Floor Statements

Mr. President, I am pleased to introduce ``The Cord Blood Stem Cell Act of 2005.'' I am particularly gratified that Senators Dodd, Brownback, Harkin, and Specter have joined me as cosponsors of this bipartisan bill. Since I first introduced this bill last Congress, there has been strong interest in Federal support for public cord blood banks as a widely accepted source of hematopoietic stem cells for transplant and research. The purpose of the Cord Blood Stem Cell Act is to create an easily accessible network to prepare, store, and distribute human umbilical cord blood stem cells for the treatment of patients and to support research using such cells.

Today, thousands of Americans receive and are saved by bone marrow transplants each year. But thousands more die for lack of an appropriate donor. The good news is that research now suggests that the blood and stem cells from human placenta and umbilical cords may in some cases provide an alternative to bone marrow transplantation. For some patients, particularly those for whom a bone marrow match cannot be found, transplantation of these cells may be a life-saving therapy. Cord blood stem cell transplants are readily available, and they require less stringent matching from donors to recipients, thus decreasing the difficulty of finding a fully matched donor.

Cord blood transplantation has been used successfully to treat leukemia, lymphoma, immunodeficiency diseases, sickle cell anemia, and certain metabolic diseases. However, the number of available cord blood stem cell units in the United States is insufficient to meet the need. The Cord Blood Stem Cell Act of 2005 proposes to establish an inventory of 150,000 cord blood stem cell units that reflects the diversity of the United States. In conjunction with the 5 million registered bone marrow donors, this registry will enable 95 percent of Americans to receive an appropriately matched transplant. The inventory would provide a critical additional resource for those in need of transplants and allocate a certain proportion of units to sustain further research on cord blood stem cells.

In 2004, Congress asked the Institute of Medicine to provide an assessment of existing cord blood programs and inventories and to make recommendations to enhance the structure, function, and utility of such programs. Following a year-long process of review and evaluation, the Institute of Medicine will soon issue recommendations on the best methods to create and implement this public cord blood bank network. I look forward to reviewing these recommendations and ensuring that they are appropriately reflected in any legislation.

Let me be clear--I am open to all options. It is my goal to create the best system to provide patients, clinicians, and families with access to these life-saving treatments by ensuring that the number of cord blood units available for transplant and research increases in the coming years.

The system will include a network of qualified donor banks which will collect, test, and preserve cord blood stem cells. In addition, the system should educate and recruit donors, facilitate the rapid matching of donors and recipients, and quickly make such cells available to transplant centers for stem cell transplantation.

I also strongly endorse the excellent work done by the National Marrow Donor Program (NMDP), which Congress created in 1986 and continues to fund. This registry already lists more than 42,000 units of umbilical cord blood and provides important patient advocacy and support services. It also provides an online service which allows physicians to compare potential cord blood matches with potential adult volunteer donor matches so that they can select the source of cells that best meets their patients' needs. Cord blood should be used to expand patient choices, not to restrict them. Patients, in consultation with their physicians, should have the ability to decide which is best for them.

The establishment of a national infrastructure for cord blood will help save the lives of thousands of critically ill Americans. And while this legislation is not perfect, it is my hope that its introduction will encourage discussions on cord blood and the federal government's role in helping to increase the inventory of cord blood units in the United States.

In my opinion, we must be sure that our nation can meet the needs of patients and physicians by ensuring a strong future for cord blood in this country. My primary goal is to ensure that the number of cord blood units available for transplant and research increases in the coming years. The only way that goal may be accomplished is through strong federal support. I look forward to working with my colleagues on doing everything possible to provide transplant patients with the best possible options by ensuring a strong future for cord blood transplantation in this country.

Mr. President, how much time do I have?

For a minute there I was so out of it tonight when you were talking, I thought it was about the ``Snow-White'' amendment instead of Snowe-Wyden. It took me a little while to catch on here. I just couldn't resist that.

I have to say, I sat through all these meetings and I never once heard Secretary Thompson say that he wanted this authority. In any event, let me just speak about the Snowe-Wyden amendment, which they are trying to make into the ``Snow-White'' amendment, it seems to me.

In my opinion, this amendment guts one of the most important provisions of the Medicare Modernization Act of 2003.

Supporters of this amendment imply, wrongly in my opinion, that the price charged to beneficiaries is not subject to negotiation. That could not be further from the truth. The truth is, Medicare prescription drug plans will be negotiating with drug makers. These negotiations are the very heart of the new Medicare drug benefit. We do not want to open the door to Government price controls for prescription drugs.

The noninterference clause in the Medicare Modernization Act does not prohibit Medicare from negotiating with drug makers. It prohibits CMS from interfering in those negotiations. That is a far cry from some of the earlier statements that have been made on this floor regarding this provision.

I happen to care a great deal for the two sponsors of this amendment. I have worked very closely with them throughout their tenure and my tenure in the Senate. But they are simply wrong on this amendment.

Let me be clear, the non-interference clause is at the heart of the law's structure for delivering prescription drug benefits. This clause ensures those savings will result from market competition, rather than through price fixing by the CMS bureaucracy. That is what was behind this. Let's not distort these provisions.

What is ironic about what the other side is saying is that the same non-interference clause was in the Daschle-Kennedy-Rockefeller bill and the Gephardt-Dingell-Stark bills in the year 2000, as has been explained by our distinguished chairman of the Finance Committee.

In administering the prescription drug benefit program established under this part, the Secretary may not--No. 1, require a particular formulary or institute a price structure for benefits; No. 2, interfere in any way with negotiations between private entities and drug manufacturers, or wholesalers; or No. 3, otherwise interfere with the competitive nature of providing a prescription drug benefit through private entities.

What is the source of that language? It is from S. 2541, the Medicare Expansion for Needed Drugs, or MEND, Act, introduced in 2000. Think about it, some of the very people who are criticizing this provision in the Medicare Modernization Act tonight supported this language in 2000.

I must remind my colleagues that former Senator Daschle once said:

Our plan gives seniors the bargaining power that comes with

numbers. . . . Our plan mirrors the best practices used in

the private sector. For beneficiaries in traditional

Medicare, prescription drug coverage would be delivered by

private entities that negotiate prices with drug

manufacturers. This is the same mechanism used by private

insurers.

Think about that. I think those who advance these arguments that you cannot have competitive work with regard to drug pricing are wrong and ought to quit playing politics with a bill that is so important for senior citizens all over this country.

Those who suggest this non-interference language will drive up the cost of implementing the law simply do not have the facts or the legislation on their side.

This is what the CBO said about eliminating the non-interference clause in a letter last year:

[T]he Secretary would not be able to negotiate prices that

further reduce federal spending to a significant degree.

I do not ever recall, and I sat through all of the meetings, day after day, hour after hour--I do never recall Secretary Thompson asking for that authority.

The CBO in that letter went on to say:

CBO esimates that substantial savings will be obtained by

the private plans.

Now, let us be clear: Direct Government negotiation is not the answer. The Government does not negotiate drug prices. That would be price control, and it would inevitably cause prices to rise as companies would not be able to do business in this country as they have in the past.

The Medicare Modernization Act's entire approach is to get Medicare beneficiaries the best deal through vigorous market competition, not price controls.

Let me conclude by saying that this amendment is not something that is in the best interest of our Medicare beneficiaries. Medicare beneficiaries do not want or need the Government to determine the cost of their drugs. Price fixing will lead to higher costs and does that help or hurt beneficiaries? I think everyone in this body knows the answer to that question but let me be clear--voting in favor of this amendment is not in the best interest of beneficiaries because they are going to have to pay more money for their prescriptions. Voting for this amendment will take away choice in prescription drug coverage--if this amendment passes, drug prices will not be dictated by the free market, they will be dictated by the Federal Government. I urge my colleagues to vote no on the Snowe-Wyden amendment.

Frankly, let me just make that point one more time: The Medicare Modernization Act does not prohibit Medicare from negotiating with drugmakers.

It prohibits CMS from interfering in those negotiations. That is a fact.

I urge my colleagues to vote no on the Snowe-Wyden amendment.

I appreciate my colleagues' desire to straighten out some of these matters, but the fact of matter is they are wrong on this issue and we should vote this amendment down.

Mr. President, I rise today to introduce the Paiute Indian Tribe Land Conveyance Act of 2005.

This bill would authorize the Secretary of the Interior to convey or transfer four small Paiute trust land parcels to the city of Richfield.

The Paiute Indian Tribe Land Conveyance Act of 2005 would allow the Secretary of the Interior to transfer three acres of land held in trust for the Paiute Indian Tribe of Utah to the city of Richfield, UT. The city of Richfield would provide fair market value compensation directly to the tribe, and pay any costs incurred in this transaction. This land transfer would allow expansion of the Richfield Municipal Airport and provide the Tribe with proceeds to purchase land that has economic development potential. This bill passed the House last year and I introduced it in the Senate, but the Senate bill did not make it through the legislative process prior the end of the 108th Congress.

This proposal has support from all sides. The city of Richfield approached the Tribe about acquiring this parcel of land adjacent to the airport runway. The Tribe agreed and the Paiute Tribal Council passed Resolution 01-36, unanimously agreeing to the conveyance of this parcel of land to the City. The land in question has not been used by the Tribe for more than 20 years. It is not contiguous to the Paiute's Reservation and for nearly 30 years now has had no economic development potential. The tribal resolution expresses the Paiute's desire to accept the city's offer to purchase the land at fair market value and serves as the request to the Secretary of the Interior to convey the trust land. However, only an act of Congress may authorize this land conveyance.

The Paiute Indian Tribe Land Conveyance Act of 2005 would also transfer three trust land parcels, each an acre or less in size, from the Tribe to its Kanosh and Shivwits Bands. All parcels would remain in trust status. The first parcel of one acre would be transferred from land held in trust by the United States for the Paiute Tribe to land held in trust for the Kanosh Band. This parcel is surrounded by 279 acres of land that is either owned by the Kanosh Band or held in trust for the Kanosh Band. For more than twenty years, the sole use of this land has been for the Kanosh Band Community Center. The second parcel, two-thirds of an acre in size, would also be transferred from the Tribe to the Kanosh Band. The land has been used exclusively by the Kanosh Band. It was originally intended that the land be taken in trust for the Kanosh Band in 1981 under the Paiute Indian Tribe of Utah Restoration Act. However, through an administrative error, the land was mistakenly placed in trust for the Tribe. By way of several Band resolutions, the Kanosh Band has formally requested correction of this error.

The third parcel of land, less than an acre in size, would be transferred from the Tribe to be held in trust for the Shivwits Band. The land already is surrounded by several thousand acres of land held in trust for the Shivwits band, and its sole use has been for the Shivwits Band Community Center.

Finally, the bill would eliminate the word ``City'' from the current official name of the ``Cedar City Band of Paiute Indians,'' a name which has never been used by the Band of residents of southwestern Utah. Thus, the bill makes clear that any reference in a law, map, regulation, document, paper, or other record, of the United States to the ``Cedar City Band of Paiute Indians'' shall be deemed to be reference to the ``Cedar Band of Paiute Indians.''

I would like to make some clarifications as part of the record. This bill has language that would allow the city of Richfield to purchase land from the Tribe and provide payment directly to the Tribe without the funds being funneled through the Department of the Interior. I support that provision. The bill also has a provision that would make lands which were acquired by the United States in trust for the Tribe, after February 17, 1984 and prior to the date of the enactment of this legislation, a part of the reservation. this clarifies the intent that lands already in possession of the tribe should be part of the reservation. I would also like to clarify that nothing in this legislation authorizes the Secretary of the Interior to make land conveyances for any tribe or band without their official consent to such a conveyance.

This bill will cost U.S. taxpayers nothing, but it will solve the dilemma that the city of Richfield faces as it works to make its airport meet the needs of the citizens of southwestern Utah. Equally important is the fact that this bill will allow the Paiute Tribe to use the proceeds from the land sale to acquire land with economic development potential to facilitate the well-being of the Tribe. The bill also takes care of non-controversial land adjustments and technical corrections. The bill is supported by the Paiute Tribe, its Bands, and the people of southwestern Utah residing nearby. That is why I am introducing this legislation that would convey or transfer small Paiute trust land parcels.

I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support the passage of the Paiute Indian Tribe Land Conveyance Act of 2005.

Mr. President, I am very pleased to join with my friend and colleague Senator Baucus and several of our Finance Committee colleagues

from both sides of the aisle today in introducing legislation that would permanently extend and improve the research tax credit.

Extending the research credit is an important step for the future economic growth of the United States. A permanent credit can help our economy develop the new technologies that will enhance existing capital inputs and make workers more productive. The result will be a stronger economy at home, and a more competitive nation abroad. As many of our colleagues are aware, the current research credit is set to expire on December 31, 2005.

I believe that if we allow the research credit to expire, we will see the negative effects manifest in lower economic growth, fewer jobs created, fewer innovative products, and lost opportunities as research activities move to other countries with more attractive incentives. We should never forget that our Nation's future economic health is dependent on the innovations of today.

In assessing the health of our economy, we find an important correlation between economic growth and inflationary pressures. One sure way to have strong economic growth without the pain of inflation is to increase productivity. And most productivity gains are derived from technological advances, which reduce the cost of producing goods and services, and thereby help maintain low consumer prices.

An additional benefit of productivity growth is a corresponding increase in corporate profits. Such increases lead to higher returns on savings and investment, and higher wages for workers. I believe the greatest benefit of increased R&D is productivity growth, which in turn forms the foundation of higher living standards.

Productivity growth also largely determines our society's long-term economic welfare. Our ability to deal with budgetary challenges, such as Social Security, Medicare, and other entitlements, depends critically on the future direction of our productivity.

From 1995 through 2003, average annual productivity growth was three percent, double the 1.5 percent growth rate that prevailed between 1973 and 1995. According to economists, this surge in productivity is the result of businesses beginning to efficiently integrate computer and information technology into day-to-day operations. We need a strong and permanent research credit in order to continue these gains in productivity growth.

My home State of Utah is a good example of how State economies currently benefit from the research credit. Utah is home to various firms that invest a high percentage of their revenue in R&D. There are thousands of employees working in Utah's technology based companies, with thousands more working in other sectors that engage in R&D. Approximately 5 percent of the State's non-agricultural workforce is employed in research-intensive, high technology sectors.

Moreover, high technology jobs pay substantially more than the Utah average. In 2004, high technology payrolls accounted for 9.2 percent of Utah's total payrolls. This is a significant proportion considering technology jobs make up only 5 percent of the workforce.

Utah's largest technology segment is in computer systems design, which accounts for more than 20 percent of the State's technology employment with approximately 10,700 workers. Furthermore, this sector is Utah's second highest exporter of merchandise. This is a prime example of an industry group contributing directly to the productivity expansion I mentioned earlier.

The medical equipment manufacturing industry makes up another substantial R&D industry group employing nearly 8,000 Utahns. This industry has been an important and relatively stable component of the technology sector for many years.

Utah profits from, and also imparts, many ``spill-over'' benefits from the innovations developed both within and outside of the state. To give one example, more than 7,000 people work in Utah's chemical industry. This industry is the State's fourth-largest exporter. It benefits greatly from R&D taking place in Utah and throughout the country, and it shares the benefits with its trade partners. Research and development is clearly the lifeblood of Utah's economy.

Since 1981, when the research credit was first enacted, the Federal Government has joined in partnership with large and small businesses to ensure that research expenditures are made in the United States. This enhances domestic job creation, and helps the United States to internalize more of the economic benefits from the research credit.

It seems clear that to grow our economy we must enhance our position as the world leader in technological advances. Consequently, robust R&D spending should permeate our economy. We simply must continue to invest in research and development, and the Federal Government needs to reaffirm its role as a partner with the private sector. To achieve this, I have long advocated a permanent credit, and this body is overwhelmingly on record in favor of that proposition. During the Senate's debate on the 2001 tax cut bill, I offered, and the Senate adopted, an amendment to provide for such a permanent credit. Unfortunately, that provision was dropped in conference and we lost a great opportunity.

Once again, I want to ask my colleagues to make this credit permanent. I think we all know that this credit is going to be extended, again and again, every few years. It takes time and energy for my colleagues to revisit this issue every few years. Can we not just, once and for all, make this provision permanent? We know this is good policy, and it is one of the most effective tax incentives in the code. Even under today's permanently temporary credit, every dollar of tax credit is estimated to increase R&D spending by one dollar in the short run and by up to two dollars in the long run. And if we make this permanent, those incentives will only improve.

While the research credit has proven to be a powerful incentive for companies to increase research and development activities, it unfortunately does not work perfectly. One reason is that the credit is incremental, and was designed to reward additional research efforts, not just what a company might have done otherwise. From a tax policy perspective, I believe this is the best way to provide an incentive tax credit. Nevertheless, it is difficult to craft an incremental credit that works flawlessly in every case.

While the credit works well for many companies, it does not help some firms that still incur significant research expenditures. This is because the credit's base period of 1984 through 1988 is growing more distant and some firms' business models have changed.

To address this problem, we have added a third way to qualify for the credit, an elective ``alternative simplified credit.'' We propose to base this new alternative credit on how much a company has increased its R&D spending compared to the last three years. Companies will average their R&D spending over the previous three years, and cut that number in half. For every dollar they spend over that amount, they get a 12 percent tax credit. If they spend less than that amount, they get no credit at all. This is why this credit is so effective--it gives benefits to companies that do more, and gives no benefits to companies that do less. That is good tax policy, and good growth policy.

The United States needs to continue to be the world's leader in innovation. We cannot afford to allow other countries to lure away the research that has always been done here. We cannot afford to have the lapses in the research pipeline that would result if we do not take care of extending this credit before it expires on December 31.

In conclusion, making the research tax credit permanent will increase the growth rate of our economy. It will mean more and better jobs for American workers. Making the tax credit permanent will speed economic growth. And new technology resulting from American research and development will continue to improve the standard of living for every person in the U.S. and around the world. I look forward to working with my colleagues to create a permanent, improved research credit.

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

Mr. President, I rise today to introduce the Paiute Indian Tribe Land Conveyance Act of 2005.

This bill would authorize the Secretary of the Interior to convey or transfer four small Paiute trust land parcels to the city of Richfield.

The Paiute Indian Tribe Land Conveyance Act of 2005 would allow the Secretary of the Interior to transfer three acres of land held in trust for the Paiute Indian Tribe of Utah to the city of Richfield, UT. The city of Richfield would provide fair market value compensation directly to the tribe, and pay any costs incurred in this transaction. This land transfer would allow expansion of the Richfield Municipal Airport and provide the Tribe with proceeds to purchase land that has economic development potential. This bill passed the House last year and I introduced it in the Senate, but the Senate bill did not make it through the legislative process prior the end of the 108th Congress.

This proposal has support from all sides. The city of Richfield approached the Tribe about acquiring this parcel of land adjacent to the airport runway. The Tribe agreed and the Paiute Tribal Council passed Resolution 01-36, unanimously agreeing to the conveyance of this parcel of land to the City. The land in question has not been used by the Tribe for more than 20 years. It is not contiguous to the Paiute's Reservation and for nearly 30 years now has had no economic development potential. The tribal resolution expresses the Paiute's desire to accept the city's offer to purchase the land at fair market value and serves as the request to the Secretary of the Interior to convey the trust land. However, only an act of Congress may authorize this land conveyance.

The Paiute Indian Tribe Land Conveyance Act of 2005 would also transfer three trust land parcels, each an acre or less in size, from the Tribe to its Kanosh and Shivwits Bands. All parcels would remain in trust status. The first parcel of one acre would be transferred from land held in trust by the United States for the Paiute Tribe to land held in trust for the Kanosh Band. This parcel is surrounded by 279 acres of land that is either owned by the Kanosh Band or held in trust for the Kanosh Band. For more than twenty years, the sole use of this land has been for the Kanosh Band Community Center. The second parcel, two-thirds of an acre in size, would also be transferred from the Tribe to the Kanosh Band. The land has been used exclusively by the Kanosh Band. It was originally intended that the land be taken in trust for the Kanosh Band in 1981 under the Paiute Indian Tribe of Utah Restoration Act. However, through an administrative error, the land was mistakenly placed in trust for the Tribe. By way of several Band resolutions, the Kanosh Band has formally requested correction of this error.

The third parcel of land, less than an acre in size, would be transferred from the Tribe to be held in trust for the Shivwits Band. The land already is surrounded by several thousand acres of land held in trust for the Shivwits band, and its sole use has been for the Shivwits Band Community Center.

Finally, the bill would eliminate the word ``City'' from the current official name of the ``Cedar City Band of Paiute Indians,'' a name which has never been used by the Band of residents of southwestern Utah. Thus, the bill makes clear that any reference in a law, map, regulation, document, paper, or other record, of the United States to the ``Cedar City Band of Paiute Indians'' shall be deemed to be reference to the ``Cedar Band of Paiute Indians.''

I would like to make some clarifications as part of the record. This bill has language that would allow the city of Richfield to purchase land from the Tribe and provide payment directly to the Tribe without the funds being funneled through the Department of the Interior. I support that provision. The bill also has a provision that would make lands which were acquired by the United States in trust for the Tribe, after February 17, 1984 and prior to the date of the enactment of this legislation, a part of the reservation. this clarifies the intent that lands already in possession of the tribe should be part of the reservation. I would also like to clarify that nothing in this legislation authorizes the Secretary of the Interior to make land conveyances for any tribe or band without their official consent to such a conveyance.

This bill will cost U.S. taxpayers nothing, but it will solve the dilemma that the city of Richfield faces as it works to make its airport meet the needs of the citizens of southwestern Utah. Equally important is the fact that this bill will allow the Paiute Tribe to use the proceeds from the land sale to acquire land with economic development potential to facilitate the well-being of the Tribe. The bill also takes care of non-controversial land adjustments and technical corrections. The bill is supported by the Paiute Tribe, its Bands, and the people of southwestern Utah residing nearby. That is why I am introducing this legislation that would convey or transfer small Paiute trust land parcels.

I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support the passage of the Paiute Indian Tribe Land Conveyance Act of 2005.

Mr. President, I am very pleased to join with my friend and colleague Senator Baucus and several of our Finance Committee colleagues

from both sides of the aisle today in introducing legislation that would permanently extend and improve the research tax credit.

Extending the research credit is an important step for the future economic growth of the United States. A permanent credit can help our economy develop the new technologies that will enhance existing capital inputs and make workers more productive. The result will be a stronger economy at home, and a more competitive nation abroad. As many of our colleagues are aware, the current research credit is set to expire on December 31, 2005.

I believe that if we allow the research credit to expire, we will see the negative effects manifest in lower economic growth, fewer jobs created, fewer innovative products, and lost opportunities as research activities move to other countries with more attractive incentives. We should never forget that our Nation's future economic health is dependent on the innovations of today.

In assessing the health of our economy, we find an important correlation between economic growth and inflationary pressures. One sure way to have strong economic growth without the pain of inflation is to increase productivity. And most productivity gains are derived from technological advances, which reduce the cost of producing goods and services, and thereby help maintain low consumer prices.

An additional benefit of productivity growth is a corresponding increase in corporate profits. Such increases lead to higher returns on savings and investment, and higher wages for workers. I believe the greatest benefit of increased R&D is productivity growth, which in turn forms the foundation of higher living standards.

Productivity growth also largely determines our society's long-term economic welfare. Our ability to deal with budgetary challenges, such as Social Security, Medicare, and other entitlements, depends critically on the future direction of our productivity.

From 1995 through 2003, average annual productivity growth was three percent, double the 1.5 percent growth rate that prevailed between 1973 and 1995. According to economists, this surge in productivity is the result of businesses beginning to efficiently integrate computer and information technology into day-to-day operations. We need a strong and permanent research credit in order to continue these gains in productivity growth.

My home State of Utah is a good example of how State economies currently benefit from the research credit. Utah is home to various firms that invest a high percentage of their revenue in R&D. There are thousands of employees working in Utah's technology based companies, with thousands more working in other sectors that engage in R&D. Approximately 5 percent of the State's non-agricultural workforce is employed in research-intensive, high technology sectors.

Moreover, high technology jobs pay substantially more than the Utah average. In 2004, high technology payrolls accounted for 9.2 percent of Utah's total payrolls. This is a significant proportion considering technology jobs make up only 5 percent of the workforce.

Utah's largest technology segment is in computer systems design, which accounts for more than 20 percent of the State's technology employment with approximately 10,700 workers. Furthermore, this sector is Utah's second highest exporter of merchandise. This is a prime example of an industry group contributing directly to the productivity expansion I mentioned earlier.

The medical equipment manufacturing industry makes up another substantial R&D industry group employing nearly 8,000 Utahns. This industry has been an important and relatively stable component of the technology sector for many years.

Utah profits from, and also imparts, many ``spill-over'' benefits from the innovations developed both within and outside of the state. To give one example, more than 7,000 people work in Utah's chemical industry. This industry is the State's fourth-largest exporter. It benefits greatly from R&D taking place in Utah and throughout the country, and it shares the benefits with its trade partners. Research and development is clearly the lifeblood of Utah's economy.

Since 1981, when the research credit was first enacted, the Federal Government has joined in partnership with large and small businesses to ensure that research expenditures are made in the United States. This enhances domestic job creation, and helps the United States to internalize more of the economic benefits from the research credit.

It seems clear that to grow our economy we must enhance our position as the world leader in technological advances. Consequently, robust R&D spending should permeate our economy. We simply must continue to invest in research and development, and the Federal Government needs to reaffirm its role as a partner with the private sector. To achieve this, I have long advocated a permanent credit, and this body is overwhelmingly on record in favor of that proposition. During the Senate's debate on the 2001 tax cut bill, I offered, and the Senate adopted, an amendment to provide for such a permanent credit. Unfortunately, that provision was dropped in conference and we lost a great opportunity.

Once again, I want to ask my colleagues to make this credit permanent. I think we all know that this credit is going to be extended, again and again, every few years. It takes time and energy for my colleagues to revisit this issue every few years. Can we not just, once and for all, make this provision permanent? We know this is good policy, and it is one of the most effective tax incentives in the code. Even under today's permanently temporary credit, every dollar of tax credit is estimated to increase R&D spending by one dollar in the short run and by up to two dollars in the long run. And if we make this permanent, those incentives will only improve.

While the research credit has proven to be a powerful incentive for companies to increase research and development activities, it unfortunately does not work perfectly. One reason is that the credit is incremental, and was designed to reward additional research efforts, not just what a company might have done otherwise. From a tax policy perspective, I believe this is the best way to provide an incentive tax credit. Nevertheless, it is difficult to craft an incremental credit that works flawlessly in every case.

While the credit works well for many companies, it does not help some firms that still incur significant research expenditures. This is because the credit's base period of 1984 through 1988 is growing more distant and some firms' business models have changed.

To address this problem, we have added a third way to qualify for the credit, an elective ``alternative simplified credit.'' We propose to base this new alternative credit on how much a company has increased its R&D spending compared to the last three years. Companies will average their R&D spending over the previous three years, and cut that number in half. For every dollar they spend over that amount, they get a 12 percent tax credit. If they spend less than that amount, they get no credit at all. This is why this credit is so effective--it gives benefits to companies that do more, and gives no benefits to companies that do less. That is good tax policy, and good growth policy.

The United States needs to continue to be the world's leader in innovation. We cannot afford to allow other countries to lure away the research that has always been done here. We cannot afford to have the lapses in the research pipeline that would result if we do not take care of extending this credit before it expires on December 31.

In conclusion, making the research tax credit permanent will increase the growth rate of our economy. It will mean more and better jobs for American workers. Making the tax credit permanent will speed economic growth. And new technology resulting from American research and development will continue to improve the standard of living for every person in the U.S. and around the world. I look forward to working with my colleagues to create a permanent, improved research credit.

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

Madam President, the crisis created by the unprecedented use of filibusters to defeat judicial nominations must be solved while preserving two important Senate traditions. On the one hand, extended debate is an important part of how the United States Senate conducts its legislative business. On the other hand, we have traditionally given judicial nominations reaching the Senate floor a final confirmation decision. Two years ago, this latter tradition was attacked when the filibuster was used for the first time to defeat majority supported judicial nominations. Mr. President, these are two different and important traditions and each must be preserved.

Solving this crisis by restoring Senate tradition is not a partisan step, but is in the interest of the Senate as an institution. Both Republicans and Democrats should follow the same standard, no matter which party occupies the White House or runs the Senate. Neither Democrats nor Republicans should have to go through this vicious cycle of filibusters against qualified judicial nominees.

Let me first clarify once again the situation in which we find ourselves. Before 2003, no majority supported judicial nomination had been defeated by a filibuster. Under our Rule XXII, we did vote on motions to end debate on judicial nominations, though we did so just 15 times in 35 years. Simply taking a cloture vote, however, does not mean a filibuster is underway. In fact, some of those cloture votes were used deliberately to prevent filibusters, clearing the procedural path and guaranteeing an up or down confirmation vote. Some have been used for floor management purposes. We did so even on very controversial nominations, such as President Clinton's choices of Richard Paez and Marsha Berzon for the U.S. Court of Appeals for the Ninth Circuit.

Before 2003, only one judicial nomination on which cloture was not invoked was not confirmed. Opposition to cloture on the controversial 1968 nomination of Abe Fortas to be Chief Justice was evenly bipartisan and showed that

the nominee lacked clear majority support. At the nominee's request, President Lyndon Johnson withdrew the nomination the next day. Senator Robert Griffin, from Michigan, who led opposition to the nomination, personally told me that there never was an intention to use the filibuster to defeat the Fortas nomination. There was no need, since the votes were there to defeat the nomination outright. Lyndon Johnson knew it and that is why they withdrew the nomination rather than be embarrassed by the bipartisan vote of both parties against the nominee.

Before 2003, if the Senate rejected a judicial nomination that reached the Senate floor, we did so by voting it down; filibusters did not prevent a final vote in order to keep a nomination from confirmation. The break with that tradition came in 2003. During the 108th Congress alone, we voted on motions to end debate on judicial nominations 20 times. Each vote failed, and opposition to cloture was completely partisan. None of those nominees was confirmed, though each had clear bipartisan majority support.

Those who want to end this Senate tradition of giving judicial nominations reaching the Senate floor an up or down vote fear they will lose if we follow that tradition. To them, the end of defeating President Bush's judicial nominations justifies the means of destroying Senate tradition. Being honest about it would reveal how such partisan strategies are politicizing the judicial appointment process, so they try to make other arguments.

They claim Republicans filibustered President Clinton's judicial nominations, but each of his judicial nominees on whom we took a cloture vote is today a sitting Federal judge.

They claim they don't filibuster very often, which is beside the point if using the filibuster against judicial nominations violates constitutional principles and departs from Senate tradition. There have already been enough judicial nomination filibusters to give President Bush the lowest appeals court confirmation rate of any president since Franklin Roosevelt.

Or they claim they filibuster only nominees who are out of some kind of mainstream. It is difficult to know what that charge really means, especially since the American Bar Association--which Democrats once considered the gold standard--has found them qualified. Senators may, of course, vote against a judicial nominee for any reason they wish, but we should stop pretending that out of the mainstream is anything more than a prediction that the nominee may not always rule the way liberal interest groups want. Considering the stream in which many of those groups swim, I'm not so sure this isn't a compliment. If the mainstream really mattered, though, these filibusters would never have started. Newspaper editorials opposing filibusters of judicial nominations outnumber those supporting them by at least six-to-one.

Madam President, I ask unanimous consent that some representative editorials from mainstream newspapers be printed in the Record.

These may be their reasons, but there are no excuses. At the mere suggestion of abandoning the Senate's tradition regarding judicial nominations when President Clinton was in office, former Democratic Leader Tom Daschle said, ``I find it simply baffling that a Senator would vote against even voting on a judicial nomination.'' That should be our response today as Senators on both sides of the floor.

Last week here on the Senate floor, the distinguished Senator from West Virginia made his case against returning to Senate tradition regarding judicial nominations. I respect him. I have a lot of regard for him, but I have to confess I was surprised that someone with such knowledge of the traditions and rules of this body would appear so willing to abandon tradition.

He equated the filibuster with the Senate itself. He equated filibustering judicial nominations with filibustering legislation and concluded that returning to our tradition regarding judicial nominations would be an attack on the Senate somehow. I would like to address each of these elements because I do not believe they can withstand fair scrutiny.

First, my friend from West Virginia argued that the Senate was designed from its very inception as a place of absolutely unfettered and completely unlimited debate. As such, he argues, any limitation of debate strikes at the very heart of the institution itself. Yet in the second volume of his own history of the Senate, he writes on page 115:

It is apparent that the Senate in the First Congress

disapproved of unlimited debate.

The original rule IV prohibiting a Senator from speaking more than twice in any one debate on the same day without leave of the Senate remains in only slightly modified form as our rule XIX today. Even more significantly, rule VIII in the first Senate provided for a majority to proceed to a vote by calling the previous question.

Coupled with the Founders' expressed commitment to majority rule, these facts demonstrate that even with regard to legislation, the possibility of preventing final action through extended debate was not created by original design. It arose by default through dropping that previous question rule in 1806.

It would still be decades before Senators who sought to protect the institution of slavery would discover they could use this procedural loophole to their advantage and, of course, the filibuster was born. Its twin, however, was a parallel and ongoing effort at filibuster reform by which we have actively sought properly to balance the minority's right to debate and the majority's right to decide. The solution we seek today is part of that ongoing effort.

The Senator from West Virginia next equated filibusters of judicial nominations with filibusters of legislation. His policy arguments in favor of the filibuster, however, apply only to the legislative process. He said, for example, that without the filibuster ``there exists no leverage with which to bargain for the offering of an amendment. All force to effect compromise between the parties will be lost.''

I note that in previous debates about filibuster reform, such as in 1975, Democrats, such as the senior Senator from Massachusetts, Mr. Kennedy, offered this very same argument against the filibuster. Still, this notion obviously applies where the Senate either fashions or effects legislation, but it is irrelevant to nominations.

The Senator from West Virginia has long been this Chamber's leading expert on our history and procedure. For that I compliment him. For this reason, though, I was disappointed that he would fail to make such an important distinction between legislative and judicial nomination filibusters, a distinction based on both historical fact and constitutional principle. In other words, there is a difference between the legislative calendar and the executive calendar in the Senate.

The Senator from West Virginia is not the first in the debate over these new judicial nomination filibusters failing to make this critical distinction. Other Democratic Senators, for example, want to use the cup-and-saucer analogy by which George Washington allegedly described pouring hot action from the House cup to cool in the deliberation of the Senate saucer.

As Jeffrey Toobin's recent analysis in the New Yorker magazine points out, however, not only is this story probably apocryphal, but the supposed exchange between Washington and Jefferson specifically focused on, you got it, legislation. In fact, that is the only context in which it makes any sense. If they said it at all, they were talking about the relationship between the two Houses within the legislative branch, not the relationship between the legislative and executive branches.

The distinction between legislative and judicial filibusters is a matter of historical fact. Every example offered last week by my friend from West Virginia involved legislation. He opened and closed his speech by evoking scenes from the classic film ``Mr. Smith Goes to Washington.'' I went back and checked the script. Senator Jefferson Smith in that movie, played by the great Jimmy Stewart, filibustered an appropriations bill. That is legislation.

The example the Senator from West Virginia said was most relevant-- President Franklin Roosevelt's proposal to reorganize the judiciary-- was also, you got it, legislation. That example is actually not relevant at all, however, because that 1937 legislation was not defeated by a filibuster. The most definitive study of President Roosevelt's plan by Mary McKenna concludes that it did not have majority support in the Senate at all. There was no need for a filibuster. Rather than the majority being stymied in its attempt to pass the bill, the majority--and an overwhelming majority at that--sent it back to committee.

To my knowledge, no Senators are today calling for an end to the legislative filibuster as a group of Democratic Senators did a decade ago. Nine of them, led by the Senator from Iowa, Tom Harkin, and the Senator from Connecticut, Joseph Lieberman, serve in this body today. They argued back then that all filibusters, including those of legislation, unconstitutionally infringe on majority rule. The two Senators from Massachusetts, Edward Kennedy and John Kerry, along with the Senator from California, Barbara Boxer, the Senator from New Jersey, Frank Lautenberg, the Senator from Maryland, Paul Sarbanes, the Senator from New Mexico, Jeff Bingaman, and the Senator from Wisconsin, Russ Feingold, voted against tabling that proposal.

I find it simply baffling that Senators who once supported abolishing the Senate tradition of legislative filibusters would today support establishing a tradition of judicial nomination filibusters--in other words, filibusters of nominees by the President on the executive calendar, not the legislative calendar.

Ignoring the distinction between legislative and judicial nomination filibusters is necessary for the argument of the Senator from West Virginia, as evidenced when he asked:

If we restrain debate on judges today, what will be next?

Yet for more than a century, filibusters of legislation coexisted nicely with our tradition of giving up-or-down votes to judicial nominations that reach the Senate floor.

Our experience under the current version of rule XXII shows that these two traditions can peacefully coexist. That rule, by the way, was born in 1917

after a filibuster of legislation. We have had the current version of rule XXII since 1975. From 1975 to 2002, the 94th Congress through the 107th Congress, only 3 percent of cloture votes were judicial nominations; 85 percent of those cloture votes passed, and all nominations subject to cloture votes were confirmed.

During the 108th Congress, 49 percent of cloture votes were on traditional nominations. None of them passed, and none of the nominations were confirmed.

I must say, with all due respect to my dear friend from West Virginia, that using the filibuster to defeat majority-supported judicial nominations has not been part of even modern Senate practice, let alone historic Senate tradition.

Let me repeat that. Using the filibuster to defeat majority-supported judicial nominations has not been part of even modern Senate practice, let alone historic Senate tradition.

In his op-ed piece in the Washington Post last week, the Senator from West Virginia ignored our tradition regarding judicial nominations in another way. He argued that by preventing a confirmation vote through a filibuster, the Senate had formally rejected these judicial nominations. How can it be a rejection of judicial nominations when a majority of Senators supports confirmation of each one of those people? Each nominee on whom cloture was not invoked remained on the Senate's executive calendar. Our own rule XXXI states that nominations that are ``neither confirmed nor rejected'' shall be returned to the President. Each of those filibustered nominations was, indeed, returned to the President when the 108th Congress adjourned. By definition, common sense, and our own rules, that means they were not rejected. My friend from West Virginia cannot on the one hand claim these nominations were rejected but on the other hand claim that these filibusters are about deliberation and debate.

Legislative and judicial nomination filibusters are different as a matter of historical fact because they are different as a matter of constitutional principle. Legislation belongs to the legislative branch under article I of our Constitution, while nomination and appointment belong to the President under article II. In Federalist No. 65, Alexander Hamilton wrote that the President would be the ``principal agent'' in appointments. The Senate has an important role of advice and consent that checks the President's appointment power, but we do not control the executive process any more than the President controls the legislative process. We recognize the difference between legislative and executive business when we leave legislative session and proceed to executive session to address nominations we have placed on the executive calendar. My friend from West Virginia, I think, ignored those differences.

Interacting with the executive branch is simply not the same as interacting within the legislative branch. And thus it would seem almost self-evident that procedures we use regarding our authority over legislation might not be appropriate when we affect the President's authority over appointments. We must preserve our tradition that recognizes this constitutional distinction between the executive and legislative branches, between our role of advice and consent on judicial appointments, and our authority over legislation.

The Senator from West Virginia, in my opinion, used an unfortunate analogy in attacking those who would return the Senate to its confirmation tradition regarding judicial nominations. Others, such as the Anti-Defamation League, have strongly objected to his reference to Hitler's Nazi regime for various reasons. My point here is not that. It is different. I object to his claim that returning to our tradition regarding judicial nominations would be an example of ``how men with motives and a majority can manipulate law to cruel and unjust ends.'' There is nothing cruel or unjust about the Senate returning to our traditional advice and consent role regarding judicial nominations.

The Constitution gives the Senate the authority to determine our procedural rules. It was pursuant to that authority that the Senate dropped the previous question rule in 1806, adopted a cloture rule in 1917, and amended that rule several times since.

It was also pursuant to that authority that the Senator from West Virginia aggressively used various strategies to change Senate procedures when he served as majority leader of this body. This includes approaches currently under discussion, such as seeking a ruling from the Senate's Presiding Officer. Though the Senator from West Virginia last week said such an approach would abandon the ``cloak of legality,'' it would simply be following a procedural path that he himself blazed. I was here for part of that.

The Senator from West Virginia said this approach ``seeks to alter the rules by sidestepping the rules, thus making the impermissible the rule.''

Yet the Senate operates on the basis of parliamentary precedents and traditions, as well as by our standing rules, a history my friend from West Virginia helped shape and has been recognized as helping shape those rules.

In 1977, for example, the Senator from West Virginia made a point of order that once cloture has been invoked, the Presiding Officer must rule dilatory amendments out of order. One Senator criticized this strategy as trying to change Senate rules by majority vote during the heat of the debate. That criticism sounds an awful lot like the criticism the Senator from West Virginia leveled last week against those who might take the same approach today. Nonetheless, the strategy succeeded when the full Senate tabled an appeal of the Presiding Officer's ruling in favor of the distinguished Senator from West Virginia.

In 1979, the Senator from West Virginia introduced Senate Resolution 9 to make various changes to rule XXII. He argued that notwithstanding rule XXII's cloture requirement for rules changes, a simple majority could change Senate rules at the beginning of a new Congress. He was right. The current Senate, he argued, is not bound by the dead hand of the past Senate. He threatened that if the Senate did not come to a time agreement for considering his resolution, he would attempt to proceed by seeking a parliamentary ruling.

Also in 1979, the Senator from West Virginia made a point of order that the Presiding Officer, rather than the Senate, as required under our rule XVI, ruled nongermane certain amendments to appropriations bills.

As in 1977, that strategy worked when the Senate tabled an appeal of the Presiding Officer's ruling in favor of the Senator from West Virginia. In 1980, the Senator from West Virginia also secured a helpful parliamentary precedent but from a different procedural direction. He wanted to achieve confirmation for an individual nominee on the Executive calendar.

At that time, while a motion to go into executive session was not debatable, a subsequent motion to proceed to a specific item on the Executive calendar was debatable. On March 5, 1980, the Senator from West Virginia made a single motion for the Senate both to go into executive session and to proceed to a specific nomination. When the Presiding Officer sustained a point of order against this motion, one Senator criticized this attempt to change procedure by majority vote. Nonetheless, the Senator from West Virginia appealed the Presiding Officer's ruling, which was his right to do, and the Senate overturned, supporting the distinguished Senator's majority rule change.

This strategy might be described by some, using the Senator from West Virginia's words last week, as altering the rules by sidestepping the rules. It certainly limited what he now insists would be unfettered and unlimited debate.

In 1987, the Senator from West Virginia secured a parliamentary precedent that obviously dilatory requests by Senators to be excused during a rollcall vote were out of order. This applied the same strategy he had used in 1977, getting the Presiding Officer to rule dilatory tactics out of order, in a new context. Each of these examples has similarities and differences with the current situation.

I offer this detail only to demonstrate that Senate procedures have been changed through parliamentary rulings as well as by formal amendments to the rules themselves. As my friend from West Virginia has demonstrated by pursuing each of these

strategies himself, the Senate can exercise its constitutional authority to determine its procedural rules either way.

He may certainly believe that the changes he sought were warranted while the change we may seek today is not. That is his right, and he can express that right in debate by voting against such a change. But that difference of opinion does not make his attempts to limit debate, even on legislation, right and just while any attempt to do so today on judicial nominations cruel and unjust.

We departed from our tradition of giving judicial nominations reaching the Senate floor an up-or-down vote only 2 years ago. The result has been the Senate's inability to do its constitutional duty of providing advice and consent regarding judicial nominations. We were able to give advice, I presume, but with regard to these 10 nominees we were never able to give consent or not consent, whichever the case may be. And that is done by a vote up and down. It demonstrates that the confirmation process is, in the words of the Washington Post, ``steadily degrading.''

Returning to that tradition of giving up-or-down votes for judicial nominations will not in the long run mean either party will always get its way. Both the executive branch and the Senate do change partisan hands from time to time. This standard, this tradition, knows no party and guarantees no partisan advantage. It applies no matter which party occupies the White House or which party controls the Senate. It would bind Republicans as well as Democrats and preserve our institutional traditions. I hope and believe, however, that restoring this tradition will, despite some Senators' threats to blow up the Senate, help restore some comity and good will to this body.

Returning to that tradition, which recognizes the difference between our authority over legislation and the President's authority over appointments, is not an attack on the Senate; rather, it affirms our traditions and the Senate's unique place in our system of separated powers. Returning to it both respects the President's authority over appointments and asserts the Senate's role of advice and consent, not just advice but consent as well.

A majority of Senators have been deprived of the right to give or not give consent by these irresponsible filibusters of judicial nominations on the Executive calendar. The deviation we have seen from that tradition, wherein a filibuster prevents confirmation of nominees with majority support, undermines the President's authority and distorts the Senate's role. Preserving both of our traditions--extended debate regarding legislation and up-or-down votes on judicial nominations reaching the Senate floor--will restore the proper balance.

There is nobody in this body who respects the distinguished Senator from West Virginia more than I do. I hope we can resolve these matters so both parties are bound by the correct tradition that we are not going to filibuster executive branch nominees and we will both preserve the right to filibuster over the matters we totally control on the legislative calendar. I would fight to my death to preserve rule XXII on legislation because I have also been in the minority from time to time, and it was the only way we could stop some things which would have been just terrible for this country. But there is a difference between the legislative calendar and the Executive calendar.

I respect my colleague from West Virginia. I can truthfully say I love him because he has been a strong force around here for years, but I hope he will look at some of these examples I have given and some of these thoughts I have and help us stop this impasse that is occurring in the Senate, not by preferring one party over the other but by binding both parties to treat Presidential nominations with the respect they deserve.

I have to say I never quite concentrated on this enough until these judicial nominations were filibustered in 2003 and 2004. I myself am to blame for not having thoroughly studied this until these problems arose, but I have now studied it. I believe it would be far better for our Senate to get rid of these animosities and threats to have nuclear warfare and bind both the Republicans and the Democrats in the Senate to do what is right, to give a vote up or down, so that we can not only give advise but consent as well.

I yield the floor.

Mr. President, one can have self-settled trusts. What the amendment of the distinguished Senator from New York does is do away with essentially all self-settled trusts. Frankly, Senator Schumer's amendment is so broad that it covers all settled trusts, not just fraud.

The amendment of the distinguished Senator from Missouri covers fraud, and he does it in the appropriate way, a legal way, the way it should be done.

I yield the remainder of my time to the distinguished Senator from Missouri.

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

Mr. President, I rise today to speak in favor of S. 256, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and to thank all of the people who made this bill possible. This bankruptcy bill has been a long time coming. We all know how bankruptcy claims have skyrocketed since the last major bankruptcy reform bill in 1978. We all know about the abuses of the system.

Well, that is about to change for the better. This bill is about fairness and accountability. We have made some important changes in this legislation. This bill contains a debtor's bill of rights with new protections that prevent bad actors from preying upon the uninformed.

The bill also includes new consumer protections under the Truth in Lending Act, such as new required disclosures regarding minimum monthly payments and introductory rates for credit cards. It protects consumers from unscrupulous creditors, with new penalties on creditors who refuse to negotiate reasonable payment schedules outside of bankruptcy.

S. 256 provides for protection of educational savings accounts, and it gives equal protection for retirement savings in bankruptcy. It helps women and children by providing a comprehensive set of protections for child and domestic support throughout the bankruptcy process.

This legislation dramatically revises the reaffirmation agreement provisions of the Code. It imposes critical disclosure requirements that will put a stop to abusive practices. It makes the provisions relating to farmers in chapter 12 permanent and broadens its provisions. It cleans up the law governing complex exchanges and thereby reduces systemic risk in our marketplace. It acts to stop abuse.

When this bill hit the floor on Monday, February 28, I mentioned that we were in the last leg of a legislative marathon. The finish line is finally in sight. I am pleased to have been a part of this process and I am even more pleased we are able to pass this important legislation, and I anticipate that it will pass shortly. This bill has been a long time in development. I am proud of what we have been able to accomplish. Today it seems it is finally going to cross the finish line, and it is well worth it.

This bill may not lead to a severe reduction in the number of bankruptcies. I believe, though, that it will reduce the number of fraudulent and abusive filings and help educate consumers to keep their financial houses in order. This is always an important goal. No responsible society can long countenance the open flouting and abuse of its laws.

This bill, with its means test, will discourage such abusive filings by restricting access to chapter 7 liquidation by those with relatively high incomes. We should all stand behind a law that requires people with the ability to repay their debts to actually repay those debts.

Most of our debate on this bill has focused around the means test. There is no doubt that this will discourage some bankruptcy filings, but I also hope our credit counseling provisions will work to persuade even some low-income debtors that there is another way out.

Right now, too many are only hearing one part of the story: Declare bankruptcy. Liquidate your debts. Some attorneys pushing this line, however, leave out the part about the years of ruined credit that result, the inability to get a car loan or a house loan. My hope is our modest credit counseling provisions will persuade some people to stay out of bankruptcy and meet their obligations, do what is right, and keep their credit alive.

While a great majority of Senators support this bill, I know not all of my colleagues are pleased. Last night my friend from Massachusetts, Senator Kennedy, again voiced his strong opposition to this legislation. This was probably clear from my response. I vehemently disagree with his opinions about this bill, but I hope he understands that we are trying our best.

Could we have done better? I have no doubt about that, not for a second, but I also know this bill has benefitted from some of Senator Kennedy's suggestions over the years. We have not ignored him, and I hope he understands we appreciate his participation.

I also understand some of my colleagues feel that they may not have been treated fairly in this process. My desire throughout this process, and the desire of my colleagues who supported this bill, was always to act as an honest broker who took the suggestions of the other side with appropriate seriousness. I understand the frustration from some on the other side at the inability to get amendments agreed to or considered on the floor, but I hope they in turn can understand that we have tried our best on this side to balance all of the competing interests in this body

while also trying to get this very important bill done.

In particular, I think we could have done a better job of working through the technical amendments offered by Senator Feingold. Truth be told, I do not think all of these amendments were merely technical amendments. Be that it as it may, Senator Feingold had a right to submit his amendments at the committee and then on the floor. Perhaps the consideration of the Feingold amendments would have been more complete if we had all focused on these proposals earlier in this debate. I fully respect the right of the distinguished Senator from Wisconsin to offer his amendments, even if we know he is opposing the underlying bill, which he always has. Getting all the parties on board is an uphill climb.

I was given the assignment by Chairman Specter to try to get this bill reported by the last recess. We accomplished that goal. In that process, I know Senator Feingold feels he did not get a fair hearing in the committee. I hope the final outcome today persuades him otherwise.

For my part, I instructed my staff to meet with the staff of the distinguished Senator from Wisconsin after the markup. Our staffs met on a number of subsequent occasions. We were able to work out several agreements. Frankly, I was sympathetic to several features of other of his amendments. As we all recognize, proposing an amendment is much easier than getting an agreement on an amendment. I want him to know that we tried.

In discussions with the sponsor of the bill, Senator Grassley, the chairman of the Judiciary Committee, Senator Specter, our leadership, Senator Sessions, who has played a significant role on this bill and others, we had to make a number of determinations over what amendments to support and what to exclude from the bill. These were not easy decisions, and sometimes they had to be made in conjunction with leaders in the House of Representatives, which is not unusual. We do try to work with them, if we can. In this case, I think we have been working with them.

We could not accept all of Senator Feingold's amendments. I think he probably knows that, too. Our staffs made the effort to work through both the substance and the politics of the issues, and these consultations have borne some fruit. That is important to state, because I do not want my colleague to feel badly or feel he has not been treated fairly. I wish we could have found still more common ground, but after consulting with and facilitating consultations between Senator Feingold's staff and my staff and other Senate staff, we at least made some progress.

I thank and congratulate Senator Grassley, the prime sponsor of this bill over the last 8 years. He has worked extraordinarily hard on this bill. It has been a long time in coming. My hat, as usual, is off to him. Senator Sessions is another Senator whose hard work made this possible. We all appreciate his work in the committee and on the floor during the last few weeks.

I would also thank the majority leader, Senator Frist, and the majority whip, Senator McConnell, and the chairman of the Judiciary Committee for their efforts on behalf of this legislation. Chairman Specter has been here working hard for the people of Pennsylvania only days after his cancer treatments, and that is not easy to do, and certainly not easy since he has a continuation of those treatments. He is a heroic figure, in my eyes, for the way he has handled himself in this very difficult time.

I must also thank Chairman Shelby, and Senator Sarbanes of the Banking Committee. We all know how vital the Banking Committee was to this process. We could not have gotten this done without their help.

I believe that several Senators from across the aisle deserve recognition as well. I want to once again thank the Minority Leader, Senator Reid, and the Minority Whip, Senator Durbin, for helping to move this bill through the Senate.

Senators Biden and Carper have worked tirelessly for years on this legislation, and they have taken some tough votes to get it done. Senator Nelson from Nebraska has also shown great resolve and deserves recognition for his efforts, particularly with respect to the provisions affecting farmers. Senator Johnson has also been committed to this legislation and I thank him.

No thank you list would be complete without the Senator from Vermont. My dear friend Senator Leahy and I have not always agreed on every aspect of this legislation, but we have worked hard to make it better. Senator Leahy developed two important amendments that were accepted. Similarly, Senator Feingold--who has been an ardent opponent of this legislation--has nevertheless dedicated himself to improving it. I have enjoyed working with him, and several other Democratic members of the Judiciary Committee over the years--including Senators Feinstein, Kohl, Kennedy, Schumer and Durbin--to get this bill done.

I would also like to take a moment to thank all of the staff who worked so hard to make this happen. I know that several of them--on both sides of the aisle--have not seen their significant others in weeks. We owe them a great debt of gratitude. If my colleagues would permit me, I would like to name a few of them.

I think the record should reflect that Rene Augustine, a former counsel now at home with her new-born child, and Makan Delrahim and Manus Cooney, both former Judiciary Committee Chief Counsels, worked for years on this legislation and it would not have been possible but for their efforts. Similarly, John McMickle, a former staffer of Senator Grassley who worked on this bill while he was in the Senate, has taken an enormous amount of time away from his young children to help on this project.

For staff who still work here, I think that Senator Grassley's chief counsel, Rita Lari-Jochum, should be singled out for her hard work and dedication to this bill. She has helped manage this process over the last several weeks, and she has done a fantastic job. Similarly, Mike O'Neill, Judiciary Committee Chief Counsel, and Harold Kim, Chief Civil Counsel, have done an outstanding job--as have the whole Judiciary team. There are several new counsels in that office that were thrown into the crucible in their starting weeks. First with class action, and now with bankruptcy. The record should reflect the professionalism and excellence with which Ivy Johnson, Tim Strachan, Ryan Triplette, Hannibal Kemmerer, and Nathan Morris have conducted themselves. They are a fantastic group.

In Senator Sessions office, no one could overlook his chief counsel, William Smith, or his deputy chief counsel Cindy Hayden. Amy Blakenship and Wendy Fleming also with Senator Sessions, did a great job as well. They all did wonderful job.

In the Majority Leader and Majority Whip's office, Eric Ueland, Sharon Soderstrom, and Allen Hicks led the team. John Abegg in Senator McConnell's office, proud father of a baby girl born on the day this bill hit the floor, nevertheless managed to get the job done. Kyle Simmons, Brian Lewis, and Malloy McDaniel all worked vigorously to plan and manage the strategy and votes on amendments. Stephen Duffield and his team at the R.P.C. has also provided timely and accurate information on the bill on a daily, and when needed, hourly, basis.

As my colleagues all know, the Banking Committee played an important role in this process. Senator Shelby is fortunate to have people like Kathy Casey, Doug Nappi and Mark Oesterle working for him.

I would also like to thank the House Judiciary Committee staff--they have been an invaluable resource and we would not have been able to get this done without them. As always, Phil Kiko provided a steady hand steering important legislation. Susan Jensen is a treasure trove of information and she has devoted herself to this endeavor. Stephanie Moore and Perry Applebaum of Representative Conyer's office, I am sure will help the legislation move through the House.

The hardworking people in the legislative counsel's office have also undertaken a Herculean effort and flourished in the process. I believe that 125 amendments were filed on this bill, and that does not include the 50 or so that we had in Committee. That is a lot of drafting of complex legislation and we all owe Bill Jensen, Matt McGhie and Amy Gaynor our thanks for their contributions during this long trip. I

would add Bob Schiff of Senator Feingold's staff, who worked to make this a better bill. It is a pleasure to work with him and he is someone we respect. I wish we could have done more for him and his great boss. We have done the best we can.

Finally, on my own staff, Bruce Artim, Kevin O'Scannlain, Perry Barber and Brendan Dunn all worked very hard on this legislation.

My personal executive assistant, Ruth Montoya, has put up with an awful lot over these last few weeks, and I appreciate her as well as my chief of staff Trish Knight, and Susan Cobb and the many others who literally have worked so hard to help me over these last several weeks--frankly, over the last many years. I know there are many others I have not been able to recognize, and they should all know what a wonderful job I believe they have done. I believe we have an important achievement with this bill, and I think it is only a matter of time until we get this bill passed on the floor, which will be a good end.

Mr. President, the bankruptcy legislation cures some abuses in the Bankruptcy Code regarding executory contracts and unexpired leases.

One provision, Section 404(a) of the bill, amends Section 365(d)(4) of the Bankruptcy Code. Presently, Section 365(d)(4) provides a retail debtor 60 days to decide whether to assume or reject its lease. A bankruptcy judge may extend this deadline for cause--and therein is the problem. Some experts believe that too many bankruptcy judges have allowed this exception essentially to eliminate any notion of a reasonable and firm deadline on a retail debtor's decision to assume or reject a lease. Some bankruptcy judges have been extending this deadline for months and years, often to the date of confirmation of a plan.

This situation can be troublesome. For example, a shopping center operator is a compelled creditor. It has little if any choice but to continue to provide space and services to the debtor in bankruptcy. Yet, the current Code permits a retail debtor as long as years to decide what it will do with its leases. Coupled with the increased use of bankruptcy by retail chains, the Bankruptcy Code is seen by some to be tipped unfairly against the shopping center operator.

Some stores curtail their operations or go dark, and still the lessor cannot regain control of its space.

This legislation, like the conference report in the last two Congresses, acts to curb this abuse. It imposes a firm deadline on a retail debtor's decision to assume or reject a lease. It permits a bankruptcy trustee to assume or reject a lease on a date which is the earlier of the date of confirmation of a plan or the date which is 120 days after the date of the order for relief. A further extension of time may be granted, within the 120 day period, for an additional 90 days, for cause, upon motion of the trustee or lessor. Any subsequent extension can only be granted by the judge upon the prior written consent of the lessor: either by the lessor's motion for an extension, or by a motion of the trustee, provided that the trustee has the prior written approval of the lessor. This is important. We are limiting the bankruptcy judges' discretion to grant extensions of the time for the retail debtor to decide whether to assume or reject a lease after a maximum possible period of 210 days from the date of entry of the order of relief. Beyond that maximum period, there is no authority in the judge to grant further time unless the lessor has agreed in writing to the extension.

Retail debtors filing for bankruptcy will undoubtedly factor into their plans this new deadline. Most retail chains undertake a careful review of their financial condition and business outlook before they file for bankruptcy. They will already have an understanding of which leases are ones they wish to assume and which ones they wish to dispose of. The legislation gives them an additional 120 days to decide on what to do with their leases, once they file for bankruptcy. Beyond that 120 day time period, an additional 90 days can be granted for cause. A further extension may be negotiated by the retail debtor and the lessor if circumstances warrant, and any such extension can be granted by a judge only with prior written consent of the lessor. Further, a lessor's prior written approval of one such extension does not constitute approval for any further extensions--each such extension beyond the 210-day period requires the lessor's prior written approval.

The bill in Section 404(b) also amends Section 365(f)(1) of the Bankruptcy Code to make sure that all of the provisions of Section 365(b) of the code are adhered to and that 365(f) of the code does not override Section 365(b).

This addresses another problem under the Bankruptcy Code. The bill helps clarify that an owner should be able to retain control over the mix of retail uses in a shopping center. When an owner enters into a use clause with a retail tenant forbidding assignments of the lease for a use different than that specified in the lease, that clause should be honored. Congress has so intended already, but bankruptcy judges have sometimes ignored the law.

Congress made clear, in Section 365(b)(1) and 365(f)(2)(B), that the trustee may assume or assign an executory contract or unexpired lease of the debtor, only if the trustee gives adequate assurance of future performance under the contract or lease.

In Section 365(b)(3), Congress provided that for purposes of the Bankruptcy Code:

adequate assurance of future performance of a lease of real

property in a shopping center includes adequate assurance--

(A) of the source of rent and other consideration due under

such lease, and in the case of an assignment, that the

financial condition and operating performance of the proposed

assignee and its guarantors, if any, shall be similar to the

financial condition and operating performance of the debtor

and its guarantors, if any, as of the time the debtor became

the lessee under the lease;

(B) that any percentage rent due under such lease will not

decline substantially;

(C) that assumption or assignment of such lease is subject

to all provisions thereof, including (but not limited to)

provisions such as a radius, location, use, or exclusivity

provision, and will not breach any such provision contained

in any other lease, financing agreement, or master agreement

relating to such shopping center; and

(D) that assumption or assignment of such lease will not

disrupt any tenant mix or balance in such shopping center.

Congress added these provisions to the Code in recognition that a shopping center should be allowed to protect its own integrity as an ongoing business enterprise, notwithstanding the bankruptcy of some of its retail tenants. A shopping center operator, for example, must be given broad leeway to determine the mix of retail tenants it leases to. Congress decided that use or similar restrictions in a retail lease, which the retailer cannot evade under nonbankruptcy law, should not be evaded in bankruptcy.

It is my understanding that some bankruptcy judges have not followed this Congressional mandate. Under another provision of the Code, Section 365(f), a number of bankruptcy judges have misconstrued the Code and allowed the assignment of a lease even though terms of the lease are not being followed. This appears to ignore Section 365(b)(3).

For example, if a shopping center's lease with an educational retailer requires that the premises shall be used solely for the purpose of conducting the retail sale of educational items, as the lease in the In re Simon Property Group. LP v. Learningsmith, Inc. (D. Mass. 2000) case provided, then the lessor has a right to insist on adherence to this use clause, even if the retailer files for bankruptcy. The clause is fully enforceable if the retailer is not in a bankruptcy proceeding, and the retailer or the bankruptcy trustee or judge should not be able to evade it in bankruptcy. Otherwise, the shopping centers operator could lose control over the nature of its business.

In the Learningsmith case, the judge allowed the assignment of the lease to a candle retailer because it offered more money than an educational store to buy the lease, in contravention of Section 365(b)(3) of the Code. As a result, the lessor lost control over the nature of its very business, operating a particular mix of retail stores. If other retailers file for bankruptcy in that shopping center, the same result can occur.

In the past, courts have disagreed about whether Section 365(f) overrides the provisions of Section 365(b)(3). For example, in the case of In re Rickles Home Ctrs., Inc., 240 B.R. (D.Del. 1999), appeal dismissed, 209 F.3d 291 (3d Cir.), cert. denied, 531 U.S. 873 (2000), the

judge disregarded the use clause and allowed a lease sale to go through to a non-conforming user. However, in In re Trak Auto Corp., 367 F.3d 237 (4th Cir. 2004), an appellate court held that a use clause must be strictly enforced under Section 365(b)(3) on sale of the lease, notwithstanding Section 365(f). This legislation provides the necessary clarity by amending Section 365(f)(1) to help make clear it operates subject to all provisions of Section 365(b).

I note that Section 365(d)(4) of the Bankruptcy Code applies to cases under any chapter of Title 11. Language to that effect in the current Code's Section 365(d)(4) is deleted because it is repetitive of Sections 103(a) and 901 of the Code, which already make clear that provisions like Section 365(d)(4) apply to all cases under Title 11.

This bill creates new legal protections for a large class of retirement savings in bankruptcy. This measure has widespread support from a long list of groups, ranging from the American Association of Retired Persons, to the Small Business Council of America and the National Council on Teacher Retirement.

Let me take this opportunity to point out that the assets of some pension plans already are protected from bankruptcy proceedings. The United States Supreme Court has ruled in Patterson v. Shumate, reported at 504 U.S. 753 (1992), that assets of pension plans which have, and are required by law to have, anti-alienation provisions, are excluded from bankruptcy estates.

Let me be absolutely clear that this provision is not intended in any way to diminish the protections offered under existing law and under the United States Supreme Court's decision in Patterson v. Shumate, but rather, is intended to provide protection to other retirement plans and accounts not currently protected.

Mr. President, this has been a battle, there is no question about it, like all hotly contested issues are. But I think virtually everybody has contributed, and we have had some tough times on the floor. We have had even some bad feelings from time to time. But we have been at this for 8 solid, difficult years. It is unfortunate we could not work out more amendments, also, but we couldn't and still have this bill pass, hopefully for the last time. We worked in good faith to try to do that.

For those who feel they have not been treated as fairly as I would certainly have wanted to treat them or I feel I have treated them and others as well have treated them, we feel bad about that and hope they will forgive us for not being able to make some of the changes that perhaps we would have made had this been the first year of this bill and we didn't have the difficulty of meeting the suggestions of our friends over in the other body.

We think they have done a terrific job. The people in the House of Representatives are tremendous leaders, from Chairman Sensenbrenner right on through the whole Judiciary Committee and, of course, the leadership over in the House as well and others who are not on the Judiciary Committee but are concerned about this very important bill. They work closely with us. It is difficult for them and it is difficult for us, but that is the way these two bodies ought to work together, and this bill is a perfect illustration of what can happen if good people can get together, compromise on some of these issues that can be compromised, and yet stand firmly so we can pass legislation like this that will benefit the whole country.

In my final remarks, let me recognize the efforts of Ed Pagano and Bruce Cohen of Senator Leahy's office and Jim Flug and Jeff Teitz of Senator Kennedy's office for all the hard work they have done over the years on this issue as well. It is a pleasure to work with staff on the Judiciary Committee. They are bright. They are articulate. They are brilliant, as a matter of fact. That is what you want in Judiciary Committee staffers. I wish those on the minority side would not be nearly as tough as they are, but I respect them for being that way.

With that, I suggest the absence of a quorum.

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

I move to reconsider the vote, and I move to lay that motion on the table.

The motion to lay on the table was agreed to.

I suggest the absence of a quorum.

Mr. President, how much time remains?

Mr. President, let me talk about the Boxer amendment for a minute or two. The purpose of this amendment is to restrict credit availability for young adults.

Others believe that using credit cards to build a history is a laudable objective for young adults. This amendment does not distinguish between legitimate uses by young adults from other uses. It applies to any person under 21, regardless of his or her financial independence or employment situation.

Also, note that 18-year-olds can serve in the military, get married, vote, and in most States serve on juries, all without a cosigner.

This bill does address the issue of credit card debt and younger adults. Title XII of the bill provides for a study regarding the impact of the extension of credit to individuals who are claimed as dependents for Federal income tax purposes and are in college.

The same section provides other relevant credit card-related reforms that are the result of careful negotiation. These include several amendments to

the Truth in Lending Act which includes creating increased disclosure requirements for credit card statements and mandating the credit card companies assist borrowers in determining how long it will take to pay off their credit card balances; requiring certain additional disclosures to borrowers buying and refinancing their homes; require additional disclosures regarding credit card so-called introductory rates; extending Truth in Lending requirements to Internet-based credit card solicitations; adding new disclosures related to the credit card late fees; and prohibiting cancellation of credit cards solely due to borrowers' failure to incur finance charges.

These are good changes, in my view, and the view of the majority of the Senate. They were all carefully negotiated over the last 8 years. We do not need to come in now and make further revision to delicate compromises such as this. I urge my colleagues to vote against the Boxer amendment. It would do more harm than any good.

Amendment No. 67

I wish to speak against Senator Dodd's amendment 67. This is an omnibus amendment. There is nothing else to call it. This late in the game, a successful amendment usually targets specific provisions in the bill for improvement. And getting agreement on one of these rifleshot amendments can be like herding cats.

Quite frankly, this is a message statement. It asks us to protect families. This is a noble goal, but it is not one served by this amendment. This amendment alters the carefully negotiated means test to permit nearly all filers to avoid a presumption of abuse. In some respects, it is redundant.

For example, it lists as expenses many things that are already covered in the IRS standards used in the bill to determine appropriate expenses. In other areas, it is excessive. For example, it increases the allowable expenditures for private school education from $1,500 to $5,000.

The worst part of this is it created a category of miscellaneous expenses. This is not just a loophole. My gosh, you could drive a truck through the opening for abuse this amendment puts through the middle of the means test, a test that has the purpose of a reduction in abusive bankruptcy filings.

I said it once, and I say it again. This means test is the heart of this bill. The means test is fair. The means test has been carefully negotiated between Democrats and Republicans over 8 years of time. I have to oppose any effort to revise the means test at this late day. I urge my colleagues to vote against this amendment.

Amendment No. 110

I rise in opposition also to the Durbin amendment. It takes a broad swipe at the means test again. First, the very purpose of the means test is to treat genuinely impoverished filers fairly. If you are below the State median income, you are not subject to the means test. It is as simple as that. This amendment undermines the ability of a court to verify a person's income when he or she is filing for bankruptcy.

This amendment would remove the basic requirement that debtors fill out certain forms to verify their income. You have to fill out forms to get a driver's license, to get a job, to apply for a retirement plan. For example, when an individual applies for food stamps, there is a complete application process to verify income and assets before this benefit is approved. Is it too much to ask that if the Government is going to allow you to liquidate all of your debts, you at least show the court definitive proof of your income?

Instead, this amendment allows a person simply to declare that his income is below the State median income. All he has to show are ``calculations or other information.'' In other words, take their word for it. That seems to open the door to the fraud this bill is designed to prevent.

I believe most people are honest, but inevitably there are some applicants who will take advantage of the looser requirement. As Ronald Reagan said in a different context: Trust but verify.

I urge my colleagues to vote against the Durbin amendment, as well.

Amendment No. 66

I oppose the Harkin amendment. This was part of a problematic Rockefeller amendment we have already voted down. I respect my colleagues' dedication to the issue, but I must urge my colleagues to vote no.

I am pleased we invoked cloture yesterday by a vote of 69-31. If that is not bipartisan, I do not know what is. This bill has been in the works for 8 years now, and I hope we can soon pass it for the fifth and final time. My colleague from Wisconsin has 14 amendments pending. I also understand there are roughly another six or so Kennedy amendments and two Durbin amendments. That is 22 amendments between these Senators.

I wonder if my colleagues know how many other amendments are pending. The answer is three: one from the ranking member of the Judiciary Committee, one from Senator Akaka, and one from Senator Talent. What does this tell you?

I respect my colleagues from Wisconsin, Massachusetts, and Illinois, but why are they dragging out this process? Their amendments constitute roughly 88 percent of the remaining omnibus bill. I suspect that even if we accepted every one of the amendments, all three would not vote for this legislation. So this is important. I respect the right of Senators to bring up their germane amendments in postcloture situations. If they want to do it that way, they certainly can.

I oppose every one of those amendments. I think a majority of the Senators should oppose those, as well. We need to get this bill done. We know we have to keep it intact in order to get the House to take it and get it signed by the President. It is time to bring this to an end. We have been at it for 8 years and we have worked to accommodate everyone we possibly could. It has been a bipartisan vote every time, overwhelming bipartisan vote every time. By gosh, it is time to vote on this bill.

How much time remains?

Is that my time? I am prepared to yield back the remainder of my time and proceed to a vote.

Do we have the yeas and nays on all four amendments?

I ask for the yeas and nays on all four amendments.

I ask unanimous consent that after the first 15-minute rollcall vote the remaining three votes be 10 minutes each.

Mr. President, I will have a little bit to say about what the distinguished Senator from Massachusetts has been talking about, but I rise in opposition to the Kennedy amendment to S. 256, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Now, it is important that colleagues on both sides of the aisle fully understand what this amendment does to our bankruptcy laws and what it does to the prospects for reform. Before I start, I will take a few minutes to remind everyone what this bill is all about. The short answer is fairness. Those who can pay their bills should pay their bills. That is the American way.

All law-abiding, bill-paying consumers pay when some do not repay their obligations. You and I and every citizen of this country is going to pay if we allow people who can pay to escape their obligations, and this bill stops the gaming.

This is not too revolutionary an idea, but to listen to some of the opponents of this legislation on the floor these last few days, one would think we are trying to square a circle.

I have been down on this floor quite a bit over the last few days and I have heard many of the arguments from the few Senators against this bill, and I emphasize the ``few Senators against this bill.'' It sounds pretty familiar. I have been around this place for a long time and I only know one thing for sure. At the end of the day, some on the losing side will think that the underlying bill is without any merits at all and that their concerns have not been treated with the seriousness they feel they deserve.

The principal substantive argument we have heard is that this bill goes too far and too fast; we have to take it slow; we have to rethink this; this bill is too extreme, they say. For some of my colleagues across the aisle, this is the same old song we have heard now for 8 solid years that we have tried to put this bill together and it has always had huge bipartisan support. That is bipartisan support, Democrat and Republican support.

I am a bit confused by some of the arguments that have been used on some of the same old amendments and against the bill itself. Sure, there are places we could have done better in this bill, as in every other legislation. There are always things we could do better. But the votes we have gotten on this bill, on its amendments in committee, and in previous Congresses are

as good an indication as we can ever have of the underlying reasonableness of these proposals.

As a long-time supporter of the bankruptcy bill, I was extremely pleased by the strong bipartisan vote we had on cloture yesterday, 69 to 31. That is not just Republicans; there are a lot of Democrats who know this bill is the answer to a lot of the problems we have in bankruptcy in our society, and who have been working with us for 8 solid years in a bipartisan fashion. But to hear some of our critics, one would think that everybody concerned, all 69 of us, are nutcakes who do not know what is going on in our society or do not care for the poor, or for the weak, or for the worker, or for the union man. Give me a break.

I am one of the few people in this body who ever held a union card. I worked for 10 years in the building construction trade unions, earned my journeyman's card as a wood, wire, and metal lather, now a carpenter today, and I am darned proud of that. I think a lot about people who are not as fortunate as we are in the Senate.

As a long-time supporter of the bankruptcy bill, I was extremely pleased by the strong bipartisan vote, 69 to 31, on cloture. That was a big bipartisan vote by any measure. This vote is in keeping with the long record of bipartisan support for this bill over the life of the legislation.

I will briefly review this history: We held our first meeting on this in a Judiciary subcommittee in 1998. I want to make sure everyone heard that right: 1998. Early on, the good-faith compromises began. To give everybody an idea, these are some of the amendments we accepted in committee over the last 7 years. We modified the homestead exemption. We modified the means test. We allowed for sanctioning of attorneys who file abusive claims. We made privacy concessions for filers. We prevented creditors from demanding repayment for debts incurred through predatory lending practices, something that has long been overdue for the poor, the weak, and the unfortunate. All of these were amendments from my Democratic colleagues. I could go through dozens of others.

Two weeks ago, the Judiciary Committee held another markup on the bankruptcy legislation. We adopted five more amendments proposed by our Democratic colleagues. If some of the amendments that have been proposed on the floor sound similar to the matters I listed, that is because they are. Taken in a vacuum, as it might sound to anyone who randomly tunes in on C-SPAN, these amendments might sound reasonable. Yet in proper context of past history and compromises, many of these amendments should be understood for what they are: more of the same.

Many of the amendments address issues we have already negotiated previously. Frequently, these amendments make this a better bill. But now after so many years of hearing the same complaints, even after we attempted to address concerns by accepting or modifying amendments, including, I repeat, five in their latest and hopefully last markup of bankruptcy reform in the Judiciary Committee, it is less than clear that some of these remaining amendments will improve this already fully vetted bill.

The five amendments adopted in the markup ran the gamut. One was a technical fix that created a more restrictive inflation adjustment plan. We decided to prevent corporate executives--that is corporate executives, by the way--from declaring bankruptcy to avoid paying fines for securities fraud. That does not sound like something that hurts the little guy. We are trying to stop this type of fraud.

We accepted three amendments from the senior Senator from Massachusetts, Mr. Kennedy. We clarified the means test, even in an instance where we sincerely believed that the means test was already more than clear, to explain that without any debt, health and disability expenses will not be included against a filing for bankruptcy. We allowed for a trustee in cases of fraud involving persons representing the debtor. In an amendment that many think we went too far on, we even accepted a compromise version of an amendment that restricted payments to executives and businesses going through a bankruptcy. Unfortunately, this amendment may discourage senior officials from taking on the task of seeing a company through a difficult financial reorganization. The unintended consequences of this might be to further limit the ability of damaged companies to emerge from bankruptcy and to keep thousands of employees on the job. They may lose those employees. Those employees may lose their jobs if we cannot keep good, competent executives there. I think this issue deserves more attention. But we agreed to it.

I am hopeful. I have been chatting with my good friend from Massachusetts and he has indicated he thinks we might be able to resolve that problem so people will not lose their jobs. But it depends upon what he thinks, not on what I think, because I accepted the amendment in committee, as the person who was in charge of the committee at that time.

Fairness demands that we work with our colleagues in the minority but this is a two-way street. Fairness also demands that large bipartisan majorities, after they have done all they can to reach agreements with the other side, be allowed to move on. That is why we invoked cloture, so we can move on.

This bill is a case study in such accommodation. I could go through dozens and dozens more accommodations we made to the other side, and to people on this side as well. This bill first passed all the way back in the 105th Congress. Let me refer to this chart. In the 105th Congress we passed this bill 97 to 1. I don't think everybody who voted for this was an idiot, who did not care for the poor and the weak and the infirm and the downtrodden. No. We are trying to solve some of their problems. This bill passed the Senate by a 97 to 1 vote. You cannot get much more support than that. There is no denying the bipartisanship of that vote.

When we came back to the issue in the 106th Congress, we again had massive bipartisan support for this bill. The Senate passed H.R. 833 on February 2, 2000, 83 to 14. I think that was a pretty good bipartisan vote. It is virtually the same bill. Then the conference report came back and on December 7, same year, 2000, we passed this same bill 70 to 28. That was a big bipartisan vote--which was right. That bipartisan conference report was supported by Democrats and Republicans. That was vetoed with a pocket veto by President Clinton. He had a right to do that, but he pocket-vetoed it because it didn't have an abortion amendment on it.

What about the 107th Congress? Did we give up hope? I can tell you that I did not. I just could not believe, I still cannot believe that a bill with such wide support could repeatedly fail to become law. So what did we do in the 107th Congress? Let me refer to this chart. In the 107th Congress, on March 15, 2001, this bill passed again, 83 to 15, and then passed again, 82 to 16. Those are bipartisan votes. I don't think the Democrats who voted with us are idiots or did not care for the poor. I don't think they failed to acknowledge that we have to take care of those who are unfortunate in our society. They did acknowledge that it cost every family in America $400 extra because of what is going on in this system.

All in all, the full Senate has voted favorably on bankruptcy reform legislation five times. Five times, all sweeping bipartisan votes, and the bill is not yet signed into law.

If we adopt any of these amendments from people who will never vote for this bill no matter what we do--they would rather criticize it than vote for it. I can criticize aspects of this bill myself, I believe. But it is a classic working together in the best methodology that we have, to bring everybody together and get legislation done that will do a lot of good. It will cause people, who can afford to, to pay their bills, or at least pay some of their bills.

It seems to me that is the American way. We want to teach our children, our young people, that it is important to pay your bills. It is important to live up to your responsibilities.

We do a lot to make sure corporate America lives up to their responsibilities in this bill as well. The bill is not signed into law yet, but we hope we can get it through--apparently not tonight, but by tomorrow. If not tomorrow, then Friday. If not Friday, Saturday. As far as I am concerned, whatever it takes to get it done.

These reform-minded votes are not just coming from the Senate. Here is

how the House voted over the years, just so everybody knows. There are 535 Members of the House. Here is how they voted: 300 to 125; 313 to 108; 306 to 108. Overwhelming bipartisan votes, because this bill is the best we can do. It will do a lot of good, to make things right in our society. With all due respect, these are not even close calls. They are consistent, bipartisan blow-outs. But, to listen to the opposition, you would think this legislation is supported by only a small minority of Representatives in the House of Representatives or in the Senate. Nothing could be further from the truth.

I really do not know what else we can do. We have compromised when it was reasonable to do so. As a matter of fact, in our very first subcommittee debate on this issue we accepted an amendment from my distinguished colleague, the Senator from Illinois, that adjusted the requirements for being subject to the means test. That amendment created a safety valve for those who fall below the national median income.

This was an important amendment. This bill does not track it exactly, but our exclusion of those who fall below the State median income takes this original amendment as a guide. It materially limited the reach of the means test. It allowed a fresh start to those poor people who are drowning in a sea of debt with no way to pay it back.

I said many times during this debate and I will say it again: 80 percent of bankruptcy filers will be excluded from the means test--80 percent. They will be permitted to file chapter 11, which will completely wipe out their debts. The supposed draconian means test has results in only one half of the mere 20 percent that it even applies to. It allows those with incomes that remain above the State median income, after numerous health and education and other exceptions, to pay back some of their debt over the course of 3 or 5 years. It gives them even a break there.

When all is said and done, the means test in this bill will only result in about 1 in 10 individuals who file bankruptcy from ever having to pay some of their past debts with future earnings. So 10 percent of 100 percent will have to do some payback because they can afford to do it. It is only right. They should not saddle all America with their debts when they can afford to pay them back. But in the first markup, the man who is now the minority whip, my friend from Illinois, proposed the amendment that remains at the heart of the means test in this bill, and we accepted it.

What is amazing to me is that when my colleagues want to raise taxes they are always talking about how great the means test is. But when we want to make sure that people who can pay can pay, suddenly the means test is not a good test. You can't have it both ways. It is amazing to me. It is almost hypocrisy.

I am pleased that cloture has been invoked, giving us the opportunity to once again pass this bill. It is getting to the point where some might even forget why we initiated this legislation. We have been at it for 8 years now. Some of those who oppose the bill and are offering final postcloture amendments are flying in the face of years and years of hard work and bipartisan compromise. By the way, the ones who bring up the amendments will never vote for this bill no matter what you do, unless it is a complete cave-in, so we cannot solve the problems that are eating our country alive in bankruptcy. And they do it under the guise that they are trying to protect the weak and the infirm and those who really cannot help themselves.

Give me a break. We over here get so tired of those populist arguments. We hear them over and over and sometimes I think they think the more they yell and scream the more people must think their arguments are serious. I hope people are listening because, my gosh, after 8 years of compromising and working and bringing people together and listening to both sides and doing everything we can to accommodate, why do we have to go through all the same amendments over and over again; they have been defeated time and time again because they deserve being defeated. Yet it happens every time--they get up and act like the world is coming to an end because their populist rhetoric is not being listened to. Unfortunately, there are people out there who really believe this stuff when somebody starts yelling, screaming, and shouting on the Senate floor.

The fact is that many of these final amendments being proposed during this debate are just further adjustments of adjustments to adjustments that were already made during this process. We have made further adjustments and refinements when we found broad consensus. These amendments have been brought up postcloture.

You would think there would be a time when you admit that you have had your shot, you have had 8 years of your shot; you have had amendment after amendment, the same thing over and over again, and the amendments have been defeated. You would think sooner or later they would come to the conclusion to stop holding up the Senate and the people's business and let this bill go; we lost this bill even though we as liberals don't like it. But there are liberals who do like it because they know it is right. They know what we are trying to do here will work to the betterment of the bankruptcy laws of the country.

I would like to add that during the course of the floor debate over the last week and a half we accepted more amendments that will improve this bill.

The Senate agreed to the Sessions amendment that makes clear that bankruptcy judges must consider military and veteran status and health care costs when determining whether a portion of future income must be used to pay past debt.

The Sessions amendment addressed many of the issues presented by Senator Durbin with respect to military personnel and veterans, and Senator Kennedy with respect to health care costs.

We accepted the Specter amendment that made clear how bankruptcy judges will be paid through increased filing fees. This important amendment stands for responsible government and eliminates any objection to the legislation based on a budget point of order.

In addition, we adopted an important amendment by Senator Leahy that corrects some potential problems that relate to privacy of certain personal information, including Social Security numbers.

In short, we have improved this bill on the floor in a number of important aspects. We have been open to our colleagues. We have tried to accommodate them where we can. But there are areas where we can't and have this bill became law.

I think that the cloture vote we just took is evidence of those changes to this already moderate legislation. I understand some Senators do not think they have had an adequate hearing. At the beginning of this process, I gave them my word to at least consider amendments from all sides, and I believe we have done so. This institution is rather unwieldy, though. I think anybody who watches it or thinks about it has to admit that. That is probably putting it mildly. Unfortunately, even decent arguments, if they come at the wrong time, are going to have an uphill climb.

As I said earlier, since I was first elected I have tried my best to reach out to the other side as a good-faith actor. That is no less true with this bankruptcy bill. I have listened to more proposals and voted on more amendments that I can recall, and so has Senator Grassley and Senator Sessions and others who have worked so hard on this issue. My hope is that as we move forward the opposition remembers the bigger picture. Even those few Senators who will not vote for final passage know that this bill was made better because we have accepted their amendments over the years.

At this late date, though, it is difficult to accept many more for procedural reasons. I oppose the amendment offered by the distinguished Senator from Massachusetts for all of these substantive reasons.

Let me give a couple more substantive reasons. I accept Senator Kennedy's argument that health care costs are the key factor in bankruptcy. I have heard that for days around here; that most people go into bankruptcy because of health care costs. Much of his argument stems from the so-called Warren study. Let me talk about the Warren study cited by Senator Kennedy and give a response to it by the

Department of Justice. Here is what the Department of Justice said. I would suggest that the Warren study has been greatly overplayed here on the floor.

They said:

Professor Warren, a long-time opponent of bankruptcy

reform, and her so-called ``studies,'' should be approached

with skepticism.

Though Ms. Warren's study claims that more than half of

consumer bankruptcies are medically related, the DOJ has told

us that only ``the conclusion that almost 50 percent of

consumer bankruptcies are `medical related' requires a broad

definition and is generally not substantiated by the official

documents filed by debtors.''

In other words, this claim that 50 percent of the bankruptcies are caused by medical expenses is pure bull.

The means test doesn't apply to the poor or anyone without the ability to re-pay.

Anyone under the median income for their State is automatically exempt from the means test.

They can go right into chapter 7 and have every one of their debts removed; that is, the poor.

To the extent that ``above median'' families have ongoing medical expenses, they are permitted to use those expenses as a reason to not pay their debts. These are people above the median income level.

GAO's 1999 analysis of the expenses allowed under the means test clearly shows that the means test permits all debtors to account for health care expenses.

For people with repayment capacity and financial resources, the bankruptcy legislation prevents abuse by requiring some of their bills to repaid in exchange for not having to pay the full amount.

This is fair. If they can pay some, they ought to pay some. We shouldn't just stick the hospitals and the doctors and everybody in medical care with these unpaid debts.

I was talking to one of the large hospital chains the other day. I asked them how much uncompensated debt they had every year; in other words, medical care that you have given that you receive no compensation for. It was almost $1 billion a year that they have given in free medical care for the poor and for some who game the system. Guess who pays for that. You and I, and everybody else in the final analysis because it is going to have to come back in most cases to Medicaid and Medicare. These are Federal programs that wind up with those debts. By the way, we pay for them for a variety of reasons. We don't pay almost $1 billion to those hospitals. They don't get anything in most cases. That uncompensated debt means they are not getting paid. They are giving emergency care. That is why some hospitals are now doing away with emergency care facilities, because they can't keep doing it. People who do not pay their bills raise the cost of everything for all of us. That is OK when they can't pay their bills when they are poor. But when they can, and when they think they can just escape them by going into bankruptcy and they are capable of paying some or all of their bills, they ought to help to do it.

For people with repayment capacity and financial resources, the legislation prevents abuse by requiring some of the bills to be repaid in exchange for not having to pay the full amount.

If someone can't pay health care debts, the bill does not force them to. This bill will not force them to. If they can pay health care debts, they should repay those debts and those bills just like everybody else has.

The Sessions amendment we adopted last week addresses this problem. It simply addresses the problem.

Let me close by addressing the investment banker provision my colleague from Massachusetts has strenuously commented upon. I am not sure if strenuous is quite the word, but I will use that word here tonight. It seemed to me a little more than strenuous.

Companies in financial distress need the ability to retain good help. They need to be able to keep people on who know the company best and who will enable that company to emerge from reorganization a more healthy outfit that can continue providing for its employees and contribute to the economy.

Under current law, investment bankers alone among professionals in the business world were deemed, per se, interested persons who could not work for a company after filing for bankruptcy if they had served as banker for any outstanding security of the corporation. This bill simply extends the test, one of the materially adverse interests that applies to lawyers, accountants, and other professionals to investment bankers.

This amendment makes sense. It continues to provide the courts with discretion to exclude bankers from participation in a reorganization while giving companies more flexibility as they attempt to reorganize and save themselves.

The amendment under consideration would undo this flexibility by imposing a strict 5-year exclusion on participation by investment bankers. This makes little sense. I will be voting against the amendment. I urge my colleagues to do the same. I especially make the case that this is not special interest legislation, as my colleague says it is. This is a classic message amendment. The message we should send tomorrow is to vote ``no'' on this amendment. When we talk about message amendments, these are amendments that our colleagues know we cannot take for very good reasons, but they are trying to score political points with the Nation. Anyone who looks at these matters carefully and understands the law would say, let's not let these message amendments take over a good bill that can do so much good for our society. We then should vote ``yes'' on final passage because this is a good, balanced, bipartisan, bicameral bill.

What gets me down is I have heard these arguments for 8 solid years. Most of them do not make sense. Most of them are message arguments for political reasons by people who will never vote for this bill, basically have not helped bring this bill about, who have not cooperated in trying to bring both Houses together, who are not part of the huge bipartisan consensus on this bill, and who are trying to score political points, hoping we will never come on the floor and refute them.

I could not sit back and not come to the Senate tonight because we have to quit making political points. We ought to pass this bill so we can help this country and its people go forward in ways it should.

People who can pay their debts ought to. Companies that are doing wrong ought to pay for that. Where there is fraud, this bill will attack it.

We can go through so many good aspects of this bill. Could it be better? I have never seen a bill pass here of any magnitude that could not be improved. But we have had 8 years of improvements and this is the bill that will pass if we do not amend it. We should pass it. We should move forward from here.

Having said that, that does not mean we should not immediately start work on the next bankruptcy bill to see if there are ways we can improve even this. As this bill becomes law, we will find ways that it may not work as well as we contemplated and we ought to continually oversee this and make sure this bill works in the best interests of all Americans, that it works in the best interests of the poor, and the working people, our union men and women, people who have to make a living all over this country, and for investors and everybody else in our society. We ought to make sure we do the best we can. I assure you we will continue to try and work to continue to improve our laws in this country. That is what this body is all about.

I will briefly mention an important issue that arose from the amendment at the markup. This amendment offered by my friend from Massachusetts, Senator Kennedy, seeks to prevent unfair and unnecessary retention bonuses to insiders in chapter 11 companies. The goal here is certainly laudable and I agree with the desire to try to do that, but it has come to light since our markup that this amendment may act to effectively prohibit responsible companies undergoing reorganization-- in other words, trying to save themselves--from keeping key employees who may best be able to steer the company back into solvency.

I have a letter from the Association of Insolvency and Restructuring Advisors enumerating these concerns in further detail and I ask unanimous consent it be printed in the Record.

We have language in this issue which would mitigate what I believe are unintended effects of this amendment. Under this modified language, all payments where ``misconduct, fraud, or mismanagement'' is present are prohibited. This language also keeps the burden on chapter 11 companies to prove that retention bonuses are ``necessary, fair and reasonable,'' and ``likely to enhance a successful reorganization.''

This seems like a reasonable fix to me and I hope we include this language in the bill. I appreciate any help my friend from Massachusetts would give on that particular issue because if we are interested in doing what is right, this will do what is right.

Mr. President, I rise today to pay tribute to the legendary playwright Arthur Miller, who passed away on February 10, 2005 at the age of 89.

Anyone who has experienced ``Death of a Salesman,'' ``A View from the Bridge,'' ``The Crucible,'' or any of his innumerable masterpieces would certainly agree that Arthur Miller established himself as one of the preeminent American playwrights of our time. A literary genius may have left us, but his work will live forever, from Broadway to the local high school or college theater.

Today my colleague from Massachusetts and I submit a resolution recognizing the genius of this literary giant, a man who not only captivated our souls with his art but also motivated us to protect the freedom to speak and write with conviction and courage.

I do not want to take up the Senate's time with a long biographical or literary commentary on the life and works of Arthur Miller because I know I would inevitably fail to do justice to him. Instead, I would like to share a personal experience that demonstrated the amazing and unique qualities of this wonderful man.

As some in the Senate will remember, one of Arthur Miller's last public speaking appearances was at a hearing before the Judiciary Committee last year, at which he advocated passage of the Hatch-Kennedy Playwrights Licensing Antitrust Initiative Act.

The day of the hearing, I had the opportunity to meet privately with Mr. Miller in my Senate office. Though well into his eighties, he spoke with passion and eloquence about the critical importance of live theater and writers to social, intellectual, and political discourse in our country. He also demonstrated his delightful--and occasionally devilish--wit and prodigious intelligence, both of which he had retained in extraordinary abundance.

Although we came from very different backgrounds, and radically different political perspectives, it was an honor and a sincere pleasure to come to know--however briefly--a man of his stature, accomplishments, and surpassing intellect.

Our lives were enriched by Arthur Miller, and we--as individuals, as a people, and as a Nation--are diminished by the passing of so magnificent an American talent. He will be sorely missed, and will be remembered with reverence and affection by those--like me--whose lives he touched.

I hope that my colleagues will join me and Senator Kennedy--who is the leading cosponsor of this resolution--in recognizing and honoring the life and accomplishments of Arthur Miller by supporting swift passage of this resolution.

I ask unanimous consent that the remarks of Arthur Miller before the Senate Judiciary Committee on April 28, 2004, be printed in the Record.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Wednesday, March 9, 2005, at 10 a.m. to conduct a hearing on ``The State of the Securities Industry.''

Concurrent with the hearing, the committee intends to vote on the nomination of Mr. Ronald A. Rosenfeld, of Oklahoma, to be a director of the Federal Housing Finance Board.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Wednesday, March 9, at 10 a.m.

The purpose of the hearing is to consider the nominations of Patricia Lynn Scarlett to be Deputy Secretary of the Interior and Jeffrey Clay Sell to be Deputy Secretary of Energy.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet on Wednesday, March 9, 2005, at 9:30 a.m. to conduct a business meeting regarding S. 131, Clear Skies Act of 2005. The hearing will be held in SD-406.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet in open executive session during the session on Wednesday, March 9, 2005, at 10 a.m., to consider an original bill entitled, Personal Responsibility and Individual Development for Everyone (PRIDE) Act, and to consider favorably reporting the nominations of Harold Damelin, to be Inspector General, Department of the Treasury, Washington, DC, and, Raymond Wagner, to be a member of the Internal Revenue Service Oversight Board, Washington,

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions meet in executive session during the session of the Senate on Wednesday, March 9, 2005, at 10 a.m. in SD-430.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Wednesday, March 9, 2005, at 10 a.m. for a hearing to consider the Department of Homeland Security's budget submission for fiscal year 2006.

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Wednesday, March 9, 2005 at a time to be determined, to hold a business meeting to consider the nomination of Michael Jackson to be Deputy Secretary, Department of Homeland Security.

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Wednesday, March 9, 2005, at 9:30 a.m. in Room 485 of the Russell Senate Office Building to conduct a business meeting on S. 147, the Native Hawaiian Government Reorganization Act, and S. 536, a bill to make technical corrections to laws relating to Native Americans, and for other purposes, to be followed immediately by an oversight hearing on Indian Trust Reform.

Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Wednesday, March 9, 2005, for a joint hearing with the House of Representatives' Committee on Veterans' Affairs, to hear the legislative presentation of the Veterans of Foreign Wars.

The hearing will take place in room 216 of the Hart Senate Office Building at 10 a.m.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on March 9, 2005 at 3 p.m. to hold a closed briefing.

Mr. President, I ask unanimous consent that the Subcommittee on Emerging Threats and Capabilities be authorized to meet during the session of the Senate on March 9, 2005, at 9:30 a.m., in open session to receive testimony on the Department of Defense Science and Technology Budget and Strategy.

I thank my colleague.

Mr. President, I appreciate the remarks of my colleague. As usual, he has done a very good job in outlining what is involved in this bankruptcy bill, and I believe he deserves a lot of credit for the hard work he has done on the floor.

Mr. President, comes now the Schumer amendment or, should I say, comes again the Schumer amendment. I rise to speak in opposition to this amendment. Been there. Done that. In fact, I have been there and done that a few times.

I have been around here long enough to know a poison pill when I see one. And make no mistake about it, this has become a classic poison pill amendment.

I have worked in good faith for several years to attempt to neutralize the

counterproductive effects of this amendment. But no matter how we try to adjust the language, we cannot overcome the basic flaw in the amendment: The Schumer amendment is a solution in search of a problem.

I oppose this amendment. It is no secret that I am genuinely fond of the senior Senator from New York. While I frequently disagree with him on issues, I respect enormously his political skills.

Even when from my perspective he is wrong--such as the leadership role he has played in organizing the first permanent filibusters of majority-supported judicial nominations--I know that he always tries to act in a heartfelt manner that advances his political agenda.

We have been able to achieve compromises on many issues over the years. Senator Schumer and I have worked together on many crime issues. For example, we have worked on language pertaining to the designation of high-intensity drug trafficking areas.

Over a period of years we have tried to work together on the subject matter of the pending amendment to the bankruptcy bill. I have always been willing to work with him and others in the interest of passing the bankruptcy reform bill.

From the beginning of this debate, many others and I have long contended that his amendment is unnecessary on its own merits. The amendment which we consider today appears to seek to guarantee the collection of civil and criminal penalties arising from criminal violations of the 1994 Freedom of Access to Clinic Entrances Act. The purpose of the Schumer amendment is to make clear that those who are fined due to attacks on abortion clinics are prevented from being able to discharge these fines and civil judgments resulting from such attacks through bankruptcy proceedings.

My friend from New York has pushed a hot button. He must know that. Injecting the polarizing politics of abortion into the bankruptcy bill, most would have to agree, does not appear to be calculated to help the passage of the bankruptcy bill. Quite the opposite, the Schumer amendment has become a wedge issue that has stopped the bill in the past and, today, can threaten the passage of this important bipartisan bill that enjoys broad bicameral support.

I urge my colleagues to vote against the Schumer amendment. Let me first explain my substantive objections and then I will describe my procedural, pragmatic, and political concerns with the Schumer amendment.

At the outset, it should be understood that in its best light the Schumer amendment is a belts-and-suspender proposition that attempts to solve a problem which, as far as I can tell, has never actually occurred.

We have been debating this bill for 8 years, and I am still unaware of any actual case in which a person who has been fined for harming a person or property in connection with any unlawful protests against, or attacks on, abortion clinics, has had any subsequent fines or financial penalties discharged through bankruptcy. At our markup of this legislation in February of 2001--more than 4 years ago, Senator Schumer said in justification of the amendment:

. . . this is a vital amendment. I am not going into all

the details . . . I will not catalogue them except to tell

you that when Maria Vullo testified and anyone else did, they

said without the Schumer Amendment we would go back to the

days before 1994 when the clinics were closed by some who had

felt . . . that they were more moral than the rest of us. . .

.

Certainly that prophesy has not come to pass in the 4 years subsequent to the time that Senator Schumer made that statement back in 2001.

I am unaware of a systemic shutdown of the network of abortion clinics in this country over the past four years. Nor am I aware of any evidence of the use of the bankruptcy code as a mechanism of escaping financial responsibility for acts of violence against abortion clinics or their personnel, or for that matter, any other criminal enterprise.

The reason for this outcome is simple: Current law prevents such an outcome. Section 523(a)(6) of the bankruptcy code already prohibits the discharge of debts through willful or malicious injury to a person or property, and section 523(a)(12) makes restitution orders resulting from a criminal conviction nondischargeable through bankruptcy.

Nothing in this bill changes these provisions in the law. Moreover, a growing body of case law confirms the adequacy of these provisions when it comes to enforcing judgments arising from FACE Act violations.

In Behn v. Buffalo GYN Womenservices, a 1999 decision in Federal bankruptcy court in Senator Schumer's home State, the court rejected an attempt to discharge a civil award debt resulting from an abortion protest.

So it was rejected.

In Bray v. Planned Parenthood of Columbia/Willamette, decided in 2000, a bankruptcy court in Maryland rejected the attempt to discharge debts resulting from an Oregon case in which a Web site produced by anti-abortion extremists threatened the lives of those working in these clinics. The 2001 Treshman decision in a Maryland bankruptcy court confirmed that such actions will not be tolerated by permitting discharge of restitution or judgment through bankruptcy.

Randall Terry, the founder of Operation Rescue, is living proof of the adequacy of these laws. His Web site now solicits contributions after he was completely bankrupted as a result of actions found to be violative of the FACE Act.

From a purely legal perspective, it seems fair to say that what we have here is a solution in search of a problem. This is actually confirmed by the most recent testimony of my colleague from New York's star witness on this subject, Maria Vullo.

Way back when this amendment was first suggested back in 1998 or 1999, several cases were still pending. But now these cases have been resolved. And in every instance, the courts have refused a discharge of these debts.

In answer to a question of Chairman Specter in connection with the Judiciary Committee's last hearing on bankruptcy reform, held only 3 weeks ago, Ms. Maria Vullo acknowledged that she was ultimately successful under current law in all six bankruptcy courts where she acted to help prevent such improper bankruptcy discharges of abortion clinic-related fines.

There you have it. The primary litigator in these cases testified that she has won in all of her cases under existing law. This should help lead us to the conclusion that there is no compelling legal reason to change the law. There is an old saying: If it ain't broke, don't fix it.

We are not talking just belts and suspenders, we are talking belts, suspenders, and an elastic waist band. Discharges related to FACE Act violations have not been permitted under current law.

Our laws are clear. We discourage, prevent, and punish abusive filings, including those related to those offenses that occur in connection with abortion clinics. Again, to my knowledge, there is a complete absence of cases demonstrating the problem that this amendment seeks to address. This is not surprising.

Our bankruptcy laws already act to prevent, have prevented, and will act in the future to prevent precisely the problem that Senator Schumer is worried about, but cannot, it appears, document. The truth of the matter is that, on the merits, this is just an unnecessary amendment. Yet this amendment has already scuttled bankruptcy reform on two occasions.

In 2000 essentially the same bankruptcy bill passed this body with 83 votes and then 70 votes. It was vetoed by President Clinton in the waning days of his second term for failing to include this amendment. Then in the 107th Congress, the House of Representatives rejected even a twice-amended--and moderated--Schumer amendment.

Now that it is clear that the courts will not discharge these debts, the proponents of this amendment have slightly but subtly changed their tune. Now the alleged issue of concern is that some will nevertheless continue to attempt to discharge such fines and penalties--that is, sometime, some place, someone will try to use the bankruptcy code to shield illicit acts involving attacks on abortion clinics.

Some argue the amendment is justified on the supposed need to codify the general prohibition of section 523(a)(6) against discharging debts accrued in

connection with willful or malicious injury to a person or property with a special provision of law geared solely toward abortion clinic- related violence. The fact is, however, current bankruptcy law, along with the ever growing body of precedents on this subject, make it clear that attorneys will not be inclined to make these frivolous and abusive filings in the future.

Rule 9011 of the Federal Rules of Bankruptcy Procedure already allows sanctions against attorneys who participate in submissions to delay proceedings and needlessly increase the cost of litigation. It says a frivolous action without evidentiary support can be punished. I guess it is true that particular bankruptcy courts may sometime in the future eventually be faced with a filing by someone asking for improper discharge of debts, but that is just the nature of litigation within the bankruptcy system and the American system of justice.

Having the right to bring a claim in our system is very different from winning that claim. For each case that goes to trial, there is a winner and a loser. Trying to get around the bankruptcy code and case law precedents in the manner feared by supporters of the Schumer amendment is a losing case under current law.

Courts decide cases on the basis of the law and the particular facts in front of them. That bankruptcy courts will have to undertake their normal and traditional role of reviewing all relevant aspects of individual filings that may, or may not, include these improper and unsustainable claims related to abortion clinic damages is hardly a grave injustice.

And for what it is worth, the success of the FACE Act and the decisions of bankruptcy courts that hold those debtors to account appears to have resulted in an ever dwindling number of judgments that must be litigated.

This is an issue that is being overhyped.

The current statutes are clear.

The case law is clear.

The paucity of evidence of such claims for abortion clinic-related violence and injuries being routinely, or even infrequently, made in bankruptcy proceedings, reflects the fact that the word is out that the statutes and case law already prevent the problem that the Schumer amendment allegedly solves.

Moreover, I would like to add that section 319 of this bill expresses the sense of the Senate that all signed and unsigned documents submitted to a bankruptcy court must be preceded by a reasonable inquiry to verify that this information is well grounded in fact and warranted by existing law or based on a good faith argument for an extension, modification, or reversal of existing law.

I am hopeful that this sense-of-the-Senate provision will help spread the word even further.

When the Schumer amendment burst upon the floor in 2000, I worked in good faith to make this questionably meritorious issue more palatable to Members on my side of the aisle.

In particular, I wanted to help alleviate the concerns of those who, as I, hold strong pro-life views. We are sensitive to the fact that the original Schumer amendment could reasonably be interpreted as affecting first amendment rights to protest against what we believe is the unjustifiable practice of abortion.

It is my recollection that the original Schumer language back in 2000 also addressed attempted or alleged harassment, interference, and obstruction. Many believed that this language was way too broad and could have potentially implicated the actions of peaceful anti-abortion protestors who were simply exercising their freedom of speech.

Nevertheless, for a variety of reasons, mostly political rather than legal or policy, the Schumer amendment was accepted. One of the key factors was that it appeared to some at the time that the amendment was offered in part to give then-Vice President Gore an opportunity to possibly cast a tie breaking abortion vote during the Presidential election year of 2000.

I cannot say for certain that this was the case. But if it was, it probably would not have been the first time that Presidential politics played out on the floor of the Senate.

Before the February 2, 2000, vote on the Schumer amendment, I said the following on the Senate floor:

Although I believe this amendment to be tremendously

flawed, the majority leader, Senator Grassley, and I

recommend that Members on both sides vote for this amendment.

We will, in good faith, in conference correct the amendment

and resolve these problems at that time. With this amendment

accepted, nobody will be able to demagogue this issue

politically in the context of true bankruptcy reform. We

pledge to work with our friends on both sides of the aisle

who are interested in this issue during conference to make

sure the law is clear, that the due respect for the first

amendment, and debts arising from violent acts cannot be

discharged in bankruptcy.

This is hardly a ringing endorsement and certainly nothing near an absolute commitment to retain this language at any cost or contingency.

Nevertheless, in the 106th Congress the bankruptcy bill, with this flawed language, passed the Senate with 83 votes.

Eventually during the House-Senate conference committee the Schumer abortion clinic-specific amendment was not contained in the conference report. The bankruptcy legislation, without the Schumer language still passed the Senate with a strong bipartisan 70 votes.

Unfortunately, President Clinton then pocket vetoed the bill passed by both the House and Senate.

Early in the 107th Congress, I worked with Senator Schumer on compromise language that moved away from the incendiary abortion clinics-specific language to a more general and neutrally-phrased provision related to ``lawful good and services.'' This provision was adopted by a unanimous voice vote of the Judiciary Committee on February 28, 2001.

I would note for the record that despite this compromise, Senator Schumer voted against the bill on final approval in the Judiciary Committee.

On July 17 , 2001, this bill passed the Senate by a vote of 82-16.

The House-passed version of the bankruptcy bill in the 107th Congress once again did not contain comparable language. I might add that the House passed its bill by a strong bipartisan vote of 306-108 on February 26, 2001.

At this point Senator Schumer and I worked with Representatives Henry Hyde and John Conyers and others to fashion an acceptable compromise.

This compromise was rejected.

Frankly, at the time, I would have preferred that the compromise be accepted and this already overdue bill be signed into law.

However, I can well understand the frustration of many of my colleagues in the House being asked to adopt a watered-down version of an amendment without meaningful legal effect derived from the inflammatory original version of the Schumer amendment that addresses a problem that apparently does not exist in the first place.

Rather than go down this fruitless road again, I ask my colleagues to vote down the Schumer amendment for once and all.

Not only is it unlikely that the House will accept it, the Senate should not accept it either.

One important difference from the situation of 3 and 4 years ago is that we now have, as I discussed earlier, a more definitive picture of how the courts will interpret the application of section 523(a)(6) in the context of abortion-clinic related claims.

In short, the courts have not and will not allow fines or judgments stemming from the willful or malicious injury to a person or property to be discharged in bankruptcy whether they arise out of illicit actions against abortion clinics that violate the FACE Act, or, for that matter, any other of the literally dozens of other injuries that can be conjured up relating to willful or malicious injury to a person or property.

No one would, or should, take seriously any amendment that purported to state explicitly that fines or judgments incurred from yelling fire in a crowded theater could not be discharged through bankruptcy.

Nor should we support the Schumer amendment when we know it is both unnecessary and divisive.

You do not have to be pro-life to be against the Schumer amendment. You just have to conclude that 8 years is enough time to have worked on one bill that has repeatedly engendered broad bipartisan support.

And to hold up this legislation once again over an incendiary, extraneous,

redundant poison pill amendment is just not right.

I always try to seek a compromise or accommodation with my colleagues whenever it is productive to do so and consistent with my principles.

In this case it is simply not possible to do so in a productive manner absent any sign from the House that its Members are receptive to such a compromise.

Having worked on this issue for several years, I have reached the conclusion that the inherent volatility of the subject matter of the original Schumer amendment has made it nearly impossible to arrive at a neutral language resolution to this undocumented problem at this time.

Moreover, the well-known by now impasse over the acceptability of compromise language is compounded by the simple fact that there is, to my knowledge, no compelling evidence that there is a problem requiring a legislative fix.

To a certain extent, this is an exercise that demonstrates why it can be harder to fix a hypothetical problem than a real problem.

Frankly, that we would even be considering an amendment based on the 2001 Judiciary Committee markup language, rather than the revised 2001 conference report language, hardly seems like a step in the right direction. To use an expression that my friend from New York sometimes uses himself, reverting to the earlier language may seem to some a bit like a poke in the eye.

I suspect that this is unintentional on the part of my friend from New York. I wish we could have worked this out, and I thought we did work it out.

But as I look at all the facts and circumstances, including the developments in the actual cases brought and decided over the last few years, I can only conclude that there is even stronger evidence today than there was in 2000 and 2001 that this amendment is simply unnecessary.

While I attempted in good faith to resolve this problem 4 years ago, time seems to have proven that those I who looked askance at this compromise in the first place were correct in their assessment of the lack of necessity for this amendment.

I ask my colleagues to oppose the amendment of my distinguished friend from New York for these reasons. It is important that we get this bankruptcy bill finished. It is extremely important that we get it done. If this amendment is added, it isn't going to get done again, and we will be in the ninth year next year, frankly, probably 2 years from now because we will never get what really has to be done in the best interests of bankruptcy reform.

Mr. President, in a few hours we will be voting on cloture for this bill. I would just like to take a minute or two and remind everyone why it is time to end the debate on this bill.

It has been 8 long years of consideration on this legislation. We have all compromised a great deal. Not everyone got their preferred language or amendments. Not everyone is happy with the current legislation.

But I think everyone would have to agree that we have given thoughtful consideration and fair opportunity to all suggestions on the bill throughout the years of debate.

Over the years, we modified the homestead exemption.

We modified the means test.

We provided for sanctioning attorneys who file abusive claims.

And we hindered creditors who would try to collect through predatory lending practices.

All of these changes, among scores of others, came from my Democratic colleagues.

After all this, just 2 weeks ago, we took 5 more Democratic amendments in the Judiciary Committee markup.

And yet almost everyone of the pending amendments today touches upon the areas where we have previously compromised.

At a certain point, the time comes to move forward with what we have. Given how far we have come on this bill already over the last 8 years, and considering all the compromises that have been made, we may get no bankruptcy bill at all if we try to take more amendments.

The lopsided votes in favor of this bill in the past--with 70, 83, and even 97 votes in this Chamber--reveal that we are left with only a small minority of opposition. The fact is that a large majority of this body recognizes that we are not doing anything radical in this bill.

We simply ask that higher-income filers who can pay their bills, should pay their bills. It is as simple as that. There is no reason to ask the vast majority of bill-paying consumers to pickup the tab when those with means do not repay their obligations.

After 8 long years, we have compromised every which way we can. The remaining amendments being proposed are just further adjustments of adjustments to adjustments that were already made during this process.

There is simply no reason to continue to holdup this bill through the amendment process. The longer we delay, the greater the chances for mischief. The more we stall this measure, the more likely we open it to political, message amendments that can only act to stall work on this bill.

A time comes when you just have to say enough is enough. Eight years should be long enough to pass one bill.

I urge my colleagues to join me in voting for cloture.

Mr. President, today the Senate will consider two minimum wage amendments to the bankruptcy reform bill, S. 256. Senator Ted Kennedy's minimum wage amendment proposes to increase the minimum wage by $2.10 per hour in three steps over 26 months, and Senator Rick Santorum's amendment would raise the minimum wage by $1.10 an hour over 18 months.

I have always believed that increasing the minimum wage is not an effective way to improve living standards for the Nation's working poor. Simply put, raising the minimum wage is a Federal government mandate which creates negative ripples throughout the national economy by making goods and services more expensive for families. Raising the minimum wage closes the doors of many small businesses, and forces companies to move jobs offshore to less costly countries. Such an increase makes it more difficult for many lower skilled U.S. workers to get started in the job market.

Small businesses are the engine for economic growth in America and represent a powerful vehicle for opportunity. A minimum wage increase would negatively affect small businesses across the nation and in my home State of Utah.

For example, Wangsgard's grocery store of Ogden, UT, offers a full line of groceries, along with a meat shop, oven-fresh bakery, fresh produce, a deli and snack bar, coffee counter, garden center and Ace Hardware. Without a doubt, this store really is a one-stop solution.

Phillip Child, president and owner of Wangsgard's grocery store, informs me that a minimum wage increase would force him to reduce jobs. In fact, Mr. Child confirms that of his 93 employees, those who are earning minimum wage are either in high school or living at home with their parents. These employees are not supporting families. With the goal to open a second Wangsgard's grocery store in the near future, Mr. Child is concerned that an increase in minimum wage would certainly cut the number of new jobs available to the community.

I believe education and job-training programs are the key to raising take-home pay. Of course, it's much easier to pose as the champion of the poor and worry about the consequences later. Yet if Congress does move to increase the minimum wage, it should adopt a small, more gradual increase, and offset the negative consequences of a wage hike with measures to protect the small businesses that generate a majority of all new jobs and employ most Americans. That is why I support the Santorum amendment and oppose the Kennedy amendment.