Floor Statements

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

Mr. President, in the Declaration of Independence, one reason our Founders decided for a revolution against King George was ``He has made judges dependent on his will alone.''

That same year, the Delaware Declaration of Rights and Fundamental Rules stated:

That the independence and uprightness of judges are

essential to the impartial administration of justice, and a

great security to the rights and liberties of the people.

In the Federalist Papers, explaining our great Constitution, Alexander Hamilton quoted Montesquieu to say:

There is no liberty, if the power of judging be not

separated from the legislative and executive powers.

It is the independence of the Supreme Court that is at stake in the coming consideration of the Court's next nominee. Our Constitution embodies that independence of the Court in its separation of powers, in its checks and balances, and in its structure that provides of the President:

He shall nominate, and by and with the advice and consent

of the Senate, shall appoint . . . judges of the Supreme

Court.

The Senate's active advice and consent role in the confirmation of a Supreme Court Justice helps to ensure that nominees have the support of a broad political consensus. The Senate's role helps to ensure that the President cannot appoint extreme nominees. The Senate's role helps to ensure that Justices are more independent from the President.

Time and time again the history of our Supreme Court has demonstrated the importance of that independence. Time and time again, it has mattered that the Supreme Court had brave men and brave women who were willing to rule against the interests of the President. Time and time again, it has mattered that the President had to appoint independent thinkers that would withstand the tough scrutiny of the Senate.

It mattered that we had an independent court when our Nation was young, in 1803, when the Supreme Court decided the case of Marbury v. Madison. It mattered that we had an independent court so that Chief Justice Marshall could write for the Court:

It is emphatically the province and duty of the judicial

department [that is the judiciary] to say what the law is. .

. . If two laws conflict with each other, the courts must

decide on the operation of each. . . . That is the very

essence of judicial duty.

Today, most take for granted this bedrock principle of judicial review set forth in Marbury v. Madison. But recall the plaintiff in that case, William Marbury, challenged President Thomas Jefferson's administration. If the President, Thomas Jefferson, had been able to appoint Justices without an effective check by the Senate, then perhaps the President would have been able to appoint Justices who believed as he did--as Jefferson did--when he wrote, in 1820, a letter saying:

It is a very dangerous doctrine to consider the judges as

ultimate arbiters of all constitutional questions.

Just think for a second what that means. President Thomas Jefferson, back in 1820, wrote that it was unfortunate and dangerous doctrine to consider judges as the ultimate arbiters of constitutional questions. If it wasn't he, who would it be? Clearly, Thomas Jefferson thought it would be he, the President, not the Supreme Court.

Without concern for the Senate's advice and consent, a more recent President might have appointed a Justice who believed as did former Attorney General Edwin Meese, 20 years ago, when Meese argued that the Supreme Court's interpretations of the Constitution, in his words, did not establish a ``supreme law of the land.'' That is Edwin Meese, who was U.S. Attorney General 20 years ago. And recall that Attorney General Meese asserted that the Reagan administration was free to rely on its own views on the meaning of the law.

That is revolutionary, and I don't use that word unadvisedly. It is a long-established principle that the Constitution is what the Supreme Court says it is. It has to be. The Constitution is not what the President says it is, it is what the Supreme Court says it is. The judiciary is a free, independent, third branch of Government.

It also mattered that we had an independent Supreme Court in 1952, when the Court decided Youngstown Sheet & Tube Company v. Sawyer, otherwise known as the ``steel seizure case.''

It was the time of the Korean War, and we faced a steel strike. President Truman tried to seize the steel companies in order to avert a strike. It mattered that we had an independent Supreme Court so that the Court could rule against President Truman--an independent arbiter saying: No, Mr.

President, that is not proper; the Constitution doesn't permit that.

It mattered that Justice Hugo Black was independent enough to write for the majority when he wrote:

The Constitution limits his [that is, the President's]

functions in the lawmaking process to the recommending of

laws he thinks wise and the vetoing of laws he thinks bad.

And the Constitution is neither silent nor equivocal about

who shall make laws which the President is to execute.

That is very clear. The Supreme Court stood up to the President and said, Mr. President, that is unconstitutional.

It mattered that we had an independent Supreme Court in 1974, when the Court heard U.S. v. Nixon, otherwise known as the Watergate tapes case. Let's go back and review those facts.

President Nixon fought against Special Prosecutor Leon Jaworski's subpoena to get the Watergate tapes. It mattered that we had an independent Supreme Court, so that the Court could rule against President Nixon's claim of executive privilege. The President thought he had that privilege. If he had his way, he would determine the rule of law in the United States. But, no, we had an independent third branch, the Supreme Court, which ruled that the President in his interpretation of the Constitution was incorrect. In effect, the Constitution was standing up for all of us as Americans, protecting our rights against Presidents who want to have their way, which Presidents want to do after they are in power after several years.

It mattered that Chief Justice Warren Burger was independent enough to write for the majority in that case:

Neither the doctrine of the separation of powers, nor the

need for confidentiality of high level communications,

without more, can sustain an absolute, unqualified

Presidential privilege of immunity from judicial process

under all circumstances.

That, in effect, is what President Nixon was asking for. The Supreme Court stood up for our rights against a President.

Earlier, in 1969, on appointing Justice Burger as Chief Justice of the Supreme Court, President Nixon had said:

Our Chief Justices have probably had more profound and

lasting influence on their times and on the direction of the

Nation than most Presidents.

Well, in the time of President Nixon, it certainly mattered that we had an independent Supreme Court.

It mattered that we had an independent Supreme Court in 1963. In that year, the Supreme Court decided Gideon v. Wainwright, which upheld the right of counsel in State courts for people who could not afford a lawyer. A President might not want lawyers questioning the Government's prosecutors. Most Presidents don't. It mattered that an independent Supreme Court ensured that they can.

It mattered that we had an independent Supreme Court in 1964, when that Court decided New York Times v. Sullivan. That case has a standard that public officials, including Presidents, would have to meet to sue those who criticize them for the conduct of their office.

It mattered that we had an independent Supreme Court so that the Court could establish a rule against the interest of public officials, something public officials don't like. That is a standard that we don't like in this body. We don't particularly like it, but people can use it. It is the right decision. It makes it uncomfortable at times. The Court could rule that the first amendment protects the publication of statements about public officials, except when made with actual malice--that is, with knowledge that they are false or in reckless disregard of whether or not they are false. That was an independent Supreme Court. So it mattered that Justice William Brennan was independent enough to write the majority in that opinion, and he said:

We hold today that the Constitution delimits a State's

power to award damages for libel in actions brought by public

officials against critics of their official contact.

I imagine most Presidents don't like that if the Supreme Court says it is necessary in interpreting the Constitution to protect American rights.

It mattered when we had an independent Supreme Court in 1954 when the Court decided Brown v. Board of Education. A Court that was dependent on the President might have wanted to skirt that issue of segregation, to duck the injustice of racial segregation in our schools.

Why do I say that? Because Jim Newton, a Los Angeles Times editor and biographer of Chief Justice Earl Warren, has written that President Eisenhower, who appointed Chief Justice Warren, tried to influence the Chief Justice on that landmark case. Newton reports that during the period when the Court was considering Brown v. Board of Education, President Eisenhower invited Chief Justice Warren to join him at dinner with a number of guests. That was while that case was pending.

It turned out that President Eisenhower had also invited one of the lawyers for the Southern States in the Brown case.

As the President and Chief Justice stood up from the table--this was dinner, remember, with one of the lawyers for the Southern States there, a private dinner, Chief Justice Warren was there, and President Eisenhower, who appointed Chief Justice Warren, was there--as they stood up from the table, the President took the Chief Justice by the arm. The President motioned to others in the room and then whispered into the Chief Justice's ear: ``These are not bad people.''

The President told the Chief Justice that they were only concerned about their ``sweet little girls'' having to sit in school beside African-American children.

That is what President Eisenhower said at that dinner to Chief Justice Warren when Brown v. Board of Education was pending. So it mattered that we had a Chief Justice who was independent enough not to listen to the President who appointed him.

It mattered that Chief Justice Warren was independent enough to write for the majority:

We conclude that in the field of public education the

doctrine of ``separate but equal'' has no place. Separate

educational facilities are inherently unequal.

On that point, I don't know if it is true or not, but there are many scholars who say that the current Chief Justice wrote a memo to his judge he was working with when he was a clerk advocating separate but equal. That memo did not come out until after the Chief Justice was appointed and confirmed by the Senate.

We here today can be justifiably proud that America has the oldest living written Constitution. When our Nation's Government was born, our Constitution was a novelty. Our Constitution created, in the words engraved over the west doorway of this Chamber, ``novus ordo seclorum''--``a new order of ages.''

As we examine the great variety of governments in the world today, Americans can still have pride that few nations possess such a charter. Few nations fervently protect their rights--very few, when you stop to think about it. It is astounding, it is amazing, and we do take it for granted. Few nations so preserve an independent supreme court.

Our Constitution is our foundation. It sets forth our basic rights. It preserves our liberties against the eternal danger of the power of the Executive, sometimes against the power of the Congress but many times against the power of the Executive.

Our Constitution preserves precious rights that must be protected, and that is why we must act zealously to ensure that the men and women we entrust to guard that valued heritage is truly independent. That is why we must remember, as Justice Charles Evans Hughes said in 1907:

[T]he judiciary is the safeguard of our liberty and of our

property under the Constitution.

Our Constitution helps to preserve those rights through an ingenious system of checks and balances. Time and time again, our Constitution sets up structures that require two separate, coequal branches of Government to work together and agree before the Government can act. These structures were deeply rooted in the spirit of the times, back when the Constitution was written, that when two work together, one would propose and the other could veto.

You can see that spirit in the original clause where the House can propose revenue measures, but the Senate can amend them. You can see that spirit in the presentation clause where the Congress can propose legislation but the President can veto it. And you can see

that spirit in the nomination clause where the President can nominate judges but the Senate can block them. That was the ingenious development in the late 1700s to forge consensus; somebody can propose but the other can oppose. It forces cooperation, it forces consensus, it forces a better government.

Thus, when the Senate decides whether to confirm a Supreme Court nominee, it is not beholden to the concerns of the President but to the deepest concerns and needs of the people. This is particularly true given lifetime tenure of a Supreme Court Justice and the need for Justices to staunchly defend the people's rights and liberties.

My colleagues should recall that in the history of our Supreme Court, 13 Justices have served for more than 30 years. Justice Douglas served on the Court for more than 36 years, and the Justices appointed since 1970 have served for an average of 25 years. That is a long time. Therefore, it matters that we get good judges. It really matters.

Over the years, this has been one of the issues of greatest importance to me as a Senator, and that is why I worked to set up a merit selection system in my State of Montana that is truly apolitical, truly independent, to select the judges for whom I would then recommend to the bench.

It is very important to me. I said to the people helping me out: I don't care if they are Republicans or Democrats. I don't care if you recommend liberals or conservatives. You just give me the names of three of the very best people in our State who can then serve on the Federal bench because they are going to be there a long time, and they are so important.

I am very proud--twice this happened, and each time the group I put together, which was totally balanced, came up with three very good names. It was difficult for me in sitting down with each of the three to decide who was the best of the three because they were all so good. I did the best I could, and I felt the process worked out very well and was of great value to the people of Montana and to the country.

So it matters that we have an independent judiciary. To ensure we have an independent judiciary, it thus matters that Senators exercise their independent judgment in the nomination process. Senators should not act as rubberstamps for the President's choice. That would be a complete abrogation of senatorial responsibility--complete, total.

It is our Founders' dream of an independent Supreme Court, helping to exercise the Constitution's intricate systems of checks and balances, that is at stake in this nomination process. The Senate's active involvement in the confirmation of Justices helps to ensure that the Supreme Court can lead that independent branch of Government. And in case after case, that independence of the Supreme Court, in turn, has ensured our personal rights and our liberties. We cannot take that for granted.

The Senate can honor that independence by taking its constitutional responsibility to advise and consent very seriously. The Senate can honor that independence by withholding judgment on a nominee until the Judiciary Committee has conducted full and fair hearings. And the President can honor that independence by putting forth a nominee who meets three basic criteria: professional competence, personal integrity, and a view of important issues that is within the mainstream of the contemporary judicial thought. And the Senate can honor the independence of the Supreme Court by holding a nominee to each of these criteria before voting on whether to confirm.

Let me review those three criteria.

First, professional competency: The Supreme Court must not be the testing ground for the development of a jurist's basic values. He cannot learn on the job, nor should a Justice require further training. The stakes are simply too high. He must be very professionally competent on day one.

Second, personal integrity: Nominees to our Nation's highest Court must be of the highest caliber.

And, third, the nominee should fall within the mainstream of contemporary judicial thought. The next Justice must possess the requisite judicial philosophy to be entrusted with the Court's sweeping constitutional powers.

A Senator should not oppose a nominee just because a nominee does not share that Senator's particular judicial philosophy. But the Senate must determine whether a nominee is within the broad mainstream of judicial thought--not an idealogue of the far left, not an idealogue of the far right but mainstream.

Why? Because that is where America is. Also, we need a Judge who can exercise good judgment during the entire time he or she is on the Court. The average tenure since 1970 is 25 years. Times have changed. We don't want an idealogue who has one view or tends to have one view but, rather, somebody who is wise, above the fray, has perspective, listens, has good judgment, deeply understands the history of our country, especially its beginnings when our Constitution was written.

The Senate must determine whether a nominee is committed to the protection of the basic constitutional values of the American people.

So what are some of those values? One is the separation of powers of our Federal Government, including the independence of the Court itself.

Another is freedom of speech. Boy, is that important, stronger in this country than any other on the face of this Earth. It is so important--so important. It helps make America what it is.

Another is freedom of religion, the other side of the establishment clause. Freedom of religion, both direct and indirect, so people are free to worship whomever they choose and in whatever manner they wish.

Equal opportunity, enshrined in the 14th amendment, is the basic bedrock American principle. Again, this is what made this country great. We are great for a lot of reasons, but one is because people want to come to this country and live. We don't see very many Americans heading for the door to get out of America. Americans want to stay in America, and other people want to come to America. Why is that? I submit largely it is opportunity, it is the freedom of opportunity, and no discrimination. Anybody who wants to make something out of himself or herself in America can. There are some practical limitations sometimes, but by and large, if you have the stuff in America, you are going to get there. It is freedom of opportunity.

Another value is personal autonomy, the right to be left alone. That is very basic in America when we talk about freedoms in America. They are so important. Another freedom is the right to be left alone.

Another is an understanding of the basic powers of the Congress to pass important laws, such as those providing for the protection of the environment. We are one country. General laws, especially under the commerce clause, are so important so that all of America can share in matters, not just the equal protection clause, but the commerce clause, sharing and protecting the environment. It is very important. We are one country. That is becoming more and more important each passing day.

Why? Because of integration and large advances in communication technologies, all kinds of technologies. We are all so much of the same country together.

Mainstream philosophy matters because some on the extreme would argue, as Justice Thomas did last month, that the Constitution's establishment clause in the Bill of Rights does not even apply to the States. Think of that for a moment. Justice Thomas said the Constitution's establishment clause in the Bill of Rights--that is the first amendment--does not even apply to the States.

What does that mean? That means States can set up their own laws respecting the establishment of religion. I thought we were one country. I thought that issue was decided long ago. I thought most of the provisions of the Bill of Rights that applied to the Federal Government also applied to States. I thought that. I thought we were American.

To even contemplate the thought of going backward, to even contemplate

the thought that the establishment clause does not apply to States in and of itself sends shivers, I am sure, down the spines of virtually every American, let alone to advocate it as Justice Thomas has, and my recollection is not once but I think twice.

Mainstream philosophy matters because some on the extreme would seek to abolish the right to privacy that the Court recognized 40 years ago in that famous case of Griswold v. Connecticut. There is an inherent right to privacy in the Constitution.

Mainstream philosophy matters because some on the extreme would argue that the Congress cannot pass laws such as the Endangered Species Act or the Clean Water Act pursuant to the Constitution's commerce clause. They say the commerce clause prevents the Clean Water Act; the commerce clause prevents Congress from passing the Endangered Species Act. Think for a moment what that means and how far that could go.

Many of us are concerned that this Court is a couple or three steps away from if not virtually eliminating the commerce clause and therefore Congress's ability to enact statutes, but going so far in that direction it is going to create havoc in this country. We will have more States doing separate sets of statutes because the commerce clause does not apply.

Now, come on. Stop and think a second. That is revolutionary. Yet there are many who advocate that in this country, I am sure hoping the President appoints a nominee with just that view. I will bet dollars to donuts there are many pushing that view upon the President right now.

These are extreme views. They are not mainstream. And the stakes are high. The Senate has a duty to ensure that the nominee will defend America's mainstream constitutional values. We have that duty. It is our responsibility as Senators.

It is only fitting that the Senate set a very high standard. It is only fitting that the Senate distinguish Supreme Court nominations from other nominations, especially those for administrative positions. Administrative positions, that is the President's team, in deference to the President having his own people. We are not talking about the judicial branch. There is no deference to have your own people because we have established we want independent people. We want one's own people. We do not want the President's own people. We do not want the Congress's own people. We want independent people who are in and of themselves their own people.

It is so important the Senate act with very high standards. Because of the importance of an independent Supreme Court, the President is not entitled to have the Senate confirm his nominee. There is no entitlement there.

With some sadness, I have noted over the last several years that that trend is developing. It is becoming almost assumed that the Senate must confirm the President's nominee, that the President has that right. There is no right. The right is for the American people to stand up under the Constitution and do what is right for their people. And, yes, support a nominee who is truly independent, has personal integrity and is competent but, no, not support a nominee for the Supreme Court who does not have those requisite criteria. That is what is right. The Senate must set a very high standard.

The next Supreme Court Justice will affect all of us and our children. This Justice will exercise extraordinary power. We must ensure that Justice's independence.

The independence of the Supreme Court is a doctrine with deep roots in the history of our Nation. In 1765, the great British legal jurist, Sir William Blackstone, published his Commentaries, a book that was well read by our Founders. Every law student in America knows about Blackstone. Blackstone wrote:

In this distinct and separate existence of the judicial

power, in a . . . body of men, nominated indeed, but not

removable at pleasure, by the crown, consists one main

preservative of public liberty; which cannot subsist long

in any state, unless the administration of common justice

be in some degree separated both from the legislative and

also from the executive power.

In explaining our newly minted Constitution, Alexander Hamilton wrote in Federalist No. 78:

[T]he judiciary is beyond comparison the weakest of the

three departments of power. . . .[T]hough individual

oppression may now and then proceed from the courts of

justice, the general liberty of the people can never be

endangered from that quarter; I mean so long as the judiciary

remains truly distinct from both the legislature and the

Executive. For I agree, that ``there is no liberty, if the

power of judging be not separated from the legislative and

executive powers.''

That says we in Congress cannot have our people on the Court. It also says the President cannot have his person on the Court. Rather a process so that the judge is his person on the Court, his own person.

Hamilton continued:

[L]iberty can have nothing to fear from the judiciary

alone, but would have everything to fear from its union with

either of the other departments. . . .

That is pretty profound. And Hamilton warned:

[F]rom the natural feebleness of the judiciary, it is in

continual jeopardy of being overpowered, awed, or influenced

by its co-ordinate branches. . . .

Marbury v. Madison years later helped establish the independence of the judiciary, saying the Constitution is what the Court says it says, and that has helped. But we all know Presidents have tried to change the Court in their own ways because they did not like what the Court was doing. FDR tried his court-packing plan. He did not like what the Supreme Court was deciding so he tried to influence the Court with court packing, and that did not work. Presidents have all kinds of ways to influence the Court. As I mentioned earlier, President Eisenhower very much tried to influence Justice Warren in Brown v. Board of Education. Fortunately, Justice Warren, who was appointed by President Eisenhower, stood up and said, no, separate but equal is not the law of the land. Rather, we should integrate.

Hamilton then concluded:

The complete independence of the courts of justice is

peculiarly essential in a limited Constitution. By a limited

Constitution, I understand one which contains certain

specified exceptions to the legislative authority; such, for

instance, as that it shall pass no bills of attainder, no ex-

post-facto laws, and the like. Limitations of this kind can

be preserved in practice no other way than through the medium

of courts of justice, whose duty it must be to declare all

acts contrary to the manifest tenor of the Constitution void.

Without this, all the reservations of particular rights or

privileges would amount to nothing.

So I call on the President, I call on my colleagues to defend that ``main preservative of . . . liberty.'' I call on the President, I call on my colleagues to defend the independence of the courts. I call on my colleagues in this Senate to actively exercise their constitutional duties of advice and consent.

There are not many times in our lives as Senators when rising up and exercising our responsibilities is as important as this, not be a rubberstamp, but not vote no just because we have a different view of that person's judicial philosophy but, rather, doing the right thing, and the right thing is to make sure we have nominees of utmost personal integrity who are clearly professionally competent and who are in the mainstream and will not cater to extreme views of either the right or the left but stand above it all and decide cases in the right way.

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

Mr. President, in the Declaration of Independence, one reason our Founders decided for a revolution against King George was ``He has made judges dependent on his will alone.''

That same year, the Delaware Declaration of Rights and Fundamental Rules stated:

That the independence and uprightness of judges are

essential to the impartial administration of justice, and a

great security to the rights and liberties of the people.

In the Federalist Papers, explaining our great Constitution, Alexander Hamilton quoted Montesquieu to say:

There is no liberty, if the power of judging be not

separated from the legislative and executive powers.

It is the independence of the Supreme Court that is at stake in the coming consideration of the Court's next nominee. Our Constitution embodies that independence of the Court in its separation of powers, in its checks and balances, and in its structure that provides of the President:

He shall nominate, and by and with the advice and consent

of the Senate, shall appoint . . . judges of the Supreme

Court.

The Senate's active advice and consent role in the confirmation of a Supreme Court Justice helps to ensure that nominees have the support of a broad political consensus. The Senate's role helps to ensure that the President cannot appoint extreme nominees. The Senate's role helps to ensure that Justices are more independent from the President.

Time and time again the history of our Supreme Court has demonstrated the importance of that independence. Time and time again, it has mattered that the Supreme Court had brave men and brave women who were willing to rule against the interests of the President. Time and time again, it has mattered that the President had to appoint independent thinkers that would withstand the tough scrutiny of the Senate.

It mattered that we had an independent court when our Nation was young, in 1803, when the Supreme Court decided the case of Marbury v. Madison. It mattered that we had an independent court so that Chief Justice Marshall could write for the Court:

It is emphatically the province and duty of the judicial

department [that is the judiciary] to say what the law is. .

. . If two laws conflict with each other, the courts must

decide on the operation of each. . . . That is the very

essence of judicial duty.

Today, most take for granted this bedrock principle of judicial review set forth in Marbury v. Madison. But recall the plaintiff in that case, William Marbury, challenged President Thomas Jefferson's administration. If the President, Thomas Jefferson, had been able to appoint Justices without an effective check by the Senate, then perhaps the President would have been able to appoint Justices who believed as he did--as Jefferson did--when he wrote, in 1820, a letter saying:

It is a very dangerous doctrine to consider the judges as

ultimate arbiters of all constitutional questions.

Just think for a second what that means. President Thomas Jefferson, back in 1820, wrote that it was unfortunate and dangerous doctrine to consider judges as the ultimate arbiters of constitutional questions. If it wasn't he, who would it be? Clearly, Thomas Jefferson thought it would be he, the President, not the Supreme Court.

Without concern for the Senate's advice and consent, a more recent President might have appointed a Justice who believed as did former Attorney General Edwin Meese, 20 years ago, when Meese argued that the Supreme Court's interpretations of the Constitution, in his words, did not establish a ``supreme law of the land.'' That is Edwin Meese, who was U.S. Attorney General 20 years ago. And recall that Attorney General Meese asserted that the Reagan administration was free to rely on its own views on the meaning of the law.

That is revolutionary, and I don't use that word unadvisedly. It is a long-established principle that the Constitution is what the Supreme Court says it is. It has to be. The Constitution is not what the President says it is, it is what the Supreme Court says it is. The judiciary is a free, independent, third branch of Government.

It also mattered that we had an independent Supreme Court in 1952, when the Court decided Youngstown Sheet & Tube Company v. Sawyer, otherwise known as the ``steel seizure case.''

It was the time of the Korean War, and we faced a steel strike. President Truman tried to seize the steel companies in order to avert a strike. It mattered that we had an independent Supreme Court so that the Court could rule against President Truman--an independent arbiter saying: No, Mr.

President, that is not proper; the Constitution doesn't permit that.

It mattered that Justice Hugo Black was independent enough to write for the majority when he wrote:

The Constitution limits his [that is, the President's]

functions in the lawmaking process to the recommending of

laws he thinks wise and the vetoing of laws he thinks bad.

And the Constitution is neither silent nor equivocal about

who shall make laws which the President is to execute.

That is very clear. The Supreme Court stood up to the President and said, Mr. President, that is unconstitutional.

It mattered that we had an independent Supreme Court in 1974, when the Court heard U.S. v. Nixon, otherwise known as the Watergate tapes case. Let's go back and review those facts.

President Nixon fought against Special Prosecutor Leon Jaworski's subpoena to get the Watergate tapes. It mattered that we had an independent Supreme Court, so that the Court could rule against President Nixon's claim of executive privilege. The President thought he had that privilege. If he had his way, he would determine the rule of law in the United States. But, no, we had an independent third branch, the Supreme Court, which ruled that the President in his interpretation of the Constitution was incorrect. In effect, the Constitution was standing up for all of us as Americans, protecting our rights against Presidents who want to have their way, which Presidents want to do after they are in power after several years.

It mattered that Chief Justice Warren Burger was independent enough to write for the majority in that case:

Neither the doctrine of the separation of powers, nor the

need for confidentiality of high level communications,

without more, can sustain an absolute, unqualified

Presidential privilege of immunity from judicial process

under all circumstances.

That, in effect, is what President Nixon was asking for. The Supreme Court stood up for our rights against a President.

Earlier, in 1969, on appointing Justice Burger as Chief Justice of the Supreme Court, President Nixon had said:

Our Chief Justices have probably had more profound and

lasting influence on their times and on the direction of the

Nation than most Presidents.

Well, in the time of President Nixon, it certainly mattered that we had an independent Supreme Court.

It mattered that we had an independent Supreme Court in 1963. In that year, the Supreme Court decided Gideon v. Wainwright, which upheld the right of counsel in State courts for people who could not afford a lawyer. A President might not want lawyers questioning the Government's prosecutors. Most Presidents don't. It mattered that an independent Supreme Court ensured that they can.

It mattered that we had an independent Supreme Court in 1964, when that Court decided New York Times v. Sullivan. That case has a standard that public officials, including Presidents, would have to meet to sue those who criticize them for the conduct of their office.

It mattered that we had an independent Supreme Court so that the Court could establish a rule against the interest of public officials, something public officials don't like. That is a standard that we don't like in this body. We don't particularly like it, but people can use it. It is the right decision. It makes it uncomfortable at times. The Court could rule that the first amendment protects the publication of statements about public officials, except when made with actual malice--that is, with knowledge that they are false or in reckless disregard of whether or not they are false. That was an independent Supreme Court. So it mattered that Justice William Brennan was independent enough to write the majority in that opinion, and he said:

We hold today that the Constitution delimits a State's

power to award damages for libel in actions brought by public

officials against critics of their official contact.

I imagine most Presidents don't like that if the Supreme Court says it is necessary in interpreting the Constitution to protect American rights.

It mattered when we had an independent Supreme Court in 1954 when the Court decided Brown v. Board of Education. A Court that was dependent on the President might have wanted to skirt that issue of segregation, to duck the injustice of racial segregation in our schools.

Why do I say that? Because Jim Newton, a Los Angeles Times editor and biographer of Chief Justice Earl Warren, has written that President Eisenhower, who appointed Chief Justice Warren, tried to influence the Chief Justice on that landmark case. Newton reports that during the period when the Court was considering Brown v. Board of Education, President Eisenhower invited Chief Justice Warren to join him at dinner with a number of guests. That was while that case was pending.

It turned out that President Eisenhower had also invited one of the lawyers for the Southern States in the Brown case.

As the President and Chief Justice stood up from the table--this was dinner, remember, with one of the lawyers for the Southern States there, a private dinner, Chief Justice Warren was there, and President Eisenhower, who appointed Chief Justice Warren, was there--as they stood up from the table, the President took the Chief Justice by the arm. The President motioned to others in the room and then whispered into the Chief Justice's ear: ``These are not bad people.''

The President told the Chief Justice that they were only concerned about their ``sweet little girls'' having to sit in school beside African-American children.

That is what President Eisenhower said at that dinner to Chief Justice Warren when Brown v. Board of Education was pending. So it mattered that we had a Chief Justice who was independent enough not to listen to the President who appointed him.

It mattered that Chief Justice Warren was independent enough to write for the majority:

We conclude that in the field of public education the

doctrine of ``separate but equal'' has no place. Separate

educational facilities are inherently unequal.

On that point, I don't know if it is true or not, but there are many scholars who say that the current Chief Justice wrote a memo to his judge he was working with when he was a clerk advocating separate but equal. That memo did not come out until after the Chief Justice was appointed and confirmed by the Senate.

We here today can be justifiably proud that America has the oldest living written Constitution. When our Nation's Government was born, our Constitution was a novelty. Our Constitution created, in the words engraved over the west doorway of this Chamber, ``novus ordo seclorum''--``a new order of ages.''

As we examine the great variety of governments in the world today, Americans can still have pride that few nations possess such a charter. Few nations fervently protect their rights--very few, when you stop to think about it. It is astounding, it is amazing, and we do take it for granted. Few nations so preserve an independent supreme court.

Our Constitution is our foundation. It sets forth our basic rights. It preserves our liberties against the eternal danger of the power of the Executive, sometimes against the power of the Congress but many times against the power of the Executive.

Our Constitution preserves precious rights that must be protected, and that is why we must act zealously to ensure that the men and women we entrust to guard that valued heritage is truly independent. That is why we must remember, as Justice Charles Evans Hughes said in 1907:

[T]he judiciary is the safeguard of our liberty and of our

property under the Constitution.

Our Constitution helps to preserve those rights through an ingenious system of checks and balances. Time and time again, our Constitution sets up structures that require two separate, coequal branches of Government to work together and agree before the Government can act. These structures were deeply rooted in the spirit of the times, back when the Constitution was written, that when two work together, one would propose and the other could veto.

You can see that spirit in the original clause where the House can propose revenue measures, but the Senate can amend them. You can see that spirit in the presentation clause where the Congress can propose legislation but the President can veto it. And you can see

that spirit in the nomination clause where the President can nominate judges but the Senate can block them. That was the ingenious development in the late 1700s to forge consensus; somebody can propose but the other can oppose. It forces cooperation, it forces consensus, it forces a better government.

Thus, when the Senate decides whether to confirm a Supreme Court nominee, it is not beholden to the concerns of the President but to the deepest concerns and needs of the people. This is particularly true given lifetime tenure of a Supreme Court Justice and the need for Justices to staunchly defend the people's rights and liberties.

My colleagues should recall that in the history of our Supreme Court, 13 Justices have served for more than 30 years. Justice Douglas served on the Court for more than 36 years, and the Justices appointed since 1970 have served for an average of 25 years. That is a long time. Therefore, it matters that we get good judges. It really matters.

Over the years, this has been one of the issues of greatest importance to me as a Senator, and that is why I worked to set up a merit selection system in my State of Montana that is truly apolitical, truly independent, to select the judges for whom I would then recommend to the bench.

It is very important to me. I said to the people helping me out: I don't care if they are Republicans or Democrats. I don't care if you recommend liberals or conservatives. You just give me the names of three of the very best people in our State who can then serve on the Federal bench because they are going to be there a long time, and they are so important.

I am very proud--twice this happened, and each time the group I put together, which was totally balanced, came up with three very good names. It was difficult for me in sitting down with each of the three to decide who was the best of the three because they were all so good. I did the best I could, and I felt the process worked out very well and was of great value to the people of Montana and to the country.

So it matters that we have an independent judiciary. To ensure we have an independent judiciary, it thus matters that Senators exercise their independent judgment in the nomination process. Senators should not act as rubberstamps for the President's choice. That would be a complete abrogation of senatorial responsibility--complete, total.

It is our Founders' dream of an independent Supreme Court, helping to exercise the Constitution's intricate systems of checks and balances, that is at stake in this nomination process. The Senate's active involvement in the confirmation of Justices helps to ensure that the Supreme Court can lead that independent branch of Government. And in case after case, that independence of the Supreme Court, in turn, has ensured our personal rights and our liberties. We cannot take that for granted.

The Senate can honor that independence by taking its constitutional responsibility to advise and consent very seriously. The Senate can honor that independence by withholding judgment on a nominee until the Judiciary Committee has conducted full and fair hearings. And the President can honor that independence by putting forth a nominee who meets three basic criteria: professional competence, personal integrity, and a view of important issues that is within the mainstream of the contemporary judicial thought. And the Senate can honor the independence of the Supreme Court by holding a nominee to each of these criteria before voting on whether to confirm.

Let me review those three criteria.

First, professional competency: The Supreme Court must not be the testing ground for the development of a jurist's basic values. He cannot learn on the job, nor should a Justice require further training. The stakes are simply too high. He must be very professionally competent on day one.

Second, personal integrity: Nominees to our Nation's highest Court must be of the highest caliber.

And, third, the nominee should fall within the mainstream of contemporary judicial thought. The next Justice must possess the requisite judicial philosophy to be entrusted with the Court's sweeping constitutional powers.

A Senator should not oppose a nominee just because a nominee does not share that Senator's particular judicial philosophy. But the Senate must determine whether a nominee is within the broad mainstream of judicial thought--not an idealogue of the far left, not an idealogue of the far right but mainstream.

Why? Because that is where America is. Also, we need a Judge who can exercise good judgment during the entire time he or she is on the Court. The average tenure since 1970 is 25 years. Times have changed. We don't want an idealogue who has one view or tends to have one view but, rather, somebody who is wise, above the fray, has perspective, listens, has good judgment, deeply understands the history of our country, especially its beginnings when our Constitution was written.

The Senate must determine whether a nominee is committed to the protection of the basic constitutional values of the American people.

So what are some of those values? One is the separation of powers of our Federal Government, including the independence of the Court itself.

Another is freedom of speech. Boy, is that important, stronger in this country than any other on the face of this Earth. It is so important--so important. It helps make America what it is.

Another is freedom of religion, the other side of the establishment clause. Freedom of religion, both direct and indirect, so people are free to worship whomever they choose and in whatever manner they wish.

Equal opportunity, enshrined in the 14th amendment, is the basic bedrock American principle. Again, this is what made this country great. We are great for a lot of reasons, but one is because people want to come to this country and live. We don't see very many Americans heading for the door to get out of America. Americans want to stay in America, and other people want to come to America. Why is that? I submit largely it is opportunity, it is the freedom of opportunity, and no discrimination. Anybody who wants to make something out of himself or herself in America can. There are some practical limitations sometimes, but by and large, if you have the stuff in America, you are going to get there. It is freedom of opportunity.

Another value is personal autonomy, the right to be left alone. That is very basic in America when we talk about freedoms in America. They are so important. Another freedom is the right to be left alone.

Another is an understanding of the basic powers of the Congress to pass important laws, such as those providing for the protection of the environment. We are one country. General laws, especially under the commerce clause, are so important so that all of America can share in matters, not just the equal protection clause, but the commerce clause, sharing and protecting the environment. It is very important. We are one country. That is becoming more and more important each passing day.

Why? Because of integration and large advances in communication technologies, all kinds of technologies. We are all so much of the same country together.

Mainstream philosophy matters because some on the extreme would argue, as Justice Thomas did last month, that the Constitution's establishment clause in the Bill of Rights does not even apply to the States. Think of that for a moment. Justice Thomas said the Constitution's establishment clause in the Bill of Rights--that is the first amendment--does not even apply to the States.

What does that mean? That means States can set up their own laws respecting the establishment of religion. I thought we were one country. I thought that issue was decided long ago. I thought most of the provisions of the Bill of Rights that applied to the Federal Government also applied to States. I thought that. I thought we were American.

To even contemplate the thought of going backward, to even contemplate

the thought that the establishment clause does not apply to States in and of itself sends shivers, I am sure, down the spines of virtually every American, let alone to advocate it as Justice Thomas has, and my recollection is not once but I think twice.

Mainstream philosophy matters because some on the extreme would seek to abolish the right to privacy that the Court recognized 40 years ago in that famous case of Griswold v. Connecticut. There is an inherent right to privacy in the Constitution.

Mainstream philosophy matters because some on the extreme would argue that the Congress cannot pass laws such as the Endangered Species Act or the Clean Water Act pursuant to the Constitution's commerce clause. They say the commerce clause prevents the Clean Water Act; the commerce clause prevents Congress from passing the Endangered Species Act. Think for a moment what that means and how far that could go.

Many of us are concerned that this Court is a couple or three steps away from if not virtually eliminating the commerce clause and therefore Congress's ability to enact statutes, but going so far in that direction it is going to create havoc in this country. We will have more States doing separate sets of statutes because the commerce clause does not apply.

Now, come on. Stop and think a second. That is revolutionary. Yet there are many who advocate that in this country, I am sure hoping the President appoints a nominee with just that view. I will bet dollars to donuts there are many pushing that view upon the President right now.

These are extreme views. They are not mainstream. And the stakes are high. The Senate has a duty to ensure that the nominee will defend America's mainstream constitutional values. We have that duty. It is our responsibility as Senators.

It is only fitting that the Senate set a very high standard. It is only fitting that the Senate distinguish Supreme Court nominations from other nominations, especially those for administrative positions. Administrative positions, that is the President's team, in deference to the President having his own people. We are not talking about the judicial branch. There is no deference to have your own people because we have established we want independent people. We want one's own people. We do not want the President's own people. We do not want the Congress's own people. We want independent people who are in and of themselves their own people.

It is so important the Senate act with very high standards. Because of the importance of an independent Supreme Court, the President is not entitled to have the Senate confirm his nominee. There is no entitlement there.

With some sadness, I have noted over the last several years that that trend is developing. It is becoming almost assumed that the Senate must confirm the President's nominee, that the President has that right. There is no right. The right is for the American people to stand up under the Constitution and do what is right for their people. And, yes, support a nominee who is truly independent, has personal integrity and is competent but, no, not support a nominee for the Supreme Court who does not have those requisite criteria. That is what is right. The Senate must set a very high standard.

The next Supreme Court Justice will affect all of us and our children. This Justice will exercise extraordinary power. We must ensure that Justice's independence.

The independence of the Supreme Court is a doctrine with deep roots in the history of our Nation. In 1765, the great British legal jurist, Sir William Blackstone, published his Commentaries, a book that was well read by our Founders. Every law student in America knows about Blackstone. Blackstone wrote:

In this distinct and separate existence of the judicial

power, in a . . . body of men, nominated indeed, but not

removable at pleasure, by the crown, consists one main

preservative of public liberty; which cannot subsist long

in any state, unless the administration of common justice

be in some degree separated both from the legislative and

also from the executive power.

In explaining our newly minted Constitution, Alexander Hamilton wrote in Federalist No. 78:

[T]he judiciary is beyond comparison the weakest of the

three departments of power. . . .[T]hough individual

oppression may now and then proceed from the courts of

justice, the general liberty of the people can never be

endangered from that quarter; I mean so long as the judiciary

remains truly distinct from both the legislature and the

Executive. For I agree, that ``there is no liberty, if the

power of judging be not separated from the legislative and

executive powers.''

That says we in Congress cannot have our people on the Court. It also says the President cannot have his person on the Court. Rather a process so that the judge is his person on the Court, his own person.

Hamilton continued:

[L]iberty can have nothing to fear from the judiciary

alone, but would have everything to fear from its union with

either of the other departments. . . .

That is pretty profound. And Hamilton warned:

[F]rom the natural feebleness of the judiciary, it is in

continual jeopardy of being overpowered, awed, or influenced

by its co-ordinate branches. . . .

Marbury v. Madison years later helped establish the independence of the judiciary, saying the Constitution is what the Court says it says, and that has helped. But we all know Presidents have tried to change the Court in their own ways because they did not like what the Court was doing. FDR tried his court-packing plan. He did not like what the Supreme Court was deciding so he tried to influence the Court with court packing, and that did not work. Presidents have all kinds of ways to influence the Court. As I mentioned earlier, President Eisenhower very much tried to influence Justice Warren in Brown v. Board of Education. Fortunately, Justice Warren, who was appointed by President Eisenhower, stood up and said, no, separate but equal is not the law of the land. Rather, we should integrate.

Hamilton then concluded:

The complete independence of the courts of justice is

peculiarly essential in a limited Constitution. By a limited

Constitution, I understand one which contains certain

specified exceptions to the legislative authority; such, for

instance, as that it shall pass no bills of attainder, no ex-

post-facto laws, and the like. Limitations of this kind can

be preserved in practice no other way than through the medium

of courts of justice, whose duty it must be to declare all

acts contrary to the manifest tenor of the Constitution void.

Without this, all the reservations of particular rights or

privileges would amount to nothing.

So I call on the President, I call on my colleagues to defend that ``main preservative of . . . liberty.'' I call on the President, I call on my colleagues to defend the independence of the courts. I call on my colleagues in this Senate to actively exercise their constitutional duties of advice and consent.

There are not many times in our lives as Senators when rising up and exercising our responsibilities is as important as this, not be a rubberstamp, but not vote no just because we have a different view of that person's judicial philosophy but, rather, doing the right thing, and the right thing is to make sure we have nominees of utmost personal integrity who are clearly professionally competent and who are in the mainstream and will not cater to extreme views of either the right or the left but stand above it all and decide cases in the right way.

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

Mr. President, parliamentary inquiry: Does the other side of the aisle control any time?

How much time does he have?

Mr. President, I suggest the absence of a quorum, and I ask the time be equally divided between both sides.

Madam President, I yield 20 minutes to the Senator from Massachusetts, and ask it be taken off the time allocated to the Senator from North Dakota.

I modify the request: 20 minutes to the Senator from Massachusetts taken from the time of the Senator from North Dakota; when he has finished, 5 minutes to the Senator from Vermont, that time to be taken off the time allocated to the Senator from Iowa. Then, following that, I yield 15 minutes to the Senator from Oregon, that time to be taken off the time allocated to me.

Mr. President, I ask unanimous consent that the following Senators be recognized in this order: Senator Roberts, 15 minutes, with the time to be taken out of the time allocated to the Senator from Iowa, Mr. Grassley; Senator Harkin, 20 minutes, with the time to be taken out of the time allocated to the Senator from North Dakota; and Senator Graham, 15 minutes, with the time to be taken out of the time allocated to Senator Grassley.

Two hours 50 minutes?

Thank you.

Mr. President, I do not see Senator Graham here. I ask unanimous consent that the order be vitiated, and I will yield to him when he arrives.

Mr. President, in a narrow sense, the Senate today is considering the free-trade agreement with five Central American countries and the Dominican Republic, but in a larger sense, the Senate is debating how the United States can remain competitive. In a larger sense, the Senate is debating how America can continue to earn $37,000 per person, or more, when there are hundreds of millions of people in China who earn $1,100 per person a year.

Little agreements like that before us today cannot be the answer. It may be a partial answer but, frankly, in the larger scheme of things, it is really much less important than the central question facing America today with respect to economic competitiveness. The agreement before us today will not open enough markets for American exports to make that much of a difference. That is clear.

No, we need a much more aggressive strategy. On trade policy, we need to try to negotiate bigger agreements--not these small ones, but bigger ones that have much greater commercial value. We need to open negotiations with trading partners who represent a larger share of American trade. There are many examples. We are not doing that, but we should and we must. Time is ticking by. We need to give renewed emphasis to multilateral agreements like the Doha Round. And we need to do a better job enforcing the trade agreements we have already entered into.

Each Senator can list many agreements the United States has entered into with other countries, but the other countries, by and large, have not lived up to the agreements. The most glaring example is intellectual property. We know who the countries are that have not lived up to their obligations to honor intellectual property rights and, as a result, American companies are losing billions of dollars a year. The United States must be much more aggressive in enforcing those agreements.

We need to improve America's education. We need to ensure that we can remain more productive than workers in other countries. That too is clear. We need to give teachers the recognition and compensation they need to ensure that they can help to educate the most productive workers in the world. We need to increase the incentives for students to study the basics--math, science, engineering. Why? So that American students can remain the source of tomorrow's new ideas. We pride ourselves--we have in the last several decades--in being the country that is the most innovative and creative, and that has been true. We also know that others are catching up. There is no reason why people in other countries cannot be as creative and as innovative as Americans. There is no reason--none. They are people, and we are people. They are human beings, as we are. Their brains are the same as our brains. It really comes down to who is the most educated, the most aggressive, who works the hardest, and who works better together. And people in other countries are becoming very well educated, very aggressive. They are hungry. They are working closely together, and they are investing in areas to increase their productivity. They are catching up very quickly.

We also need to increase our national savings. America has an abysmal national savings history. It will not be much longer, if that trend continues, when we are going to face very dire economic consequences. We have to do something about that; we are not. Our private savings rates are zero. Americans do not save. They spend. We spend. We like to buy refrigerators, cars, boats, clothes. We consume; we do not save. With housing prices so high these days, what do we do? We borrow against the equity in that house. What do we do with the borrowing? We spend. To make matters worse, the Federal Government not only has a savings rate of zero, it has a dissavings rate, huge deficits and debts.

We cannot continue like this. That is one part of the agenda that we must work on if we are going to address American competitiveness. This agreement before us is an important debate, but it is not the real debate. It is an important issue, but it is not the real issue. It is only a small part of the central issue we should be facing. We need to expand incentives for employees to save through work, for example. There is no glamor or rocket science in this. It doesn't make the evening news. That is one reason we don't do it because we are people with such a short attention span. It is the instant view--what is now-- and not what can be 10, 15 years from now. We need to expand incentives for employees to save through work, which is a small step in the right direction to increase savings. We need to stop running massive Federal budget deficits because they are reductions in national savings.

We need to address our outsized and very expensive health care system. We spend twice as much on health care per capita than the next highest country. I ask, are we twice as healthy? Of course not. We are not twice as healthy. Why do we spend twice as much? A lot of reasons. It is very complex, but we do. What is the consequence of that? One consequence, clearly, is that our companies are having a very difficult time competing--particularly our larger, older companies. They have extremely high health care costs, legacy costs to employees and retirees. Their competitors don't have them nearly that high.

I have talked to CEOs of large companies who say they are thinking of locating their plants in other countries largely because the health care costs for those employees in those countries is much lower and so they can compete.

I remind my colleagues, this is an incredibly competitive world. It is incredibly competitive, and just the slightest margins make a difference. We have to, therefore, be incredibly competitive ourselves. It is teamwork. It is Americans working together. We are not working together.

Look at this debate. This debate is pretty sterile. One side exaggerates; the other side exaggerates. We are not talking with each other. We are not focusing on the real problem. I hope in future days, weeks, and months we start to wake up and not get so involved with the periphery. CAFTA is not really the periphery, but it is not far from the periphery. We should, rather, focus on the central questions.

We also need to foster much greater use of information technologies in health care. Did you know, Mr. President, that the equivalent of two 747s crashing every day is the number of Americans who die on account of medical errors? Between 58,000 and 98,000 people a year in America die because of medical errors. It is not true in other countries. It is in America. Much better information technology in the health care industry will reap immense benefits.

What is one of the reasons we do not invest in IT in America in health care? It is pretty simple. It is reimbursement. Hospitals will spend thousands of dollars on CAT scans and on PET scans, the latest technologies. Why? Because the Medicare program reimburses them for those machines. It is also competition, keeping up with the Joneses. What is the Medicare DRG for IT? There isn't one. We have a system that reimburses and sets up incentives that discourages development of IT in health care, which we have to have, which will reduce medical errors. It will have all kinds of positive consequences if we get a much better IT system. We have to get going in this country. We are behind the eight ball.

In sum, to be competitive, we need to have a plan. This is a bit simplistic, but I think it somewhat makes the point. I mentioned earlier how competitive this world is. We all know that. If we put two teams on the playing field--by the way, I am an American. I am for the American team. I do not want to denigrate other people or hurt other people. The ideal is that everybody around the world is doing extremely well. I am an American. I am on the American team. I want America to do well.

If we put two teams out on the playing field--let's take football. One team has a quarterback, blocking backs, the linemen, they have a coach, a play, a plan. That is one team. The other team has 11 players on the field. One person wants to do one thing; he wants to carry the ball. Someone else says: I want to carry the ball. No, I want to kick. No plan, no coach. They are out doing their own thing. They are entrepreneurial. It is free competition,

going in their own directions, doing what they want to do.

Which team wins? I grant you, that is simplistic. That is very simplistic, but I think it does make a point.

Other countries have plans. I can name them: China. China has a plan. Japan has a plan. I think some European countries do; I am not sure. I do not know how much better organized they are, but the main point is we do not have a plan. I am not asking for a centralized plan where somebody decides what everybody does, but I am asking for much greater cooperation, much more working together so that Americans can compete.

I go back to what I said earlier. So much of this is education. It is value added. We need to add value up here at all levels--K through 12, continuing education, vo-tech, and so forth. Ultimately, that is where it is at--education. There is nothing else but education--math, science, and other areas.

I see the Presiding Officer taking notes. I can see he is listening to me. I can tell I am making some points that maybe make sense and he is going to do something about it. I appreciate that. I wish others would, too.

Mr. President, I ask unanimous consent that the following Senators be the next recognized for debate: I see Senator Graham is in the Chamber. He will have 15 minutes, and that time will be taken out of the time allocated to Senator Grassley. Senator Conrad of North Dakota wants 15 minutes, and his time will be taken out of the time allocated to Senator Dorgan. Senator Thomas will be recognized for 15 minutes, and his time will be taken out of the time allocated to Senator Grassley.

I do not know that it matters, Mr. President. For the sake of moving along, we will stick with what we have.

Mr. President, I ask unanimous consent that subsequent to the remarks of the Senator from North Dakota, Mr. Conrad, pursuant to the existing agreement, Senator McCain be recognized to speak for 10 minutes and that time be taken from the time allocated to Senator Grassley; following Senator McCain, that Senator Dayton be recognized for 15 minutes and that time to be taken from the time allocated to myself.

Does the Senator want more time? We can certainly find it.

I make that request.

Mr. President, I ask unanimous consent that the following Senators be recognized next to speak after Senator Dayton: Senator Kerry for 15 minutes, with the time taken from the time allocated to me; and then a Republican Senator not yet named, for 10 minutes, with the time taken from the time allocated to Senator Grassley.

Mr. President, under the order the Senator from New Jersey is recognized next for 10 minutes. I ask unanimous consent he be given an additional 5 minutes, total of 15, and the time to be taken out of the time allocated to Senator Dorgan.

Mr. President, I have a rough understanding that Senator Dorgan will speak next. He is not here.

I suggest the absence of a quorum and ask consent that it be charged equally against both sides.

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

Mr. President, I yield 10 minutes to the Senator from Florida, and following the remarks of the Senator from Florida, I ask unanimous consent that 10 minutes then be allocated to Senator Sessions and that the time be taken out of the time allocated to Senator Grassley.

Yes, 10 and 10.

Mr. President, I ask unanimous consent that the following be the only remaining debate on the bill, in the following order: Senator Sessions, 10 minutes; Senator Dayton, 5 minutes; Senator Sununu, 5 minutes; Senator Ensign, 5 minutes; Senator Baucus, 10 minutes; Senator Grassley, 10 minutes; Senator Reid from Nevada, 10 minutes; Senator Frist, 10 minutes.

Mr. President, I add that to the request.

That would be after Ensign and before myself.

That is correct.

Mr. President, I suggest the next speaker be the Senator from North Dakota and as soon as the Senator from Nevada arrives, he follows the Senator from North Dakota, if he is here on time.

Yes.

Mr. President, this has been a long debate, and generally, in most respects, the statements have been a little bit one- sided: CAFTA is great, it is going to help; or CAFTA is a terrible idea; it will send us down the drain. I am hopeful because I sensed that in the last 2 to 3 hours, the statements have been a little more toward the center, trying to figure out realistically what is happening, what is going on here.

I think it is true, we all know in this competitive world that trade is important, it is essential. Companies have to trade, people have to trade both ways. If we do not, we are going to lose out big time. That is clear. There is not much doubt about that. But it is also true--and this has not been sufficiently addressed, certainly not in this debate and certainly not in the country, is

how we address the dislocations that happen on account of trade because so many people lose jobs through no fault of their own.

They work at a company, they work at a plant, say a manufacturing job at a plant, and the company seeking lower wages or lower health care costs goes overseas, maybe seeking software development, R&D investment, and an American loses his job. This might be a 20-year-old, it might be a 50-year-old, who loses his or her job. It is not the fault of the employee. It is because of the system. It is because the world is changing so dramatically. We have not begun at all to address what we should do about that.

We do have trade adjustment assistance. Trade adjustment assistance today applies only to persons who lose manufacturing jobs. It does help people who lose manufacturing jobs get some assistance, get some training, get some health care benefits, but it ought to be easier to get, and it ought to cover more workers, including service workers.

What we care about is training people, finding ways for them to get jobs that make a difference, to help them feel good about themselves without big dislocations in their families.

I might say we also are not addressing the larger trend that is coming. We have lost, say, 3 million manufacturing jobs in America over 2, 3, or 4 years. They are gone. We have also picked up a good number of jobs. But what is the area in which we have picked up a lot of jobs? Lately, in the last couple of years, it is because of 9/11. It is homeland security jobs. It is national defense jobs.

Clearly we need those jobs. But it makes one wonder a little bit, first, if there were no 9/11, sounds like there would be a huge net loss of jobs. We would not have the homeland security jobs we now have.

To make matters more, if not alarming, at least serious, is that although we have lost about 3 million manufacturing jobs, we picked up maybe roughly the same in the homeland security jobs, the next wave is going to be much greater and it is going to make the loss of manufacturing jobs pale in comparison. Our economy is creating and destroying jobs at a faster and faster rate. The total number of jobs may not be decreasing, but the rate of churn in the economy is getting faster and faster, especially with service jobs. This country is not ready for that. We have no paradigm, no structure, to deal with it. The days when you could work single job for 30 years without updating your skills are over. We need to be more prepared, have more educated workers, and more adjustment assistance.

Knowledge is not perfect. A little bit of knowledge is a dangerous thing. A book that I started to read is a good book that most Americans should read, called ``The World Is Flat,'' by Thomas Friedman. If one reads that, they get a sense of how much technology, communications technologies, moves things from bottom up instead of top down. In the economic world, nothing is sacred anymore. It is such a free-for-all. It is the wild west in a certain sense. I do not think we are ready for that.

So this debate has been helpful. It helps bring out some of the provisions of CAFTA, what it does and does not do, but it does not address the fundamentals. It does not address the basic problems we should be addressing. I am quite hopeful that sooner rather than later we are going to begin to address and we are going to hear Senators give speeches on what needs to be done. After that, there will be some proposals and debates on those and I am very hopeful that will happen sooner rather than later.

With respect to the more narrow issue of CAFTA, it is my belief, frankly, that regrettably the administration did not work with Congress as much as it should have. If it started earlier, we could very well have had a big vote for CAFTA, especially with respect to sugar. The administration came to Senators with the sugar concerns, beet sugar, cane sugar, very late in the game. In fact, there are negotiations going on right now. It is only because they realized they do not have the votes, especially in the House, at least not yet. The same is true with the labor provisions, no real negotiations, no real discussion there. That is unfortunate because we are one of the two bodies trying to find ways to get trade agreements.

I must say, however, that is not true about environmental issues. About a year or so ago, I realized that on CAFTA, environmental issues were going to be a big problem so I asked Ambassador Zoellick if he could come over to my office and talk about it, and he did. I must say I appreciate the way Ambassador Zoellick, over a period of about a year, dealt with the environmental issues so that would be much less of an issue in this agreement.

There has been a lot of talk about trade fatigue. Maybe the people of our country, Members of Congress, are beginning to wonder, gee, do these agreements mean much. I think that is an appropriate question. There is trade fatigue. One is because we are not enforcing our current trade agreements as we should. If we were to start to enforce our trade agreements, I think Americans would start to think, hey, maybe our Government is doing something to help us out.

My final two points are this: We speak about job loss and we speak about job gain. More importantly, there is a lot of talk about the economy is doing better. It masks the real problems that are going on, and that is the tyranny of averages. Average numbers do not mean much of anything. Why? Because we are such a disparate country. Some people have certain kinds of jobs. Some people have a lot of income, some people do not. That is not the question, what is the average GDP in the economy and all of that.

It helps a little bit, but we are representing people. There are employees. They are the people who work and an awful lot of people are getting hurt these days. A lot of people are doing very well. Bigger companies do very well, but a lot of people are not doing well, and a lot of people who work for big companies are not doing well.

I urge us to remember who we work for. We work for the people. They are the ones who elect or unelect us. I urge us to remember that point.

Finally, I will end where I began, namely, I am quite hopeful. I sense in this agreement, this debate, that people are starting to realize what the real issues are and beginning to realize that maybe the administration could have done a better job in talking to the Congress about the provisions that are in this agreement so that the Congress and the administration can work these out in subsequent trade agreements so we do not have quite the same problems we have tonight. At least I hope so. I am hopeful that will happen.

I yield the remainder of my time.

Mr. President, I rise as a cosponsor of the ``Medicare Value Purchasing Act of 2005.''

This bill will establish a new program to link a portion of Medicare's reimbursement for health care services to the quality of that care. This bill takes a crucial step towards improving the value of our health care dollar as well as the safety and quality of our Nation's health care system.

Last week, I gave a statement in this Chamber about America's place in the world. I am proud of our Nation; I am proud of our enterprising spirit, our energy, our diversity, and the hope for a better future that is inherent to our roots. I am proud of this country, but I am disappointed in the state of our health care system and in the impact it is having on the lives of our fellow citizens, as well as on the economy and ultimately on our place in the world. As I look to the future, I see a stronger America, but I know we must work hard to make sure that vision is realized.

We hear about the problem of increasing health care costs nearly every day--in newspaper headlines and in casual conversations. Per capita spending on health care in America is nearly 2\1/2\ times the average in the industrialized world. We spend over $5,000 per person on health care, and premiums for employer-sponsored coverage are rising five times faster than inflation.

With all this money going into health care, one might assume we had the best health care in the world. But that assumption is wrong. Despite spending more per capita than any other developed nation, the World Health Organization ranks the United States 37th in health care quality. As many as 98,000 patients die each year as a result of medical errors, and research has shown that in some cases more care, more specialists, and more treatments, actually result in worse outcomes for the patient.

Costs are rising, we are not getting high-quality care for the dollars spent, and due to the nature of our health care system much of this burden is borne by employers. For the first time, the Big Three automakers are beginning to charge premiums and scale back benefits for their workers and retirees, because they can't afford the cost of health care. All told, GM estimates that they will spend about $6 billion in 2005 on health care. This translates into $1,525 for every vehicle they sell. That is more than the company spends on steel.

By comparison, Toyota's health care costs are about $1,000 less per vehicle. It is not surprising, therefore, that a recent survey of business leaders found that 65 percent of top Chief Financial Officers in the United States feel that it is very important for Congress to address the cost of health care. Their European and Asian counterparts did not cite the costs of health care among their top concerns.

No other industry tolerates the level of disrepair that can be found in the U.S. health care system today. Many of my colleagues in the Senate agree that in order to improve the system, we need to do more to control health costs through efficient purchasing and the use of health information technology. In other words, we need to create a ``culture of efficiency'' in health care.

How do we do that? First, we need to begin building a health information infrastructure that can reach providers and patients nationwide, from Manhattan, NY to Manhattan, MT. We must take aggressive steps to establish standards and policies around this infrastructure, and to make initial investments in hardware, software, and training. I applaud my colleagues Senator Enzi and Senator Kennedy for introducing important legislation on this topic today, the ``Health Information Technology and Quality Improvement Act of 2005''.

Building a Health Information Infrastructure will facilitate the provision of high-quality care. But we also must begin rewarding quality in the way we pay for health care. Today, Medicare payment policies typically do not include mechanisms designed to encourage quality of care. Medicare does not distinguish between paying for care that is necessary and that which might be unnecessary or inappropriate.

As a result, I worked with Senator Grassley to design a program that will tie a portion of Medicare reimbursement for hospitals, physicians, health plans, renal dialysis facilities, and home health agencies to the quality of care provided in these settings. Payment for these providers, as well as for Skilled Nursing Facilities, would also be linked to reporting data on

quality of care and, after the first year of the program, to making this data available to the public.

The Medicare Value-Based Purchasing program would begin paying for value in the health care system--good care, better patient outcomes, evidence-based medicine, and increased transparency. We have learned a lot from programs such as this that have begun on a smaller scale in the private sector, and we hope that taking this step forward in Medicare will drive the entire health care system toward a system of high-quality, high-value health care.

But designing a program like this one is not easy, and I want to be clear on this point: I don't believe Congress should determine how the quality of health care is measured. That is why my bill sets up a system of stakeholder involvement at every step in the development and implementation of a Quality Measurement System for Medicare--in determining what measures of health care quality are appropriate for each provider group, in implementing a system of data collection and analysis, and in updating the measurement system in accordance with changing science. Providers, payers, patients, and many other groups are the key experts who should be involved in the details of a health care quality system--not Congress.

But it is our job to lay out some of the parameters for the system, and to provide the Secretary of Health and Human Services with the authority to follow them and create this new program. It is also our job to oversee such a program once it is enacted and implemented. Over the last year or so, we have met with provider groups, consumer organizations, researchers and policy experts, and many of the individuals who have built and participated in private-sector programs to drive quality improvement in health care.

As I mentioned, our bill sets up a process by which a quality measurement system is developed in consultation with stakeholders and is uniquely tailored for the different groups of providers who participate in Medicare. This system should measure the quality of health care in a variety of ways, looking at processes of care, health information technology infrastructure, patient outcomes, patient experience of care, efficiency of resource use, and equity. For some groups of providers, only a very few measures of health care quality will be available when the program begins. These providers should not be penalized for that, but rather rewarded for reporting and improving the quality of the care they provide according to those measures. We may start small in some cases, but we can get the ball rolling.

The bill sets up a two-phase approach to quality improvement. In the first phase, the annual update to a provider's reimbursement is tied to reporting data on quality of care. This data would be on the measures included in the Medicare Quality Measurement System which has been developed by the Secretary with stakeholder involvement. Some providers--such as hospitals, Medicare Advantage Plans, and renal dialysis facilities, are already reporting data on quality of care to Medicare and might move more quickly to the second phase of the program.

In the second phase, those providers who report data on quality of care to the Secretary will be able to participate in value-based purchasing, where a portion of total payments to participants in each provider group is taken to form a quality pool. The funds in this pool are then reallocated to award providers who demonstrate high-quality care, or who show that they are improving. In theory, this sets up a system in which all providers could receive money back out of the pool--in essence it is a system that will ``raise all boats.'' Following the recommendation of the Medicare Payment Advisory Commission, the portion of payments tied to quality in this second phase will be 1 percent in the first year of the program for each provider group, and will increase to 2 percent over five years.

In addition to setting up this program, the ``Medicare Value Purchasing Act of 2005'' includes additional measures to facilitate quality improvement in the health care system, such as a provision to reduce the legal barriers to health IT adoption that are present in the Federal anti-kickback and Stark laws.

It also includes several studies to look more closely at the true costs of health care, and the benefits--both human and financial--that can be gained from improving quality. The information generated by these studies will be critical in moving forward with value-based purchasing, allowing us to more accurately predict the program-wide savings from efforts to improve quality. Given that the Medicare Part A Trust Fund faces insolvency in 2020--decades earlier than Social Security--identifying these savings will be critical to preserving access, to care for Medicare beneficiaries and adequate reimbursement for providers.

Senator Grassley and I set out to write a bill that would address value-based purchasing, set up a system of measuring quality of care in Medicare, and encourage the adoption of health information technology. We set out to write a bill that, in concert with the bill introduced by Senators Enzi and Kennedy would create a roadmap to a ``culture of efficiency'' in health care.

That means that our bill does not put new money on the table to reward health care quality, and it does not fix the problems that currently exist with the physician payment system or with reimbursement updates to renal dialysis facilities. But nor does it mean that we are blind to these issues. Indeed, I know that sustained cuts to the physician fee schedule, which will take effect if current law is not changed--are not sustainable.

I want to work with physicians and practitioners to find a sustainable solution to the problems with the physician fee schedule, and I want to work with the renal dialysis community to make sure that reimbursement is adequate so that facilities--especially those in underserved areas--can keep their doors open. But I also ask these providers to work with me to move Medicare in the right direction-- ultimately, better quality and value means better health care, better coverage, and a stronger system for all.

Finally, I believe that quality improvement efforts should extend beyond Medicare, into the Medicaid and SCHIP programs, and into the private sector. Currently, programs at the State level have found ways to improve quality and find efficiencies through health information technology use in Medicaid. Our bill includes State government health program representatives in the process of developing the Quality Measurement System because we believe they have important perspective to share, and also because we believe that quality improvement policies are equally important for their programs. I look forward to working with Chairman Grassley on a bill to address quality of care in the Medicaid and SCHIP programs later this year.

I want to thank my colleagues Chairman Grassley, Chairman Enzi, and Senator Kennedy, as well as their able health care staff, for their tireless work on this legislation. We feel passionately about this issue because it matters to all of us. We all want to ensure that the best care possible is provided. We know how hard health care providers work for their patients, and we believe they should be rewarded for that work. And we believe this issue should be advanced in the Congress as soon as possible.

As I said, I have a vision of a stronger America. I envision a health care system in which quality and value are rewarded, in which innovative health information technology is accessible to all, in which data systems that can exchange crucial patient information to save lives and prevent mistakes, and in which American companies are not at a competitive disadvantage in the world because of health care costs. I call on my colleagues to support the important steps toward that vision that will be taken under the pieces of this legislation introduced today.

Mr. President, today, I am pleased to be joined by my two friends and Finance Committee colleagues, Senator Jeffords and Senator Kerry, in filing legislation to close a loophole in the 2003 tax cut bill. The Jobs and Growth Tax Relief and Reconciliation Act of 2003 provided for lower rates of taxation on dividend income. Formerly, taxpayers paid ordinary income rates on dividend income. Now, individuals who receive dividends are taxed at either a 15 percent for upper-income taxpayers, or a 5-percent rate for lower-income taxpayers. Further, in 2008, this lower rate becomes zero before the whole provision expires in 2009.

The demand for lower rates was premised on the claim that dividend income was subject to double taxation; that is, taxed once by the corporate entity and then again by the shareholder. Assuming that is the case, then if we are sure the corporate entity is not subject to tax, the dividend should not be afforded the special rate. In fact, we heard testimony today in the Taxation Subcommittee that corporations with little or no taxes at the entity level really receive an additional benefit from the dividend tax break.

Current law, however, allows dividends from ``qualified'' foreign corporations to benefit from these lower rates if the company is based in a U.S. possession, or based in a country with which the U.S. has a tax treaty, or has stock which is traded on a U.S. stock exchange. Senator Jeffords, Senator Kerry, and I have become concerned that the definition of qualifying foreign corporations is overly broad and may encompass companies in tax haven countries with little or no tax system. Providing this special benefit for such companies simply because its stock is traded on a U.S. exchange does not meet with the original intent of the legislative change. Our bill would shut down this loophole by modifying the ``stock exchange'' test to only allow this special rate for companies based in countries with a comprehensive income tax system. By doing this, we will address a current inequity between dividend-paying stocks and make sure that only stock of companies subject to tax at the corporate level enjoys this preferential rate.

With every tax bill we enact, it is important to review the provisions from time to time to make sure the law works as intended. Here, I believe we have found a significant and unintended loophole. Certainly, as we debate whether to extend, expand, or eliminate these preferential rates, we should also be open to improvements in the current law. I encourage my colleagues to join with us in working for such an improvement.

Mr. President, I yield myself such time as I may consume.

Tonight the Senate begins its consideration of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act, more commonly known as CAFTA. I will be speaking in some detail on this trade agreement tomorrow, but for tonight I want to open the debate with some observations about the process that brought us here.

CAFTA has proved itself to be the most controversial trade agreement to come before the Congress since the North American Free Trade Agreement a decade ago. It did not have to be this way. When the story of CAFTA is written, whether it passes or fails, the theme will be the politics of the last minute because even as we bring this bill to the floor parts of the CAFTA package are still being negotiated. In fact, they are being negotiated as we speak. We need to do better.

The Founding Fathers, in their wisdom, assigned primary responsibility for trade policy to the legislative branch. Article I, section 8, clause 3 of the Constitution states:

The Congress shall have the power . . . to regulate

Commerce with foreign Nations.

It quickly became obvious, however, that Congress is a body ill- suited by structure to negotiate trade agreements. So our predecessors quickly figured that the actual negotiating would have to be delegated to the executive branch. Still, the constitutional responsibility for trade remains with the Congress. That is why under U.S. law no trade agreement is self-executing.

Trade agreements such as CAFTA have no force or effect on domestic law until Congress passes implementing legislation. A system where one branch of the Government negotiates trade agreements and another must approve them and turn them into domestic law presents many challenges. To work well, it requires the highest degree of coordination between executive and legislative priorities.

Over the years, this system of shared responsibilities has been formalized into Senate procedures commonly called fast trade, or more recently, trade promotion authority. These procedures require the executive to negotiate agreements that meet a long list of congressional priorities, and they require very close consultation between the executive and Congress at every stage of the process.

I am sure that Ambassador Portman, our current USTR, and his staff can document that they followed these statutory procedures to the letter for CAFTA. I do not disagree. Their problem is that process for the sake of process does not work if there is no true spirit of cooperation. A statute can require a meeting, but a meeting of the minds cannot be mandated by law. A true meeting of the minds is what we need to make the consultive process work the way it is intended to work.

Congress and the executive need to be working closely together at every stage of a trade negotiation to make sure that everyone's priorities are being addressed, maybe not all agreed to but certainly all addressed. Unfortunately, that is not what happened with CAFTA.

Early on in the CAFTA negotiations, I could see that sugar was going to be a difficult issue so I asked former USTR Ambassador Zoellick to meet with the Senate sugar caucus. That meeting was not required by trade promotion authority, but it made sense to try to address a difficult issue as soon as possible. The meeting took place and views were exchanged, but there was no meeting of the minds and little attempt to continue the dialogue. Not surprisingly, CAFTA's sugar provisions were unacceptable to many Members, but CAFTA sat unchanged for more than a year.

Suddenly, last week, there began a series of around-the-clock sugar negotiations. Those negotiations were ongoing this morning when the Finance Committee marked up CAFTA. They are still ongoing as we speak. So those of us who have sugar producers in our States still do not know for sure what CAFTA means for our constituents.

This would have been resolved and should have been resolved months ago. We should not be on the floor debating an implementation package that is not final. The story is similar for the labor provisions. From the beginning, it was clear that labor rights were going to be a contentious issue in CAFTA. So I, together with a number of colleagues, began a dialogue with Ambassador Zoellick. We sought assurances that CAFTA's labor provisions would be

stronger than those in other recent free-trade agreements, but little progress was made. Suddenly, within the past few weeks, there began a series of around-the-clock meetings between Ambassador Portman and several Democratic Senators and Members of the House.

Just this morning, as the Finance Committee came together to vote on CAFTA, brandnew labor and capacity-building provisions were revealed.

We should not be on the floor debating CAFTA when the ink is not yet dry on these provisions and nobody really knows what they mean. I know that there is another way. I have seen it work.

In the fall of 2003, I put out a series of proposals for strengthening CAFTA's environmental chapter. Ambassador Zoellick and I had a productive yearlong dialogue on these issues. It was very constructive, very rewarding. He was engaged; I was engaged. With commitment on both sides, we agreed on key improvements that are included in the text of this agreement. This is the model I want to follow in the future, not the last minute dealmaking but the long, thoughtful dialogue working to find accommodation, find agreement, which builds a greater consensus for trade, let alone the agreement in question.

Trade promotion authority expires in 2007. At that time, Congress will consider whether there are ways to improve the process. The truth is, the process is only as good as the goodwill of the people using it.

I do not say this to lay blame. We are all responsible. Members of the Senate are caught up in the press of business and do not always focus on their priorities early enough in the trade negotiation process. The executive hears but does not always follow the advice or pay attention to the advice it receives from Members of the Senate. The same would be the case for House Members.

Still, in the end our trade policy is only successful when it reflects the priorities of both the Congress and the executive.

In the coming months and years, let us rededicate ourselves to the purpose behind the process. Let us work together and truly mean it. That is the way we get things done. Again, under the Constitution, Congress has primacy in trade, but because we are not a parliamentary form of government but a constitutional form of government with separate branches we, by necessity, have to delegate the negotiating of trade agreements to the executive. But to make this work and to continue to have a consensus and to build a consensus on trade agreements, the administration must consider the wishes of Congress much more seriously in the future. Otherwise, it runs the real risk of losing, perhaps, trade promotion authority for other similar agreements.

I say this also because we stand at a moment in history, at a time when the United States has to work much more aggressively, much more cooperatively among ourselves, different sectors of the country, to meet the competitive challenges that we face overseas. Whether it is China, Japan, Europe, the flattening of the Earth, or changes in telecommunications technologies, we have to work a lot harder, invest more in education, address the high health care costs that put our American companies at competitive disadvantage, and be much more aggressive in enforcing our trade laws. There are many more actions we must take. When that happens, the more the President and the Congress in good faith can totally put politics aside because this is an American issue. This is not a partisan issue. This is an issue for America. If they were to do so, and we were to do so, we will fulfill the responsibilities we have, and it will help our people at the same time.

At the appropriate time, I will later yield time to the senior Senator from Connecticut, Mr. Dodd.

I yield the floor.

Mr. President, I must respond to that gracious statement by my good friend from Iowa. No member of this body can be more blessed to have a partner to work with in such cooperation and good spirit than I. I am lucky--more importantly the Senate is lucky--to have the chairman of the Finance Committee. He is a wonderful person to work with. We work very closely together. We are a real team and we think that our States are better for it. We also think that the country is better served as well.

For whatever reason, whether it is true or not, I want to very much give my utmost thanks and compliments to the senior Senator from Iowa.

President, I wish to explain my climate change votes. This is an important debate, and I appreciate the efforts of my colleagues to contribute substantively to our understanding of the issue and to offer solutions.

First, let me be clear that although I voted for Senator Hagel's amendment relating to the promotion of climate change technology at home and abroad, I do not think that amendment goes far enough to address the issue of rising greenhouse gas emissions. At the very least, I would like to see more aggressive timetables and proposals for Federal action than are contained in Senator Hagel's amendment.

At the same time, I am still not comfortable supporting the approach of Senator Lieberman and Senator McCain. I admire their hard work and dedication in advocating for immediate action to control U.S. emissions of greenhouse gases. They have helped to educate their colleagues, and have kept the issue on the front-burner in the Senate and made it impossible for us to ignore. And, as they have so often pointed out, the evidence that manmade greenhouse gas emissions are impacting our climate system is growing every year.

However, I am still not ready to support the mandatory cap and trade called for in their amendment that would freeze U.S. emissions of greenhouse gases at 2000 levels in 2010. I still have questions about the costs this proposal would impose on our economy, and in particular on my state that has the largest coal reserves in the lower 48. Projections vary widely, which makes it difficult to weigh costs and benefits. I also have concerns about whether we currently--or will in the immediate future--have the technological capabilities to meet the challenges of the McCain-Lieberman bill, without imposing significant costs on our economy or creating greater volatility in natural gas markets than already exists. Perhaps not in the short term, but beyond 2010, this concern only grows.

These are not trivial questions, particularly when some of our friends in the developing world will soon eclipse the industrialized nations as the largest emitters of greenhouse gases. We cannot ignore that fact, particularly as we contemplate placing a burden on our own economy that could impact our international competitiveness, while at the same time, will have little impact on overall global greenhouse gas concentrations.

I also was unable to support Senator Bingaman's sense of the Senate, calling on Congress to implement a mandatory program to reduce emissions of greenhouse gases soon. While I do agree that Congress should take this issue seriously and act sooner rather than later, I can't agree at this point that we are ready to enact a purely mandatory program in the short term.

Crafting truly bipartisan, comprehensive legislation to address greenhouse gas emissions will take a great deal of work that this Congress to date has avoided, except for the concerted efforts of individual Senators, like Senators McCain, Lieberman, Bingaman, Byrd and Hagel. Unfortunately, individual efforts generally are not enough on legislation this complex and far-reaching without the structure and support of a committee-led process, and encouragement from the leadership and the administration.

This must happen, and I have been encouraged to hear many of my colleagues express similar sentiments about pursuing a broader approach to developing climate change legislation,

rather than on an ad hoc basis on the Senate floor, particularly the Chairman of the Senate Energy Committee, Senator Domenici. This is a positive development.

Congress must act, and act in a concerted, thoughtful way. That's how we have addressed complicated environmental legislation in the past, including the Clean Air Act. But, we're talking about a potential regulatory scheme that could dwarf the scope and impact of even the Clean Air Act and is directly related to our future economic growth. We're also talking about controlling a gas--CO2--for which we currently have no widely available, proven control technology. Implementing mandatory controls now looks to a certain extent like stepping off a cliff and hoping something breaks our fall. We need to take the time to do it right. I pledge my assistance to make this happen.

I also continue to believe that this administration must re-engage with the international community in a meaningful way. The best way to move forward in this body is concurrently with an international effort that encompasses all of the major greenhouse gas emitters--and those that will soon become the major emitters. Not only will this accelerate the technology development curve, but it will level the economic playing field. The fact that Kyoto left out much of the developing world, including China and India, was that treaty's fatal flaw. We don't need to go down that path again, and I think the world is ready to step beyond Kyoto.

As the current number one emitter of greenhouse gases, it is incumbent on the U.S. to lead, not follow, in this effort. That's why I supported Senator Kerry's sense of the Senate.

Mr. President, virtually everyone supports tax simplification. But for some reason, it is awfully hard to accomplish. Today, I am pleased to join my friend and colleague from Mississippi, Senator Lott, in introducing tax legislation that is non-controversial and a clear tax simplification measure. Further, the bill we are filing today has been supported in the past by the Joint Tax Committee and the U.S. Treasury.

Normally, corporations are taxed on distributions of property to shareholders as if sold at fair market value. However, section 355 of the tax code provides corporations with the flexibility to distribute one or more of their businesses to their shareholders, such as in a spin-off, without triggering tax consequences if the transaction meets important requirements. Through this exception in section 355, corporations may make strategic business decisions without imposing tax burdens on their shareholders, but only if both the distributing and distributed businesses continue as an active trade or business. The regulatory structure that has evolved over the years under section 355 has created very different ``active trade or business'' tests depending on whether the distributing corporation operates as a holding company or whether it holds the business assets directly. There is no rationale to support that distinction.

Both the staff of the Joint Tax Committee and the Clinton Treasury Department recommended that the rules be conformed as a tax simplification measure. The Senate has passed legislation similar to what we are proposing today on three occasions. And, on one of those occasions, it passed the House as well in legislation that was later vetoed for other reasons. I have heard of no opposition to this change, which would simply apply a ``look through'' rule for the ``active trade or business'' test on an affiliated group level, so that parent holding companies could count the active businesses of its subsidiaries. And it would eliminate hours of wasted time and resources in tax planning activities that serve no function other than to try and conform corporate ownership structures to satisfy the literal language of current tax requirements.

Again, I should emphasize that this proposal does not bring wholesale change to section 355. Spin-off requirements dealing with the continuity of historical shareholder interest, continuity of business enterprises, business purpose, and absence of any device to distribute earnings and profits all remain. With a cost of less than $10 million a year, this is an affordable step we can take now to simplify the Internal Revenue Code.

I am pleased to join with Senator Lott in working for passage of this important simplification bill, and I urge my colleagues on the Finance Committee and in the Senate give our bill every consideration.

Mr. President, I rise today to join Senator ENZI in introducing the Fair and Reliable Medical Justice Act of 2005. We have debated the medical liability issue in this chamber for years now. But the Senate has failed to take action to make the situation better. We need to deal with the issue of rising liability costs, and I think this bill is a good place to start.

One of my top priorities in the Senate is ensuring appropriate access to affordable, quality health care. In a rural State such as Montana, where health care providers are often few and far between, that is a tall order. It is a job that is made all the harder by rising medical liability insurance premiums.

To ensure proper access to care, we need to make certain that our health care providers can afford their medical liability insurance. We also need to make sure that patients who are harmed by medical mistakes have access to timely, reasonable compensation for their injuries.

The Fair and Reliable Medical Justice Act promotes the testing of alternatives to current medical tort liability litigation. It aims to increase the number of injured patients who receive compensation for their injuries, and make such compensation more accurate and more timely, all at lower administrative costs than current systems. The bill also encourages patient safety by promoting disclosure of medical errors, unlike the current system which does not encourage disclosure.

The Fair and Reliable Medical Justice Act would establish State-based demonstration programs to help States test alternative systems of health care-related dispute resolution under three different models: early disclosure and compensation; administrative determination of compensation; and special health care courts. Under the bill, states may develop other alternative plans for resolving health care related disputes as well.

The first model involves a system of early disclosure, which encourages providers to disclose medical errors that harm patients and offer just compensation for injuries. This model would maintain patients' access to the traditional legal system if claims cannot be resolved by early disclosure, or in cases resulting from criminal or intentional harm or fraud.

The second model would establish a board made up of providers and health care organizations, advocates, and attorneys. The board would establish classes of avoidable injuries and determine compensation rates for each, including economic and non-economic losses, and attorneys' fees.

The third model involves special health care courts, presided over by judges with special health care expertise, and assisted by independent experts. The judges would be subject to the same criteria as other State judges and sit on the court voluntarily.

These models are based on innovative efforts currently underway in the private sector and in some States, where success is already being achieved. I think it is time for us to try to encourage more innovation and expand the range of options being considered. State-based demonstrations provide a great setting for experimentation and learning. The Institute of Medicine suggested as much in its 2002 report entitled ``Fostering Rapid Advances in Health Care: Learning from System Demonstrations.''

I thank Senator Enzi for his leadership on this issue. I am proud to have worked with him to develop legislation that I believe will enhance patient safety. It is unacceptable that around 100,000 Americans die annually as a result of medical errors. And it is unacceptable that many patients hurt by medical errors receive no compensation for their injuries

This bill is a good opportunity for us to make progress on both fronts--to look at the medical liability issue from a new perspective, through a set of commonsense pilot projects centered on improving patient safety. I urge my colleagues to support this important effort.

Mr. President, virtually everyone supports tax simplification. But for some reason, it is awfully hard to accomplish. Today, I am pleased to join my friend and colleague from Mississippi, Senator Lott, in introducing tax legislation that is non-controversial and a clear tax simplification measure. Further, the bill we are filing today has been supported in the past by the Joint Tax Committee and the U.S. Treasury.

Normally, corporations are taxed on distributions of property to shareholders as if sold at fair market value. However, section 355 of the tax code provides corporations with the flexibility to distribute one or more of their businesses to their shareholders, such as in a spin-off, without triggering tax consequences if the transaction meets important requirements. Through this exception in section 355, corporations may make strategic business decisions without imposing tax burdens on their shareholders, but only if both the distributing and distributed businesses continue as an active trade or business. The regulatory structure that has evolved over the years under section 355 has created very different ``active trade or business'' tests depending on whether the distributing corporation operates as a holding company or whether it holds the business assets directly. There is no rationale to support that distinction.

Both the staff of the Joint Tax Committee and the Clinton Treasury Department recommended that the rules be conformed as a tax simplification measure. The Senate has passed legislation similar to what we are proposing today on three occasions. And, on one of those occasions, it passed the House as well in legislation that was later vetoed for other reasons. I have heard of no opposition to this change, which would simply apply a ``look through'' rule for the ``active trade or business'' test on an affiliated group level, so that parent holding companies could count the active businesses of its subsidiaries. And it would eliminate hours of wasted time and resources in tax planning activities that serve no function other than to try and conform corporate ownership structures to satisfy the literal language of current tax requirements.

Again, I should emphasize that this proposal does not bring wholesale change to section 355. Spin-off requirements dealing with the continuity of historical shareholder interest, continuity of business enterprises, business purpose, and absence of any device to distribute earnings and profits all remain. With a cost of less than $10 million a year, this is an affordable step we can take now to simplify the Internal Revenue Code.

I am pleased to join with Senator Lott in working for passage of this important simplification bill, and I urge my colleagues on the Finance Committee and in the Senate give our bill every consideration.

Mr. President, I rise today to join Senator ENZI in introducing the Fair and Reliable Medical Justice Act of 2005. We have debated the medical liability issue in this chamber for years now. But the Senate has failed to take action to make the situation better. We need to deal with the issue of rising liability costs, and I think this bill is a good place to start.

One of my top priorities in the Senate is ensuring appropriate access to affordable, quality health care. In a rural State such as Montana, where health care providers are often few and far between, that is a tall order. It is a job that is made all the harder by rising medical liability insurance premiums.

To ensure proper access to care, we need to make certain that our health care providers can afford their medical liability insurance. We also need to make sure that patients who are harmed by medical mistakes have access to timely, reasonable compensation for their injuries.

The Fair and Reliable Medical Justice Act promotes the testing of alternatives to current medical tort liability litigation. It aims to increase the number of injured patients who receive compensation for their injuries, and make such compensation more accurate and more timely, all at lower administrative costs than current systems. The bill also encourages patient safety by promoting disclosure of medical errors, unlike the current system which does not encourage disclosure.

The Fair and Reliable Medical Justice Act would establish State-based demonstration programs to help States test alternative systems of health care-related dispute resolution under three different models: early disclosure and compensation; administrative determination of compensation; and special health care courts. Under the bill, states may develop other alternative plans for resolving health care related disputes as well.

The first model involves a system of early disclosure, which encourages providers to disclose medical errors that harm patients and offer just compensation for injuries. This model would maintain patients' access to the traditional legal system if claims cannot be resolved by early disclosure, or in cases resulting from criminal or intentional harm or fraud.

The second model would establish a board made up of providers and health care organizations, advocates, and attorneys. The board would establish classes of avoidable injuries and determine compensation rates for each, including economic and non-economic losses, and attorneys' fees.

The third model involves special health care courts, presided over by judges with special health care expertise, and assisted by independent experts. The judges would be subject to the same criteria as other State judges and sit on the court voluntarily.

These models are based on innovative efforts currently underway in the private sector and in some States, where success is already being achieved. I think it is time for us to try to encourage more innovation and expand the range of options being considered. State-based demonstrations provide a great setting for experimentation and learning. The Institute of Medicine suggested as much in its 2002 report entitled ``Fostering Rapid Advances in Health Care: Learning from System Demonstrations.''

I thank Senator Enzi for his leadership on this issue. I am proud to have worked with him to develop legislation that I believe will enhance patient safety. It is unacceptable that around 100,000 Americans die annually as a result of medical errors. And it is unacceptable that many patients hurt by medical errors receive no compensation for their injuries

This bill is a good opportunity for us to make progress on both fronts--to look at the medical liability issue from a new perspective, through a set of commonsense pilot projects centered on improving patient safety. I urge my colleagues to support this important effort.

Mr. President, I ask unanimous consent that Adam Elkington, Julie Golder, and Jorlie Cruz be granted the privilege of the floor during consideration of the CAFTA implementation bill.

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

Mr. President, in the book of Isaiah, the prophet wrote,

``[M]y people have gone into captivity, because they have no knowledge.''

Francis Bacon wrote, ``Knowledge itself is power.''

And when H.G. Wells summed up his history of the world, he concluded: ``Human history becomes more and more a race between education and catastrophe.''

In the next two decades, America's history will become more and more a race for economic leadership. For more than a century, America's economy has set the pace. We have led all competitors. Year after year, we have become used to winning the race.

But now, over our shoulder, we can hear the footsteps of another runner. That competitor is China. And it is gaining fast.

If we wish not to go into economic subservience, if we wish to maintain our economic power, if we wish to avert economic misfortune, the answer is education.

America's economic leadership has been a remarkable achievement. We Americans are just 4.6 percent of the world's people. More than a fifth of the world's people live in China. There are nearly 4\1/2\ times as many Chinese as there are Americans.

Yet America produces 60 percent more goods and services than China.

That is how Americans can enjoy one of the world's foremost standards of living. The average American's share of our economic output is $37,610 a year. The average Chinese's share of theirs is $1,100 a year.

But from a slow start, China has picked up the pace. Starting with Deng Xiaoping in the late 1970s, China began to reform its economy. Deng was eminently practical, when it came to economic philosophy. He said: ``It doesn't matter whether the cat is black or white, as long as it catches mice.'' Today, you can find those capitalist cats everywhere in China.

Over the last two decades, China's economy has been growing at an average of 9.5 percent, nearly three times as fast as America's. And some project that within 20 years, China's could become the world's largest economy, ending more than a century of American leadership.

You can see how they do it at an American or Japanese factory in Shanghai. You see rows and rows of hardworking workers, in colorful uniforms, at well-lit work stations. The company pays them about $2,000 a year, plus food and housing benefits. But that is good money in a country with an average income of $1,100 a year. The workers there want to keep their jobs. And 200 million other workers stand ready to take their jobs if they do not.

The challenge for America in the decades to come will be: How can America compete with that factory in Shanghai? How can we get paid $37,000 a year or more to make goods and perform services, when there are Chinese workers willing to work hard for $2,000 a year?

The answer is not protectionism. We cannot build a wall around America. We cannot lift the drawbridge and flood a moat around our Country.

If American companies do not employ those willing workers at the Shanghai factory, companies from Japan and Italy and China itself will. Then Japanese and Italian and Chinese companies will sell products more cheaply into America. And American consumers will gladly buy those products at lower prices. American consumers will insist on buying those products at lower prices.

If America raises tariffs on goods made in China, then American consumers will pay more for their cost of living than will people in other countries. Americans will have less money to spend on other things that they want, less money to spend on other things in America. The American economy will be smaller, if America raises tariffs.

If America raises tariffs, then American businesses will pay more for their industrial inputs than will businesses in other countries. American businesses will become less competitive, lose sales, and lose jobs. Once again, the American economy will be smaller, if America raises tariffs.

No, the answer to how America can compete with that factory in Shanghai is not protectionism.

The way that we can get paid $37,000 for our work--when Chinese workers are willing to work for $2,000--is for Americans to add more value. Americans earn more because we produce better. Americans produce smarter.

And that means that for us to remain economic leaders of the world, Americans need to stay smarter. We need to educate our children and our workers so that American workers can add more value in an hour of work than workers in any other place in the world.

Knowledge will be economic power.

Ensuring that we continue to have more knowledge than the Chinese will not be easy. China has worked on its education system. Nine out of ten Chinese can read.

It is very Chinese to take the long view. More than 2,600 years ago, the master Kuan Chung said:

If you plan for a year, plant a seed. If for 10 years,

plant a tree. If for a hundred years, teach the people. When

you sow a seed once, you will reap a single harvest. When you

teach the people, you will reap a hundred harvests.

We need to plant those seeds of education and tend those young saplings, in our public schools. In 1835, the Supreme Court Justice Joseph Story wrote:

Every successive generation becomes a living memorial of

our public schools, and a living example of their excellence.

Ensuring that our schools are a living example of excellence will take more than just money. But ensuring that our schools are a living example of excellence will take money, as well.

We need to ensure that children can come to school ready to learn. We need to ensure that children have modern and well-equipped schools. We need to ensure that children have small classes. And most importantly, we need to ensure that children have good teachers.

In the next decade, America will need to hire 2 million new teachers. One in five new teachers leave teaching within three years. In urban schools, half of teachers leave the profession within 5 years.

Nearly two out of five low-income children are taught by teachers without a college degree in their primary instructional field. Low- income students are taught by more teacher's aides than credentialed classroom teachers. Four out of five aides do not have a 4-year college degree.

Columnist Tom Friedman wrote recently:

We are heading into an age in which jobs are likely to be

invented and made obsolete faster and faster. The chances of

today's college kids working in the same jobs for the same

companies for their whole careers are about zero. In such an

age, the greatest survival skill you can have is the ability

to learn how to learn. The best way to learn how to learn is

to love to learn, and the best way to love to learn is to

have great teachers who inspire. And the best way to ensure

that we have teachers who inspire their students is if we

recognize and reward those who clearly have done so.

We need to give good teachers the recognition that they deserve. Friedman told how every year, Williams College honors four high school teachers who made a difference. Every year, members of its senior class nominate their best high school teachers. A committee at Williams then goes through the nominations, does its own research, and chooses the four most inspiring teachers.

Williams gives each of the teachers $2,000, plus a $1,000 donation to the teacher's high school. And Williams flies the winners and their families to the college to honor them at graduation.

Williams's president, Morton Schapiro, told Friedman: ``We take these teachers, who are not well compensated and often underappreciated, and give them a great weekend.''

Said Shapiro: ``Every time we do this, one of the teachers says to me, `This is one of the great weekends of my life.' ''

It's a great idea.

Each of us can do our part. I have started a program that will recognize Montana teachers acknowledged for excellence. This is something that all Senators can do in their home States. A little recognition can go a long way.

But if knowledge is power, then we must also devote the resources necessary to maintain that power.

Columnist Matt Miller argues: ``The answer is to think bigger.'' He suggests that we make the best teachers millionaires by the time that they retire.

Miller proposes a ``grand bargain'' where we raise salaries for teachers in

poor schools by 50 percent. And in return, teachers would agree to change their pay scale so that we could raise the top performers and those in math and science another 50 percent.

Miller, who used to work at the Office of Management and Budget, calculates that his plan would cost about $30 billion a year. That would provide a 7 percent increase in the nation's K-through-12 spending.

I ask my colleagues: Why don't we invest $30 billion for top teachers, and pay for it by closing abusive tax shelters?

And we need to help students to learn math and science. Companies are moving jobs offshore to China, India, and Eastern Europe not only because workers there work for less, but also because they are well educated in math and science.

Sadly, American high school students now perform below most of the world on international math and science tests. Most have little interest in pursuing scientific fields. Only 5.5 percent of the high school seniors who took the college entrance exam in 2002 planned to pursue an engineering degree. We have to do more to encourage students to love to learn math and science.

And we need to help students to learn geography and languages. Visit a primary school in a middle-sized Chinese city. Bright, enthusiastic children will greet you in English. Chinese schools are preparing students to compete in a multinational, multilingual world economy. The coming generation of Chinese businesspeople will do business around the world. Americans need to broaden our linguistic and geographic abilities, or Chinese businesspeople will cut the deals before us. As our former Colleague Bill Bradley said in 1988, ``If we are going to lead the world, we have to know where it is.''

And after school, almost 6 million latch-key children go without access to after-school learning opportunities. More than seven in ten mothers of children under 18 are in the workforce. America can no longer afford a school day based on 1950s family structures. Quality after-school programs can both keep children safe and improve academic achievement. We need to ensure that children have quality after-school programs.

Similarly, we continue to have a school year that reflects the harvest schedule of an agrarian economy that America long ago left behind. Long summer vacations mean reading levels drop and other learning is lost.

Schools like Des Moines's Downtown School point to another way. They have a six-week summer break. And that means less time to forget. Besides six weeks in the summer, students also have week-long breaks in October, February, and May.

Jan Drees, the principal of the Downtown School, says: ``The research is becoming more and more clear that students retain more learning and need less review with shorter summer breaks.''

The Downtown school is popular, too. More than 800 children are on a waiting list to get into the school.

Iowa law requires schools to provide a minimum of 180 instructional days a year. But the Downtown School teaches students for 192 days a year. They are getting more learning in, every year. For Americans to stay smarter, students should spend more of the school year in school.

China's increasing competitive strength is also fueled by its growing population of college graduates. Last year, nearly 3 million Chinese entered the workforce from 3- and 4-year colleges and graduate programs. This is one-third more than the year before, and double the year before that.

America's college system is the finest in the world. And the work of the 21st century increasing demands good college education. But rising college costs increasingly bar Americans from getting the college education for which they are qualified.

We must make college affordable for all. We need to ensure that young Americans are not discouraged from obtaining post-secondary education because of costs. Tuition costs have risen considerably in recent years. And federal assistance programs have not kept pace.

Pell Grants help to make college education affordable for 5 million students, a third of American undergraduates. But students receive grants averaging just $2,500 a year, while the average annual cost of tuition at a public college in-state averages more than $9,000 a year, and private college averages more than $23,000 a year. The most that a student can get in Pell Grants is $4,050 a year. Expanding Pell Grants would increase the ability of low-income young Americans to prepare for the 21st century.

As well, we should improve, consolidate, and expand the government's education tax incentives to make them more effective. We could expand and extend the deduction for tuition expenses. We could expand the Hope and Lifetime Learning credits. We could craft targeted incentives for students pursuing science and engineering careers. We could do more to make it possible for non-traditional students to obtain an education. There are many good options.

As with elementary school students, we need to help encourage college students to learn the subjects needed in the 21st century.

In 1975, America ranked third in the world in the share of 24-year- olds who held a science or engineering degree. By 2000, we had slipped to 15th. By 2004, we were 17th. And in the future, the Department of Labor projects that new jobs requiring science, engineering, and technical training will increase four times faster than the average national job growth rate.

Last year, China produced 220,000 new engineers, while America educated just 60,000. And America trains only half as many engineers as Japan and Europe.

In a recent report, McKinsey Global Institute found that there are already twice as many young university-trained professionals in low- wage countries as in high-wage countries. China has twice as many young engineers as America.

Engineers play a critical role in the development of new jobs and new industries. We should increase scholarships and loan forgiveness for engineering students to entice more people to love to learn engineering.

At that Shanghai factory, American and Japanese research and development stand behind many of the products being built. But ask the American or Japanese company their plans, and they will tell you that they plan to move R&D work closer to the plant, there in China. And Shanghai's government hopes to lure more R&D to town. Chinese business understands that innovation is the source of American value-added. And they want part of that action, too.

Clive Cookson reported in the Financial Times about a bioscience park outside Beijing. A firm there called CapitalBio is emerging as a world leader in the new technology of biochips. Biochips are cutting-edge devices that combine biotechnology and electronics for biological testing and medical diagnostics. The 4-year-old company is already selling instruments to American drug companies.

Last month, CapitalBio entered into a partnership with Affymetrix in California, the world's largest biochip producer. CapitalBio's chief executive said: ``Affymetrix had never imagined that there was such a big research effort in biochips in China, working to such a high standard.''

Dozens of similar examples exist. Already, several Asian countries boast of such science and technology centers. They are following in Japan's wake as world-class centers for research and development.

Asia's R&D investment and scientific output have both surged rapidly. Between 1998 and 2003, China's research and development spending roughly tripled.

You can judge a scientific paper's effect by how often other researchers cite it. The number of frequently-cited Chinese research papers has risen from just 21 in 1994 to 223 in 2003. And China's contribution to the world's scientific journals has increased from less than half a percent in 1981 to more than 5 percent in 2003.

And Chinese researchers will do research for less cost. Newly- graduated researchers in China generally earn about a quarter of what Americans do. For more senior staff, salaries are usually at least half American salaries. And in exceptional cases, they can sometimes exceed ours.

Chinese scientists who have returned after studying and working in the west are playing an important role. In Beijing, CapitalBio's CEO said that he

``made a special effort at the beginning to attract [Chinese expatriates] from abroad, with salary and stock options. We offered at least to match the salaries that senior scientists were receiving; the highest we offered was $120,000 a year,'' he said.

So far, Asia has been able to make a global mark only in a few new areas of the life sciences where western expertise is not entrenched. Stem cell technology is an example. South Korea, China, Singapore, and India are racing ahead on stem cell research. Those countries accept human embryo research in a way that the American government has not.

But America still has an advantage in innovation. And America also benefits from a risk-taking entrepreneurial culture. You can see it in the venture capital that funds companies spun out of American research laboratories or universities. America's capital markets remain the envy of the world.

We can help to maintain that edge in innovation by supporting research. American universities and research institutes do much of the most innovative research in the world.

But over the last 20 years, Federal research funding in the physical sciences and engineering has declined by nearly a third as a share of the economy.

We should reverse this trend and increase Federal spending on basic research. The money we spend will come back to us many times over in the creation of new jobs in new industries making products yet to be invented.

We should support the National Science Foundation. The NSF funds research and education in science and engineering through a variety of successful programs. It accounts for a fifth of all Federal support to academic institutions for basic research, a crucial engine of innovation.

NSF funds have helped discover new technologies that have led to multi-billion dollar industries and millions of new jobs. NSF-funded work in the basic sciences and engineering made possible fiber optics, radar, wireless communication, nanotechnology, plant genomics, magnetic resonance imaging, ultrasound, and the Internet.

Each year, the NSF helps fund over 200,000 students, teachers, and researchers. Many of them take their NSF-supported work into industry. They found start-up companies selling new products and new technologies.

In addition, we should make it easier--consistent with the requirements of national security--for foreign students to study in America. America has traditionally poached many of the best and brightest students from around the globe. Well over a third of American science and engineering doctorate holders were born abroad.

Since 9/11, however, many students are having a difficult time getting visas to study in America. In 2004, foreign applications to American graduate schools declined by 28 percent. Enrollments of foreign students at all levels of college declined for the first time in 30 years.

Foreign students are increasingly studying in Europe and elsewhere. That is a terrible loss. It will affect our economic health in the long-term. We need to do a better job balancing security and economic health.

America must not compromise on its security needs in hosting foreign businesspeople or foreign students. But there must be ways to streamline visa procedures and otherwise lighten the burden. We need to make it easier for foreigners to study and conduct business in America.

We should support community colleges, and strengthen the link between them and the workforce. That will allow schools to develop training programs relevant to jobs in the real world. That is a primary goal of the Enzi-Baucus Higher Education Access, Affordability and Opportunity Act.

And when American jobs are lost to trade, we need to retrain people and help them to get back into the workforce. The philosopher and educator John Dewey said, ``Education is not preparation for life; education is life itself.'' We can no longer afford to think of education as something just for the young.

We need to help displaced workers to receive the retraining that they need to succeed in a changing economy. Jobs will change. We should help workers to get the educational tools to change with those jobs.

That is why I joined with Senators Wyden and Coleman to introduce legislation to expand Trade Adjustment Assistance to service workers who lose their jobs because of trade. TAA is a vital means of helping displaced workers get the education to change careers and stay productive.

When Plato envisioned the ideal society in his work The Laws, he wrote of the importance of education, through the course of life. He wrote:

[N]owhere should education be dishonored, as it is first

among the noblest things for the best men. If it ever goes

astray, and if it is possible to set it right, everyone ought

always to do so as much as he can, throughout the whole of

life.

And so, through advancing education, America can compete with that factory in Shanghai. Through advancing education, America can respond to competition, without erecting harmful barriers to trade. And through advancing education, America can respond to a growing China, without forcing confrontation with China.

University of California economist Brad DeLong wrote of the choice that we face in how we address the challenge of China. He wrote:

A world 60 years from now in which Chinese schoolchildren

are taught that the U.S. did what it could to speed their

economic growth is a much safer world for my great-

grandchildren than a world in which Chinese schoolchildren

are taught that the U.S. did all it could to keep China poor.

Through advancing education, America can seek that safer world.

But perhaps most importantly, America should seek to advance education not just to preserve our economy, but also to preserve our freedom.

As Senator Daniel Webster said in a speech in 1837, ``On the diffusion of education among the people rest the preservation and perpetuation of our free institutions.''

As Thomas Jefferson wrote in 1816, ``If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.''

And as the Phrygian philosopher Epictetus said, ``Only the educated are free.''

And so, let us advance education to preserve our economic power.

Let us advance education to win the race for economic leadership.

And most importantly, let us advance education to help preserve our American democracy.

Mr. President, I yield the floor.

Mr. President, I ask unanimous consent to speak for such time as I may consume.