this is hard for people to understand many times--over to the cable or the phone company; is that right as well?

So from the point of view of the Federal Government interfering with local governments, we would be making a pretty significant interference there because we would be affording to the Internet access connection a protection that we didn't afford the telephone, that we didn't afford the telegraph, that we didn't afford the purchase of food, the purchase of medicine--anything. If you hook up your Internet, nobody can tax you. That would be our proposal.

The other point the Senator from Delaware is making--Delaware in particular has done this--is, say, in the District of Columbia there was a big cable company or big phone company, and the District of Columbia said: We may not be able to tax the connection between Senator Alexander's computer, but we can sure tax the cable company, we can sure tax the telephone company that provides that connection, and they raise the taxes to a very high level for certain of these points along the Internet architecture. I assume it is entirely possible the Governor of Delaware may ride the train down to the District and say: The tax may be 20 percent, but come live with us in Delaware; come to our State; we don't have a right-to-work law; other States do; we don't have an income tax; other States do. We may have a higher corporate tax than other States. States have these differences all the time, and if one State gets out of line, people leave, businesses leave, elections are held and people are

thrown out of office. That is the way we have operated the government for a long time.

This is a nation that from its beginning operated community by community and State by State and has had a great aversion to central direction of too many of these decisions.

Mr. President, I ask unanimous consent to print in the Record two editorials from Tennessee newspapers: One from the Tennessean and one from the Chattanooga Times Free Press. They just came today.

The last sentence in the Chattanooga Times Free Press article says:

If the federal tax ban becomes permanent, state and local

governments may have to come up with great amounts of tax

money in other burdensome and permanent ways that taxpayers

will not like.

The Tennessean says:

Sen. Lamar Alexander is not voting to raise taxes. He is

not trying to increase the cost of Internet access, nor is he

advocating a new tax on e-mail.

Instead, Alexander is trying to protect states from

excessive control by the federal government. Yet the

conservative states-rights position the senator has taken on

Internet access has been turned on its ear by some of his

critics. . . .

Mr. President, I believe the more Senator Carper, Senator Voinovich, Senator Enzi, Senator Graham, and I talk about this issue, the more people are coming our way. I look forward to continuing to work with other Senators who have different views, and I hope we can come up with a good conclusion to this that respects both principles: banning taxation of Internet access and not imposing large unfunded Federal mandates on State and local governments.

I yield the floor, and I suggest the absence of a quorum.

Mr. President, I would like to announce for the information of the Senate and the public

that the Subcommittee on Energy of the Committee on Energy and Natural Resources will hold a hearing on Saturday, December 6, 2003 at 9 a.m. The hearing will be held at the Paducah Information Age Park, 2000 McCracken Blvd., Paducah, KY.

The purpose of the hearing is to conduct oversight and accounting of the cleanup at the Department of Energy's Paducah, KY site.

Because of the limited time available for the hearing, witnesses may testify by invitation only. However, those wishing to submit written testimony for the hearing record should send two copies of their testimony to the Committee on Energy and Natural Resources, United States Senate, SD-364, Washington, DC 20510-6150.

For further information, please contact Pete Lyons (202-224-5861) or Shane Perkins (202-224-7555).

Mr. President, I thank the Senator from Florida for his remarks and say to him and the Presiding Officer and Senator Carper how much I appreciate the opportunity to work with them on this issue. They have been leaders in our country, in our States, among the best Governors we have had over the last number of years, and I welcome the chance to work with them. I thank Senators Allen and Wyden for their hard work on this issue. They have been working at it for a long time. I respect that and appreciate it. I thank Senator McCain for his congeniality and his efforts to move things along. He and the majority leader, last week, agreed to give us an opportunity, as they have done tonight, and for tomorrow, to make our case, state our issues, have votes that we want to have, and I am grateful for that during a busy season. It would have been easier to just let this go by. There are a lot of issues before the Senate, but there are a bipartisan group of us who think this is very important as well. Each of you have stated tonight--and I don't need to restate it--why that is so.

I think it is a part of the tradition of the Senate that it be the saucer in which the coffee cools. What we have found over the last several days is, as our colleagues on both sides of the aisle have looked at this unfunded Federal mandate that affects internet access, they have more questions about it. There are more people who are deeply concerned about the proposal of the distinguished Senators from Virginia and Oregon.

So I am appealing tonight, and will be doing so tomorrow, especially to those Members of the Senate who have been mayors and Governors, who have been legislators, city council men and women, to look at this and the issues of Federalism. In sort of a reverse partisanship, I want to appeal to my colleagues on this side of the aisle, for whom the idea of unfunded Federal mandates has been a central part of our beliefs. It was the center of our Republican resurgence in 1994, the heart of the Contract With America. S. 1, the No. 1 Senate bill that the new Republican majority leader, Bob Dole, introduced in 1995, was the Unfunded Mandates Reform Act. So this is important stuff for the Republican Party.

In listening, though, to the issues that are being discussed tonight, let me see if I can summarize some of what I believe I have heard and discuss for a moment the amendment that I will be sending to the desk, or have already forwarded to the desk, on behalf of several of us.

The question tonight is whether and to what extent we will allow State and local governments to tax Internet access. That is the issue. There are really

two arguments among those of us who are arguing. The first one is--and I may be alone in this, but I don't think so--I don't like any unfunded Federal mandate. I supported the idea of a moratorium on State and local taxation of access to the Internet when it all began. Most of us did. That was in the mid-nineties. It is hard to think back that far. The Internet was an infant in a crib then and none of us wanted it to be squashed in its infancy.

Then after 3 years, along came various advocates who said: Let's give it another 2 years. That very narrow ban on Internet access, which didn't cost very much money--probably so little money during that time it didn't qualify under the Unfunded Mandates Reform Act as an unfunded Federal mandate--so it was extended 2 years.

Now the advocates of the other position are coming along and saying: We want to make this ban permanent, and we want to broaden the definition of what we mean by ``Internet access,'' so what we have here is not such a complex issue. We have really two questions: Do we want a permanent ban, or do we want a 2-year ban? The second is, Do we want to extend the same definition of ``Internet access'' we now have with a minor change, or do we want a broad definition of ``Internet access'' that might cost State and local governments billions of dollars? That is really the issue that will be presented when we vote most likely tomorrow.

I send to the desk, but do not call up, an amendment on behalf of myself, Mr. Carper, Mr. Hollings, Mr. Stevens, Mr. Voinovich, Mr. Graham, Mr. Dorgan, Mrs. Feinstein, Mr. Lautenberg, and ask that it be filed.

I wish to discuss three issues. One is the strange case of amnesia that seems to have set in, especially on my side of the aisle, about unfunded Federal mandates. The Presiding Officer made an eloquent discussion of that issue. So did other speakers.

The second is, I would like to discuss specifically why this is an unfunded Federal mandate under the specific terms of the budget law which was amended in 1995.

Finally, I want to say a word about the amendment which we will offer, which we believe is a better extension of the ban on Internet access than that proposed by Senator Allen and Senator Wyden.

I very well remember 1994 and 1995. Senator Voinovich remembered he was in Williamsburg, VA, when the Governors met. I remember that Senator Voinovich, then a Governor, was the acknowledged leader of State and local forces who were deeply concerned about the practice of Washington politicians passing laws claiming credit and then sending the bills to mayors and Governors. Nothing really made us Governors much madder than that, people getting elected to Congress and presuming they had suddenly arrived here in Washington, that they had a great idea about children with disabilities, and they would order us to do it and then order us to pay for it, or at least pay for half of it.

We cared about children with disabilities, too, and we felt as if we were elected to make those decisions. We found nothing in our laws and constitutions about how the Federal Government ought to define for us what our tax base ought to be or ought to be telling us all of these things.

I vividly remember the new Republican majority leader of the Senate, Bob Dole, coming to Williamsburg that very meeting Senator Voinovich mentioned. Governor Allen, now Senator, was presiding. Thirty Republican Governors were there. Speaker Gingrich and Majority Leader Bob Dole came. Speaker Gingrich talked about the Contract With America. We Republicans can remember that--300 Republican candidates standing on the steps of this U.S. Capitol saying: Here is our 10-point plan; elect us, and if we break our promise, throw us out. That is what we said. That is what we Republicans said. What was our promise? The heart of that promise was no unfunded Federal mandates.

Senator Dole knew that. It wasn't just a matter of the House of Representatives. He came to Williamsburg, VA. He pulled out a copy of the Constitution. He must have done it 100 times in the next year because I was with him 100 times in the next year when he did it. We were both campaigning in Presidential primaries, and he would read the tenth amendment. He would read:

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

That was Bob Dole in 1994 and 1995. He was good to his word.

We have a practice of the Senate. The majority leader will pick the most important bill and make it his bill and call it S. 1. S. 1 that year for Senator Dole, the new Republican majority leader, was the Unfunded Mandates Reform Act of 1995. As Senator Voinovich said earlier, it passed 91 to 9. Sixty-three of the Senators who voted for it then are serving in this body today. Twelve of them were House Members then.

There was a lot of steam in that argument then. I would like to read just a paragraph from a backgrounder put out by the Heritage Foundation in December of 1994. This is just a little while after the Governors met. This paragraph says:

Throughout much of American history, especially since the

New Deal--

This is how they were looking at it--

the Federal Government increasingly has encroached upon the

fiscal and constitutional prerogatives of State and local

government. Today this imbalance has reached a crisis point,

and the States are fighting back. Through a variety of

initiatives, they are demanding that Federal mandates be

funded and, in many cases, even are challenging the authority

of the Federal Government to impose these mandates, whether

funded or not. With the new more State friendly Congress--

That is us, the Republican Congress--

States and localities have a historic opportunity not only to

effect mandate relief, but also to restore balance in State-

Federal relations.

Then they begin to list in this Heritage Foundation document some of the ways States and localities that seemed to have reached their limit are fighting back. They are publicizing the costs of unfunded mandates. They are holding their Congressmen accountable. They are challenging Congress's authority to impose the mandates. They are suing the Government for the violation of the tenth amendment. They are lobbying Congress to pass mandate relief legislation--no-money, no-mandate constitutional amendments.

They are considering a collective action to challenge the Federal Government's right to pass laws that impose duties on States without paying the bill.

This was the mood in 1994 and 1995, and this was a major reason why the Republican majority was elected. I hope we don't forget that. I know at the time a great many of our colleagues remember it because they talked about it eloquently in their speeches when the Unfunded Mandates Reform Act was enacted in 1995.

Senator Lott said:

It is things like unfunded mandates that drive good people

out of office.

Senator Thomas said: I served in the Wyoming Legislature and a good deal of our budget was committed, before we ever got to Cheyenne, to unfunded mandates.

Senator Feinstein, a cosponsor of our amendment, said: I was president of the board of supervisors. I was mayor. I saw the development of these unfunded mandates firsthand and in doing so I probably speak for the mayors and local officials all across the Nation.

Senator Nickles, chairman of the Budget Committee, said: I used to serve in the State legislature and we really resented the idea that the Federal Government would come in and mandate how we would spend our resources.

I am reading speeches from the Congressional Record of Members of this body in 1995, who voted to ban unfunded Federal mandates.

Senator Hutchison of Texas said: Almost one-third of the increase in the Texas State budget over the past 3 years has been the result of unfunded Federal mandates--one-third, she underlined.

Senator Burns talked about the impact of unfunded mandates.

Senator Bennett told a beautiful story about encountering a mayor during a campaign in his State in Utah, and he ended up with the mayor saying, well, if I had a U.S. Senator in front of me with his undivided attention, the one thing I would say to him is stop the unfunded mandates.

That is just a few of the things that were said. So the question now then is,

is this really an unfunded Federal mandate? Well, that is not too hard to figure out. Some of my colleagues seemed surprised when I suggested this might be, so I have put a letter on every Senator's desk.

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

U.S. Congress,

Congressional Budget Office,

Washington, DC, November 5, 2003.

Hon. Lamar Alexander,

U.S. Senate, Washington, DC.

Dear Senator: This letter responds to the three questions

you posed in your letter of November 4, 2003, regarding S.

150, the Internet Tax Nondiscrimination Act.

1. How much revenue is being collected by state and local

governments from taxes on DSL?

CBO estimates that state and local governments currently

collect at least $40 million per year in taxes on DSL service

(Digital Subscriber Line--a high-speed data transmission over

regular telephone wires). They are likely to collect revenues

totaling more than $80 million per year by 2008 due to growth

in the use of high-speed Internet access. These collections

are primarily sales and use taxes on DSL service.

2. What would be the revenue loss to state and local

governments under the managers' amendment to S. 150?

Based on the version of the proposed amendment CBO

received late this afternoon (S150MGR.6), CBO has determined

that the bill would create intergovernmental mandates as

defined in the Unfunded Mandates Reform Act. We estimate that

those mandates would impose costs on state and local

governments in at least one of the next five years that would

exceed the threshold established in that act ($60 million in

2004, increasing to $66 million in 2008). We have identified

three major impacts, each of which would, by itself, exceed

the threshold:

Revenue losses of $80 million to $120 million per year,

starting in 2007, to state and local governments that are

already taxing Internet access and were covered by the

``grandfather clause'' contained in the Internet Tax Freedom

Act. Some of these are taxes on DSL services. We have no

information to suggest that other states will impose taxes on

Internet access in the near term.

Other states are currently imposing taxes on charges for

the portions of DSL services they do not consider Internet

access. Those states would lose at least $40 million in sales

and use taxes on DSL services in 2004, and at least $75

million by 2008. The preemption of DSL taxes would stem from

section 2(c) of the amendment, which defines ``Internet

access.''

Substantial revenue losses that could result from:

(a) The inability of state and local governments to collect

transactions taxes (including sales and use taxes and gross

receipts taxes) on certain types of telecommunications

services. For example, if technological change shifts

traditional telecommunications services to the Internet,

those services--for example local and long distance phone

calls--could be included, for free, when a customer purchases

Internet access;

(b) The free inclusion of content (movies, music, and

written works) with Internet access in response to the tax

exemption provided by this bill. Such content is subject to

sales and use taxes under current law but might increasingly

be available at no charge as part of an Internet access

package.

CBO does not have sufficient information to estimate these

revenue losses, but we believe they could grow to be large.

There is some question, however, as to what types of

transactions could not be taxed under the bill; under some

interpretations, these revenue losses could remain quite

small. The issue might ultimately have to be resolved in the

courts.

3. How much tax revenues do state and local governments

collect on telecommunication services?

Based on information from industry representatives, state

and local governments, and federal statistical sources, CBO

estimates that state and local governments currently collect

more than $20 billion annually from taxes on

telecommunications services. Such taxes generally fall into

two categories: transactions taxes and business taxes.

Transactions taxes (for example, gross receipts taxes, sales

taxes on consumers, and taxes on 911 service) account for

about two-thirds of the total.

In arriving at this estimate, CBO took into account the

fact that some companies are challenging the applicability of

taxes to their services, and thus may not be collecting such

taxes, even though states and local governments feel they are

obligated to do so. Such potential liabilities are not

included in the estimate.

If you would like further details on the information

provided in this letter, we would be pleased to provide it.

The staff contacts for this legislation are Sarah Puro and

Theresa Gullo.

Sincerely,

Robert A. Sunshine

(For Douglas-Holtz-Eakin, Director).

There is a letter that I received yesterday from the Congressional Budget Office on every Senator's desk. It describes the three ways in which the proposed ban on State and local Internet access taxes by Senator Allen and Senator Wyden violate the Federal Budget Act--specifically, the amendments of the Unfunded Mandates Reform Act of 1995.

These are the three ways: One, there is a revenue loss of $80 million to $120 million per year to State and local governments already taxing Internet access. There are 11 such States.

Second, there are losses of $40 million to $75 million of taxes on DSL services that States now collect. That is the second violation of an unfunded mandate.

Third, and this makes the point it is not only an unfunded mandate, it is potentially a great big unfunded mandate. The Congressional Budget Office says in its letter that the third way this proposal violates the Budget Act is ``substantial revenue losses that could occur'' when technological change shifts traditional communication services to the Internet--for example, local and long distance phone calls--or when content, music, movies, written works is provided free with Internet access.

This may sound complicated but it is not so complicated. Basically, what this says is it already is happening, that your telephone company or your cable TV company will provide your Internet access. CBO says that State and local governments today now collect more than $20 billion annually from transaction sales and use taxes on telecommunications services.

What this letter further says is that the Allen-Wyden proposal will take an undetermined amount of this $20 billion and ban the ability of State and local governments to include that as part of their tax base. It is enough, according to the CBO letter, to define it as an unfunded Federal mandate. But they say they cannot tell the exact amount of the $20 billion that might be exempt from State and local taxation.

The Multistate Tax Commission said it could tell. It estimated $4 billion to $5 billion. That is an awful lot of money. The Senator from Ohio, the Presiding Officer, in his argument read a list of what State revenue officers have told him, and what they estimate it might take.

The problem is the broader definition of Internet access, which is contained in the bill of the distinguished Senators from Virginia and Oregon, raises the likelihood that some--maybe a lot--of the $20 billion that is now used by State and local governments to pay for schools, State parks and to keep other taxes down, would be taken away from their tax base.

What do we then do about it? Well, we think we have a suggestion which we hope tomorrow our colleagues in the Senate, if we are able to vote on it, then will agree with us. Our suggestion is an extension of the current ban on Internet access for 2 years, with the same narrow definition that we now have, with the exception that we would make sure that in 23 States which do not now tax DSL, that is telephone service that delivers broadband, they would not be allowed to do that.

So in taking the issues that I heard from the distinguished Senators from Virginia and Oregon, I would summarize them this way: They argue that the Internet is so valuable that we need to override this law we have against unfunded Federal mandates. I agree it is valuable but it is not an infant. It is a pretty big boy. It is out there in the world. We know what it is and it should stand on its own now.

The telephone is also a magnificent invention. We do not exempt it from taxation. The television is a magnificent invention. We do not exempt it from taxation.

If we really think in the Congress that the Internet deserves to be completely exempt from State and local taxation, then why do we not pay for it? Why do we not pass a law that we might call the Unfunded Federal Mandate Reimbursement Act and just let every mayor and every Governor send us a bill every year and we will send them a check. If it turns out to be $20 billion, we will send them $20 billion. If it turns out to be $4 billion, we will send them $4 billion because we will have said the Internet is so important that we in Congress think it ought to be subsidized, that there should be relief from taxation, and so we are going to pay for it. That would be the honest thing to do, rather than just to say we think it is important but you pay for it.

That is what we said with how we helped disabled children. That is what

we said with stormwater runoff. That is what we said with clean water. We think it is a great idea, you pay for it. That is why we are in Washington. We print money. You balance budgets. We think it is a good idea, you pay for it. That is what the fuss is about.

The second thing I have heard is it is in interstate commerce and we could not touch it. Telephones are in interstate commerce. We do not keep States and local governments from taxing telephones. Televisions are in interstate commerce. Buses are in interstate commerce. Planes are in interstate commerce. Catalog sales are in interstate commerce. Severance taxes are in interstate commerce. A great big part of every State and local government's budget is made up of a tax base that included items that are in interstate commerce. So that argument does not wash at all.

Taxing broadband, that is a good point. Broadband is coming fast. We do not want to interfere with that so our conclusion is, let us stop it in the 23 States that do not now tax broadband. Let us put DSL and cable--that is the broadband is delivered--on an equal playing field. In the States that do tax DSL, they can continue that for the 2 years of the ban.

Multiple taxation, that was raised by the Senator from Virginia. Well, we are extending the current language and it bans multiple taxation. Discriminatory taxation, we propose to extend the current language, and that bans discriminatory taxation.

State and local taxation on Internet access, we would propose to extend the ban on Internet access taxation for 2 years so we can think this through. So we have taken care of that as well. Tomorrow, when hopefully we will be voting on this, we will have this choice: Do you want a permanent ban on Internet access taxation, or do you want a 2- year ban? Do you want a broad definition of what we mean by Internet access, a definition that could cost States a significant share of their State or local tax base, or do you want a narrow definition, virtually the same one we have today?

I believe the prudent thing for us to do is to take the law that we have today, slightly modify it to put DSL and cable on an equal playing field, extend it for 2 years, and let us continue the debate we are having about how to define the two words ``Internet access.'' That is really the problem. I agree with the Senator from Oregon. He has worked long and hard on this. There have been many meetings. We just don't agree on what the definition of Internet access is.

But until we can agree, we should not put this potentially huge unfunded Federal mandate into the law. So tomorrow I hope to bring up this amendment I have filed tonight. I hope our colleagues will compare it with the proposal of the Senator from Virginia and Oregon, and I hope they will adopt ours.

I also have a point of order I could raise, which would cause the Senate to consider whether the Allen-Wyden amendment is an unfunded Federal mandate. If there is a motion to waive the point of order, which I believe would be sustained by the Chair, then Senators would have an opportunity to cast a vote for or against an unfunded Federal mandate. But I am going to reserve that option and hope that sometime tomorrow we can have a clear up-or-down vote on the amendment which I offer with a number of other Senators.

I look forward to the debate tomorrow.

I object.

Mr. President, before the Senator from Alabama leaves, may I ask him a question, and if it is appropriate to make a comment about his remarks?

Mr. President, I listened very carefully to the Senator from Alabama, and I have been listening to the debate about the judges. I understand what some of our colleagues on the other side are saying is somehow Mr. Pryor is, for some reason, not sensitive to civil rights, is an activist, is a person who is unwilling to put his own personal beliefs, political beliefs aside and enforce the law; is that what the charge is?

As I was listening to the Senator from Alabama, and maybe he will correct me if I have this wrong, but we are talking about Alabama, this is not Brooklyn, NY, we are talking about; right? And we are talking about the attorney general of the State of Alabama.

If I understand it right, after he was appointed, he went out of his way to point out that to have the words banning an interracial marriage in the Alabama State Constitution was wrong; did I understand the Senator to say that?

Then, Mr. President, I believe the Senator from Alabama talked about the situation going on there today where the chief judge is embroiled in a great controversy over whether the Ten Commandments have to be taken out of the courtroom. I ask the Senator from Alabama, Mr. President, what percent of Alabamians probably believe the chief judge is right about the Ten Commandments?

I am going to just guess, having lived a long time in a State that borders Alabama, that it is higher than that in Alabama. If I understood the Senator from Alabama correctly, here is the attorney general of Alabama, who may also agree with Judge Moore about the Ten Commandments, but he is endorsing the judicial proceedings against Judge Moore; is that what I heard the Senator say?

Against the judge who wants to keep the Ten Commandments there.

I think I also heard the Senator from Alabama say there was a reapportionment case in the State of Alabama, and the Republican Party wanted the attorney general to work with them, since he was appointed by a Republican Governor and is a Republican, and that he wouldn't do that, and that he even lost the case in the appellate court and kept going. He finally defeated a law that was adverse to his party; did I understand that right, too?

Just a couple of other questions, because I think the Senator from Alabama is making an important statement. I believe I heard him say that the attorney general of Alabama wrote a letter to every school district in Alabama, every superintendent and every school, telling them that the football coach could not lead a prayer before the football game, not because that was what he believed but because he researched the law and came to the conclusion that is what the law requires, and then he went ahead and suggested to the schools what they could do as well as what they could not do, and that his advice turned out to be almost exactly the same advice that President Clinton and former Secretary of Education Dick Riley advised schools all over America. Do I have that about right?

Again, thoroughly unpopular. Alabama is interested in football and Alabama is interested in prayer, and for a public official to write every school and tell them they cannot pray before a football game is not an easy thing to do, even if the law does require it.

Then, on the issue of abortion, he is a Roman Catholic and he has a religious belief about it, but did I understand the Senator from Alabama to say that he told the legislature that he could not enforce a law they passed limiting abortion because it was unconstitutional?

I see.

So the point I am trying to make is, if I were to come before my colleagues today and we had no other----

Of course.

If we had never heard of this individual and someone came today and said he is attorney general of the State of Alabama, and he voluntarily scolded the State for still having interracial marriage words in the State constitution at a time when he really did not have to, who is enforcing the proceedings against a judge who has taken an overwhelmingly popular position about the Ten Commandments, who took to the Supreme Court a case that was adverse to the Republican Party of which he was a member, who advised the district attorneys they could not enforce a law about abortion that he personally disagreed with but he felt that the law required it, who wrote all of the schools

that they could not pray before a football game, where is someone going to find anybody who has more clearly proven that he or she is able to take personal positions and subjugate them to a willingness to enforce the law?

As I said earlier, this is not northern California or the Bronx we are talking about, even though those might be difficult positions in those States. He was taking positions that were contrary to virtually all of the people that he represented and against his own beliefs.

I am not sure the Senator from Alabama is even aware of this, but I was also a law clerk for Judge John Minor Wisdom of the Fifth Circuit Court of Appeals, as was Mr. Pryor. Judge Wisdom was one of the great judges of America. He was a part of the panel that ordered Ole Miss to admit James Meredith in 1962. He, along with Judge Elbert Tuttle of Atlanta, Richard Rives of Florida, and John R. Brown of Texas, presided over the peaceful desegregation of the South.

I want to be careful how I say this. I was technically not a law clerk. I was a messenger to Judge Wisdom in 1965 and 1966 because he already had one of the top graduates of Harvard, but he had a little money left for a messenger and he said he would treat me like a law clerk. So I am saying that so people will not think I am talking about myself.

All through the 1960s and 1970s and 1980s and 1990s, law graduates in America fought each other to be a law clerk for Judge Wisdom. I was lucky to be his messenger who was treated as a law clerk. He hired the best and the brightest. He was also a graduate of Tulane Law School. He would consider the editor in chief of the Tulane Law School to be one of the finest persons in America eligible for a law clerkship.

I can also guarantee that he would never have hired anyone as a law clerk who he did not think of as someone of the highest character, good intelligence, capacity to be a good lawyer and committed to civil rights and to the rights of the individual.

So something is really amiss in our system of approving judges when someone of the academic character and personal integrity of Mr. Pryor, who clearly is one of the finest lawyers in the country, who has taken a position contrary to the position of most of the people of the State he represents because he believes in the law, how could he not be confirmed by the Senate? What is it that causes our friends on the other side to pick someone like that out and seek to destroy him or turn him down?

I congratulate the Senator from Alabama for his vigorous advocacy of such an outstanding person, and I hope very much when the vote comes he will be confirmed.

Mr. President, I ask unanimous consent that I be allowed to speak as in morning business for as much time as I may consume.

Mr. President, the distinguished occupant of the chair and I are new Members of the Senate. There are a great many privileges to being here, and one is the congeniality to new Members of the Senate. One is the seriousness of the issues with which we deal these days. One is the great traditions in the Senate. But there is a very special privilege of being here, and being here tonight, which I realize, and that is this: Every single one of us as Americans someday, sometime, while sitting at home or on our job, may suddenly realize something about our Government that really stirs us up and we wish we could say something and do something that somebody would hear. We are angry about it, we are upset about it, we want to say something about it. I have a privilege as a Member of the Senate of being able to do just that tonight.

Nothing used to make me more upset as the Governor of Tennessee for the 8 years I was Governor than when Members of this distinguished body and the other distinguished body--Members of Congress--would get together and come up with some great idea and pass a law and tell us to do it, and then send us the bill requiring us to pay for it, even though they were printing money up here and we were balancing budgets at home.

The distinguished occupant of the Chair was mayor of a great city for 8 years, I believe, the same amount of time as I was Governor. I know he must have felt the same way.

It might have been the case in terms of storm water runoff. Somebody in Washington, like the EPA, the Environmental Protection Agency, in that case may have said sometimes when it really rains hard, the water gets mixed up with the sewage and it runs into the river, so we need to fix that situation.

Great idea, but who is going to pay the bill? I tell you who pays the bill. In Minneapolis, you have to raise the property tax, or in Nashville, you have to raise the sales tax. Or in Maryville, TN, you have to fire some teachers so you have enough money to do the storm water runoff.

I remember back in the mid-1970s, about the time I was getting into politics, the Members of Congress decided we needed to help children with disabilities. We are all for that. That is a wonderful idea. But at the time, the Federal Government was paying, as it is today, about 7 percent of all the costs of elementary and secondary education in America. Most of that is paid for by Minnesota and Tennessee taxpayers through income taxes, and sales taxes, and property taxes that are raised at home.

The Congress said, ``Help the children with disabilities,'' but they didn't pay the bill. So what happens. I meet with the Shelby County School Board in Memphis. What do they say to me? We have this huge, terrific cost and these orders from Washington and regulations about what to do, and then we have to take money we raise, that we would otherwise be spending for other purposes, and deal with the good idea from Washington, DC.

I have heard many Members of this body talk a little bit about No Child

Left Behind and the new provisions in that bill, wondering whether those are unfunded Federal mandates, a Washington word that if you boil it down to plain English means: We will do it up here in Washington; we will claim credit for it, but you pay the bill.

On Thursday, thanks to the generosity of the majority leader in a very busy week, the Senate has agreed to consider whether we will impose yet one more unfunded Federal mandate on State and local governments, and I refer specifically to the proposal to extend the ban on State and local authority to tax access to the Internet.

In advance of that vote, which will occur in the next few days, I want to discuss three basic considerations with my colleagues.

No. 1, some of my colleagues have seemed surprised when I suggested the proposed ban on State and local Internet taxation is an unfunded Federal mandate. Let me say exactly in these remarks why the proposed ban on State and local ability to tax Internet access is an unfunded mandate plainly in violation of the Unfunded Mandates Reform Act of 1995 which was passed by this body with 91 votes, and 63 Senators who voted to ban unfunded Federal mandates in 1995 are still Members of this body. In 1994, over 300 Republican candidates stood on the steps of the U.S. Capitol and said in the Contract With America: We will stop passing unfunded Federal mandates, and if we break this contract, throw us out. That is why, when this legislation is offered later this week, I plan to offer a point of order against its consideration because the Unfunded Mandates Reform Act of 1995 says that it is out of order for this Senate to pass an unfunded Federal mandate. The first thing I want to describe why this proposed ban on Internet taxation is an unfunded Federal mandate.

No. 2, I want to discuss a strange case of amnesia that seems to have enveloped this distinguished body, a strange disease that has caused many Members to forget, as I mentioned a few moments ago, that in 1995, at the beginning of the 104th Congress, the new Senate majority leader, Bob Dole, went down to Williamsburg, VA, and promised Republican Governors that ``The first bill in the Senate, S. 1, is going to be unfunded mandates.''

This is especially surprising because Senator Dole was good to his word and, in fact, the second plank of the Contract With America that was enacted in this Congress was the ban on unfunded mandates. It was at the heart of the Contract With America. It was at the heart of the Republican revolution in 1994.

At that time, I was campaigning across this country in 1994. Nothing I found made local officials and citizens madder than Washington politicians who pass unfunded mandates, claiming credit without facing the costs, whether it was the legislation I described involving children with disabilities, storm water runoff, or highly qualified teachers. As a result, 91 Senators voted for the Unfunded Mandates Reform Act of 1995, and 63 of those Senators are still here today.

No. 3, I would like to discuss an amendment I will be proposing. I am filing tonight an amendment I call the Unfunded Federal Mandate Reimbursement Act. If a majority of the Senate should decide that banning State and local taxation of the Internet is important enough to create an unfunded Federal mandate--that is, claim the credit up here, but make it be done down there--then my amendment would provide a way for Congress to pay the bill for that by authorizing our Department of the Treasury to reimburse Tennessee and Minneapolis and other State and local governments each year for the cost of this new mandate.

Let me say briefly what we are talking about and what we are not talking about. We are not talking about the issue of whether to authorize States to require out-of-State companies, such as L. L. Bean, that sell by catalog or Internet, to collect the same Tennessee sales tax that Friedman's Army Surplus Store would collect when it sells me a red-and-black plaid shirt. That is an entirely different piece of legislation. The Senator from Wyoming and others have sponsored that legislation. The Senator from North Dakota is a part of that. We are not talking about making it easier to collect sales tax from Internet and catalog companies.

What we are talking about is whether Tennessee and other States can collect a sales tax from an Internet service provider when it connects my computer to the Internet, just as it collects sales tax from the telephone company when it connects my telephone or from the cable TV company when it connects my TV. Tennessee has been collecting this tax since 1996. Nine other States and the District of Columbia also collect a tax on Internet access.

The Knoxville News Sentinel had an excellent article on Sunday putting this into perspective. I ask unanimous consent that the article be printed in the Record.

I thank the Chair.

Let me go to my first point, why this proposed legislation is an unfunded mandate.

The proposed legislation is an unfunded mandate because it would make it illegal for these States to continue to collect State and local Internet access taxes. The Congressional Budget Office estimates that these losses would amount to $80 billion to $120 billion a year.

That is not all. The language of the legislation enacted by the House of Representatives, and every version of that language we have seen thus far in this Chamber, broadens the ban on taxation on Internet access and increases the size of the Federal unfunded mandates, extending to some degree to other telecommunications services, which is why I suppose we have begun to see the halls filled with lobbyists from the telecommunications industry as they anticipate the possibility that

this Congress might be exempting them from some or maybe all of the taxes that State and local governments put on telecommunications.

Now, there are many estimates about how much this would cost State and local governments. I have a study prepared in November of 2001 by Ernst & Young for the telecommunications State and local tax coalition. This study by Ernst & Young says that telecommunications providers and consumers of telecommunications services paid a total of $18.1 billion in State and local taxes in 1999.

I am not suggesting this ban on Internet taxation would eliminate all of the $18 billion of State and local taxation on telecommunications, but virtually everyone agrees that it would eliminate some. Every time we, in our wisdom, tell a State or a city that it cannot use this tax, all we are doing is increasing the chance that Minneapolis or Tennessee will increase some other tax, or fire some teachers or lay off some employees or close some parks. We have to balance budgets where we come from. If we knock out a substantial part of the ability to State and local governments to tax the Internet and some part of the telecommunications industry, we are only increasing the possibility in Tennessee of raising the property tax, of raising the sales tax, of raising the tax on medicine, of raising the tax on food or, in our State, making it more likely that we will have sooner or later an income tax. That is just one estimate.

Another estimate by the Multistate Tax Commission reported on September 24, 2003: The Internet tax moratorium passed by the U.S. House of Representatives on September 17 would end up reducing State and local revenue collections by at least $4 billion, and as much as $8.75 billion by 2006, rather than the $500 million estimated cost under the legislation's narrow original focus.

The sponsors of the Internet tax ban in the Senate, Senators Allen, Wyden and others, have been working with State and local officials and with other Senators to try to reduce the amount of loss to State and local governments. The House bill, which is also before the Senate, would cost Philadelphia, Nashville, Minneapolis, and our States up to $4 billion according to this study. So which taxes are they going to raise to replace it? Which teachers are they going to fire, from which school? Which park are they going to close? We are substituting our judgment for theirs.

There are other more specific estimates. We have been hearing from States. The Governor of Tennessee called me. He is a Democrat. I am a Republican. That does not matter so much because I respect the office. I had lunch with another former Governor of Tennessee, one of my predecessors. He is a Democrat as well. He agrees with us, too.

The Tennessee Department of Revenues says the managers' amendment will cost us $358 million a year. That is what the improved version of the House bill will cost one State, according to our State revenue department.

Then other States have been writing me, and writing their Senators. They say the Allen-Wyden amendment will cost Kentucky $40 million to $50 million, maybe $200 million. The new Governor of Kentucky is being elected, I guess as we speak. He will have a surprise on his hands perhaps when he finds out that he has some taxes to raise or some services to cut because we, in our wisdom, wanted to dictate that. Iowa, $45 million to $50 million; Maine, $35 million; New Jersey, $600 million; Ohio, $55.7 million; South Dakota, $34 billion; Tennessee, $358 million, as I said; Washington State, $33 million.

These are what the State governments are telling us the new and improved Senate version of the Internet tax ban would cost State and local governments. Those are some of the estimates we have heard about.

Now, to my second point, why is this so important? Why should we just not let it go on through?

Well, maybe one of the advantages of having been around a little while is I have seen and heard some things that I remember, such as 1994, I remember the Contract with America. I see my distinguished colleague from Pennsylvania. He remembers the Contract with America. He was a candidate, I believe, in that same year.

While I do not believe he was there, surely we all remember the 300 Republicans who stood on the steps of the Capitol. This was in September of 1994. This was just before something that was to happen that had not happened in half a century. It was a resurgence in the country that elected a Republican Congress.

What fueled all of that? What fueled that, according to the Heritage Foundation, in a candidate's briefing book that they did in 1996, looking back at 1994, chapter 14: With frustrated Americans focusing their anger increasingly on Washington and gridlock, many political candidates in 1994 successfully ran against Washington, appealing to voters to throw the bums out, replace them with individuals more honest and devoted to the public welfare.

Then they began to list the items of the Contract with America, one of which was to stop unfunded mandates.

I can remember that in 1994, the Republican Governors assembled in Williamsburg. They typically do this after an election every 2 years. There were 30 of them there. Governor Allen, now Senator, was the host, and Bob Dole, the new majority leader, came down. This is what he promised the Republican Governors, that S. 1, the first bill of the Senate, was going to be unfunded mandates. That was what Senator Dole promised the Republican Governors.

At about the same time, the Heritage Foundation was making a list of the unfunded mandates in this country that had given rise to all of this anger and frustration among the American people. I will not read them all but it reports, for example, that the National Conference on State Legislatures had identified 192 unfunded mandates on the States, including Medicaid, regulations governing the use of underground storage tanks, the Clean Water Act, the Clean Air Act, the Resource Conservation Recovery Act, the Safe Drinking Water Act, the Endangered Species Act, the Americans with Disabilities Act, the Fair Labor Standards Act, only to name a few. Those are all wonderful acts, but what was happening was they were claiming credit up here and those of us who were down there were having to pay some of the bill. The U.S. Conference on Mayors and Price Waterhouse estimated that the 1994 to 1998 cost of these mandates, excluding Medicaid, on 314 cities was $54 billion, or 11.7 percent of all local taxes. The EPA estimates that environmental mandates cost State and local governments $30 billion to $40 billion annually. State and local governments spend $137 billion to ensure safe drinking water.

These are good laws. I would like to have voted for them. I wish I had proposed many of them.

But the reason we had to come in here this year and pass legislation sending $20 billion back to the States and to local governments was not just because of the recession. It was because, consistently over the last 20 years, we have undercut the ability of State and local officials to make decisions for themselves about what services to provide and how to pay the bills.

One of my most vivid memories is of the distinguished former majority leader of the Senate, Bob Dole, who was elected in 1995 with that new Congress. He had a little copy of the United States Constitution, and he pulled it out when he met with the Governors in 1994 in Williamsburg, when they made the ``Williamsburg Resolve'' to stop these unfunded mandates. Senator Dole said he wanted to read to them the tenth amendment of the United States Constitution:

The powers not delegated to the United States by the

Constitution, nor prohibited by it by State, are reserved to

the States respectively, or to the people.

Senator Dole went across this country during 1995, reading this amendment to Republican audiences and to audiences in general. I know because I was there at many of the same meetings; and I know because I was there, that this is the heart and the soul of the Contract With America and the Republican revolution in 1994.

I am surprised that this case of amnesia has come over so many of my colleagues and that we have forgotten about the importance of this. This is a body that is very respectful of one another. It would not be appropriate, I do not think, for me to mention a Senator's name. I suppose I could do it

within the rules of the Senate and then mention what he said about unfunded mandates in 1995 and apply it to the vote that we will be taking later this week. But let me read to you just a handful of examples of the kind of things that Members of this body said on this floor in 1995 when the Senate, by 91 to 9, passed the unfunded mandates bill. One Senator said:

In my own State, I repeat to the Senate, local officials,

whether it be the Secretary of the State or Labor

implementing motor vehicle registrations, or the mayor of the

little town where I come from, attempted to meet the needs of

the small city. I have heard their appeals and they clearly

are tired of the Federal Government telling them precisely

how to do things by regulation when they could do it just as

well in different ways at less cost to their people.

A Democrat from the South:

I believe there is a tendency, particularly during a time

of constrained Federal resources, to look to the imposition

of obligations on State and local government as a means of

accomplishing national objectives which we at the national

Government are either unwilling or unable to pay for.

Another southern Senator, this one a Republican:

We worry about how we attract good people into office. It

is things like unfunded mandates that drives them out.

Another Senator from the West:

I served in the legislature and a good deal of our budget

was committed before we ever arrived by Federal unfunded

mandates.

This goes on and on.

The one other matter that I would like to specifically mention before I conclude is I want to remind, if I may, my colleagues of why this is an unfunded mandate. Several have come up to me and said: This doesn't sound like an unfunded mandate to me. I thought an unfunded mandate was only when you pass a law to do a program, like help children with disabilities, and then only pay half the bill, which is what we do.

That is one kind of unfunded mandate. But another kind of unfunded mandate that is specifically defined by the Budget Act that was amended in 1995 by this Congress is a direct cost that

. . . would be required to be spent or prohibited from

raising in revenues, in order to comply with the Federal

intergovernmental mandate.

In other words, the term ``unfunded mandates'' just requires the requirements that we impose when we don't pay the bill. Whether we are requiring a new program or whether we are telling the State it cannot do this tax or that tax, it is a requirement we are imposing without paying the bill. In other words, we are claiming credit and asking others to pay the cost.

The Uniform Unfunded Mandates Reform Act of 1995 created a very specific procedure for this. This isn't guesswork. It said that when there appears to be an unfunded mandate, that here is how we enforce that. First, the Senate committee of relevant jurisdiction--in this case it would be the Commerce Committee--under section 423 of the Budget Act, submits a request for an assessment, identification, and description of any unfunded Federal mandate.

That was done. The Commerce Committee asked the Congressional Budget Office: Is this ban on Internet access taxation an unfunded Federal mandate?

And the Congressional Budget Office said: Yes.

I ask unanimous consent that a report by the Congressional Research Service be printed in the Record.

Then there are some other steps that have to be taken. Not only is it defined as an unfunded intergovernmental mandate, there has to be a certain threshold of spending, $50 million adjusted by inflation, which today would be $64 million.

So the Congressional Budget Office has given its opinion on that, and they have said yes; it is an unfunded Federal mandate. So what the legislation provides, and what I plan to do when this comes up on Thursday, is as the law says. That it is not in order for this body to pass an unfunded Federal intergovernmental mandate, and that a point of order may be raised against its consideration. I plan to raise such a point of order.

The point of order may be waived by this body by 51 votes, which I hope it does not do because this body told the world in 1995 that it was through with this business of unfunded mandates. But we will see. We will see.

I will agree that it sounds good to say we are not going to tax Internet access. I will agree that there may be a Federal interest in not taxing Internet access. I agreed when the issue first came up in the 1990s that while the Internet was still an infant, maybe for the first 3 years a moratorium would be in order.

But if we think it is so important, then we should pay the bill. We should pay the bill. We should not fall into this bad habit that existed before the Republican revolution of 1994 of assuming that just because we were elected to come to Washington, suddenly we are all wise and that the Governors and mayors and legislators are not quite as wise and that we, therefore, ought to tell them what to do and that we ought to restrict their ability to do it or not do it based upon what their tax base is. Let them do their job and we can do ours.

I want to end where I began. It is a privilege to be in this body. One of the greatest privileges is to stand up here and say, on the floor of the Senate, something I used to think about as Governor time after time: Why are those Senators and those Congressmen assuming I can't do my job here? Why are they passing rules and then telling me to pay the bill, especially when they are printing money and we are balancing budgets?

I think we should draw the line. If we really believe that a ban on Internet access in a segment of the telecommunications interest is so overwhelmingly in the Federal interest, then let's pass an unfunded Federal

mandate reimbursement bill and send a check to the States, to Minneapolis, Nashville, Tennessee, every year, for whatever the cost of that is.

I remind my colleagues, and I intend to do so as long as I am here, that they were right in 1994 about the Contract With America. They were right when they stood on the steps of the Capitol and promised: No more unfunded mandates. If we break our contract, throw us out. And they were right when they passed by 91 to 9 in 1995 the ban against unfunded Federal mandates.

I hope the 64 of my colleagues who are still here remember that vote.

Mr. President, I come at this differently than the Senator from Mississippi. I don't know Charles Pickering. I have met him briefly only twice. But I care about the Fifth Circuit Court of Appeals. Bridget Lipscomb and I have studied his record diligently.

Nearly 40 years ago, I was a law clerk on the Fifth Circuit for the great Judge John Minor Wisdom. I have been trying to think of something to say to the Members on the other side to help them change their minds on this nomination.

Judge Wisdom was a member of the Federal court that ordered the University of Mississippi to admit James Meredith to Ole Miss. The Fifth Circuit played a crucial role in desegregating the South. Judges Tuttle, Rives, Brown, and Wisdom were real heroes at that time. Crosses were burned in front of their homes. I will have more to say about this, but Judge Pickering is a worthy successor to the court of Judges Wisdom, Tuttle, Rives, and Brown.

While those judges were ordering the desegregation of Deep South schools, while crosses were being burned in front of their homes, Judge Pickering was enrolling his children in those same newly desegregated schools, and Judge Pickering in his hometown was testifying in court against Sam Bowers, the man the Baton Rouge Advocate called the ``most violent living racist,'' at a time when people were killing people based on race.

Many of my generation have changed their minds about race in the South over the last 40 years. That is why the opposition to Judge Pickering to me seems so blatantly unfair. He hasn't changed his mind. There is nothing to forgive him for. There is nothing to condemn. There is nothing to excuse. He was not a product of his times. He led his times. He spoke out for racial justice. He testified against the most dangerous of the cross burners. He did it in his own hometown, with his own neighbors, at a time in our Nation's history when it was hardest to do. He stuck his neck out for civil rights.

Mr. President, will our message to the world be: Stick out your neck for civil rights for Mississippi in the 1960s and then we will cut your neck off in the Senate in 2003, all in the name of civil rights? I certainly hope not.

Charles Pickering earned this nomination. He is a worthy successor to the court of Judge Wisdom, Judge Tuttle, Judge Rives, and Judge Brown.

Mr. President, that is very generous. How much time do I have to finish the speech?

May I ask for 10 minutes?

Mr. President, I thank the Senator from Vermont and the Senator from Utah for their generosity.

Let me remake my first point. I care about this case because I care about the Fifth Circuit Court of Appeals. Many of the Senators know or knew Judge John Minor Wisdom. They knew what a great judge he was.

They knew what the times were like in the Deep South during the 1960s and 1970s. I remember Judge Wisdom once telling me the Ku Klux Klan had burned a cross in the intersection between his home and that of Congressman Hale Boggs. Judge Wisdom said: They were getting both of us with one cross burning.

So I set out some time ago, with my staff, to look through the record of Judge Pickering to see what he has done. All the evidence is that Judge Pickering, like Judge Wisdom, like Judge Tuttle, Judge Rives, and Judge Brown, stuck his neck out for civil rights at a time when it was hardest to do. Mississippians know that.

William Winter, with whom I served, a leading former Democrat Governor, a leader for racial justice, strongly supports Judge Pickering. Frank Hunger, who served on that court with me as a law clerk back in the 1960s, President Clinton's Deputy Attorney General, Al Gore's brother-in-law, strongly supports Judge Pickering. I have lived in the South for a long time, about the same amount of time as Judge Pickering. I have learned to tell those who are racists, those who stood silently by, and those who stuck their necks out.

Let me invite my colleagues to go back with me to Mississippi, to the late 1960s. James Meredith had become the only Black to graduate from the undergraduate school at Ole Miss. Reuben Anderson, who has endorsed Judge Pickering, had become the first Black graduate of the Ole Miss Law School.

In Nashville, where I went to school at Vanderbilt, the first integrated class had just graduated from Vanderbilt University. Robert Clark became the first black elected to the Mississippi Legislature since the Reconstruction.

It was not until 1968, that the first blacks were permitted to participate in intercollegiate athletics at the University of Florida and Georgia and Tennessee and other Southeastern Conference schools.

The law had changed but there were still plenty of ``colored only'' signs on restroom doors in plenty old southern cities during the late 1960s. Martin Luther King was murdered in Memphis during 1968. Alabama Governor George Wallace won the Democrat primary for president in 1976 in Mississippi, and in Boston, Massachusetts.

Perhaps my colleagues saw the movie, ``Mississippi Burning.'' That was about events during 1967 in Mississippi. Civil rights workers Goodman, Schwerner, and Chaney were murdered. They were picked up by three carloads of Klansmen, shot and their bodies were buried in a 15- foot earthen dam. In 1967, seven men were convicted of federal conspiracy charges, eight were acquitted and three received mistrials. At the time, the state of Mississippi refused to file murder charges. To this day, no one has ever been tried for those murders.

Wes Pruden, a young reporter at the time, told me he went to a Mississippi courtroom and everybody in the courtroom except the judge had a button on that said ``Never.'' That was the environment in which Charles Pickering was living in Laurel, Mississippi in Jones County in the late 1960s.

Blacks were just beginning to serve on juries. A few Blacks voted. Schools were being desegregated one grade at a time starting with the lower grades so that older children would have less opportunity to interact socially. Race was not a theoretical issue in Laurel in the late sixties, or even a political issue. People were killing people based on race in the late 1960s in Jones County, MS.

The White Citizens Council, a group of white collar, non-violent segregationists was the country club version of resistance to integration in Laurel. Klan members were known at that time in Laurel for putting on their white robes, opening up their bibles, building a bonfire in a pasture, crossing a sword and a gun over a bible, and proceeding to burn down the home of a black person. The KKK in Laurel shot into homes and beat blacks over the head with baseball bats. One did not speak out lightly against the Klan because its members could very well be your neighbor or your co-worker.

The Klan infiltrated law enforcement departments and juries. The Klan put out fliers instructing residents not to cooperate with the FBI on cases.

Laurel was Klan territory. It was the home of Sam Bowers. Bowers had created the White Knights of the Ku Klux Klan because he believed that the regular KKK was not violent enough. The Klan was out to resist integration, but that was not enough for Sam Bowers. The White Knights set out to oppose racial integration ``by any means necessary.''

Since 9/11 we have heard a lot of talk about terrorists. This is not the first time we have seen terrorists in America. We had terrorists then. Sam Bowers and the White Knights of the Ku Klux Klan in Laurel, MS, were the terrorists of the 1960s. The FBI said the White Knights were responsible for at least 10 killings then. The Times of London said Bowers himself was suspected of the orchestration of 300 bombings.

According to the Baton Rouge Advocate, Sam Bowers was ``America's most violent living racist.''

Charles Pickering made public statements condemning Klan violence. He worked with the FBI to prosecute and stop Klan violence. In the late 1960s, Bowers came up for trial for the murder of the slain civil rights worker, Vernon Dahmer, and Judge Pickering testified publicly against Bowers.

I ask unanimous consent to submit for the record two documents. The first is a Klan newsletter from 1967 criticizing Pickering for cooperating with the FBI. The second is Bowers' own Motion for Recusal filed in Federal court, asking Pickering to remove himself from hearing a case involving Bowers because of Pickering's previous testimony against Bowers and taking credit for defeating Judge Pickering in a statewide race for attorney general.

Mr. President, I will not dwell on the lifelong record of Mr. Pickering. But his testimony against Sam Bowers was not an isolated instance. I will not dwell on the charge some have made about a 1994 case. Senator Hatch dealt with that, although I ask unanimous consent to include two articles, one from the National Review Online and the Atlanta Journal-Constitution explaining what really happened. In short, the Justice Department botched the case and the ringleader in the cross burning was turned loose. Pickering then properly reduced a juvenile accomplice's sentence from seven and one half years to 27 months, severely criticizing him.

In terms of the struggle for equality and freedom, I have seen the South and our Nation change for the better during my lifetime. I have tried to help bring about that change. When I look back now, it seems embarrassingly slow and amazing that it was so hard. I remember as a student at Vanderbilt in 1962, when we raised the issue of integrating the student body, the student body voted no. I remember in 1980 I appointed the first Black Tennessee supreme court justice, and he was defeated in the next election. I remember it was 1985 before we had the Martin Luther King Holiday, and the legislature nearly voted it down. I appointed the first two African American vice presidents of the University of Tennessee, but that did not happen until 1989.

Our country, from its beginning, has truly been a work in progress. And on this issue, racial justice, we have had an especially hard time making progress. We have had a hard time changing our minds. The truth is, most members of my own generation have had one view about race in the 1960's and another view today. Many of the men and women who are judges, who are mayors, who are legislators, who are Senators today, opposed integration in the 1950s, opposed the Voting Rights Act in the 1960s. They were against the Martin Luther King holiday in the 1980s, and we welcome them to society today. We have confirmed some of them to the Federal bench, some of them Democrats, some of them Republicans.

What is especially ironic about this incident is that Judge Pickering was not one of those people whose ideas we have to excuse. He led his times. He spoke out. He would have, I am certain, joined Judge Wisdom, Judge Tuttle, Judge Rives, and Judge Brown in ordering Ole Miss to admit James Meredith to the University of Mississippi 40 years ago.

Why would we not now recognize this man, who lived in the Deep South, who did what we all hope we would have had the courage to do, but might not have done in the late 1960s? Why would we not now honor and recognize that service by confirming his nomination to this appellate court?

I care about the court. I care about these issues. I have studied the record as carefully as I could. All of the evidence supports the fact that Charles Pickering is a worthy successor on the Fifth Circuit to the court of Judge John Minor Wisdom, Judge Elbert Tuttle, Judge Richard Rives, and Judge John R. Brown.

Mr. President, I rise today to say a few words concerning the nomination of Judge Charles Pickering.

Throughout the entire history of the Senate, no judicial nominee has ever been defeated by a filibuster. Yet in this session alone, four nominations have been blocked by this unconstitutional obstruction. Soon, there will be five, six, and likely even more nominees facing partisan filibusters. this obstruction flies in the face of more than 200 years of Senate tradition, the constitutional role of the Congress, and the consent of the governed.

While all of these filibusters are wrong, it seems to me that the tactics employed against certain nominees is particularly disgraceful.

First, we witnessed the hostile attitude towards Leon Holmes, a nominee for the Eastern District of Arkansas. Despite having earned the support of each of his home state Senators--both members of the minority--Mr. Holmes was sharply criticized--not for his legal work, but for his personal writings about his religious views.

Then we witnessed the strident animus directed toward Alabama Attorney General, Bill Pryor--who was repeatedly challenged over whether his ``philosophy'' and ``deeply held views,'' particularly those arising from his religious beliefs, precluded him from becoming a judge.

And now, today, we are witnessing the terrible treatment of Judge Charles Pickering. This is an issue that is of particular importance to my state, because Judge Pickering has been nominated to a long-standing vacancy on the Fifth Circuit--which covers Texas and Louisiana in addition to Mississippi.

Like the other nominees, Judge Pickering is a deeply religious man. He is also a man from the South. And I believe he is clearly qualified to serve on the federal bench, as he has been serving for over a decade. Yet Judge Pickering has, like others, become the target of a venomous special interest group campaign, one directed against Southerners and against those who take their faith seriously. A representative of one of these groups recently called Judge Pickering a ``racist,'' a ``bigot,'' and ``a woman-hater.''

It is sad to see this shameful caricature of a well-qualified, respected man. And it is sadder still to see these special interests dominate the other side of the aisle. I hoped such tactics would never gain apologists among any members of this body, but hearing this debate today, I fear that my hope was all for naught.

This Nation, both North and South, has for too long suffered from the scourge of racism. We have made a great deal of progress so far, and there is more to go. but even as we condemn racism with all our might, we must also condemn false charges of racism. Every false charge of racism weakens a true charge of racism, and ultimately, that hurts us all.

Judge Pickering has been praised and supported by those who know him best--by those who have worked by his side, and seen him fight racism in his home state of Mississippi.

My fellow Southerners who have reviewed the record carefully agree. All six Mississippi statewide officeholders, including five Democrats, have stated that Judge Pickering's ``record demonstrates his commitment to equal

protection, equal rights and fairness for all.'' The senior Senator from Louisiana has applauded Pickering's lifelong campaign against racism, characterizing them as ``acts of courage.'' And the Senators from Georgia have written that, ``Pickering's critics have and will continue to unfairly label him a racist and segregationist,'' and that ``nothing could be further from the truth.''

But perhaps the most compelling views on this subject have been expressed by Mr. Charles Evers. He is the brother of the slain civil rights leader Medgar Evers, and he has personally known Judge Pickering for over 30 years. He is intimately familiar with Judge Pickering's numerous actions throughout his career to fight racism, often with deep sacrifice and personal cost.

Mr. Evers wrote in the Wall Street Journal in support of Judge Pickering, saying,

As someone who has spent all my adult life fighting for

equal treatment of African-Americans, I can tell you with

certainty that Charles Pickering has an admirable record on

civil rights issues. He has taken tough stands at tough times

in the past, and the treatment he and his record are

receiving at the hands of certain interest groups is shameful

. . . Those in Washington and New York who criticize Judge

Pickering are the same people who have always looked down on

Mississippi and its people, and have done very little for our

state's residents.

I hope that today the Senate will take a stand against the despicable tactics of radical special interest groups. We must not allow the special interests' exploitation of religious views, stereotypes, or false caricatures--concerning Southerners or any other people--to decide a vote on any nominee. Such reprehensible practices have no place in this debate. And it is a dark day for the Senate and for America's independent judiciary when we allow special interests to dictate the basis for disqualification.

I ask my fellow Senators to vote to confirm Judge Pickering, to reject the inhuman caricature that has been drawn by special interest groups intent on vilifying, demonizing, and marginalizing an admirable nominee. I hope that my colleagues will give all these qualified nominees what they deserve, and allow them to have an up or down vote.

For the sake of the Senate, the Nation, and our independent judiciary, I hope that these days of obstruction finally end.

Mr. President, I ask unanimous consent that Bridget Lipscomb, a member of my staff, be given the privilege of the floor during the consideration of Judge Pickering's nomination.

Mr. President, today Senator Dodd and I are introducing the Poverty Reduction and Prevention Act of 2003. This bi- partisan

bill proposes to reauthorize important legislation that provides meaningful assistance to 18 million Americans seeking to fight their way out of poverty. The bill includes the Community Services Block Grant, the Low-Income Heating and Energy Assistance Program, and the Assets for Independence Program.

Statistics show us that poverty touches a large proportion of Americans over their lifetimes. Sometimes poverty is a chronic condition that persists over several generations. But more often, poverty happens as a consequence of life's unexpected tragedies-- illness, job loss, divorce, or disability. These can seriously undermine a family's ability to support itself. What's needed is a safety net in such times of need. Our Poverty Reduction and Prevention Act can provide that help and can make the difference in a family's efforts to fight their way out of poverty become self-sufficient again.

The services of the Poverty Reduction and Prevention Act are provided primarily through Community Action Agencies, created 40 years ago. The heart of these programs are those provided through the Community Services Block Grant, created in 1981. The block grant allows for maximum flexibility to tailor programs to meet local needs with minimal administrative cost. Today the programs touch the lives of almost 25 percent of those living in poverty. These programs fund a state- administered community services network of more than 1000 local agencies that work to alleviate poverty and empower low-income families in communities across the United States. The agencies are very effective in leveraging their funds to mobilize additional resources from local businesses and foundations, as well as other public sources, to make an effective impact in fighting poverty in their communities.

A number of social services are provided that are designed to help low-income individuals and their families achieve a better quality of life. They help people find and keep a good job, get an adequate education, obtain a decent place to live, pay their utility bills, and even learn how to manage a household income.

The Poverty Reduction and Prevention Act has five major themes for its services: to assist families in poverty address their immediate, most basic needs and work toward self-sufficiency; to serve the non- traditional poor who are facing poverty due to unexpected events such as a plant closing or a major illness or injury; to assist special populations, including those dealing with chronic poverty and for whom conventional solutions have failed; to work for systemic change in low- income communities to promote economic development and community revitalization; and to provide direct assistance to help low-income individuals pay their utility bills.

These programs are the true ``safety net'' for millions of low-income and at-risk families and individuals and serve as the centerpiece of most local social service programs in 96 percent of the counties across the country. Last year the programs in the Poverty Reduction and Prevention Act served over 19 million people, primarily through CSBG, serving 13 million, and the Low-Income Heating and Energy Assistance Program, providing assistance to over 5 million.

In Tennessee, over 100,000 individuals were served by CSBG last year, almost 25 percent of whom were disabled. Over 60,000 families were served, 90 percent were living below the federal poverty level, and 40 percent were elderly or disabled families living on a fixed income. And those who are helped in turn help others by volunteering in the programs and giving back to their community. For example, in my home State of Tennessee, long known as the Volunteer State, those who benefitted from these programs gave back to others by working over 190,000 volunteer hours.

And there is good accountability for how those funds are spent in the community. Each agency is governed by a board of directors, a third of which consists of representatives who live in the low-income community, a third are locally elected officials, and the remaining third are community leaders from business, labor, religion, and education.

These programs are not only important to those who receive services; they also make good use of the Federal dollar. Last year in addition to the Federal monies appropriated for these three programs, the community agencies identified other state and local monies and private contributions. In total, local agencies administered over $9 billion on behalf of low-income families and individuals in communities across the country.

In addition to good fiscal accountability and effective use of Federal dollars to leverage additional resources, the programs are a model when it comes to tracking and reporting the outcomes they are helping people achieve. In Tennessee, for example, we know that 43 percent of individuals who were seeking employment were able to find a job, and two-thirds of those jobs included health care coverage. Over 75 percent of those seeking housing assistance were able to move from sub-standard to good, stable housing, and 524 families were moved out of homelessness. Over 85 percent of elderly households assisted were able to continue living independently.

Through LIHEAP in Tennessee, over 72,000 received assistance in paying their utility bills, thereby avoiding having their heating and cooling cut off, which is of very real importance for health and safety as well as quality of life. The high cost of energy is a growing problem for those families trying to get by on a lower income and for our elderly living on fixed incomes.

By helping these people in meaningful ways, the programs administered under the Poverty Reduction and Prevention Act have not only made a difference in thousands of lives but have also saved my state money in significant ways--by avoiding the higher costs of homelessness, reducing the number of people in poverty, reducing the need for nursing homes and institutional care, and providing an important ``bridge'' to help people moving off of welfare achieve permanent self-sufficiency,

While these programs have had many very real successes in the past, as we approached this reauthorization we also looked for ways we could improve the programs and provide even better access to and delivery of these important services. In drafting the reauthorization we gave particular attention to clarifying and strengthening the purpose of these important programs, which, in summary, is to fight and reduce poverty, working in partnerships with community and state leadership.

In this reauthorization we believed it was important to give states greater flexibility in determining who should receive services. We wanted to expand services to the extent possible to assist more of the working poor and their families achieve economic stability and self- sufficiency. While giving more flexibility, we also provided incentives to encourage States to focus on those most in need and to help those transitions from welfare to self-sufficiency. And we strengthened the accountability and monitoring of funds at both the state and local level. We explicitly asked States to hold the line on excessive administrative salaries and expenses, again at both the state and agency level.

In this reauthorization we also wanted to highlight best practices and encourage creativity and innovation in fighting poverty. We called for identifying exemplary local agencies as Centers of Innovation to promote the sharing of best practices among all community agencies.

Focusing on outcomes, we directed local agencies to have established clear goals for reducing poverty in their community and to show that substantial progress is being made in meeting those goals before receiving continuing block grant funds. These goals include leveraging community resources and fostering coordination across Federal, State, local, and private programs and services.

In the area of heating and cooling assistance, we are recommending a significant increase in the funds authorized for this important program, and we have added provisions and specific triggers that allow for better, more effective release of emergency funds for LIHEAP assistance under extraordinary circumstances.

The programs included under the Poverty Reduction and Prevention Act of 2003 are important to millions of Americans who deserve our consideration and need our support. The services touch almost every community in

the country and are often the only source of assistance available to the people the programs are designed to serve. Quite simply, what these services do is help restore dignity to those we serve. Every day one of these programs makes a difference in the lives of our neediest citizens. What this bill can accomplish will make possible a better quality of life for individuals and for neighborhoods and communities across this great land. I join my colleague Senator Dodd in urging the passage of this important reauthorization legislation.