Floor Statements

Mr. President. I rise today to pay special tribute to America's pre-eminent, piano-playing patriot, Mr. Roger Williams. Roger is to American music what the Grand Canyon is to the American landscape.

Roger has enjoyed decades of success and the title ``Pianist to the Presidents,'' because he has had the honor to perform for eight of our Nation's Commanders In Chief. In 2004, Roger celebrated his birthday alongside Jimmy Carter because the two share the exact same birth date.

Despite his advancing years, Roger's ivory-tickling fingers continue to thrill audiences. In November, he broke his own record for marathon piano-playing with a 14-hour performance at Steinway Hall in New York City. The marathon was to raise awareness of the importance of music education and to commemorate the 50th anniversary of his classic, ``Autumn Leaves.'' This song is the only piano instrumental that has ever reached No. 1 on the Billboard singles charts.

According to Billboard Magazine, Roger is the greatest-selling pianist of all time, with 18 Gold and Platinum albums to his credit. He is the first pianist to receive a star on the Hollywood Walk of Fame, and is--so far--the only recipient of the Steinway Lifetime Achievement Award. Williams has played the music for soundtracks to films of three generations and in 2004 he released his 116th album. His records ``Born Free,'' ``The Impossible Dream,'' ``Almost Paradise,'' and the theme from ``Somewhere in Time'' are only some of his hits, which span 4 decades.

Not only a virtuoso, Roger is also a man of great virtue. He is a champion of music education in all schools and California Governor Arnold Schwarzenegger named him ``Champion for Youth 2004.'' Roger regularly

donates his time and talent to charitable efforts and non-profit organizations, including spots on the televised ``Hour of Power'' ministry since 1974.

I am grateful that I had the privilege of friendship with Roger Williams. He is a great man, a superlative musician, and a true American. As a musician myself, albeit one who is fairly low on the pecking order, I commend Roger for his talent, hard work, and dedication to his craft. His music will continue to bless the lives of literally millions for generations.

Mr. President, I rise today to pay tribute to a wonderful man, brilliant lawyer, and dedicated public servant--Mr. Paul Michael Warner. Paul has been serving as the United States Attorney for the District of Utah for almost 8 years, and will be stepping down this week to continue his work in other capacities within the legal system. As he embarks on a new chapter of life, I wanted to take this opportunity to honor him for the leadership he has provided, and commend him for his dedication to our country's legal system.

Paul was nominated by President Bill Clinton on July 29, 1998 to be the United States Attorney for Utah. He was unanimously confirmed by the United States Senate just one month later and by the end of August he had assumed the full duties of this important position. After President George W. Bush took office, he recognized the tremendous leadership Mr. Warner was providing and reappointed him to this position. He was then reconfirmed once again by the United States Senate and has continued to serve with strength and honor.

Prior to being appointed United States Attorney, Paul first joined this office in 1989 and has served in various positions including: First Assistant United States Attorney, interim U.S. Attorney, Violent and Hate Crimes Coordinator, and the Chief of the Criminal Division. For 7 years before joining the U.S. Attorney's Office, he worked in the Utah Attorney General's Office as the Chief of the Litigation Division and as an Associate Chief Deputy to the Attorney General.

Throughout his many years of service within the criminal justice system, Paul has established himself as an effective leader in the fight against crime. He has always greatly valued cohesive working relationships with Federal, State, and local law enforcement personnel. I believe that without exception, he has become a highly respected and trusted prosecutor and able administrator.

While serving in the Bush Administration, Paul was appointed the Chairman of U.S. Attorney General John Ashcroft's Advisory Committee of U.S. Attorneys. He also previously chaired the Subcommittee on Terrorism for this Committee, and continues as an ex-officio member of the Committee to this day.

Paul's legal career began when he graduated with the first class of the J. Reuben Clark Law School at Brigham Young University--BYU--in 1976. He later went on to receive a masters' degree in public administration from the Marriott School of Management at BYU.

Following graduation from law school, Paul served 6 years as a trial lawyer in the Judge Advocate General Corps of the United States Navy. In 1983, he enlisted with the Utah Army National Guard, Judge Advocate Branch, where he rose to the rank of Colonel. He is currently serving as the State Staff Judge Advocate, supervising a staff of 17 attorneys. He is also the past president of the Utah National Guard Association. The leadership and work he has provided to the military has been invaluable as he has worked on cases not only important to our Nation, but to the men and women who fight to preserve our freedoms.

Paul has also been involved in many professional organizations including serving as a Master of the Bench in the American Inns of Court, and Chairman of the Board of Visitors for the BYU Law School. He has also been honored by numerous military and civilian organizations with awards including: the United States Army's Meritorious Service Medal with two oak leaf clusters, the 2004 Honored Alumni of the Year for the BYU Law School, the Utah State Bar's 2004 Dorothy Merrill Brothers Award for the Advancement of Women in the Legal Profession, the Federal Bar Association's Distinguished Service Award for 2003, and the NAACP's 2002 Community Relations Award for Civil Rights.

Throughout my years of working with Paul I have always been impressed with his utmost integrity and honesty. He has a strong desire to do what is right. He has garnered the respect and admiration of the staff he has led, and has served as a mentor and friend to many future leaders in Utah's legal community. He diligently strives to treat all parties with dignity and fairness, and his work has been an example of his commitment to individual rights and the rule of law.

His work within the legal community has been lauded, but perhaps his most important accomplishments have occurred within his family and neighborhood. Paul is a devoted husband to Linda, and wonderful father to four children. He has been a friend to many from all walks of life, and all persuasions. His work has been an outstanding example of someone who has dedicated his life to helping others while upholding the principles and ideals embodied in the foundation of our country the Constitution.

I am grateful for the service Paul Warner has rendered throughout his years of public service--but most importantly as the United States Attorney for Utah. He is a truly dedicated public servant, strong leader, and special friend. I want to wish him well as he travels new pathways in life. I know that he will continue to guide and enrich the lives of those who have the privilege of working with him; and will remain steadfast in his commitment to enhancing and furthering the important work of our judicial system.

Mr. President. I rise today to pay special tribute to a man I deeply admire, W. Cleon Skousen. Cleon was a giant of a man. He was an exceptionally bright scholar; a wonderful husband, father, and grandfather; a special friend; and a true patriot in every sense of the word.

Sadly, Cleon recently passed away leaving a tremendous void in the lives of all who knew him. Cleon played a significant role in the political and governmental arena throughout Utah, our Nation, and even the world. I can state without any equivocation today that Cleon loved America. He truly loved our country and its citizens. He deeply respected our Founding Fathers, and he had the utmost reverence for the document that is the basis of all of our freedoms--our Constitution.

When I first met Cleon, I was a young, enthusiastic, go-getter who wanted to make a difference in our Nation's Capitol. Shortly before I announced that I would be running for the U.S. Senate in 1976 as a political novice and virtually unknown candidate--Cleon was one of the first people of political significance and substance who agreed to meet with me and discuss my candidacy.

A few short years before this time, Cleon had organized a nonprofit educational foundation named ``The Freemen Institute,'' to foster ``constitutionalist'' principles including a drastic reduction in the size and scope of the Federal Government, and a reverence for the true, unchanging nature of our Constitution. I knew that he had strongly held beliefs and I was very interested in what he had to say.

We found in each other at that first meeting many areas of common ground and a shared love for the principles that make America the strongest bastion of freedom on Earth. Cleon quickly agreed to help, and throughout the coming months he became a true champion of my candidacy. He sent a letter to 8,000 of his ``friends'' stating that I was running for the Senate ``for the express purpose of waging a fight to restore constitutional principles in this country.'' I was humbled by his support, and I felt a true need to fulfill his expectations of me and to never let him down.

From that first campaign, to every day I have served in the U.S. Senate--Cleon has been there for me, through highs and lows--buoying me up, giving suggestions, discussing principles and issues, and above all else being a true,

supportive friend. I can never overstate what his support has meant to me throughout my years of service.

A natural outgrowth of the successful Freemen Institute was the founding of the National Center for Constitutional Studies which Cleon started to further the study of our Founding Fathers and the U.S. Constitution. He traveled the globe and spoke to literally hundreds of thousands of people each year for many years to promote the ideals of this center.

The mission of the center was so aptly described by our Nation's first President, George Washington, when he said: ``A primary object. . . should be the education of our youth in the science of government. In a republic, what species of knowledge can be equally important? And what duty more pressing than communicating it to those who are to be the future guardians of the liberties of the country?''

Cleon took this mission very seriously and spent many hours each week educating and imparting his knowledge of his years of study to people throughout our Nation, and even the world. He cultivated friendships far and wide and became to many the ``Master Teacher.''

As we all know, Cleon was a prolific author and writer. His books, ``The First 2000 Years, The Making of America,'' and ``The Five Thousand Year Leap'' have been used by foundations, and in forums across America for many years. His writings and words leave an indelible legacy of knowledge and beliefs that have touched many people and will continue to inspire and educate generations to come.

Many have yearned for even a morsel of his years of study. He was learning, studying and writing until the end. I loved an account I recently read in the Deseret News from the Rev. Donald Sills, a Baptist minister who became close friends over many years with Cleon. He spoke of his knowledge and study and recalled a time when he found Cleon sitting on the steps of the Jefferson Memorial in Washington, DC. When he asked Cleon what he was doing just sitting there, Cleon's fitting response was, ``I'm talking to Tom Jefferson.''

Cleon had a strong desire for good government, and a true love for our Savior Jesus Christ and our Heavenly Father. He believed that our country was founded on pure principles and that our Heavenly Father had a hand in guiding our historic and profound beginnings. He firmly believed, as many believe, that God governs the affairs of men. He was not shy about sharing this belief with all who would listen. The words he shared on this subject were not unlike the words spoken by Benjamin Franklin as he arose on the floor to speak at a particularly trying time during the Constitutional Convention. He pled with his peers to call upon the Father of them all for wisdom and guidance as they continued to contemplate and draft this most important document.

His words remind me so richly of Cleon when Mr. Franklin stated: ``I have lived, Sir, a long time; and the longer I live, the more convincing proofs I see of this truth, that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings that `except the Lord build the house, they labor in vain that build it,' I firmly believe this. . .''

And Cleon firmly believed it. He had a true testimony of our Savior's works and our Father's infinite wisdom and love. He wrote of it. He testified of it. And he lived a life following their teachings.

The wonderful, strong leader General George S. Patton once said: ``It is foolish and wrong to mourn the men who died. Rather we should thank God that such men lived.''

I don't believe it is foolish to mourn the loss of this great man-- but I do thank my Heavenly Father that W. Cleon Skousen lived, and that he touched my life in so many ways. His example, passionate beliefs, and wonderful mind will never be forgotten. His journey was full and brought rich rewards to people throughout the world.

I am grateful that I had the privilege of knowing W. Cleon Skousen and working with him. He is a great man, and true American. His life's work has touched literally thousands, and his memory will live on through the wonderful words and teachings he leaves behind.

Mr. President, I would like to close with a poem that I wrote for him:

W. Cleon Skousen

His life seemed like 2000 years

By those who feared the truth,

To us who've loved him through our tears

And even from our youth,

This quiet, simple, gentle man,

Who taught us sacred things,

He helped us all to understand

The memories of a thousand springs.

Within this caring, pleasant soul

God's glory was refined,

Experiences had made him whole

For he had peace of mind,

So many lives he touched each day

Explaining holy things,

In writings left along the way

A treasure fit for kings.

He loved the prophets of the Lord,

The Founding Fathers too,

And Israel's most sacred word,

God's children whom he knew,

His precious Jewell, of greatest worth,

He'll love eternally,

He loved his family here on earth

In loving majesty.

So many others one by one,

This giant among men,

He leaves us now, his work now done,

We know we'll meet him once again.

Mr. President, today it is an honor and a privilege to rise and congratulate the men and women of L-3's Communication Systems- West on the 50th anniversary of that company's arrival in Utah.

I realize that many outside of the state of Utah might not have heard of L-3's Communication Systems-West, but no one can dispute the strategic advantages that this company has provided to our Nation's men and women in uniform. Much of the work that Communication Systems-West performs is of a highly classified nature. However, I can say that the real-time, world-wide dissemination of images and information gathered by the U-2 and our new unmanned aerial vehicles, such as Global Hawk and the Predator, is only possible because of the hard work by the people at Communication Systems-West. For example in 2001, Communication Systems-West was awarded the Collier Award for producing the airborne integrated communications system for the Global Hawk. As my colleagues may know, the Collier Trophy is the National Aeronautic Associations' highest honor for that year's greatest American aeronautical achievement.

Other examples of Communication Systems-West outstanding work can be found in the SATCOM Tri-Band Satellite Earth Terminals and the ROVER III Remote Operations Video Enhanced Receiver system that are deployed with our forces today. As a stalwart division for L-3, the employees of Communication Systems-West were honored in 2005 to receive the L-3 Chairman's Award for Best Operating Performance.

It is not an exaggeration to say that the technologies created and built by Communication Systems-West have won battles for the United States and, equally as important, saved countless American lives.

However, the leadership of Communication Systems-West's 2,300 employees, including 1,000 engineers, is not limited to the battlefield. It is also found in their dedication to their community. Communication Systems-West partners with Utah's universities to assist in placing new graduates in promising and creative careers. The company is an active member of the Mathematics, Engineering, and Science Achievement, or MESA, consortium. MESA, of course, provides resources to aid minority and female students entering technological fields of study. As a contributor to the Ames and Challenger advanced education programs for high school students interested in technology sciences, Communication Systems-West continues to bring a bright future to the next generation of students.

Finally, Communication Systems-West also supports it home-town National Guardsmen and Reservists by fully paying the salaries of its employees who have been activated to fight the War on Terrorism.

Communication Systems-West and its employees have been an integral part of Utah for a half-century, and we

all are immensely proud of the contributions they have made to our country and our State. I congratulate them and wish them 50 more years of success and prosperity in the great State of Utah.

Mr. President, I enjoyed my colleague's remarks. We are in the final stretch of considering the nomination of Samuel Alito to the Supreme Court of the United States, and by any reasonable objective or traditional standard, Judge Alito deserves overwhelming confirmation, without question.

The first reason Judge Alito should be confirmed is that he is highly qualified to serve on the Supreme Court. It amazes me that some parties to this debate practically ignore his qualifications altogether. They are so intent on manufacturing a case against this nominee that they brush aside this seemingly minor detail of his qualifications as if it were just an annoyance.

After serving in the Department of Justice and as a highly regarded Federal prosecutor, Judge Alito has served on the U.S. Court of Appeals for the Third Circuit since 1990, has participated in nearly 5,000 cases, and has written more than 360 opinions. He has more judicial experience than any Supreme Court nominee in the last three-quarters of a century.

The American Bar Association, which conducts perhaps the most comprehensive and exhaustive evaluation of Supreme Court nominees, interviewed more than 300 people who know and have worked with Judge Alito. The American Bar Association, after all those interviews, unanimously gave Judge Alito its highest well-qualified rating. Here, too, it is amazing how some Senators and leftwing interest groups brush aside this ABA rating as if they were dusting the mantel.

While the ABA's role in the judicial appointment process has been controversial at times, certainly no one has ever charged it with a conservative bias--no one. It was my Democratic colleagues and their leftwing interest groups that once lauded the ABA rating as the veritable gold standard for evaluating judicial nominees.

The criteria for the ABA's highest well-qualified rating includes Judge Alito's compassion, openmindedness, freedom from bias and commitment to equal justice under the law. Judge Samuel Alito is eminently qualified to serve on the Supreme Court of the United States.

The second reason Judge Alito should be confirmed is that he is a man of character and integrity. Anybody watching those proceedings would have to conclude that. I have been struck, throughout this process, at the level of respect and praise for Judge Alito's character and integrity, how it is directly related to how well people know him, how closely they have worked with him. Without exception, those sounding the most dire warnings, creating the most negative caricatures, and painting the scariest picture of Judge Alito are those who know him the least or who do not know him at all.

We have heard from those who worked with him at the Department of Justice and in the U.S. Attorney's Office in New Jersey. We have heard from Judge Alito's law clerks and fellow judges, and there were dozens of those law clerks from all across the ideological spectrum who were supportive of Judge Alito.

Make no mistake, this is not a bunch of rightwing clones but a diverse group of men and women, liberals and conservatives of different religions and backgrounds. They do not agree with him on every issue or, in some cases, they don't agree with him on virtually any issue at all, but they all praise Judge Alito as a man of character and integrity. Judge Samuel Alito possesses the character and integrity necessary to serve on the Supreme Court of the United States.

The third reason Judge Alito should be confirmed is that he understands and is committed to the appropriately limited role of the judiciary. America's Founders established a system of limited Government containing three branches, each with its category of power and ability to check the others. The judicial branch is as much a part of this system of Government and must remain as limited as the legislative and executive branches.

The fight over judicial appointments is a fight over whether we should stick with the system America's Founders established.

Some want to change that system because, frankly, it does not give them everything they want.

Self-government, after all, can be a little messy and sometimes very frustrating.

Letting the people and their elected representatives make the law and define the culture means that, on any given day, certain political interests win and others lose.

Some who lose in the political process pick themselves up and try again another day.

Others leave the political process behind and go to the courts, trying to persuade judges to impose upon the American people policies and priorities the people would not choose for themselves, or they could never get through the elected representatives of the people.

The fight over judicial appointments is whether we should have judges willing to take such political bait.

It is fashionable in some circles to put the Supreme Court on a pedestal, pretending that a few unelected judges are supposed to lead us to some kind of promised land.

During the debates about Chief Justice John Roberts' nomination last fall and Judge Alito's nomination now, we have heard all sorts of grand descriptions of the judiciary's role and purpose.

The judiciary, we are told, is the engine of social progress, the protector of all our rights and liberties, even the savior of the environment.

Yesterday, in the Judiciary Committee's businss meeting, the ranking Democratic member said that the very reason the Supreme Court exists is to be ``a constitutional check on the expansion of presidential power.''

The Senator from Massachusetts, Senator Kennedy, said the very same thing yesterday, that the Supreme Court's historic role is ``enforcing constitutional limits on presidential power.''

These grand descriptions give the impression that the Supreme Court alone polices our system of separated power, hands down decrees about issues, opines on abstract theories, and decides how best to order the universe.

It does no such thing. The last time I checked, most of the Supreme Court's cases have nothing whatsoever to do with issues such as presidential power, abortion, religion, or the environment.

The Supreme Court does not exist to run the country, right all wrongs, and usher in peace and domestic tranquility.

The judiciary is part of our system of limited government; it is not a system unto itself. It is that whole system of government, not anyone part of it, that protects our rights and liberties, checks excessive government power, provides for social progress, and all the rest.

As a part of that system, judges who exceed their proper role and power are no less a threat to liberty than legislators or the president who do so.

In the famous case of Marbury v. Madison, Chief Justice John Marshall wrote that the Constitution was designed for the government of courts as much as of legislatures.

As Chief Justice Roberts put it last fall, judges are not politicians.

The tendency of some in this debate simply to look at the results judges deliver is, therefore, misguided because it suggests that judges, as politicians, are free to take whatever side they choose and the only thing that matters is whose side judges are on.

This politicized approach misleads our fellow citizens about the judiciary and its proper place in our system of government.

America's founders had a very different view and, I am glad to say, Judge Alito sides with them.

As the Constitution puts it, judges exercise judicial power in the context of cases and controversies. Judges do not make the law they apply. Judges are neither school boards nor inspectors general. Judges are neither legislative oversight commissions nor political provocateurs. Instead, judges settle legal disputes by applying already established law to cases that come before them.

Because that is what they do, it is impossible to properly evaluate judges or judicial nominees the way we evaluate politicians, by the results they can be expected to deliver.

Yet that is exactly what we see in this judicial confirmation process.

To hear some of my Democratic colleagues and their left-wing interest group friends talk, there is absolutely nothing that is not the judiciary's job. That is ridiculous.

To hear some of them talk, everything is fair game for judges and the only thing that matters is who wins that game.

America's founders rejected that view, and Judge Alito should be confirmed because he rejects that view.

I hope we find more qualified men and women who believe there is something, anything, that is not a judge's job and appoint them to the judiciary right away.

While scorecards are familiar in the political process, they have no place in the judicial process.

Again, I quote Judge Alito: ``I don't think a judge should be keeping a scorecard about how many times the judge votes for one category of litigant versus another in particular types of cases. That would be wrong. We are supposed to do justice on an individual basis in the cases that come before us.''

Who can disagree with that? Yet, they seem to on the other side.

I hope that my fellow citizens are watching this debate, either live right now or when it is replayed later.

I ask my fellow citizens, do you agree with Judge Alito? Do your expect judges to do justice on an individual basis, to take each case on its own facts and its own merits, and to decide it solely according to the law? Or do you expect a judge to look at a case not as a legal dispute between real parties, but as a political issue, deciding it based on his opinion of the issue, practically before the case even comes before him?

Judge Alito rejects scorecards and tallies, he rejects percentages and patterns, and looks at each case based on its own facts and the law that applies.

I might add that at one time in the proceedings one of the Democratic Senators said he never ruled in favor of labor. We immediately showed a number of cases where he did. You can find rulings by Judge Alito across the spectrum with respect to people who should have won those cases.

Let me describe another revolutionary idea. Let me read it.

At his hearing, Judge Alito said that ``although the judiciary has a very important role to play, it's a limited role. . . . Judges don't have the authority to change the Constitution. . . . The Constitution is an enduring document and the Constitution doesn't change.''

Let me speak again to my fellow citizens out there who may be watching.

The first three words of the Constitution are ``we the people.''

The Constitution belongs to the people.

It does not belong to judges.

The Constitution, your Constitution--I am speaking to the people out there--already has a specific process for changing it, and the only branch of government involved in that process is this one, the legislative branch, the one you directly elect.

If America's founders explicitly excluded the judiciary from the process of changing the Constitution, do you think instead that judges should now be able to change the Constitution?

Do you believe that the Constitution, your Constitution, is whatever judges say it is?

It is the Constitution that ultimately protects our rights and liberties.

If the Constitution means whatever judges say it means, then our rights and liberties are whatever judges say they are. They are not elected. They are nominated, appointed and confirmed for life.

If that is what my Democratic colleagues and their left-wing interest group allies mean when they say the judiciary protects us, then do not sign me up for that protection package.

Our rights and liberties, and particularly the rights and liberties of the minority, are secure only when the constitution is solid.

Judge Alito is precisely the kind of judge who will protect our rights and liberties because he does not believe that he defines them.

So the case for Judge Alito's confirmation is overwhelming. He is highly qualified, he is a man of character and integrity, and he understands and is committed to the properly limited role of judges in our system of government.

In the past, this would have been enough for confirmation by a wide bipartisan margin.

Perhaps because this case for confirmation is so strong, Judge Alito's opponents have tried a host of attacks that not only have failed but have degraded this process along the way.

One is the familiar guilt-by-association tactic, trying to smear Judge Alito by attacking a group of conservative Princeton alumni to which he once belonged. Membership in this group, mind you, was nothing more than a magazine subscription. Imagine if someone tried to attribute to each of you everything published in every magazine or newsletter you receive.

Some Democratic Senators used this very illegitimate tactic on Judge Alito, selecting the most salacious or controversial articles which Judge Alito never read. One Senator even tried to

pass a parody of such outrageous views off as the real thing. That is how denigrating this process became.

Our staff spent hours pouring through boxes of documents related to this group and the name Samuel Alito never appeared on a single scrap of paper--not one.

The disinformation was even worse in the media.

The group in question, or at least some of its members, wanted to preserve Princeton's all-male tradition and opposed affirmative action--in other words, affirmative action.

On January 6, a well-known pundit claimed on the FOX News Channel that Judge Alito himself was personally ``trying to keep women and minorities out of Princeton.''

I have been around for a long time, and I have seen a lot of bad journalism, but this goes beyond the pale. This goes beyond spin, beyond any reasonable characterization of the facts. In fact, it is ridiculous.

When I asked what the media characterizes as a softball question, sarcastically asking it, are you really against having women or minorities in colleges, anybody listening to that had to conclude I was being sarcastic. He said, Of course not.

When I said I thought that is what he thinks, I couldn't have been more sarcastic. But apparently I am so serious on most matters that people thought I was serious on that. But it is ridiculous, this guilt by association that went on, even in the committee, in something as important as the Judiciary Committee of the Senate.

Let me address a few of the other arguments by Judge Alito's opponents. Yesterday, at the Judiciary Committee markup, the Senator from New York, Mr. Schumer, tried once again to paint Judge Alito as an out-of-control judge, wantonly disregarding and seeking to disrupt his own court's past decisions. The political rhetorical value of the tactic is obvious. If Judge Alito played fast and loose with his present court's precedence, the story goes he would certainly do so on the Supreme Court.

The problem is that this claim, this picture of Judge Alito as an activist judge out to remake precedent in his own image is patently wrong. It bears no relationship to reality.

At Judge Alito's hearing, the Senator from New York cited a few cases in which colleagues disagreed with how Judge Alito treated the court's prior decisions. The Senator from New York made no attempt whatever to determine whether Judge Alito's position in those cases was right or wrong. He simply grabbed quotes supporting his preconceived point of view.

With all due respect to the judges who disagreed with Judge Alito in those cases, they could very well be the ones who misread or misapplied the Third Circuit's prior decisions.

What the Senator from New York never said was that Judge Alito has dissented in just 79 of the more than 5,000 cases in which he participated. That is a rate below the average for appeal court judges around the country.

Something else the Senator from New York has not revealed is Judge Alito has voted to overturn his own court's precedence just four times in his whole 15 years on the bench. In each of those cases in which all the judges of the circuit participated, Judge Alito was in the majority, and two of them were unanimous in each of those cases. He was in the majority, and two of them had a unanimous majority.

My colleagues will remember that seven of Judge Alito's current and former judicial colleagues appeared before the Judiciary Committee. Who better to give the Senate real insight of Judge Alito's approach to cases, his attitude toward litigants, and his perspective on the law? Better yet, what a unique opportunity to hear from those fellow judges about how Judge Alito handled precedent.

I might add that earlier in the hearing, for example, the Senator from New York quoted a passage critical of Judge Alito from the majority opinion in Dia v. Ashcroft. Chief Judge Anthony Scirica joined that opinion. Chief Judge Scirica was sitting right there in front of the committee.

The Senator from New York also quoted a passage critical of Judge Alito from Judge Leonard Garth's dissent in Bray v. Marriott Hotels. Judge Garth visited with us via teleconference from Arizona. That would have been a great opportunity to question the very judges on the side of the Senator from New York of evidence of Judge Alito's activism and disregard for precedent. Hearing it from them could be more meaningful than cutting and pasting a few selected quotes from poster board. Yet the Senator from New York did not ask those judges questions about this issue. In fact, he did not ask any questions at all because he did not attend that portion of the hearing. That was his right.

I asked him about it. I referred to the claims by the Senator from New York and asked the judges whether Judge Alito disregards precedent, whether he has an agenda to disrupt the court's prior decisions. Judge Edward Becker, former Chief Judge of the Third Circuit Court of Appeals, participated with Judge Alito in more than 1,000 cases. Judge Becker said he never saw Judge Alito disregard or ignore precedent. Judge Alito followed precedent unless he believed the precedent was distinguishable or was what judges called dicta--in other words, not binding language in a particular case.

Another judge on that distinguished panel was Judge Ruggero Aldisert, appointed nearly 40 years ago by President Lyndon Johnson, and still serving on the court. In addition to his many years of service in both the State and Federal courts, Judge Aldisert has written a well-known textbook on the judicial process. Judge Aldisert was a Democrat. I know him very well. I tried one of my first jury trials in front of Judge Aldisert in the common pleas court in the highest trial court in Pennsylvania. I got tears in my eyes when he appeared. But he, too, a Democrat, defended as sound Judge Alito's treatment of precedent.

I might add, chatting with Judge Aldisert afterwards, he had had a number of health problems. He risked his life to come back to right this wrong that had been done to one of his colleagues on the Third Circuit Court of Appeals. Judge Aldisert, when I knew him, and I have known him all these years, but when I knew him as a young trial lawyer in Pittsburgh, Judge Aldisert was the national president of the Italian Sons and Daughters of America. And proudly so. I was very proud of him when he went to the Third Circuit Court of Appeals and have been very proud of him since and proud of the scholarship he has written. He knows the difference between a good judge and a bad judge, and he has had a world of experience. I got very emotional when I saw him once again.

As I mentioned earlier, some of my Democrat colleagues are particularly fond of scorecards and tallies, thinking that tells anything useful about a judge's approach to the law. Perhaps they can create something like a confirmation rate card listing the percentage of cases in different categories that one side or the other is supposed to win. Plaintiffs should win this percentage of employment discrimination, the prosecution is allowed to win this percentage of criminal cases, and so on. Perhaps it can be a list titled ``Whose Side Are You Supposed To Be On'' as a judge. That is about the way it comes off. Before anyone dismisses this as ridiculous or farfetched, this is exactly what some of my Democrat colleagues and many of their leftwing interest group friends have done to Judge Alito.

In his opening statement on January 9, the Senator from Massachusetts, Mr. Kennedy, cited a so-called study by University of Chicago law professor Cass Sunstein claiming that Judge Alito voted against the individual in 84 percent of his dissents. The Senator from Massachusetts did not quote from Professor Sunstein's letter that such statistics must be taken with ``many grains of salt and with appropriate qualifications,'' or Professor Sunstein's own admission that his analysis was done under what he called considerable time pressure, rendering his conclusions only tentative and preliminary. And, of course, the Senator from Massachusetts did not examine any of the dissents on the merits. He let the calculator do the talking. Remember, these are appeals. Most of the appeals are upheld on appeal.

Actually, the Senator from Massachusetts went much further than that. On the basis of this one tentative and preliminary statistic from this one study, he claimed that ``average Americans have had a hard time getting a

fair shake in [Judge Alito's] courtroom.'' That is an outrageous claim, one that would not be at all justified even if the supposed evidence behind it were more legitimate.

Let us be honest about this. Saying a pattern of past decisions shows an entire group of litigants will have a hard time getting a fair shake in the future is to accuse Judge Alito of bias.

Before the Senator from Massachusetts or anyone else using this tactic gets indignant, throws up his hand and claims he never accused Judge Alito of bias, there is simply no other meaning to what was said.

I again call into contention the testimony of those seven judges, all circuit court of appeals Federal judges from all across the spectrum, who said Judge Alito has never demonstrated any bias toward anybody. I would much rather have their confirmation than any law professors in this country, especially any liberal law professor in this country, or conservative law professor. What else could the words ``average Americans have a hard time getting a fair shake'' actually mean?

Another example last week, Thursday, the Senator from Massachusetts claimed that while on the appeals court Judge Alito literally bent over backwards to ``help the powerful.''

He said:

The record is clear that the average person has a hard time

getting a fair shake in Judge Alito's courtroom.

These are his words, not mine. Saying that Judge Alito bends over backwards to help the powerful means only one thing. Saying that a category of litigants will have a hard time getting a fair shake before Judge Alito means only one thing. If Senators wish to accuse Judge Alito of bias, they should do so up front, not through innuendo or hiding behind statistics.

Evaluating judges with a calculator is wrong, misguided, and misleads our fellow citizens about what judges do and the role they play in our system of government. Again, I call attention to the judges who appeared, all of whom spoke in favor of Judge Alito. In all honesty, let me choose the most liberal of those judges. He has some very interesting things to say. That was Judge Lewis who is retired now. He said:

I am openly and unapologetically pro-choice and always have

been. I am openly--and it's very well known--a committed

human rights and civil rights activist and actively engaged

in that process as my time permits. . . .

I am very, very much involved in a number of endeavors that

one who is familiar with Judge Alito's background and

experience may wonder--``Well, why are you here today saying

positive things about his prospects as a justice on the

Supreme Court?''

And the reason is that having worked with him, I came to

respect what I think are the most important qualities for

anyone who puts on a robe, no matter what court they will

serve on, but in particular the United States Supreme Court.

He went on to say:

As Judge Becker and others have alluded to, it is in

conference, after we have had oral argument and are not

propped up by law clerks--we are alone as judges discussing

the case--that one really gets to know, gets a sense of the

thinking of our colleagues. I cannot recall one instance

during conference or doing any other experience that I had

with Judge Alito, but in particular during conference, when

he exhibited anything remotely resembling an ideological

bent.

He endorsed Judge Alito in no uncertain terms.

Let me close by noting a few things I find encouraging. First, I am encouraged the attacks, distortions, and misleading claims about Judge Alito have not persuaded the American people. The leftwing interest groups have thrown everything they have against this nominee. It is shameful the way they act. One of their leaders said at the beginning of this campaign: You name it, we will do it. That is the type of opposition this man has had to endure.

They did it. We have seen millions of dollars spent week after week on petition drives, television ads, rallies, phone banks, and grassroots lobbying. The net result of that barrage of propaganda has been that support for Judge Alito's nomination among the American people has steadily increased--not a very good return on their investment.

In early November, Newsweek found that 40 percent of Americans thought Judge Alito should be confirmed. In December, even polls conducted for liberal groups found that support had risen to nearly 50 percent. And this month, polls by CNN, FOX News, and Reuters find support even higher with Americans backing the nomination by a ratio of more than 2 to 1. A new Gallup poll conducted after Judge Alito's hearing last week shows support has risen by about 10 percent since early December. This is particularly significant because Judge Alito's opponents have issued all sorts of apocalyptic warnings and predictions. They have cast Judge Alito as a radical extremist, a threat to the environment and individual rights.

The Senator from Vermont has repeatedly said that all by himself, Judge Alito is a threat to the rights and liberties of all Americans literally for generations to come. The critics have said that Judge Alito would give the executive branch a blank check to invade your privacy, strip search children, and tap your phones.

According to the critics, if Judge Alito has his way, machine guns will flood our streets, big business will pollute the air and water, and the poor and down trodden will be unable to find justice.

I am pleased to say despite all of this propaganda, as CBS News found, the percentage of Americans having a favorable impression of Judge Alito has risen 50 percent since the end of October. I am also encouraged that not all Democrat leaders have abandoned reasonable, traditional, judicial confirmation standards.

Pennsylvania governor Ed Rendell, a past general chairman of the Democratic National Committee, yesterday described a confirmation standard that I hope his fellow Democrats would once again embrace.

He said that if a nominee is qualified and passes the test of integrity, elections matter and disagreement with some of nominee's positions or decisions are not enough to deny the President his appointment.

That was the standard that allowed President Clinton to appoint two liberal justices with minimal opposition.

I wish my Democratic colleagues would follow Governor Rendell's lead.

Finally, Mr. President, I am encouraged that Judge Alito will indeed be confirmed.

A highly qualified judge, a man of character and integrity, and someone who understands and is committed to the judiciary's properly limited role, will soon join the Supreme Court of the United States.

When Judge Samuel Alito becomes Justice Samuel Alito, our system of limited government under the rule of law will be stronger and the freedoms that system makes possible will be more secure.

I urge my colleagues to vote to confirm Judge Samuel Alito to the Supreme Court.

Will the Senator yield?

Mr. President, today on this floor the distinguished Senator from Vermont, Mr. Leahy, accused me of misrepresenting him when I earlier characterized comments he has made about the nomination of Samuel Alito to the Supreme Court. He would not yield to me at that time, and I want to set the record straight.

This is how I characterized the Senator from Vermont's previous comments: ``The Senator from Vermont, Senator Leahy, has repeatedly said that, all by himself, Judge Alito is a threat to the rights and liberties of all Americans literally for generations to come.''

The Senator from Vermont reacted by saying that I was not even ``within the ballpark of accuracy.''

This reaction was particularly perplexing because the latest example of the Senator from Vermont making such a statement had occurred just hours before.

This time, I will be careful to quote, rather than characterize, what he said. In his opening remarks today on the Alito nomination, the Senator from Vermont said: ``This is a nomination that I fear threatens the fundamental rights and liberties of all Americans, now and for generations to come.'' That language is simply cut and pasted from the statement as it appears on the Senator from Vermont's Web site.

The Senator from Vermont made the exact statement yesterday, during the Judiciary Committee's business meeting at which we considered the Alito nomination. He said: ``This is a nomination that I fear threatens the fundamental rights and liberties of all Americans now and in generations to come.''

I was not only in the ball park, I was standing on homeplate.

Mr. President, I rise today to express my support for the budget reconciliation bill conference report. As I have stated here during the different stages of debate on this year's budget, the most notable thing about this reconciliation bill is not the size of the reduction of the spending growth but rather the fact that it effectively takes the foot off the accelerator of spending growth and begins to touch on the brakes.

But to get us there, the conferees had to make some hard choices. I will be frank--I would prefer that we pass a bill similar to the one the Senate passed in November. That bill met our budgetary goals, and it struck the right balance. The conference report changes some social programs, and I understand the concerns many throughout Utah have expressed about how these changes will impact care.

That is why I spoke with Health and Human Services Secretary Michael Leavitt last night to discuss how this bill might affect social services in Utah. His assurances that the budget bill will not hurt our more vulnerable citizens were key to my decision to support S. 1932. Secretary Leavitt, who spent more than a decade serving as Utah's Governor, also committed to maintaining a watchful eye over implementation of this law to make sure that all Utahns' interests are protected.

So despite this, my paramount concern was that we act now to curb the growth in entitlement spending because it threatens every one of our children and grandchildren with an unbearable tax burden. This conference report marks the beginning of a much needed change--a change that must occur if we are to gain control of the fiscal future of this country. As many of my colleagues have pointed out, this conference report, if enacted, will represent the first time since 1997 that we have been able to reduce spending growth in entitlement programs.

The conference report before us includes a reduction in Federal outlays totaling almost $40 billion over the next 5 fiscal years. This, I am pleased to see, is nearly $5 billion more than the Senate version of the bill that we passed last month. While I am certainly not happy with all of the individual changes in the conference report, I do like its direction toward more savings growth.

One reason I am so anxious to turn the comer in slowing spending growth on these entitlement programs is that the long-term projections for Federal spending on the three largest entitlement programs--Social Security, Medicare, and Medicaid--are truly alarming. In fact, a new report released last month by the Heritage Foundation states that fully funding these three programs will force Federal spending, as a share of GDP, to increase from today's level of 20 percent to almost 33 percent by 2050.

Moreover, according to the report, the cost of these three programs alone could jump from 8.4 percent of GDP today to 18.9 percent of GDP by 2050. Failing to curb the growth in these programs leaves us with three very unattractive and dangerous alternatives. The first would be to raise taxes dramatically. As we know, such a move would choke off economic growth and leave us vulnerable to economic recessions which would exacerbate rather than help the problem.

The second alternative is equally untenable--eliminate all other spending, eventually to include all discretionary spending. This, of course, is absurd since our defense, homeland security, and other vital spending is included in this category. The final alternative is to continue to allow the deficits to continue to build up as we try to keep on financing the growing debt with loans from other countries.

Therefore, our only real choice is to begin to slow down the growth in these programs. This conference reports does start us on this path.

However, I acknowledge this conference report is far from perfect. It retains some flaws from the Senate version of the bill, and it came back from conference with some new flaws.

That being said, I believe this legislation is a step in the right direction. The Medicare provisions are more in line with the Senate version, and overall it targets Medicare's resources to better serve our seniors and disabled. The conference report ensures that beneficiaries don't lose their doctors because of budget cuts, and it expands services while making significant budget savings in noncritical areas.

While I do not agree with everything in this bill, I am pleased that the legislation restores the stabilization fund for the Medicare Advantage regional PPOs and allows the Medicare Part B penalty to be waived for international missionaries. It also will expand the Program of All Inclusive Care for the Elderly, PACE, to beneficiaries living in rural areas. PACE offers alternative services to individuals who may need nursing home care but want to live at

home if possible. This provision will provide another important choice for long-term care services for beneficiaries in rural areas. I filed all three of these policies as amendments when the Finance Committee considered the budget reconciliation bill.

For Medicare beneficiaries this legislation encourages preventive care for seniors and the disabled. Some of the important provisions in this area include the following: preventive screening tests for abdominal aortic aneurysm; exemption for colorectal cancer screening tests from the Medicare deductible; a 1.6-percent update to the composite rate for end stage renal disease, ESRD, services in 2006; and an expansion of Medicare reimbursement for services at federally qualified health centers, FQHC, by allowing them to provide diabetes self-management training services and medical nutrition therapy services.

In addition, this legislation makes needed reforms to home health payments in order to reduce disparities in provider payment and improve quality and transparency. First, the bill calls for a 1-year, 5-percent add-on payment for home health agencies that serve rural beneficiaries which will help many home health agencies in Utah. Rural home health agencies have much lower Medicare margins than urban home health agencies, and as a Senator who represents a primarily rural State, I believe that this needs to be addressed. The legislation freezes home health payments in 2006. In its March 2005 report to Congress, the Medicare Payment Advisory Commission recommended this freeze in home health payments because Medicare pays home health agencies approximately 17 percent more than it costs agencies to provide home health services. Finally, the legislation also provides financial incentives to home health agencies that report quality data beginning in 2007.

One of the most important provisions in this legislation protects physicians from a 4.4-percent scheduled reduction beginning on January 1, 2006 and, instead, allowed the 2005 payment rates to continue through 2006. I am still committed to fixing this problem once and for all, and I hope that we may accomplish this in 2006 since this issue will need to be addressed once again since physicians are estimated to continue to receive negative cuts of approximately 5 percent from 2006 to 2011. Congress needs to enact a long-term solution as quickly as possible.

With regard to therapy services, for years Congress has worked to find a permanent solution to the problem of overutilization of therapy services. Although I have consistently supported a moratorium on therapy caps, this bill leaves a January 2006 expiration of the moratorium in tact, and I am committed to continue encouraging my colleagues to reinstate this important moratorium.

Now, let me turn to Medicaid. This has been a tremendously successful program but also a very costly one. We have a responsibility to address the dramatic growth in spending, but I was not happy that some of the key provisions have not been considered thoroughly by the Senate. Given expressions of concern voiced to me by my constituents, I only reluctantly give my support to the overall measure.

I would have preferred the Senate language, which did not change the law with respect to beneficiary eligibility. That is why I will be working closely with Secretary Leavitt and other Cabinet-level officials to ensure Utah is treated fairly as this law is implemented.

I would like to take a couple of minutes to share my thoughts on some aspects of the Medicaid portion of this bill. One issue that was debated in both the House and the Senate was the real asset transfer rules. Under current law, Medicaid asset transfer rules are easily skirted--courses are offered to teach attorneys how to circumvent the law. This is plain wrong. The reforms in the Deficit Reduction Omnibus Reconciliation Act will make it more difficult for these transfers to occur and will allow more Medicaid resources to go to those who are in genuine need.

Our current asset transfer policy is flawed. The policy not only allows for exploitation, it encourages it. The current statute has loopholes that allow wealthy seniors to qualify for Medicaid. Let me make one point clear--Medicaid exists to protect the most vulnerable, not the most wealthy.

We need a fair, equitable policy. We need to protect the Medicaid Program for those who need it most. The legislation before us today addresses this situation by closing the loopholes in Medicaid. First, it prevents seniors from intentionally protecting their assets--people should not be allowed to hide their money in order to receive Medicaid nursing home coverage. Second, the bill changes the lookback period as well as the penalty period. Today, an older American can shelter half of his or her assets the day before applying for Medicaid.

The conference report starts the penalty period clock when a senior applies for Medicaid, and the lookback period is changed from 3 years to 5 years. Currently, an older person will face a penalty if assets are transferred for the purposes of qualifying for Medicaid within 5 years of applying for Medicaid. This provision significantly strengthens the asset transfer policy.

The new law does not allow an individual with more than $500,000 in home equity to be able to qualify for Medicaid. It does provide State flexibility to increase the cap to $750,000. This is sound policy. Those with home equity over $500,000 should not take Medicaid money from those for whom the Medicaid Program was designed: low-income children, pregnant women, and individuals with disabilities. Also, the policy only applies to individuals. It does not apply to applicants who have a spouse or a dependent child at home. In theory, the State is supposed to be able to put a lien on that home anyway.

Finally, seniors who have a hardship can apply for a waiver. The policy strengthens protections for seniors seeking an undue hardship waiver beyond current law or the Senate-passed version. I don't want to make it harder for people who really need the Government's help. But I do want to prevent seniors from intentionally taking advantage of the system. We need to protect Medicaid for those who need it most.

I discussed this matter in great detail with the Utah Medicaid Director and was assured that, in my home State of Utah, individuals who are under suspicion for transferring assets inappropriately are always given the right to appeal if their request for Medicaid coverage is in question. I understand there are several States, such as Utah, who handle this matter in fair and thoughtful way.

The budget reconciliation conference agreement also makes existing Federal reimbursement rates for drugs more accurate. It makes the average manufacturer price, AMP, of drugs available to the public so that pharmacists and wholesalers will get lower prices through greater competition, and excludes prompt pay discounts paid to wholesalers from the new pharmacy reimbursement rates.

AMP is the average price at which manufacturers sell their drugs to wholesalers, but starting in 2007, the Federal Government will not pay more than 250 percent of the AMP of the lowest cost version of a generic drug. Under current law, the Federal upper limit is 150 percent of the lowest published price. The new payment rates are based on the existing rules governing generic drugs.

The AMP data will also be made available to States and the public. This will create more transparency and competition in drug pricing. CBO has estimated that transparency will help reduce drug costs by hundreds of millions of dollars. Competition and transparency will bring prices down for consumers and protect the taxpayer from needless waste.

The final bill also requires the Secretary to work with private companies that routinely monitor and track drug payment rates for private health plans. The Secretary will then be required to share this information, known as retail sales prices, with States. This will provide State officials with better information about actual market- based prices, such as the rates paid by the Federal Employee Health Benefit Plans pay for prescription drugs. All of this information will provide greater accountability and ensure that Medicaid is paying pharmacists fairly for all drugs, and I am pleased that these provisions were included in the legislation.

The Deficit Reduction Omnibus Reconciliation Act also contains important reforms that will provide Medicare beneficiaries, seniors, and the disabled with better options to manage their care. Under the Deficit Reduction Omnibus Reconciliation Act, States will now be able to provide home and community-based services as an optional benefit to seniors, the disabled, persons with a developmental disability, mental retardation, or a related condition. Coverage of these services will allow more individuals to receive better health care and other assistance. These services will also mean that more persons can remain in their homes, without needing to go into nursing homes. These reforms will help reduce spending by allowing individuals to receive the kinds of care they want, in the settings they prefer, at prices far below what Medicaid usually pays for nursing home care. In addition, no one who currently is receiving care through an institution will be forced to leave that institution in order to receive community-based care.

The final conference report also will allow every State to establish a Long-Term Care Partnership Program. Long Term Care Partnership Programs allow individuals to protect a portion of their assets from Medicaid recoveries if they purchase long-term care insurance. Currently only four States (California, Connecticut, Indiana and New York) are allowed to have these programs. By expanding access to these programs, the new law will help create incentives for people to purchase long term-care insurance. Encouraging the purchase of long- term care insurance will mean that more people will be able to pay for their own nursing care, and fewer will have to rely on Medicaid as a safety net to meet their long-term care needs.

Another area that is addressed in this legislation is Medicaid beneficiary cost-sharing. There is a lot of misinformation about this provision, and I would like to explain this provision in more detail. Under current law, States may require cost-sharing but it is not enforceable. In other words, if a beneficiary does not pay his or her copayment, the health care provider is forced to absorb the beneficiary's copayment. This is why we have such difficulty encouraging providers to participate in the Medicaid Program. Many will not, and all Medicaid beneficiaries suffer as a result.

I believe that the conference report includes reasonable policy that allows States to ask beneficiaries over the poverty line to participate in the cost of their own care. Let me make one clarification--the House-passed legislation required States to impose cost-share requirements on beneficiaries with no income. I do not agree with that policy, and it is included in this bill.

A beneficiary who is above the poverty line may pay up to percent of his or her monthly income to the cost of their care, but that is only if the State decides to impose additional cost-sharing requirements. And let me assure my colleagues that no state is required to impose cost-sharing requirements on these beneficiaries. I will add that even the National Governors Association support reasonable responsible cost- sharing. In fact, Governors testified before the Senate Finance Committee earlier this year and told committee members that they support this policy.

I am aware that substantial concerns have been raised about the provision permitting States to provide Medicaid coverage to children under age 19 through ``benchmark'' or ``benchmark equivalent'' coverage. In short, some fear this language might abrogate the right of those children to receive Early Periodic Screening, Diagnostic and Testing, EPSDT, benefits.

For the benefit of my colleagues, I will ask unanimous consent that a statement just issued by Centers for Medicare and Medicaid Services Administration, Mark McClellan, M.D., Ph.D., be printed in the Record

As Dr. McClellan has made quite clear, children through age 18 will continue to receive EPSDT. It is my hope this assurance will make many child advocates more comfortable with this bill.

With regard to the welfare portion of the conference report, I was disappointed to see Congress's efforts to reduce the budget contain limitations on welfare, childcare, and child support policy. These vital programs should have been reauthorized through the normal legislative process, not tucked away in a protected budget reconciliation bill which is designed to reduce the Federal deficit. The welfare, childcare, and child support language included in the budget reconciliation bill has almost nothing to do with reducing the deficit and everything to do with changing the rules of these important programs without proper legislative scrutiny or debate.

While I am completely frustrated with the Senate's inability to reauthorize the Temporary Assistance for Needy Families, TANF, legislation using the normal legislative process, I do not believe it is in the best interest of the participants of these programs to include sweeping policy changes in a bill designed to reduce the deficit.

However, I am appreciative of Chairman Grassley's efforts to ensure that childcare funding was increased. Although the increase is limited to $1 billion over the next 5 years, I am hopeful we will be able to secure even larger increases in childcare funding in the near future. Providing quality childcare to low-income families is crucial when we are scrambling to help families become self-sufficient, and I am committed to ensuring the Federal Government continues to help these children and families.

As well, I am appreciative of the chairman's efforts to secure 3 years of supplement TANF grants. The State of Utah has been a large beneficiary of these grants, and as we work to meet the stricter TANF work requirements outlined in this bill, we will continue to have supplemental grants from HHS to help us train and prepare our TANF recipients.

Now I would like to discuss the portion of the deficit reduction conference report that addresses the Continued Dumping and Subsidy Offset Act, which is commonly refereed to as the Byrd amendment. The Byrd amendment amended the Tariff Act of 1930 to require that duties, collected as a result of antidumping and countervailing duty laws, be distributed to the affected entities. At the time it was introduced, I supported this measure as a commonsense proposal.

However, since that time, the World Trade Organization has allowed our trading partners to impose tariffs on various U.S. goods, and the Byrd amendment has gone from a commonsense solution to an impediment to U.S. companies' ability to sell their goods abroad.

First, I must reemphasize my strong support for laws that not only make trade free but fair. Accordingly, I have spoken directly to the Secretary of Commerce, Carlos Gutierrez, and United States Trade Representative, Ambassador Rob Portman, about the vital importance of vigorous enforcement of our trade laws.

Though I have never and will never advocate modifying our laws because of outside pressure, American companies and employees in Utah and all over the country have come to me and asked for my help in repealing the Byrd amendment. Currently, the United States is negotiating, as part of the Doha Round talks, a new trade regime in which international markets would become even more open to U.S. goods and services. If completely successful, the Institute for International Economics estimates that American households could gain as much as an additional $5,000 per year. If today's international trade barriers were reduced by just a third, the average American family of four would enjoy $2,500 per year in additional income, according to a University of Michigan study.

Freer trade helps more than just Americans. The poorest countries stand to gain considerably. According to a Center for Global Development study, a successful conclusion to the Doha Round would result in an additional $200 billion flowing to developing nations, reducing poverty and economic hardship. Not to mention, the Institute for International Economics estimates that trade liberalization over the last 50 years has brought an additional $10,000 per year to the typical American household.

In order to achieve our objectives in the Doha Round, many of our trading partners will be required to make substantial concessions on import duties and subsidies. However, those who oppose our noble goals could use our refusal to repeal the Byrd amendment as

a means to hinder our negotiating strategy. Simply put, these opponents will state that if the United States cannot follow the existing rules of trade, rules which our Nation largely crafted and implemented, how can we be trusted if most trade barriers are repealed?

Therefore, as I said before, I admire the Byrd amendment's commonsense approach, but I believe under the present circumstances the time has come for this legislation to be modified, in order to strengthen the ability of our Nation to achieve the larger goal of bringing down foreign barriers to U.S. goods and services.

Therefore, I support the changes incorporated in the Deficit Reduction Conference Report. This legislation achieves a fair compromise by repealing the Byrd amendment; however, at the same it would permit Byrd amendment payments to U.S. companies through October 1, 2007. This should provide an adequate time for companies to plan for the future while preserving a strong negotiating position for U.S. interests.

Despite its shortcomings in some areas, this reconciliation package contains several very important provisions in the intellectual property area that benefit the Nation and my home State of Utah.

I am pleased that a hard date for the transition from analog to digital television was included in the final package. This important provision will free up crucial radio spectrum that is currently occupied by broadcaster's analog television signals. Although the digital transition inevitably resolves a number of difficult issues, it also has several important benefits. It is my understanding that over $7 billion of the proceeds from the eventual auction of spectrum licenses is expected to be used for deficit reduction. Perhaps more importantly, the transition will provide both the necessary funding and available spectrum for public safety officials and emergency personnel across the country to upgrade their communications infrastructure. And, finally, a portion of the anticipated proceeds will be used for various programs intended to minimize any negative financial impact on consumers, rural broadcasters, and others affected by the transition.

I am particularly pleased that a provision setting aside a small fraction of the proceeds to help fund the upgrade of television translator stations was included. This provision responds to a serious concern that I have had regarding the financial viability of upgrading the network of translator stations across Utah that are used to serve many of the rural communities in my home State. In the context of the debate over the digital transition, it came to my attention that upgrading these translators, which retransmit television signals to communities beyond the reach of the primary broadcast towers, would impose a substantial--and disproportionate--financial burden on broadcasters that were primarily located in mountainous western States. Due to the vast area covered by the Salt Lake City television market and the high concentration of translator stations in the State, there was a substantial concern that upgrading the cost of these translators would be prohibitive. The approach taken in the reconciliation package is similar to the proposal contained in S. 1600, which I cosponsored with Senator Snowe, and I would like to take this opportunity to thank Senators Snowe, Stevens, and Inouye--and their respective staffs--for their help on this issue.

As with other portions of this bill, there are aspects to the education provisions I support and others I don't. However, I am pleased overall with the significant amount of savings while still allowing for spending on important programs.

The major area of savings comes from the reduction in corporate lender profits on student loans, in the form of a requirement that lenders rebate the Federal Government the difference between the borrower rate and the lender rate when the borrower rate exceeds the lender rate. In addition, guaranty agencies are required to deposit 1 percent of their collections in the Federal Reserve Fund; there is a reduction of borrower origination fees by .50 percent for each award, and there is an elimination of the recycling of 9.5 percent loans.

Even with these much needed savings, I disagreed with fixing the interest rate for undergraduate and graduate nonconsolidation borrowing at 6.8 percent, preferring a choice of a fixed or variable rate.

However, I am very pleased with increasing grant aid for students studying math and science, named SMART grants. I was involved in the original creation of the SMART Grants Program through my work on the HELP Committee. These grants will give first year students awards of $700 and $1,300 for second year students, provided they have completed rigorous programs at the secondary level. Third and fourth year students may receive up to $4,000 in grant aid if they major in math, science, or foreign language.

I know these programs will give Utah students, particularly those of low or moderate means, greater access to a college education and will boost our local and national economy as we seek to meet the demands of the 21st century workforce.

Again, this legislation is not perfect. It is not a perfect answer to several of the social policy problems that confront our Nation. It is not a perfect answer to the growing Federal budget deficit either. It is not Draconian and it is not mean-hearted. This deficit reduction conference report is merely a good first step in stemming the tide of red ink that runs down the pages of the Federal budget, stealing taxpayer dollars to service a monstrous Federal debt and robbing our children of a safe and secure financial future. For these important and self evident reasons, I support this bill.

I ask unanimous consent the statement issued by the Centers for Medicare and Medicaid Services Administration to which I referred earlier be printed in the Record.

Mr. President, I rise to make a few remarks concerning the Public Health and Emergency Preparedness Act of 2006 which was inserted in a year-end appropriations vehicle, the Department of Defense Appropriations Act.

Protecting the American public against acts of bioterrorism like the 2001 anthrax attacks and natural disease outbreaks such as the risk posed by the avian flu is an important national security priority.

For 4 years, I have worked in a bipartisan manner with my friend from Connecticut, Senator Lieberman, on comprehensive legislation to address this concern.

We have vetted our proposal with literally hundreds of experts over the last 4 years.

We understand full well that our proposal contains a number of bold proposals that challenge our colleagues to make fundamental changes in our biomedical research, public health management, regulatory, antitrust, intellectual property, tax and civil liability systems toward the end of materially increasing our Nation's public/private sector capacity to design, develop and distribute hopefully hundreds of new products to counter the effects for the dozens of known biological, chemical or nuclear threat agents for which we today literally have no diagnostics, vaccines or therapeutic responses.

This is a tall order.

It will likely take 20 or more years to build this capacity to the level we will need to discourage our enemies from attacking us in this manner or, if they do so, to be able to respond in the way that the public will expect to ensure the strength of American society.

We have made some progress in recent years but we have to do much more in this area.

This is the type of issue that takes time, money, creative energy and patience.

We need a Manhattan Project type of effort, and we needed it 4 years ago.

Throughout my years in the Senate, I have worked on dozens of important public health bills.

In my experience, public health bills go better if they are done on a bipartisan basis.

I have also observed over time that, generally speaking, good public health policy turns out to be good politics. I know of no disease or condition that chooses its victims along party lines.

I am pleased that a key concept of the legislation that we introduced in 2002, the ``guaranteed market'' for those firms that successfully develop certain bioterrorism countermeasures was finally adopted in the Bioshield I legislation passed in the 108th Congress.

In the first session of the current 109th Congress, there has been a great deal of interest in bioterrorism and pandemic diseases. This is good for the American public.

In the Senate, the HELP Committee was infused with new leadership on this issue in the persons of our new chairman, Senator Enzi, and the chairman of the new Bioterrorism and Public Health Preparedness Subcommittee, Senator Burr. Majority Leader Frist and former Chairman Gregg have continued their longstanding involvement on these issues.

Across the aisle, led by a veteran leader in public health issues who has been on the HELP Committee or its predecessors for 43 years, Senator Kennedy and others including Senators Harkin, Dodd and Clinton have been interested in these issues.

Throughout the Spring of this year the Bioterrorism Subcommittee held a series of bipartisan hearings and discussion roundtables that were attended by leading experts. Throughout the August recess the staffs of the committee members worked on various drafts of bioterrorism legislation that culminated in a markup in September.

Unfortunately, from my perspective, the bill that resulted from the HELP markup did not contain the intellectual property and tax provisions that Senator Lieberman and I have long advocated. Such is the reality of the dance of legislation. But, as has developed in the provisions related to the guaranteed market, liability, and compensation, we believe that the day will come when these ideas from our original legislation are also seen as meritorious.

Subsequent to that markup, the Bush administration unveiled its comprehensive plan to prevent and respond to the potential catastrophic outbreak of human-to-human avian flu transmission.

Throughout the Fall, many Members of Congress, the administration, industry, the public health community and other interested parties worked on various pieces of legislation to respond to these threats. Unfortunately, as sometimes happens at the end of very busy congressional sessions, not everyone was able to work together at the same time.

For a variety of factors, we have now arrived at a point where a potentially integral piece of an effective legislative response to bioterrorism and pandemic threats has been inserted into the Department of Defense appropriations bill. Using year-end appropriations bills as vehicles can be an opportunity to solve important problems but, sometimes, can pose a risk that an inadequately vetted measure becomes law.

As many who are not members of the esteemed Appropriations Committee, I have a preference for the regular order of the authorization process. In all candor, from time to time in my career, I have availed myself of appropriations vehicles to move authorization bills that I desired to see passed. Sometimes, as shocking as it sounds, there is gambling in Casablanca.

Comes now the newly drafted, and redrafted and redrafted, Public Readiness and Emergency Preparedness Act.

Both Senators Frist and Gregg must be singled out in the Senate for their efforts to develop and move this new bill. In the House, I understand that Speaker Hastert and Chairman Barton, even as he was hospitalized, are largely responsible for this effort.

All of these good and earnest members should be recognized for attempting to tackle two of the most vexatious policy and legal issues confronting us in this critical area: liability; and compensation reform.

We need to encourage the private sector to work vigorously on scores of new, potentially dangerous drugs and biological products designed to counter both natural and bioterroist threat agents. That is what liability reform is all about.

At the same time, if some of these products--some of which will never be tested in human clinical trials since it would be unethical to infect a patient with a microbe like the Ebola virus just to see if a potential treatment were safe and effective--turn out to injure and even kill patients, there must be a fair and funded system of compensation.

Some critics are already falsely charging that these new provisions are nothing but a Republican gift to the drug industry during the Christmas season.

Hogwash.

There should be no doubt that the sole intention of the principal drafters of this legislation is to help devise a system that will increase the readiness of our country to respond to bioterrorist or natural public health threats.

I also think it is way past time that Members of this body and others stop unjustifiably vilifying the pharmaceutical industry. Due in large part to the unique partnership between the public and private sector biomedical research enterprise--undergirded by the substantial annual $28 billion taxpayer investment in the National Institutes of Health-- we are on the verge of a revolution in our understanding of human health and disease. Let's just hope that neither the avian flu not the bioterrorists strike before we have developed the means to defeat these threats.

We will not defeat biological enemies with bullets or battleships. It will be accomplished with basic biological knowledge and the applied know-how required to translate ideas from the lab to the patient's bedside.

Integral to this system and to our national security is the too often-maligned pharmaceutical industry.

They are tough, profit seeking companies. They are often their own worst enemies. They are not always right.

But nor are they always wrong. The products they produce are aimed at

preventing and treating diseases and reducing suffering. And that is not the worst business to be in by any means.

The situation is that we are confronting an enormous chicken-and-egg problem in developing new vaccines and countermeasures due to the fact that in the last several decades product liability exposure has drastically reduced our domestic vaccine production capability. I understand that in 1976, 26 companies produced vaccines for the U.S. market. This year, only five companies produce vaccines sold in the U.S. and only three have U.S. production facilities.

This constitutes both a public health and national security challenge that must be addressed.

While I have concerns about many of the precise provisions in this new language, I recognize and commend my colleagues for attempting to solve a problem that needs solving.

I have great respect for the majority leader, especially as he attempts to navigate this year's exceedingly complex package of pending bills which include the budget reconciliation bill--the first such measure in nearly 10 years--the PATRIOT Act, the Labor-HHS appropriations bill, as well as the Department of Defense authorization and appropriations bills. This is a tall order by any standard.

Although I urged the Leader not to include this new bill in the year- end legislation, I told him that I would not vote against this measure if it were part of one of the year end, must pass vehicles.

I did this largely out of deference to our majority leader.

For reasons that I will explain, if it came to a simple up-or-down vote on this measure as currently drafted, I could not yet support it and would vote no.

If this measure does in fact become enacted into law, I will be open to considering further modifications in this language should our study of this new language indicate that changes are advisable.

Many will question whether this bill, in its current form, contains too much indemnification and not enough compensation. This is a fair question.

For example, the funding mechanism in the bill does not appear to be guaranteed.

I have been down the hard road of discretionary funding with respect to the Radiation Exposure Compensation Act, which I authored, and I cannot say that I would recommend such an important program to be subject to the uncertainties of less than stable, certain funding.

Still others will question why the bill provides for no judicial review, apparently even by the United States Supreme Court, for certain actions by the Secretary of Health and Human Services?

There will be concern that the bill does not allow adequate judicial review to assure that the Secretary has not acted either arbitrarily or capriciously in certain circumstances.

Because of the great significance of this measure, I suggest that Chairmen Enzi and Specter hold hearings on this language once the Congress reconvenes after the holidays.

It is, for example, important to learn what the administration thinks about this new bill and whether, upon reflection, it would urge some refinements.

I have not seen a Statement of Administration Policy on this measure.

Nor have I seen a Congressional Budget Office score so it is a little unclear to me how much this new section would cost.

The administration will be called upon to administer a new compensation program and we need to know how they plan to implement this program and whether they have any suggestions to improve the operation of this program.

As well, I would not be surprised if more Members and other interested parties will want to weigh in on the structure of the new compensation program, which is based in large part, on the current smallpox vaccine injury compensation program.

As our experience with the asbestos legislation teaches us, there is always great interest in the level of compensation injured citizens may receive, especially if they give up their possible tort remedies.

I note that there is a higher standard imposed upon the Secretary in constructing an injury table under this new bill than must be met under the current smallpox vaccine injury compensation law. Many will want to know exactly what is intended and what the practical effect of this new standard will be on the health experts who will advise the Secretary in this critical area.

There are also many questions that must be explored with respect to how the liability shield will operate in practice.

Let me state clearly that I favor a strong liability shield so that many pharmaceutical and biotechnology firms will enter this critically important field of research and development. The fact is today that there exists a pervasive climate of apprehension about product liability and litigation exposure and this is chilling the necessary private sector activity.

Clearly something must be done. It is not so clear that the new liability language is yet as good as it needs to be. For example, the way in which the willful misconduct and FDA defense provisions operate together in the context to potential court challenges merit particular attention. As well, the policy and business-behavioral ramifications of drawing a hard line between all forms of negligence and wilful misconduct deserve careful thought and analysis.

In the case of dual use products, such as antibiotics, it appears that, should a bad batch of drugs be made due to ordinary negligence, a patient injured when taking the product for a normal, garden-variety infection will have a much greater range of legal remedies than a person who took a pill from the same adulterated production batch but under a Secretarial declaration of a public health remedy. It is not readily apparent why this should be the case.

There may be ways to further improve and refine these provisions and other parts of the bill as well. For example, consideration is warranted with respect to whether there ought to be a subrogration provision in certain cases when the Federal Government must compensate patients for injuries caused by negligent or grossly-negligent actions of manufacturers, distributors, or others connected with developing the drug or delivering it to patients.

In any event, I think we should keep an open mind to viewing this new language as something as a work in progress.

Rather than embarking down a path of political who-struck-John on how this new section got into the bill and who drafted this provision or that provision, I think the public will be better served if we focus our future efforts on evaluating what the bill does and deciding whether there are ways we can make it better.

One thing is certain. If we do not find a better way to unleash the creative efforts of the private sector in researching and developing a panoply of new products designed to diagnose, prevent and treat bioterrorist and natural threats, the health and welfare of our Nation cannot be secure.

We have a big job ahead of us.

I urge that we move forward in a constructive, bipartisan effort to further improve the Public Readiness and Emergency Preparedness Act that has been placed in the DOD appropriations bill conference report. If others are willing to proceed in this fashion, I am certain that Senator Lieberman and I, and many others, stand ready to discuss and refine this and any other piece of related legislation.

Mr. President I rise to make a few remarks about a matter relating to judicial philosophy that has been discussed by some during the course of this year in connection with the public debate over Supreme Court vacancies that have occurred this year.

Some have attempted to create a false conclusion by criticizing a school of judicial philosophy sometimes referred to as the ``constitution in exile''.

For example, earlier this year, my esteemed colleague from Delaware, Senator Biden, who, I understand, teaches constitutional law at the University of Delaware, entered into this debate. My friend from Delaware specifically asked us to reflect upon the judicial philosophy of one of our Nation's most respected Federal appellate judges, Chief Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit.

I was recently in attendance at the DC Circuit for the formal swearing in of Judge Thomas Griffith and was once again impressed with the quality of jurists of this extremely important and influential court.

I commend Senator Biden for his support for the nomination of Judge Griffith.

As I will explain, I do take exception to some of the characterizations that the former chairman of the Judiciary Committee made about the views of Chief Judge Ginsburg.

The senior Senator from Delaware invited us to ``read Judge Ginsburg's ideas about the `Constitution in Exile'. . . [and to] read what Judge Ginsburg has written'' about the ``fifth amendment's taking clause, the non-delegation doctrine, the 11th amendment, and the 10th Amendment.'' Since the Chief Judge of the DC Circuit is one of our Nation's finest jurists, I welcomed this opportunity to reacquaint myself with his opinions and writings. I was surprised and somewhat dismayed, then, to discover that this was such a short assignment.

Considering the sharp criticism by my Judiciary Committee colleague, Senator Biden, of Chief Judge Ginsburg's views as ``radical,'' I was taken aback to discover how little he had actually written on the specified subjects.

It is no exaggeration to say that on most of these issues, Judge Ginsburg had written nothing of substance.

That being said, having considered what little he did write on these topics, the characterization of his views as ``radical'' is, at best, a stretch.

If the research that I have seen is correct, Chief Judge Ginsburg has authored only two opinions that even refer to the takings clause of the Constitution. In neither did he decide the takings claim being presented.

In Corporation of Presiding Bishop of the Church of Jesus Christ of the Latter-Day Saints v. Hodel, 830 F.2d 374, 381, DC Cir. 1987, Chief Judge Ginsburg, writing for the court, noted that ``[t]he question of whether courts, as opposed to legislative bodies, can ever `take' property in violation of the Fifth Amendment is an interesting and by no means a settled issue of law.'' He determined, however, that the court did not need to decide this issue. Similarly, in City of Los Angeles v. United States Dept. of Transp., 90 F.3d 591, D.C. Cir. 1996, unpublished, Chief Judge Ginsburg, writing for the court, determined that the takings claims were not ripe for resolution.

Many of my colleagues have denounced ideological decision-making by judges who are eager to promote their own speculative constitutional understanding at the expense of the American people's traditional views. I actually think that is a fair description of judicial activism, and it is clear that Chief Judge Ginsburg has not engaged in it. Quite the contrary, in these cases where he declined the opportunity to reach for and resolve constitutional questions prematurely, he exhibited the moderation and prudence we should expect of our judges.

Similarly, Chief Judge Ginsburg does not appear to have written anything of significance on the tenth or eleventh amendments. In the one and only case in which he even mentions the tenth amendment, Chenoweth v. Clinton, 181 F.3d 112, D.C. Cir. 1999, Chief Judge Ginsburg, writing for the court, did not address the merits of the claim because the court had determined that the party lacked standing. As for the eleventh amendment, Chief Judge Ginsburg's ``radical'' contribution was to note, in Brown v. Secretary of Army, 78 F.3d 645, 653, D.C. Cir. 1996, that a case referred to by the appellant citing the eleventh amendment was inapposite to the case before the court. This is hardly the controversial statement in support of State sovereign immunity one would expect given my colleague's remarks.

So, as far as I am aware, Chief Judge Ginsburg has not written substantively on the tenth amendment, the eleventh amendment, or the takings clause. How then can anyone fairly conclude that Chief Judge Ginsburg has such radical views about the constitutionally limited powers of the national government? Perhaps some are reading between the lines and seeing emanations and penumbras that others do not discern.

The only topic singled out for criticism by my friend from Delaware that I could find was, in fact, substantively addressed by Chief Judge Ginsburg is the non-delegation doctrine. In a 1995 book review of David Schoenbrod's ``Power Without Responsibility'', Chief Judge Ginsburg employed the term ``Constitution-in-exile.''

Apparently some liberal critics of the President's judicial nominees have seized on this expression, perhaps in the hope that it will scare the American people into fearing some super-secret rightwing led by wayward judges.

Of course, this is nonsense.

But it is worth noting that the many of the critics who talk today about the Constitution-in-exile have completely unmoored that term from Chief Justice Ginsburg's original formulation.

In an article in the journal Regulation, Chief Judge Ginsburg wrote the following:

[F]or 60 years the non-delegation doctrine has existed only

as part of the Constitution-in-exile, along with the

doctrines of enumerated powers, unconstitutional conditions,

and substantive due process, and their textual cousins, the

Necessary and Proper, Contracts, Takings, and Commerce

Clauses. David Schoenbrod, ``Power Without Responsibility:

How Congress Abuses the People Through Delegation,''

Regulation Magazine (1995 No. 1) (Book Review), at 84.

He went on to explain that, ``The memory of these ancient exiles, banished for standing in opposition to unlimited government, is kept alive by a few scholars who labor on in the hopes of a restoration, a second coming of the Constitution of liberty--even if perhaps not in their own lifetimes.'' Id.

So two sentences equal a judicial scheme to advance substantive economic liberty and restrain Federal authority? For a careful reader, it is clear that Chief Judge Ginsburg promotes no such agenda. First, he was referring only to the non-delegation doctrine, the supposedly radical proposition that Congress, not unelected bureaucrats, should be responsible for making our laws. And second, Chief Judge Ginsburg was writing a book review, and his reference to those ``few scholars'' was obviously not a reference to himself because he had not written on this subject.

His point was that the author of the book he was reviewing was misguided in thinking that the Supreme Court was likely to put teeth back into the non-delegation doctrine. Far from arguing that courts should strip Congress of their authority to delegate its lawmaking authority, he suggested that it would be more productive to ask Congress to change the way it delegates lawmaking authority to administrative agencies. Chief Judge Ginsburg was Administrator of Information and Regulatory Affairs of the Office of Management and Budget during the Reagan administration. This is the office within the Executive Office of the President charged with reviewing all Federal regulations. So Chief Judge Ginsburg has considerable experience and expertise in these matters.

In the referenced book review, Chief Judge Ginsburg endorses then- Judge

Breyer's suggestion that ``[p]roposed regulations, or at least those that would impose a burden in excess of a specified amount, say $100 million, would not take effect unless affirmatively approved by both houses of Congress.'' In this regard, I would note that Justice Breyer was one of the seminal thinkers in the field of regulatory reform and I would recommend that everyone read his 1982 book, ``Regulation and Its Reform'' in which he lays out a comprehensive analysis of, and suggestions for, regulatory reform.

In Chief Judge Ginsburg's speech, On Constitutionalism, published in the Cato Supreme Court Review in 2003, he articulates much the same position, stating that the separation of powers doctrine clearly indicates that ``there must be a limit upon the ability of Congress to delegate lawmaking functions to the executive branch.'' Id. at 16. That is, the Constitution does seem to prohibit legislators from simply delegating their constitutional authority to legislate to an executive branch agency and then go home. Yet he also notes the Supreme Court's failure since the mid 1930's to find any act of Congress a violation of the non-delegation doctrine, demonstrating the High Court's reluctance to give meaning to the doctrine. So this is the view some have characterized as radical, the Constitution assigns the legislative power to Congress, and it violates the principle of separation of powers to have unlimited delegation of that law-making authority to executive branch agencies. Yet because the courts have been reluctant to adjudicate these arrangements, any remedy must come through political persuasion.

Chief Judge Ginsburg did join an opinion, the relevant part of which was written by another judge, in which the court held that the Environmental Protection Agency had interpreted sections of the Clean Air Act authorizing the national ambient air quality standards, NAAQS, for ozone and particulate matter so loosely as to render them unconstitutional delegations of legislative power. See American Trucking Ass'n. v. EPA, 175 F.3d 1027, 1034-40, D.C. Cir. 1999. More specifically, the court determined that it was unclear what in EPA's view was the ``intelligible principle'' the Congress had directed the agency to follow and no such principle was apparent to the court on the face of the act.

The court therefore remanded the cases to the EPA so that it could detail the principle limiting the agency's discretion. The full DC Circuit then denied the EPA's petition for rehearing en banc. See 195 F.3d 4, DC Cir. 1999. It is true, however, the Supreme Court granted the EPA's petition for certiorari and held that the act's delegation of authority to the EPA to set the NAAQS at the level ``requisite to protect the public health'', although broad, provided an ``intelligible principle'' for setting air quality standards and was therefore constitutional without further delineation by the agency. Whitman v. American Trucking Ass'n, 531 U.S. 457, 473, 2001. But this is hardly the first time the Supreme Court overruled an appellate court and, in any case, is a pretty thin reed on which to reach a conclusion that the lower court decision represented a radical break with constitutional jurisprudence.

I encourage everyone to examine Chief Judge Ginsburg's writings pertaining to the takings clause, the non-delegation doctrine, and the tenth and eleventh amendments. A fair reading warrants a conclusion that there is nothing radical about his reasoning or conclusions. Chief Judge Ginsburg's writings on these matters are neither extensive nor extreme. Characterizing them as a ``stark departure from current constitutional law'' is not justified.

I also might add that the issue of non-delegation is not as black or white as many have come to believe in recent times. Some appear-- including many advocates of the liberal welfare state administered by so many Federal agencies--to argue, contrary to the Constitution's clear commitment to limited government, that there should be little, if any, judicial oversight over congressional actions and claim that even modest judicial requirements that Congress act within its constitutional authority are radical changes to our law. It seems counterintuitive then that these same people argue for an unlimited congressional authority to delegate their lawmaking power to another branch of Government. On the one hand, Congress is all powerful. On the other hand, they can give that power away.

The record reflects that Chief Judge Ginsburg is a mainstream conservative judge, who applies the Constitution faithfully. He is no judicial radical. He is one of the most respected judges in the Federal judiciary. Suggestions to the contrary are not supported by the facts.

Mr. President, after 23 years of extraordinary service to America's young people, Robbie Callaway, senior vice president of government relations at the Boys & Girls Clubs of America, is moving on. Robbie's dedication to positive change and helping others has been truly inspiring. He has been a magnificent advocate for children and for the Boys & Girls Clubs in Utah and all over the country.

Robbie's untiring commitment to youth and disadvantaged communities goes back much further and encompasses much more than just his time with the Boys & Girls Clubs of America. Beginning as a juvenile justice advocate at the National Youth Work Alliance, Robbie rose to be the executive director of that coalition of community based youth service agencies. In 1982, he cofounded the National Center for Missing and Exploited Children and continues to serve on its board of directors. He also recently assisted the Cal Ripken, Sr. Foundation in bringing baseball, America's pastime, to underprivileged children. In all of these endeavors, Robbie has left an ongoing legacy of hope and inspiration.

Today, there are probably only a handful of people in Congress who do not know Robbie Callaway. He played a pivotal role in the passage of national Amber Alert legislation. He has been instrumental in expanding both the resources and reach of the Boys & Girls Clubs of America, including increasing the number of clubs in public housing facilities and onto Indian reservations. Robbie Callaway's character, built on honesty and integrity, has earned him and the organizations he has served the trust of Congress.

Although Robbie is leaving his position with the Boys & Girls Clubs, his passion for helping others remains. In his new career, he will join with a dedicated group of individuals pursuing a cure for cancer. Having witnessed Robbie's determination, I believe he can succeed.

It was a pleasure to work with Robbie Callaway and to help the Boys & Girls Clubs of America. We will miss Robbie's passion for children and for the Boys & Girls Clubs movement. I hope to work with him in his new pursuits, and I wish him great success and happiness, now and in the future.

Mr. President, joined by my friend from Kansas, Senator Brownback, I am today introducing the Protecting Children from Sexual Exploitation Act of 2005.

This bill will strengthen an important tool for protecting children from the exploitation of child pornography.

Pornography is devastating communities, families, and individual lives.

On November 10, the Senator from Kansas chaired a hearing in the Judiciary Subcommittee on the Constitution titled ``Why the Government Should Care About Pornography.''

Witnesses at that hearing included authors and researchers documenting the devastation wrought by pornography.

Children are pornography's most vulnerable and most devastated victims.

Abusing children through early exposure to pornography has lifelong effects.

Even worse, however, is the actual use of children to make sexually explicit material.

This is perhaps the worst form of sexual exploitation because the abuse only begins with its production.

Children lack the maturity to choose participation in that activity and to accept its aftermath.

Everyone who intentionally copies, distributes, advertises, purchases, or consumes sexually explicit material involving children should be held responsible as part of the ongoing chain of exploitation.

For this compelling reason, Federal law prohibits using children to produce visual depictions of either actual or simulated sexually explicit conduct.

As an additional deterrent to this abhorrent practice, Federal law also requires those who produce sexually explicit material to keep records regarding the age of performers and to make those records available for inspection.

That recordkeeping statute is found in the United States Code in section 2257 of title 18.

Section 2257 is inadequate for its crucial task and the bill I introduce today strengthens it in four ways.

First, section 2257 defines actual sexually explicit conduct too narrowly, incorporating only four of the five. part definition found right next door in the definitional section 2256.

Our bill makes these definitions consistent.

Second, and more importantly, while Federal law prohibits using children to make depictions of either actual or simulated sexually explicit conduct, section 2257 applies only to those who produce depictions of actual conduct.

Our bill applies the same recordkeeping requirements to those who produce depictions of simulated conduct.

The purpose is obvious.

If you produce sexually explicit material, you have to keep age- related records.

Period.

Third, while section 2257 requires maintaining records and making them available for inspection, it only makes unlawful failure to maintain the records.

This implies that while making these important records available for inspection is a duty, refusing to do so is not a crime.

Our bill corrects that error by explicitly stating that refusal to permit inspection of these records is also a crime.

Eliminating such ambiguity is very important.

Maintaining records is necessary, but not sufficient, to ensure that children are not being exploited.

Because inspection of those records makes the circle of protection complete, we must make crystal clear that refusal to permit inspections is a crime.

Fourth, the definition in section 2257 of what it means to produce sexually explicit material is inadequate.

That definition must be guided by the nature of the harm that flows from this kind of sexual exploitation.

Filming or taking a picture of a child engaged in sexually explicit conduct is certainly sexual exploitation by itself.

But the abuse does not end there.

Those whose actions constitute links in the chain of exploitation must be covered by this recordkeeping statute if it is to be an effective tool to protect children.

My friend from Kansas, Senator Brownback, graciously allowed me to participate in the latest hearing in his subcommittee on the effects of pornography.

Witnesses highlighted how new technology can magnify those effects.

While the Internet can be a powerful tool for good, it can also be an insidious tool for evil.

It can compound the sexual exploitation of children by disseminating and commercializing child pornography.

And while we all know how difficult it is for sound public policy to keep pace with developing and changing technology, failing to do so in this area leaves children even more exposed to ongoing victimization and exploitation.

For that reason, our bill provides both a substantive definition of that important term, ``produces,'' and lists five targeted exceptions, five specific categories of those who are not included in this definition.

The definition includes obvious activities such as filming or photographing someone but also activities such as duplicating or reissuing images for commercial distribution.

It also includes managing the sexually explicit content of a computer site.

At the same time, our bill does not include in the definition of the term ``produces'' activities that do not involve the hiring, managing, or arranging for the performers' participation.

It exempts provision of Web-hosting services when the provider does not manage sexually explicit content.

In strengthening section 2257, the bill we are introducing today meets three important objectives.

First and foremost, this bill will make the recordkeeping statute a more effective tool for protecting children from sexual exploitation.

Second, our bill strengthens the recordkeeping statute while minimizing unintended consequences.

I mentioned the care with which our bill defines key terms such as ``produces.''

Our bill also places the extension of recordkeeping requirements regarding depictions of simulated material in a separate section 2257A.

This step responded to a legitimate concern by the motion picture industry.

Third, our bill strengthens the recordkeeping statute in ways that make it a more workable and practical tool for the prosecutors who have to use it.

I believe that as the Congress deals with this difficult issue, we must keep all three of these objectives in mind.

Some might want to create a draconian statute that sweeps too broadly.

Others may want to water down the statute in ways that create obstacles for prosecutors and make the statute ineffective.

My bill strengthens this important tool for protecting children without sweeping too broadly and without needlessly hobbling prosecutors.

Finally, let me say just a few things about the process leading up to introduction of this bill today.

Two versions of this bill have been introduced in the other body, most recently last week as title VI of H.R.4472, the Children's Safety and Violent Crime Reduction Act of 2005.

Representatives of the motion picture industry and Internet companies have been working with us to refine this legislation.

I also commend my colleagues in the House, Representative Mike Pence and Chairman Jim Sensenbrenner, for their leadership on this issue.

In addition, the Department of Justice has provided valuable input in this

process. I applaud Attorney General Gonzales for making the prosecution of obscenity, child pornography, and other forms of child exploitation a real priority.

I understand that the Attorney General today announced arrests in several States as part of its Innocence Lost initiative against child prostitution.

I want to be very clear here.

Those who produce either actual or simulated sexually explicit material are breaking the law if that material depicts children.

The primary goal of protecting those children from such exploitation requires that all producers of sexually explicit material must keep age-related records, make those records available for inspection, and face criminal penalties if they refuse.

We have taken several concrete steps to respond to legitimate concerns from the motion picture industry and Internet companies.

We have already modified our bill several times and in several ways as a response to our meetings with the Department of Justice and affected parties.

We remain open to making further refinements in this language if it will strengthen the bill.

But that process of compromise must stop if it undermines the primary objective of protecting children from sexual exploitation or begins to make the statute unenforceable or feckless.

I hope that those who are affected by this legislation and have participated in helping us craft this bill will demonstrate their concern for protecting children by supporting this straighforward and commonsense bill.

Again, I want to thank my friend from Kansas for joining me in cosponsoring this bill and for his efforts in this area.

I hope all my colleagues will join us in strengthening this tool for protecting children.

Mr. President, joined by my friend from Kansas, Senator Brownback, I am today introducing the Protecting Children from Sexual Exploitation Act of 2005.

This bill will strengthen an important tool for protecting children from the exploitation of child pornography.

Pornography is devastating communities, families, and individual lives.

On November 10, the Senator from Kansas chaired a hearing in the Judiciary Subcommittee on the Constitution titled ``Why the Government Should Care About Pornography.''

Witnesses at that hearing included authors and researchers documenting the devastation wrought by pornography.

Children are pornography's most vulnerable and most devastated victims.

Abusing children through early exposure to pornography has lifelong effects.

Even worse, however, is the actual use of children to make sexually explicit material.

This is perhaps the worst form of sexual exploitation because the abuse only begins with its production.

Children lack the maturity to choose participation in that activity and to accept its aftermath.

Everyone who intentionally copies, distributes, advertises, purchases, or consumes sexually explicit material involving children should be held responsible as part of the ongoing chain of exploitation.

For this compelling reason, Federal law prohibits using children to produce visual depictions of either actual or simulated sexually explicit conduct.

As an additional deterrent to this abhorrent practice, Federal law also requires those who produce sexually explicit material to keep records regarding the age of performers and to make those records available for inspection.

That recordkeeping statute is found in the United States Code in section 2257 of title 18.

Section 2257 is inadequate for its crucial task and the bill I introduce today strengthens it in four ways.

First, section 2257 defines actual sexually explicit conduct too narrowly, incorporating only four of the five. part definition found right next door in the definitional section 2256.

Our bill makes these definitions consistent.

Second, and more importantly, while Federal law prohibits using children to make depictions of either actual or simulated sexually explicit conduct, section 2257 applies only to those who produce depictions of actual conduct.

Our bill applies the same recordkeeping requirements to those who produce depictions of simulated conduct.

The purpose is obvious.

If you produce sexually explicit material, you have to keep age- related records.

Period.

Third, while section 2257 requires maintaining records and making them available for inspection, it only makes unlawful failure to maintain the records.

This implies that while making these important records available for inspection is a duty, refusing to do so is not a crime.

Our bill corrects that error by explicitly stating that refusal to permit inspection of these records is also a crime.

Eliminating such ambiguity is very important.

Maintaining records is necessary, but not sufficient, to ensure that children are not being exploited.

Because inspection of those records makes the circle of protection complete, we must make crystal clear that refusal to permit inspections is a crime.

Fourth, the definition in section 2257 of what it means to produce sexually explicit material is inadequate.

That definition must be guided by the nature of the harm that flows from this kind of sexual exploitation.

Filming or taking a picture of a child engaged in sexually explicit conduct is certainly sexual exploitation by itself.

But the abuse does not end there.

Those whose actions constitute links in the chain of exploitation must be covered by this recordkeeping statute if it is to be an effective tool to protect children.

My friend from Kansas, Senator Brownback, graciously allowed me to participate in the latest hearing in his subcommittee on the effects of pornography.

Witnesses highlighted how new technology can magnify those effects.

While the Internet can be a powerful tool for good, it can also be an insidious tool for evil.

It can compound the sexual exploitation of children by disseminating and commercializing child pornography.

And while we all know how difficult it is for sound public policy to keep pace with developing and changing technology, failing to do so in this area leaves children even more exposed to ongoing victimization and exploitation.

For that reason, our bill provides both a substantive definition of that important term, ``produces,'' and lists five targeted exceptions, five specific categories of those who are not included in this definition.

The definition includes obvious activities such as filming or photographing someone but also activities such as duplicating or reissuing images for commercial distribution.

It also includes managing the sexually explicit content of a computer site.

At the same time, our bill does not include in the definition of the term ``produces'' activities that do not involve the hiring, managing, or arranging for the performers' participation.

It exempts provision of Web-hosting services when the provider does not manage sexually explicit content.

In strengthening section 2257, the bill we are introducing today meets three important objectives.

First and foremost, this bill will make the recordkeeping statute a more effective tool for protecting children from sexual exploitation.

Second, our bill strengthens the recordkeeping statute while minimizing unintended consequences.

I mentioned the care with which our bill defines key terms such as ``produces.''

Our bill also places the extension of recordkeeping requirements regarding depictions of simulated material in a separate section 2257A.

This step responded to a legitimate concern by the motion picture industry.

Third, our bill strengthens the recordkeeping statute in ways that make it a more workable and practical tool for the prosecutors who have to use it.

I believe that as the Congress deals with this difficult issue, we must keep all three of these objectives in mind.

Some might want to create a draconian statute that sweeps too broadly.

Others may want to water down the statute in ways that create obstacles for prosecutors and make the statute ineffective.

My bill strengthens this important tool for protecting children without sweeping too broadly and without needlessly hobbling prosecutors.

Finally, let me say just a few things about the process leading up to introduction of this bill today.

Two versions of this bill have been introduced in the other body, most recently last week as title VI of H.R.4472, the Children's Safety and Violent Crime Reduction Act of 2005.

Representatives of the motion picture industry and Internet companies have been working with us to refine this legislation.

I also commend my colleagues in the House, Representative Mike Pence and Chairman Jim Sensenbrenner, for their leadership on this issue.

In addition, the Department of Justice has provided valuable input in this

process. I applaud Attorney General Gonzales for making the prosecution of obscenity, child pornography, and other forms of child exploitation a real priority.

I understand that the Attorney General today announced arrests in several States as part of its Innocence Lost initiative against child prostitution.

I want to be very clear here.

Those who produce either actual or simulated sexually explicit material are breaking the law if that material depicts children.

The primary goal of protecting those children from such exploitation requires that all producers of sexually explicit material must keep age-related records, make those records available for inspection, and face criminal penalties if they refuse.

We have taken several concrete steps to respond to legitimate concerns from the motion picture industry and Internet companies.

We have already modified our bill several times and in several ways as a response to our meetings with the Department of Justice and affected parties.

We remain open to making further refinements in this language if it will strengthen the bill.

But that process of compromise must stop if it undermines the primary objective of protecting children from sexual exploitation or begins to make the statute unenforceable or feckless.

I hope that those who are affected by this legislation and have participated in helping us craft this bill will demonstrate their concern for protecting children by supporting this straighforward and commonsense bill.

Again, I want to thank my friend from Kansas for joining me in cosponsoring this bill and for his efforts in this area.

I hope all my colleagues will join us in strengthening this tool for protecting children.

Mr. President, I am hopeful that my dear friend and colleague from Iowa, Senator Harkin, will withdraw his objection. I think everybody in this body knows it was only after years of study--a very sincere study--that I came out for embryonic stem cell research, as well as cord blood stem cell research.

I mention to my colleague from Iowa that the majority leader, even though he was against embryonic stem cell research, has had the courage to come out for it. Upon reflection and study, he has as great a desire to pass embryonic stem cell research as I do. So when we get down that road of being able to help the living with these tremendous maladies we have, it may be the final answer to health care costs as well. But we have to start now.

There is a difference. This bill is the cord blood research bill. I do not know one person in this whole body who is against it. Not one. I don't know one person in the House of Representatives who is against it. Not one. And by the way, we have preconferenced this bill. It is very difficult to preconference bills. But virtually everybody realizes that if we can pass the cord blood bill, we will go way down the road of being able to help people with these serious problems, especially these young children, as mentioned by our distinguished chairman, Senator Enzi.

I am grateful for all of the people he mentioned in his illustrious remarks. There have been a lot of people who have worked on this issue. I think we should take the majority leader's word as a supporter of embryonic stem cell research that he will bring that bill up for a debate. There are others who also want to debate their particular points of view with regard to embryonic stem cell research, but virtually everybody is for cord blood research.

I believe we should give unanimous consent to immediately call up and adopt H.R. 2520, the Stem Cell Therapeutic and Research Act. We should pass this bill immediately. Patients cannot afford to wait until next year, their families cannot afford to wait until next year, and we in the Congress cannot afford to wait until next year.

Passage of this legislation offers us a rare opportunity to make a difference in the lives of those who either have a serious illness or have a family member who suffers from a serious illness. I don't think we should let this opportunity pass. This is the season of the year when we try to put others before ourselves.

As everyone knows, I have been working on this issue for 3 solid years and, in fact, with my original cosponsors--Senators Brownback, Dodd, and Specter--introduced the first bill on this issue in the 108th Congress. I am pleased that I have introduced legislation with Senators Dodd, Burr, Ensign, and Reed to put aside our differences and let this legislation pass once and for all. It is the right thing to do because it is in the best interest of my fellow citizens.

My goal, which I share with the other sponsors of this bill, is to create the best possible system to provide patients, clinicians, and families with access to these lifesaving treatments. I believe H.R. 2520 does this by ensuring that the number of bone marrow donors and cord blood units available for transplant and research increases in the near future.

The integrated system will include not only the international bone marrow donor registry but also a network of qualified cord blood banks which will collect, test, and preserve cord blood stem cells. In addition, the system will educate and recruit donors, facilitate the rapid matching of donors and recipients, and quickly make such cells available for transplant centers for stem cell transplantation. The establishment of a national infrastructure for transplant material will help save the lives of many critically ill Americans.

We need to be sure that our Nation can meet the needs of patients and physicians by providing a strong future for both bone marrow and cord blood transplantation in this country.

My personal goal is to ensure that the amount of transplant material available for patient care and research continues to increase in the coming years. The only way that goal may be accomplished is through strong Federal support. It is the only way.

I look forward to working with my colleagues and doing everything possible to provide transplant patients with the best possible options by ensuring a strong future for bone marrow and cord blood transplantation in this country.

Mr. President, this is a good bill. I hope my colleague from Iowa will think this over because this puts us down the road of being able to get on top of some of the most innovative and important and remarkable health care processes this country and any country has ever seen.

If we do not pass this bill in this timeframe and it gets mixed up in the whole panoply of embryonic stem cell research, it could take at least another year, maybe 2 years, before we get even cord blood legislation passed by Congress. Why should patients have to wait another year or 2 for such a life-saving bill to pass the Congress?

There are many illnesses where cord blood transplantation and research have already made the difference in people's lives.

I think I have made my point, and I urge my colleagues to pass this bill as quickly as possible.

It is apparent we are not going to be able to do the cord blood research because of objection, but I hope that my colleague will reconsider and allow this to happen before the week is out. I know my colleague from Iowa is very sincere. He has been one of the leaders on stem cell research in this country, and he certainly has a right to do whatever he wants, but I am thinking of the thousands, if not millions, of people who could benefit from this research if we get it going with Federal Government help at this time.

Mr. President, I rise today in strong support of the USA PATRIOT Improvement and Reauthorization Act. This bill gives our national security and law enforcement communities, including the FBI, the tools they need to fight the war against terrorism, while at the same time adding new provisions to protect the civil liberties and privacy that all Americans rightfully expect and cherish.

The first responsibility of our national government is to protect the citizens of our country from foreign threats.

My fellow citizens of Utah and all of my fellow Americans expect that the Federal Government will help protect them against terrorist attacks but to do so in a fashion that does not open the lives of ordinary, law-abiding Americans to unjustified government intrusion. The PATRIOT Act protects our citizens by helping to keep us physically safe and protects our essential civil liberties.

The PATRIOT Act Conference report before us makes permanent 14 of the 16 expiring PATRIOT Act provisions, all of which have proven extremely useful over the last 4 years in preventing and prosecuting terrorism. Sometimes lost in the often charged political debate over the PATRIOT Act is the fact that there is broad, in fact almost universal, political consensus that each and every one of the major elements of the PATRIOT Act is essential to protecting the American public.

One hard and true measure of this reality is that there is wide agreement that 14 of the 16 expiring provisions in the PATRIOT Act ought to be made permanent. That is what this bill does. Another measure is that no major component of the PATRIOT Act is being repealed nor, to my knowledge, is anyone making any serious effort to repeal any major component of the PATRIOT Act. There is a simple reason for this simple fact. Overall, the PATRIOT Act is operating well and has not been abused. The PATRIOT Act is necessary to help protect the American public from terrorists.

The bill before us renews, for a 4-year period, the remaining 2 of the 16 expiring provisions of the PATRIOT Act that are not made permanent in this bill. Frankly, many of us think that these two provisions, section 206--the roving wiretaps, and section 215--the business records section, also ought to be made permanent. I know of no serious expert in counterterrorism or law enforcement who is calling for the repeal of either of these two important provisions or who believes that they will not be renewed again in 4 years. The fact is that the main reason that these two provisions have not been made permanent is not because they are fundamentally deficient. The reason is that there is an understandable concern shared by virtually everyone that there ought to be vigilant congressional oversight in the area of counterterrorism generally, and the PATRIOT Act specifically. Adopting these two sunset provision merely ensures that Congress will do what it is doing already--conducting consistent

and careful oversight of the PATRIOT Act.

I welcome this scrutiny and debate. We need to stay on top of how this important counterterrorism law is being implemented and enforced. We need, as we have done in this bill, make any necessary refinements that will improve the PATRIOT Act. I think the record is clear that Congress has not shirked its duty when it comes to conducting vigorous oversight of the PATRIOT Act. I understand that this year alone Congress has held some 23 hearings on various elements of the PATRIOT Act and that Department of Justice officials have testified at 18 of these hearings.

The Senate Judiciary Committee has held literally dozens of hearings on elements of the PATRIOT Act since it passed it 2001. During the 108th Congress, when I chaired the Judiciary Committee, we held some 30 hearings that touched on aspects of the PATRIOT Act.

Under Senator Specter's capable leadership, the Judiciary Committee held an additional series of more than a half dozen hearings this year that focused on the PATRIOT Act and that does not even count confirmation hearings for senior Department of Justice officials, such as the Attorney General, at which there have been a substantial number of questions related to the PATRIOT Act.

This House Judiciary Committee has held a similar comprehensive set of hearings on the PATRIOT Act.

We have heard from all the major critics of the PATRIOT Act. I think that the bill before us today shows that we have listened to, and where appropriate, have responded to the legitimate concerns of the critics. Frankly, in a number of areas I think we have bent over backwards to address concerns that were more hypothetical than real. To put a point on it, as Attorney General Gonzales says in his Washington Post op-ed published yesterday:

During this important debate, Republicans and Democrats

have discovered that concerns raised about the [PATRIOT's]

act's impact on civil liberties, while sincere, were

unfounded. There have been no verified civil liberties abuses

in the 4 years of the [PATRIOT] Act's existence.

That is a good record by any measure. As with any complex piece of legislation, we should not be surprised that if one day some administrative official, intentionally or otherwise, does abuse their discretion under the statute. Unfortunately, that is only human nature. But just because someone applies the law in an abusive fashion, it does not follow that the law needs to be repealed.

I think it is a testament to the professionalism to the men and women of the FBI--led by its able Director Bob Mueller--and other law enforcement agencies that, to date, there have been no documented cases of PATRIOT Act abuse. Let me just say that many critics of the act have tried their best to make the facts match their critiques but have failed to marshal any definitive evidence.

We should all understand that the chief reason for the bill's inclusion of a 4-year sunset of two provisions acts chiefly as a belt and suspenders approach to help ensure that Congress will continue our extremely active oversight of the PATRIOT Act. In fact, the House bill contained a 10-year sunset renewal period for the two provisions that will not be made permanent.

While it would have been possible to compromise somewhere between the 4-year Senate renewal time period and the 10-year House sunset period, the conference report--which no Democrat signed--contained the lower Senate number of 4 years.

It always leaves you a little empty when you make a major compromise and your colleagues pushing for particular provisions still do not sign onto the compromise package. Whatever happened to compromise around here? The PATRIOT Act reauthorization has been through several drafts as the conference process has taken place. I do not necessarily support every change that we have made but I have always believed that compromise is part of the process of legislation.

I think that a fair reading of the record reveals that in the grand scheme of things the issues that have generated the remaining disagreement on the PATRIOT Act are relatively minor issues. No one is talking about repealing any major part of the PATRIOT Act although some of the outside groups would have you believe that the PATRIOT Act is somehow un-American and a threat to civil liberties.

Hogwash. I support the efforts of our law enforcement and intelligence officials in combating terrorism. They continue to fight terrorists who would wreak havoc and death on America. It seems to me, and many others, that we should at least give law enforcement the same tools to investigate and stop terrorists that we give to combat mail fraud or internet pornography and organized crime. Now that the shock and pain of 9/11 has begun to fade, I hope we do not go backwards in our efforts to prevent terrorism. We should not make it tougher for our law enforcement and intelligence officers to obtain and share information critical to investigate terrorists than we allow for common criminals.

Let me specifically address four provisions of the PATRIOT Act that are often misunderstood at best, and sometimes outright misrepresented by many in this debate. First, section 206--this is the multipoint or roving wiretap provision. Section 206 is an essential provision that addresses the terrorists' use of evolving technology by allowing law enforcement to obtain a wiretap order that covers the communications of a specific individual even when that person--whose name we may not know--changes telephones and locations to evade interception. We live in a day of relatively cheap and disposable cell phones, a reality that terrorists make use of each day to avoid detection.

The PATRIOT Act reauthorization bill requires a full description of a specific target in both the application and the court order, even if the target individual's actual identity is unknown. The act also requires the specific facts be alleged and documented that show how the target's actions may thwart surveillance efforts. Additionally, the act requires the FBI to notify the court within 10 days after beginning surveillance of any new phone. This notice must include the facts and circumstances that justify the FBI's belief that each new phone is being used, or is about to be used, by the target.

Second, section 213 of the PATRIOT Act covers delayed notice search warrants. This may be the most misrepresented provision of the PATRIOT Act in recent years. Its critics sometimes refer to it pejoratively as the sneak and peak provision. They suggest that it somehow gives the FBI carte blanche to rummage through each American home without ever telling the target individual what is being searched and why. That is simply not true.

Delayed notification search warrants always involve judicial review. In fact, delayed notification search warrants are a creature of judicial creation and first appeared about 20 years ago when judges agreed that there were some occasions when the interests of justice made it prudent not to tip-off suspected criminals that their premises were about to be searched.

Former Deputy Attorney General Jim Comey, a distinguished career federal prosecutor, explained at a PATRIOT Act field hearing held in Salt Lake City last year that he was personally involved in several investigations of suspected drug dealers in which judges agreed to allow the FBI to secretly search for drugs before effectuating arrest warrants in order to be able to bring to justice the greatest number of those involved in the drug ring.

In the same way that we have used the judicially created and sanctioned delayed notification search warrants to bring drug dealers to justice for over 20 years, I am certain that we want to continue to bring this same technique to bear against suspected terrorists so we can stop or catch the most senior members of a terrorist cell and to give us the best chance to understand who is involved, and what they are plotting to do against us.

Let me repeat again. Under this bill, delayed notification warrants always require a judge to find that delayed notification is justified.

And what was the big flap over this greatly debated provision?

Not, as some would have it, whether this was an un-American trampling of rights. No, the debate among conferees

was whether the initial period for the duration of this special type of search warrant would be 7 days, which was in the Senate bill, or 180 days, which was in the House bill.

Stop the presses, the conference report contains a decidedly un- shocking, 30-day compromise time period. And more important than the presumptive 30-day period contained in the final bill is the fact that a judge can effectively make the 30 days either shorter or longer depending on the facts and circumstances of the application before the court.

The bill permits extensions of the delay period, but only upon an updated showing of the need for further delay. Also, it limits any extensions to 90 days or less, unless the facts of the case justify a longer delay. Moreover, the bill also adds new public reporting on the use of delayed notice warrants.

Despite all of the exaggerated hoopla over the so-called sneak and peek provision, I am aware of no member of Congress that has taken the position that delayed notification search warrants should be eliminated and I am certainly aware of no information that this provision has ever been abused in the relatively few times it has been exercised under the PATRIOT Act during the last 4 years.

If it is constitutional and effective to use delayed notification warrants against drug dealers and child pornographers--which it is--I am all for using this tool against suspected terrorists--and that is what this bill continues to allow.

I doubt many Americans would be for a policy that would mandate that the FBI to knock on the door and tell every suspected member of al- Qaida that,

Hi, we are here from the FBI and we would like to see if

you are making a dirty bomb in your basement and please don't

tell your housemates and associates that we have been here

searching your home.

Delayed notification warrants are here to stay and will and should be used when circumstances justify as determined by a judge.

Third, section 215. Section 215 is often misleadingly called by its critics as the library records provision. Given the great amount of discussion this provision has engendered, I would like to first note for the record that before this authorization bill that the word library was nowhere to be found in this provision.

I love libraries. I love books. I have nothing but the greatest respect for librarians and patrons of libraries. Nobody in Congress would ever sit by and allow the Federal Government to undertake fishing expeditions to find out who is reading what in libraries.

At the same time, I do not think anyone wants libraries to become safe havens for terrorist research and other terrorist activities such as electronic mail communications with computers paid for by American taxpayers.

Under the new compromise bill, the law for the first time now does refer to libraries--but only in the most bend over backward sense that it allows a very limited, select group of senior government officials, consisting of the FBI Director, the Deputy FBI Director and the Executive Assistant Director for National Security to authorize the FBI to seek a court order under the Foreign Intelligence Surveillance Act for relevant library, book sales, firearms sales, tax return, educational or medical records.

This authority may not be further delegated to anyone else in the FBI. Obviously, this was a compromise that was made in response to the great concerns that many voiced about library and other sensitive personal records. I can live with this compromise but since there was not one documented case of abuse of this provision under existing law, I just hope we have not unintentionally created a bottleneck in the system by requiring the personal involvement of the senior-most FBI officials when local FBI agents might need to act as quick as possible.

There is a good argument to allow this authority to be delegated down further. I, for one, am uncertain why each of our 78 Senate-confirmed U.S. attorneys and each of the 56 career FBI Special Agents-in-Charge of local FBI Field Offices should not have this discretion. We entrust them with broad responsibility to protect us from a wide range of crimes each and every day and there seems no reason why we should not trust them to recommend which applications for business records should be brought before a judge.

I would remind my colleagues that one of the ways the Unibomber, Ted Kaczynski, was caught was through a garden-variety search of library records. I am aware of no complaints that the Unibomber was apprehended and I hope that no one takes the position that illicit users of libraries such as the Unibomber should be informed that, by the way, Mr. Kaczynski, the FBI was in last week comparing your withdrawal records with the Unibomber's written Manifesto and we thought you would be interested that they were asking about where you lived.

Section 215, the business records section allows the FBI to seek court orders--and let me repeat that--to seek court orders--to obtain business records from third parties in intelligence and terrorism cases.

The revisions in the law requires applications for orders for business records to include a statement of facts showing reasonable grounds to believe that the things sought are relevant to an authorized investigation to protect against terrorism or espionage.

Prior to this change there was no explicit relevance standard. Because of concerns that were raised, the relevance standard has now been codified. The administration supported this change. I support this change. Some, including my friend from New Hampshire, Senator Sununu, claim that the relevance standard contained in the bill is too broad.

Let us put this issue in perspective. The relevance standard has been used for years in the issuance of grand jury subpoenas. All across the country, dozens of these subpoenas are issued under the general relevance standard each and every day. For example, grand jury investigations routinely are conducted in conjunction with records-- business records relevant to the case at hand.

As a matter of fact, in many criminal law contexts, including health care fraud and sexual exploitation cases, federal investigators-- without prior judicial review--can issue what are called administrative subpoenas for relevant documents.

I believe that there are over 300 Federal statutes that contain the type administrative subpoena authority that is not included in either the current PATRIOT Act or in the reauthorization bill.

In some ways it is more difficult for the Federal Government to investigate suspected terrorists than it is to investigate Medicare fraud.

Leaving aside the wisdom of not allowing administrative subpoena authority for terrorism investigations, I think it is fair to say that the revision of section 215 that now contains an explicit relevance test is strictly in the mainstream of American criminal law.

It is not a new concept to have to go before a judge and convince him or her that the Government needs certain relevant records, such as hotel or car rental bills, to investigate potential criminal activity.

If the judge does not think it is a bona fide investigation and is just a fishing expedition, the judge can deny the request.

The revised version of the PATRIOT Act section 215 requires the Government to certify that the business records sought are relevant to an authorized investigation to obtain information not concerning a U.S. citizen or to protect against international terrorism or clandestine intelligence activities.

Further, the revision to section 215 creates a three-part test that presumes such information is relevant if it pertains to:

(1) a foreign power or an agent of a foreign power;

(2) the activities of a suspected agent of a foreign power under investigation; or

(3) an individual in contact with, or known to, a suspected agent of a foreign power under investigation.

Some have argued that this three part test is not strong enough or can be circumvented but the judges serving on the Foreign Intelligence Surveillance Court are neither potted plants nor is there any reason to believe that they will rubberstamp any application that is placed before them.

The new language includes additional procedural protections for section 215 orders including:

(1) The explicit right for recipients to consult legal counsel and to seek judicial review;

(2) The requirement that a senior FBI official approve requests for certain sensitive documents, such as library records;

(3) The use of minimization procedures to limit the retention and prohibit the dissemination of information concerning U.S. persons;

(4) Audits by the DOJ inspector general; and

(5) Enhanced reporting to Congress and the public on section 215 activities.

These are important protections, not all of which I believe are 100 percent necessary, but all of which I will support in the spirit of compromise.

Judicial review and approval is still required for every application for business records under section 215. All of these new provisions are intended to act to further safeguard against any potential abuse. Some during this debate have claimed that the new, explicit relevance standard on section 215 will allow the Government to sweep up the records of many innocent Americans.

We all share the concern about the Government getting too big for its britches. None of us would want to be on the wrong end of a misguided Federal investigation in which some overzealous bureaucrat with seemingly unlimited resources acted in an arbitrary and unfair way that could destroy our family's reputation and life savings. But that is not what the PATRIOT Act sanctions.

There is certainly no evidence that this is how the business records section of the PATRIOT Act has acted during the last 4 years.

Americans are right to have a healthy skepticism of government. A large part of what our job as Senators in Washington is to watch over Government agencies like the FBI and IRS.

Nobody wants Big Brother looking at our neighbor's personal financial, medical or library records without a very good reason. And that is exactly what the new protections that we have added to section 215 are intended to do--help make sure that when the Government investigators want to examine business records, they have a very good reason for looking at the records.

Let me repeat once again, the very same type of relevance standard that is being put into place in section 215 of the PATRIOT Act has long been the law of the land when grand juries routinely subpoena records in connection with many, many types of criminal investigations.

Again, these requests will not be in the hands of some rogue Federal agent--or an abusive grand jury--judges must decide on the issuance of a business records order under section 215.

We added additional congressional and public reporting provisions to help us in our oversight function. Additional audits by DOJ's inspector general will also act to check potential abuses.

Moreover, the Conference report requires the Justice Department to promulgate minimization procedures for every section 215 business record order that will direct the FBI not to retain or disseminate documents that are obtained incidentally.

The other day my friend, the junior Senator from New Hampshire, suggested that section 215, as amended, will place an undue burden on those entities required to produce records. I do not believe this and neither should you.

The conference report before us says that no section 215 order can be issued for material that would be beyond the scope of a grand jury subpoena, and since a grand jury subpoena can be quashed if it is unreasonable or oppressive, any section 215 application can be set aside or modified if it is unreasonable or oppressive.

In addition, the conference report expressly allows the recipient of a section 215 order to challenge an order and permits the judge to set aside any order found unlawful.

There are well-developed legal tests that can guide the courts to decide when these requests are, and are not, relevant. As well, judges are well equipped to know when these requests are, and are not, reasonable and will rule accordingly.

Fourth, finally, let me address the issue of National Security Letters or NSLs. National Security Letters allow the FBI to obtain certain third-party materials in intelligence cases. The bill before us adds further protections in this area. For example, the bill makes clear that recipients of such letter are free to disclose the receipt of this letter to their legal counsel.

I guess we can only hope that suspected terrorists do not share the same attorney and a whole terrorist cell will not be tipped off.

The bill provides further clarification that these requests may be challenged in court.

The bill makes clear that reviewing courts may modify or set aside the request if compliance would be unreasonable, oppressive, or otherwise unlawful.

The conference report language also permits judicial review of the nondisclosure requirement that attaches with NSLs.

The revised PATRIOT Act bill fosters congressional oversight by requiring the DOJ inspector general to conduct audits of the FBI's use of National Security Letters.

As well, the conference report adds annual public reporting on NSLs. Some are suddenly now loudly complaining in the last few weeks that the standard for obtaining an NSL--which is a showing of relevance--is too low.

Where were the complaints about this standard before now?

National Security Letter and the standards and practices that apply to them predate the original PATRIOT Act which passed in the fall of 2001 in the aftermath of the September 11 attacks.

The Senate bill--which was approved unanimously by the Judiciary Committee and by the full Senate by unanimous consent--did not make any changes in the standards for the issuance of National Security Letters. Nor did the House bill.

What is going on here?

It sounds a little like a case of, even if it ain't broke, let's fix it.

Yet in the spirit of mutual respect and compromise, I am not opposed trying to improve what is already working well, particularly if changes are important to many both inside and outside of the Congress. That is what has been done with respect to NSLs during the House-Senate Conference process.

As has been referred to repeatedly in this debate, part of the concern stems from a series of articles that appeared in The Washington Post that reports that some 30,000 of these letters have been issued in recent years.

As Senator Specter and others have pointed out, the Department of Justice is prepared to give any member a classified briefing that sets the record straight on this topic.

There is scant, if any, evidence that NSLs have been abused.

NSLs can only be used to obtain a very limited range of documents-- mostly financial and communications records. They cannot, as some have alleged during this debate, be used to acquire medical records.

I said before and will repeat again that the conference document expressly allows a recipient of a National Security Letter request to challenge the request in court and have it set aside or modified if a judge determines it is unreasonable.

You would not know this from the way that some are describing this provision during this debate.

In fact, the conference report vehicle is actually more protective of civil liberties than the provision in the Senate bill, which was approved by unanimous consent earlier this year.

Specifically, the compromise language before us today requires a set of senior officials, including the Attorney General, Deputy Attorney General, Assistant Attorney General, or FBI Director to certify that disclosure will harm national security or diplomatic relations.

The Senate-passed bill gave that level of deference whenever any unspecified government officials made that certification. By confining the authority to issue NSLs to the most senior officers in DOJ and the FBI, the conference report helps ensure that it will be used with appropriate discretion.

Some are criticizing the so-called gag order provisions of the NSL procedures that forbid public disclosure of on-going national security investigations involving NSLs.

But do we really want to let our sworn terrorist enemies know precisely

what communication and financial records that we are examining in our attempts to thwart future terrorist attacks?

I think not. Nor do I think the American public wants a system that inordinately tips our hand to our enemies.

At the end of the day, I think that the compromises made with respect to NSLs in this bill should be recognized as a good faith effort to strengthen the rights of those who have legitimate challenges to the reasonableness of the governmental request for information.

In the spirit of compromise and in recognition that many citizens have expressed concerns about this bill and are just now focusing on the longstanding NSL procedures, I think it appropriate to make these accommodations so long as we do not unduly burden legitimate law enforcement needs and longstanding practices.

Let me summarize my position on the PATRIOT Act.

I support the Conference report revisions to the PATRIOT Act, although I do not favor each and every particular change.

I urge my colleagues to vote yes on cloture and yes on final passage.

I congratulate the House of Representatives for its leadership in passing this bill yesterday with a bipartisan vote.

I commend my friend, Chairman Jim Sensenbrenner, for his leadership of this conference committee.

I commend my friend, Senator Specter, for his leadership in working overtime to achieve a broad bipartisan consensus on this bill.

I want also commend all of my fellow conferees, including all of those Democratic conferees who did not sign the conference report.

These are important issues and I understand and respect that many in Congress and the American public comes to this debate from different perspectives. I do not question anyone's patriotism just because they are raising questions and concerns about this revised version of the PATRIOT Act. I might question their wisdom and judgment as pertaining to this particular bill but never the ism.

I hope that it comes time to vote that my colleagues will recognize that this is a good, compromise bill.

I understand that not everyone will agree with every jot and tittle of this bill--I certainly do not.

On balance the PATRIOT Act has worked well and we have every reason to believe that these changes will make the PATRIOT Act work even better.

This bill is good for Americans and bad news for the terrorists.

That is the way it should be.

I strongly disagree with those who would filibuster the motion to proceed to this conference report.

Let this body have the same up and down vote that the House held on Wednesday.

A three-month extension just shows the American public that this body cannot even do one of those rare and unusual must-do pieces of legislation in a timely fashion.

As well, no doubt some political pundits will likely interpret a 3- month punt on the PATRIOT Act as a short-term political defeat for the administration.

But this is a double edged sword: The American public will not be pleased if, after they have had the time and opportunity to reflect on the facts, they come to the conclusion that failure to accomplish a comprehensive renewal and strengthening of the PATRIOT Act before the end of this year is interpreted by our enemies as somehow inviting or even enabling further terrorist attacks on U.S. soil.

The Senate should vote to send this bill to President Bush's desk.

I ask unanimous consent that a letter to the Senate and House of Representatives from the board of directors of the 9/11 Families for a Secure America be printed in the Record.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that privilege of the floor be granted to Katie Winthrop, a detailee from the Bureau of Land Management serving on my staff, for the remainder of this session.

Mr. President, on Monday United Press International reported the good news that our Democratic colleagues do not plan to filibuster the Supreme Court nomination of Judge Samuel Alito.

I hope that UPI report is true, because this body needs to return to our constitutional and commonsense tradition of fully and fairly evaluating and debating judicial nominations.

Senators may, of course, vote for or against a judicial nominee for any reason, or no reason at all. Our constitutional role of advice and consent, however, requires that after vigorous floor debate, we must vote.

UPI quoted a spokesman for the Democratic leader saying that talk of an Alito filibuster is, in his words, silly and unhelpful.

I can only assume that he was speaking for the Democratic leader and, while I agree with his statement, I am afraid the situation is not quite what he would have our fellow citizens believe.

In fact, not 24 hours earlier, this very same spokesman was himself engaging in some silly and unhelpful filibuster talk of his own, telling the Associated Press that all procedural options are on the table for handling the Alito nomination.

We all know what that means.

The list of all procedural options includes the filibuster, by which those who cannot defeat a judicial nomination on the merits try to do so by preventing any confirmation vote at all.

Before the Democratic spin machine cranks out a press release accusing me of silly and unhelpful filibuster talk, let me remind everyone of some possibly inconvenient facts.

I know that my friend, the distinguished Senator from West Virginia, was on the floor Monday claiming that no Democratic Senator had talked about filibustering the Alito nomination.

With all due respect to him, that is simply not accurate and the public record speaks for itself.

On November 1, for example, the Senator from New York, Mr. Schumer, told The Hill newspaper that nothing is off the table.

That same day, the Senator from California, Mrs. Boxer, was more specific, telling the Associated Press that, in her words, the filibuster's on the table.

The next day, the Senator from Iowa, my friend Senator Harkin, went even further.

The Baltimore Sun quotes him saying that he believes Democrats will indeed filibuster the Alito nomination.

Other Democrats, some of them my colleagues on the Judiciary Committee, have also engaged in what their party's spokesman has branded silly and unhelpful filibuster talk.

The distinguished assistant Democratic leader, Senator Durbin, said the Democrats' decision whether to allow the nomination to go forward at all will be made after next month's hearing.

Again, we all know what that means.

It means the filibuster is still on the table.

On November 20, the Senator from Delaware, Mr. Biden, a former Judiciary Committee chairman, not only suggested a filibuster was possible, but said its prospects had actually increased.

Democratic National Committee Chairman Howard Dean said last month that Senate Democrats should, in his words, absolutely keep the filibuster option on the table.

And finally, the Democratic leader, Senator Reid, himself said back on November 1 that an Alito filibuster is possible.

This record is public and very consistent. And this record makes the statement on Monday by the senior Senator from Massachusetts, Mr. Kennedy, that he does not know a single Democratic Senator who has talked about an Alito filibuster absolutely baffling.

My Democratic colleagues have certainly done so, early and often.

Some Senators, well-meaning Senators, have said that the judicial nomination filibuster issue is really about freedom of speech. The distinguished Senator from West Virginia made that point on Monday here on the Senate floor.

We all believe in freedom of speech. We all believe in full, fair, and vigorous debate. When it comes to the legislation over which this legislative body has complete authority, debate can become an end in itself. That is, after all, the definition of a filibuster, when ending debate proves impossible.

The filibuster has long been, and I believe should remain, part of the legislative process.

Judicial appointments, however, are different than legislation. The Constitution assigns the power to nominate and appoint judges to the President.

And judicial, as opposed to executive, appointments also dramatically affect the third branch of government.

When it comes to judicial nominations, therefore, debate should be a means to an end.

The end of the judicial confirmation process must be an up-or-down vote for nominations reaching the Senate floor.

The Senate can vote to withhold consent to a judicial nomination, and we have done so in the past.

But refusing to vote at all, especially when a judicial nomination clearly has majority support, goes beyond exercising our advice and consent role and attempts to highjack the President's appointment power altogether.

When Republicans were in the minority, we respected President Clinton's primary role in judicial appointments.

This body confirmed his Supreme Court nominee Judge Ruth Bader Ginsburg in 1993 by an overwhelming vote of 96 to 3.

We confirmed his nominee Judge Stephen Breyer in 1994 by a margin of 90 to 9.

Judicial nomination filibusters, then, are not about freedom of speech.

When it comes to the judicial confirmation process, our freedom of speech must be shaped and balanced by the separation of powers, by the Constitution's assignment of authority in that process.

Until recently, the Senate refused to transfer the powerful tool of the filibuster from the legislative process to the judicial confirmation process.

We refused to go down that road and I believe we should put up a permanent roadblock.

With all due respect to my Democratic colleagues, they cannot have it both ways.

They cannot, as they have been doing now for more than 6 weeks, keep filibuster hopes alive by suggestions and hints, and then claim their political hands are clean when Senators on this side of the aisle respond.

I believe that UPI reported the Democratic spokesman's statement accurately, but I am not as confident that his statement is accurate or operative.

Does it mean that Democratic Senators have abandoned their earlier statements and decided that the Senate should indeed debate and then vote on the Alito nomination?

I believe that is what the American people expect us to do, but is that what Democratic Senators will do?

I hope they do.

I hope we can fully and vigorously debate the Alito nomination, and then vote on it.

I also believe that when the Senate and American people get to know Judge Alito, his experience, his character, and his traditional mainstream views of the law and the Constitution at his confirmation hearing, they will like what they hear.

Judge Alito is a good man and a great judge.

My Democratic colleagues can help sort out the confusion their earlier statements have created.

If they mean what they now say, that talk of filibustering the Alito nomination is indeed silly and unhelpful, then let us take the divisive and politicizing option of a filibuster off the table.

Let us agree, right here and now, that this body will do its duty of fully debating the Alito nomination and then voting on it.

The Constitution, Senate tradition, and the American people demand no less.

Mr. President, I thank my colleague.

Mr. President, I rise in support of the amendment offered by our colleagues from Mississippi and Oklahoma, the Coburn amendment.

First of all, let me say I am sorry this amendment is even necessary.

It is obvious to everybody that Dr. Coburn, Senator Coburn, is an intelligent and dedicated medical doctor whose respect and love for helping people is legendary.

It is equally obvious that Dr. Coburn is an accomplished legislator whose contributions to the work of this body are important. No one can raise an issue about Dr. Coburn's work ethic, his loyalty to the Senate, to Oklahoma, or his constituents, and I say this as someone who has agreed with him on many occasions and as someone who has clashed swords with him on occasions.

There is no question in my mind the Government in general and the Senate in particular benefit from informed legislators. To preclude, Dr. Coburn--a recognized medical expert--from practicing medicine without any profit motive whatsoever is nonsensical.

There are a lot of people who depend on him and need his services; at the same time, he needs to keep up his clinical skills so that he can continue to practice medicine whenever he decides to leave the Senate. And he will not be able to maintain his surgical skills or his hospital privileges if he doesn't have this privilege.

In fact, it is a simple precept of government life that policymakers should develop some expertise in the issues they are deliberating.

To compare him to attorneys--who very often have a profit motive--is the wrong comparison, I think.

We all know Dr. Coburn to be a fine man who has a great deal of affection for his patients. I believe he deserves

the opportunity to continue to help his patients, continue his medical privileges, and be able to pay for any liability insurance that he may need. He will not make a penny from his efforts, but he will be able to up his skills, which I think is a benefit on all levels.

What better way for a doctor to develop that expertise than to continue the practice of medicine, helping real, live people with real, live problems in the real-world hospital or clinic setting?

I happen to know a little about this, even though I am a lawyer by training.

As my colleagues are aware, I have taken a great interest in health issues since coming to the Congress.

It has been my practice to solicit actively medical professionals to help advise me on health legislative matters.

I have been fortunate, for many years, to have been aided in my working representing Utahns, by the assistance of very capable Robert Wood Johnson Foundation health policy fellows.

These fellows, doctors, nurses, dentists, and health professionals, work each year in congressional offices on both sides of the aisle, and I think all of my colleagues who are fortunate enough to work with RWJ Fellows feel their work as been enriched by the presence of these very capable men and women.

I think back on those who have worked in my office, and I am so proud of what we accomplished together--David Sundwall, M.D., now the head of the Utah Health Department, Phil Marion, M.D., Michael Ashburn, M.D., Larry Kerr, PhD, Marlon Priest, M.D., David Russell, DDS, Mark Carlson, M.D., Kira Bacal, M.D.--they are all superstars.

Several years ago, before my current health policy director, Pattie DeLoatche, joined my staff, I talked to a previous fellow, Dr. Priest, about joining us in the Senate.

I hoped to woo him away from the University of Alabama.

Marlon had been an outstanding addition to my office, as an astute emergency room physician who thrived on the give and take of the Senate. His work on many issues, particularly anti-tobacco efforts and radiation compensation, stands out.

Marlon would have been a fantastic Hill staffer. And we would have benefitted greatly by his presence.

But, you know what? He said to me, ``Senator, as attractive as this offer is, I am almost 50 years old. If I come to the Senate, I can't practice medicine. I will lose my license. And when you leave office, I will no longer have a medical career. I just can't take that chance.''

That was our loss.

Similarly, it is our loss if Dr. Coburn cannot practice medicine while he is a Senator. It is the loss of this body, which can benefit so much by his expertise, and it is the loss of Oklahoma, the Nation, and indeed the world, if he cannot practice medicine.

Some have suggested, in error I believe, that medical doctors should be treated no differently than other professions, such as lawyers.

There is a big difference between those two professions.

I can serve here as a lawyer, and I do not lose my license.

That is not true for a doctor.

With all due respect to my colleagues on the Ethics Committee, and their staff, the ruling by the Ethics Committee is a bureaucratic response to a non-problem.

Dr. Coburn is not asking to make a profit here.

He has sworn to the committee and to this body that a reasonable reinterpretation of the Senate rules should allow him to practice medicine on a not-for-profit basis.

There is no conflict there.

But even more, I find it so commendable that Dr. Coburn has pledged to his constituents that he will be a citizen legislator, a central part of his Senate campaign.

If Dr. Coburn wants to honor and restore the long-standing tradition in this body of serving as citizen legislators, then so be it. More power to him.

And as I noted in the case of my former staffer, a doctor cannot become a Senate employee and retain his or her licensure.

So as a consequence, for all practical purposes, dedicated medical professionals, be they Dr. Frist, Dr. Coburn, Dr. Priest, or any other doctor, dentist, nurse or other health care worker, cannot give their expertise to the Senate on any extended basis.

What we are asking for here is not a conflict of interest by any means.

There would be no profit motive, indeed no profit. So what is the conflict?

Indeed, as Dr. Coburn has noted, no pregnant woman will choose him hoping to sway his vote.

I think it is also safe to conclude with Dr. Coburn's notation that no PhRMA representatives will line up for a physical at the Oklahoma Senator's office.

Mr. President, I think that any objective analysis of the facts would yield one conclusion: the Senate and the American people benefit by having doctors serve here.

We should be turning cartwheels that we have such talented individuals as Dr. Frist and Dr. Coburn who want to share their expertise with the Senate and our country.

The rules should encourage their working here, not discourage it.

I hope my colleagues will agree.

All I can say is this.

This is a good man.

He is in it for the right reasons.

This amendment will ensure he keeps his medical privileges active.

He is not going to make any profit from it, but he will be able to pay for his medical liability insurance.

Most of all, he will be able to help unfortunate people, patients who believe in him, patients this good doctor helps so selflessly. I think everybody in the Senate should feel happy they have enabled our colleague to continue a vital, valuable medical practice without any hint of ethical compromise. That is what this amendment is intended to do, and I urge that it be adopted.

I hope our colleagues will give some consideration to this issue and allow this man the privilege of doing this. I will be very disappointed if we don't.

I thank my dear friend from Mississippi for granting me this time.

Will the distinguished Chair of the Senate Finance Committee, Senator Grassley, yield for a brief question?

The provisions of S. 2020 concerning excise taxes to be levied on transfers of insurance products are of some interest to me. It is clear that there are abuses in the system, and I am appreciative of the chairman and his staff for their substantial work to address those problems.

It is my concern that the proposed excise tax language is so broadly drawn that it will stop what I believe are legitimate transactions that constitute best practice in this area. I am aware of a commercial loan structure that relies upon a valid insurable interest between donors and charities, where the lender has isolated both donors and charities from all lending risks.

Further, there is an agreeable known benefit to the charity at loan inception, which is not reliant upon the payment of an insurance death benefit, and the loan structure does not include outside investors. The loan is never recharacterized from inception to payoff as anything but a loan.

Is it the intent of the chairman in this provision to shut down a straightforward loan transaction?

Does the chairman believe there is room for further discussion in this area?

Because of the tight timeframe for action, we were not able to work out language prior to bringing the bill to the floor. Would the chairman be able to give his assurances that he is sympathetic to my constituents' concerns and that he will work to address them in a managers' amendment or in conference?

Mr. President, I rise today in support of the tax reconciliation bill the Senate is now considering.

As with many of my Finance Committee colleagues, I am both relieved and disturbed to see this bill on the floor in its present form.

I am relieved because it includes many important provisions, including some that will serve to help keep the economy strong as well as particular relief provisions for the areas impacted by the hurricanes.

However, I am disturbed because we were unable to include in the bill one of the most important provisions to our continuing prosperity--an extension of the lower tax rates for capital gains and dividends.

I understand perfectly the reasons some of my colleagues wanted the extension removed. In an era of high deficits it is tempting to preserve revenue any way we can. While I also want to reduce the deficit, I believe that leaving out the extension for the special tax rate for capital gains and dividends will ultimately be counterproductive and harmful to the economy.

In an economy where there is universal agreement that Americans are not saving enough, the last thing we want to do is decrease the incentives to save. I urge my colleagues to hearken back to the debates we had over Social Security reform earlier this year.

Over the course of those debates, we found that there was substantial disagreement in the Senate over how to reform Social Security. But at the same time, nearly everyone seemed to agree that Americans need to save more for retirement and that our Government can do much better at encouraging us to save.

Allowing the lower tax rate on dividends and capital gains to expire is going in exactly the wrong direction.

The net return on savings is an important determinant for how much people save, and the higher the tax on saving the less saving we do. Work by Glenn Hubbard of Columbia University and Kevin Hassett of the American Enterprise Institute has shown that the net return on savings is an important determinant in how much people save.

The low returns in the stock market as well as the currently low interest rates throughout the world explain in part the low savings rates that we currently see in the United States.

There is no question that reducing the net returns by increasing the tax rate on dividends and capital gains would definitely harm savings. Not only does treating dividend and capital gain ordinary income depress saving, but it is also just plain unfair.

This is something I hear again and again from Utahns. Just consider how pernicious the tax on dividends is. The person who buys stock for $1,000 already paid taxes on this money when he or she earned it.

The company then pays a corporate tax of 35 percent on its profits. Then, from what remains of its profits, the other 65 cents, it is free to declare a dividend and provide some money back to its stockholders, who also pay a tax on those dividends.

Why on Earth should we not have a lower tax on dividends and capital gains? The Government has already made two grabs at that money.

What is more, the real cost of the lower tax rate on dividends and capital gains has been consistently overstated. As my colleague, Senator Bunning, remarked in the Finance Committee markup, the revenue collected from these two taxes exceeded the Joint Committee on Taxation's, JCT, estimate by nearly $20 billion in the past year, according to one study.

In fact, the unprecedented 15-percent increase in tax revenue collected in the past year demonstrates that the best way to lessen budget pressures is not to raise taxes but to focus on policies that lead to solid economic growth. That 15 percent growth translates into a $100 billion reduction in the budget deficit this year.

Let us stop and think about that for a minute, Mr. President.

Pro growth tax policies have allowed us to grow our revenues by 15 percent in the past year, this translates into more than $250 billion in higher revenues. If we can find a way to control ourselves on the spending side, this could mean real progress in deficit reduction.

As my colleagues well know, we have gone through a great deal of pain just to find $35 billion in spending growth reductions in the spending reconciliation bill Sometimes I think that many of my colleagues ignore, or are not aware of, the power of strong economic growth on our deficit reduction capabilities.

If we look back to the late 1990s, when we did for a while eliminate the deficit and create some surpluses, it is easy to see that strong economic growth played a very strong part in that success, as did some curbs on spending.

I urge my colleagues not to forget this as we consider the importance of extending these favorable rates on dividends and capital gains.

More generally, the attempt to lay blame for our budget deficit entirely at the hands of the tax cuts is mistaken.

The process of forecasting budget revenues is still a nearly impossible task despite some hard work done by a group of very talented economists at the Congressional Budget Office, CBO, the JCT, and the Office of Management and Budget, OMB.

One fact that is clear from our many years of work is that the principal factor driving the amount of revenue collected by the Government is economic growth.

Estimates done by CBO showed that the shift from budget surpluses to deficits in the 2001-2003 time period owed more to spending increases, much of which could be attributed to 9/11, and the reduction in economic growth than to the reduction in tax rates.

In short, maintaining our pre-2001 tax rates would not have preserved the budget surplus, and in fact would have exacerbated the recession, further reducing revenues.

And today, we are seeing the powerful effects that solid economic growth can have on Government revenue.

As I alluded earlier, the booming tax revenues of today are reminiscent of the 1990s, when a sustained period of solid economic growth not only filled our Government's coffers but dramatically lowered unemployment, increased incomes at all levels, and reduced poverty in a dramatic fashion.

Many opponents of the extension argue that lower tax rates on dividends and capital gains represent yet another tax break for the rich. To boil down the lower tax rate to a tired class-warfare argument is over simplistic and wrong.

Reducing the taxation on investment income benefits everyone in America because it ultimately increases productivity and, with it, wages and economic growth as well.

Nobel Prize-winning economists Robert Lucas and Ed Prescott have argued that eliminating the pernicious taxation on savings is the closest thing there is to a free lunch.

When we save more it means that there is more money available for firms to modernize and expand and compete in the world economy. Former chair of the Council of Economic Advisers Greg Mankiw has shown in his research that even those who do not own stocks benefit in the long run from the lower tax rates on investment income.

The U.S. economy benefits greatly from the presence of a stable, relatively predictable tax and regulatory regime. Investors do not like to be surprised, and they like predictability.

As my colleague Senator Kyl has pointed out, leaving the extension of the special tax rates on dividends and capital gains until later has dramatically increased uncertainty in the minds of nearly every person investing in the United States.

Investors are not looking at the tax rates in place today--they are looking at the rates they expect to be in place several years down the road when they plan to take the gains of their investments and pay the taxes.

I note that the tax reconciliation bill approved this week by the House Ways and Means Committee included a 2-year extension of the lower rate for capital gains and dividends. I hope that this provision survives intact in the House bill and that bill passes the other body.

If so, the capital gains and dividends extension will be an item for discussion in the conference of these bills with the House. Therefore, this tax bill may yet include this important provision before it goes to the President for his signature.

Another important provision that needs to be included in this legislation is an extension of the research tax credit. Companies throughout the country, and many in Utah, depend on this credit to remain competitive and to innovate.

A robust research credit is vital for our future world leadership in technology and our economic growth.

The revised mark includes the credit expansion in the form of the alternative simplified credit.

An increase in U.S. R&D spending benefits everyone, by ultimately improving the productivity of the American worker. Increasing productivity invariably results in an increase in wages throughout the economy.

It is interesting to listen to some of my colleagues on the other side of the aisle when they talk about these tax provisions in their entirety. They make it appear that this package is nothing more than a large tax cut for the wealthy in our Nation. Of course, nothing could be further from the truth.

In reality, other than those provisions that are designed to give aid to the victims of the hurricanes, and to help rebuild the gulf coast areas that were the hardest hit, this bill is about extending certain provisions that are set to expire. Most of those provisions expire in just a few weeks.

I think it is important for Utahns and all Americans to understand that enactment of this legislation is necessary to prevent a very large tax increase on middle-class Americans. Practically every single provision in this bill enjoys plenty of bipartisan support.

So while some of my colleagues are deriding this bill as a whole as an unnecessary and unwarranted tax giveaway to the rich, they are quietly promoting the individual provisions in the bill as necessary provisions for their constituents.

While I support this bill and certainly want to see it go forward to conference with the House, where we are hopeful it can be improved further, there are several provisions in it that cause me a great deal of concern.

One of these items of concern relates to a provision located in the charitable reforms section of the bill.

Specifically, it would place a floor of $500 on a joint return on the amount of deduction a taxpayer who itemizes his or her deductions may claim for a charitable contribution.

I see absolutely no rationale for this limitation.

I do know that it would discourage and mistreat many Utahns who make small contributions to their churches and to local charities. It seems to me that this limitation would hit those who make small donations particularly hard.

The entire point of extending the charitable deduction to those who do not itemize is to give an incentive to more people to donate to charity. I believe the non-itemizers deduction would do this, so I have supported it.

But why in the world would we want to give an incentive to non- itemizers and then turn around and remove a current incentive to those who itemize? It makes no sense.

This provision is unfair to itemizers in another way. The standard deduction already assumes a certain level of charitable contributions.

In order to give non-itemizers an incentive to actually give those assumed contributions, we are effectively allowing them to double dip in this provision. I can live with that because I think it will result in increased donations.

However, to take away a current benefit from itemizers is beyond the pale. There are many thousands of Utahns who give 10 percent of their income to their church. Because of this, Utah has a higher percentage of taxpayers who itemize.

Why should they be penalized for doing the right thing?

Why would we remove an incentive to them so we could create another incentive to those who do not give as much?

This is totally unfair.

I am also very concerned about another revenue raising provision in the bill that seems completely counterproductive and foolish to me. I am referring to the provision that would remove the ability of certain integrated oil companies to use the LIFO method of accounting for their inventories.

To me, this seems like a backdoor attempt to place a windfall profits tax on oil companies, which was ineffective the first time it was tried.

I am even more concerned that this provision could very well miss its intended target and hit some of the smaller oil refineries around the nation that we have been trying to help in recent tax bills.

I am told that it would affect three companies in Utah that happen to have some production, some refining, and are retailers. These three Utah companies are not the large integrated oil firms that this revised mark may be targeting.

I do not think this change is good policy for even the large companies, but in addition to being very poor policy, it also seems misdirected.

The American Job Creation Act we passed a year ago included a tax incentive to encourage small refiners to comply with the new low-sulfur diesel regulations. The Energy bill we passed this summer included a provision to allow refiners to expense immediately the cost of additional refinery capacity.

The provision in the bill before us would totally reverse these incentives and much more. Is not this like giving someone a quarter with our right hand

and then taking a dollar away from that same person with our left hand?

If we wish to encourage more production of oil and especially if we wish to encourage the creation of more capacity to refine oil products, this is not the way to go about it. I hope these offensive provisions can be removed, or at least mitigated, in the managers' amendment.

Mr. President, I know that sometimes one must take one step back for each two steps forward. Well, I think that this bill is an example of us taking one step back to take one and a half steps forward, but in the end, we are at least moving forward.

I would rather have an extension of the research tax credit and AMT along with an extension of the low rates for dividends and capital gains, but I will save the battle for the latter for another day.

The Finance Committee has an incredible array of legislative provisions that pass before us each year. The chair has, as usual, done a masterful job of satisfying the diverse interests of the members of the committee with his legislation.

One day, I hope to see a Finance Committee that takes a small step forward in every single piece of legislation to make it easier and more rewarding to save in America. The importance of increasing saving to the growth potential of our economy cannot be underestimated.

I urge my colleagues to join me in supporting this bill.