Floor Statements

Mr. President, I rise in remembrance of SSG Larry I. Rougle of West Valley City. It is my privilege to speak regarding the tremendous sacrifice of this honored soldier.

On October 23, 2007, in the Kunar Province in Afghanistan, Sergeant Rougle died when his battalion encountered enemy fire. He was assigned to the 2nd Battalion, 503rd Airborne Infantry Regiment, 173rd Airborne Brigade. At the time of his death, he was only 25 years old. However, the sergeant had already given seven honorable years of service to the U.S. Army and been deployed on several tours of duty to Afghanistan and Iraq.

Graduating early from high school at the age of 17, Sergeant Rougle told his father that he had made the important decision to enter into military service. The sergeant's family said that he loved what he did, and that his main purpose was to help the poor people in war-torn countries.

He followed a great family military legacy. His father Ismael Rougle served in the Army for 25 years, which included a tour in Vietnam, and his son wanted to follow in his father's footsteps from a very young age. As a child, Sergeant Rougle would emulate his father by dressing up in his father's uniforms.

Sergeant Rougle was scheduled to come home for a midtour leave to celebrate his father's birthday and planned to take his 3-year-old daughter Carmin to Disneyland. By all accounts, he loved his daughter more than anything. Over the years, young Carmin will learn that her father was not just a great man--he was a hero.

It is our responsibility to never forget heroes like Sergeant Rougle. May his sacrifice always solemnly echo within us.

Mr. President, I wish to be associated with the remarks of the distinguished Senator from Arizona. I think he summed it up pretty well, but let me just make some comments myself about the Mukasey nomination.

Just when you thought it might be safe to venture back into the confirmation water, the partisan sharks rush in and push you right back onto the beach. Today is 40 days--40 days--since the Senate received the nomination of Judge Michael Mukasey to be Attorney General of the United States, 40 days in the partisan wilderness for a man who is superbly qualified and widely respected and whose service is desperately needed.

Before addressing what is being done to Judge Mukasey, let me remind my colleagues who he is. Michael Mukasey has spent four decades serving the law and the country. He spent 16 years in private legal practice, 4 years as a Federal prosecutor, and 19 years as a Federal district court judge. He was head of the Official Corruption Unit during his service as assistant U.S. attorney and chief judge during his last 6 years as a U.S. district judge, both in the Southern District of New York.

Judge Mukasey's service in that particular jurisdiction gave him the expertise in national security issues that makes him especially qualified to lead a Justice Department that is being retooled for the war on terrorism and especially since the war on terrorism continues as we stand here on the floor. He presided over the 9-month trial of Omar Abdel Rahman and sentenced him to life in prison for the 1993 plot to blow up the World Trade Center.

When the U.S. Court of Appeals for the Second Circuit affirmed Judge Mukasey's decision, it took the unusual step of commenting on how he handled the trial. These are the appeals court's words. Judge Mukasey:

. . . presided with extraordinary skill and patience,

assuring fairness to the prosecution and to each defendant

and helpfulness to the jury. His was an outstanding

achievement in the face of challenges far beyond those

normally endured by a trial judge.

That was the U.S. Court of Appeals for the Second Circuit on August 16, 1999.

That is a remarkable statement. Appeals courts review district court decisions, but rarely do they comment in this manner on district court judges.

Both generally and specifically, by any reasonable or objective standard, Judge Mukasey is eminently qualified to be our next Attorney General. By the standards set by my Democratic colleagues themselves, Judge Mukasey should by now have become Attorney General Mukasey. My Democratic colleagues have repeatedly said that the Justice Department needs new leadership and needs it now. The Senator from New York, Mr. Schumer, whom my colleague from Arizona quoted, is a Judiciary Committee member and a serious one. He has said:

We can't afford to wait because justice is too important.

He is not alone in making that statement among the Democrats. The Democratic mantra is, justice is too important to wait; we need a new Attorney General now. My Democratic colleagues also offered criteria, offered a description of the kind of Attorney General we need right away. The chairman of the Judiciary Committee, Senator Leahy, said:

We want the best man or woman who can run the place,

restore the sense of commitment and restore the sense of

integrity to the Department of Justice.

The Senator from New York, Mr. Schumer, who knows him well, said the nominee would have to be someone of unimpeachable integrity, experience, and someone who could hit the ground running.

I respectfully say to my Democratic colleagues that Judge Mukasey fits your bill. He can run the place. He is a man of integrity and experience. He certainly can hit the ground running.

It appeared for a short, brief time that my Democratic colleagues thought so too. After a full day of testimony, Chairman Leahy told Judge Mukasey that his answers showed his independence and his agreement that political influence has no place in law enforcement.

Mr. Schumer, the distinguished Senator from New York, said:

The most important qualities we need in an Attorney General

right now are independence and integrity, and looking at

Judge Mukasey's career and his interviews that we have all

had with him, it seems clear that Judge Mukasey possesses

these vital attributes.

I ask unanimous consent that these and some other quotes be printed in the Record following my remarks.

We need a new Attorney General now. In fact, we needed him 40 days ago. Justice is too important to wait. Judge Mukasey meets the criteria. He is qualified. He is ready to lead. Then why is Judge Mukasey not already on the job leading the Justice Department to where Americans think it needs to be? Why is his nomination stalled, 40 days into the confirmation process, without even a committee vote?

It is certainly not because this is the way Attorney General nominees have been treated in the past. In my 31 years in this body, we have taken an average of 3 weeks to move an Attorney General nominee from nomination to confirmation. It has already been twice that long--40 days and counting--for Judge Mukasey, and he was only today put on the Judiciary Committee agenda for next week.

Let me rewind the confirmation clock to 1993, the last time a Democratic Senate evaluated a nominee for Attorney General. Janet Reno, the Democratic nominee, received very different treatment than this Republican nominee is receiving today. Miss Reno's nomination went through the entire confirmation process from initial receipt to final confirmation in less time than Judge Mukasey's nomination has been sitting in the Judiciary Committee since this hearing.

While the Judiciary Committee will not vote on Mukasey's nomination until at least next week, the committee did not even wait for a markup to approve the Reno nomination.

I was the ranking member on the Judiciary Committee, and I supported

then-Chairman Biden's request to vote on Miss Reno's nomination at the end of the hearing. I knew Janet Reno was very liberal. I knew she didn't agree with most Republican Senators. But she was qualified. She was a decent person. To be honest with you, the Senate unanimously confirmed her the very next day after the hearing, without even a markup.

While Senators gave Judge Mukasey nearly 500 written questions, after 2 days of oral testimony--500 written questions, the answers to which he already has provided, I might add--no Senators gave even a single question to Miss Reno.

What happened? Why such radically different treatment when a Democratic nominee for Attorney General comes up? It is simply because a Republican rather than a Democrat is in the White House and because we have a different approach toward matters.

Most of us believe when a President is elected, that President, he or she, should have the right to the nominees they put up, as long as they are competent and decent.

The need for new Justice Department leadership remains. Judge Mukasey's obvious qualifications are the same. What happened that his nomination is now being obstructed, slowed down, and delayed? The latest excuse is that Judge Mukasey will not state on the fly a legal conclusion for a Justice Department he has not yet led about whether the coercive interrogation technique known as waterboarding constitutes torture. He will not come to legal conclusions before he can apply appropriate legal standards to appropriate facts. I think that is a mark in his favor. He should be praised, not criticized, for taking this approach.

Rather than focusing on his refusal to answer a question that he should not answer, I want to remind my colleagues what Judge Mukasey has said on this subject. Everyone appeared pleasantly surprised when Judge Mukasey denounced torture during his hearing. He went so far as to explain how torture violates not only statutes or treaties but the United States Constitution itself.

Judge Mukasey said if waterboarding properly can be labeled torture, then it too is unconstitutional. In a letter dated yesterday, Judge Mukasey said he considers techniques such as waterboarding personally repugnant. But personal conclusions are not the same as legal conclusions. So Judge Mukasey outlined in detail the kind of analysis he would follow to decide whether such interrogation techniques constitute torture prohibited by the Constitution, or cruel, inhuman, or degrading treatment prohibited by statute and the Geneva Conventions.

I ask unanimous consent that his letter be printed in the Record following my remarks.

Judge Mukasey wrote:

Legal questions must be answered based solely on the actual

facts, circumstances and legal standards presented.

How can he possibly be criticized for making legal judgments by applying legal standards to appropriate facts? What kind of crazy, topsy-turvy confirmation process is this? My Democratic colleagues demanded over and over that, if confirmed, Judge Mukasey must exercise his own independent judgment and that he must answer legal questions on his own; that he must not base advice on political pressure. But now they criticize him for doing precisely what they told him to do. Democrats now criticize Judge Mukasey for saying he will exercise his own independent judgment and answer legal questions on his own, without basing his advice on political pressure. My Democratic colleagues cannot insist that Judge Mukasey be independent toward a Republican President but compliant toward a Democratic Senate. They cannot declare that the Constitution is not whatever President Bush says it is, but demand Judge Mukasey's agreement that the Constitution is whatever Senate Democrats say it is.

We should stop playing partisan political games with this nomination. The Justice Department is too important for this type of stuff. Judge Mukasey is eminently qualified to provide the leadership the Department needs now. His insistence that independent legal judgment rather than emotion or partisan pressure will guide him only enhances his fitness for taking the helm at the Justice Department.

Forty days into the partisan wilderness is more than enough. We should confirm Judge Michael Mukasey without further delay.

I yield the floor.

Exhibit 1

democrats say the justice department needs new leadership now

Senator Chuck Schumer (D-NY): May 24, 2007: ``This nation

needs a new Attorney General, and it can't afford to wait.'';

August 27, 2007: ``the Justice Department . . . desperately

needs new leadership.''

Senator Sheldon Whitehouse (D-RI): June 11, 2007: ``the

U.S. Department of Justice is a precious institution in our

democracy . . . and we need to take some action.''

Democrats Praise Judge Mukasey

Senator Chuck Schumer (D-NY): May 22, 2007: ``If the

president were to nominate somebody . . . like a . . . Mike

Mukasey, my guess is they would get through the Senate very,

very quickly.''; October 17, 2007: ``The most important

qualities we need in an Attorney General right now are

independence and integrity. And looking at Judge Mukasey's

career and his interviews that we have all had with him, it

seems clear that Judge Mukasey possesses these vital

attributes.''; October 18, 2007: ``He could get a unanimous

vote out of this committee. . . . It's not a done deal yet.

But he could.''

Senator Pat Leahy (D-VT): October 16, 2007: ``I would

expect him to be confirmed.''; October 17, 2007: ``I

appreciate [not only] the succinctness of your answers but

the clarity of them.''

Senator Ben Cardin (D-MD): October 17, 2007: ``I've been

very impressed by the direct answers that you've given to

very important questions.''

Exhibit 2

michael b. mukasey

Hon. Patrick J. Leahy, Hon. Joseph R. Biden, Jr., Hon. Dianne

Feinstein, Hon. Charles E. Schumer, Hon. Benjamin L.

Cardin, Hon. Edward M. Kennedy, Hon. Herb Kohl, Hon.

Russell D. Feingold, Hon. Richard J. Durbin, Hon. Sheldon

Whitehouse,

Dear Chairman Leahy, Senators Kennedy, Biden, Kohl,

Feinstein, Feingold, Schumer, Durbin, Cardin and Whitehouse:

Thank you for your letter of October 23, 2007. I well

understand the concerns of the Senators who signed this

letter that this Country remain true to its ideals, and that

includes how we treat even the most brutal terrorists in U.S.

custody. I understand also the importance of the U.S.

remaining a nation of laws and setting a high standard of

respect for human rights. Indeed, I said at the hearing that

torture violates the law and the Constitution, and the

President may not authorize it as he is no less bound by

constitutional restrictions than any other government

official.

I was asked at the hearing and in your letter questions

about the hypothetical use of certain coercive interrogation

techniques. As described in your letter, these techniques

seem over the line or, on a personal basis, repugnant to me,

and would probably seem the same to many Americans. But

hypotheticals are different from real life, and in any legal

opinion the actual facts and circumstances are critical. As a

judge, I tried to be objective in my decision-making and to

put aside even strongly held personal beliefs when assessing

a legal question because legal questions must be answered

based solely on the actual facts, circumstances, and legal

standards presented. A legal opinion based on hypothetical

facts and circumstances may be of some limited academic

appeal but has scant practical effect or value.

I have said repeatedly, and reiterate here, that no one,

including a President, is above the law, and that I would

leave office sooner than participate in a violation of law.

If confirmed, any legal opinions I offer will reflect that I

appreciate the need for the United States to remain a nation

of laws and to set the highest standards. I will be mindful

also of our shared obligation to ensure that our Nation has

the tools it needs, within the law, to protect the American

people.

Legal opinions should treat real issues. I have not been

briefed on techniques used in any classified interrogation

program conducted by any government agency. For me, then,

there is a real issue as to whether the techniques presented

and discussed at the hearing and in your letter are even part

of any program of questioning detainees. Although I have not

been cleared into the details of any such program, it is my

understanding that some Members of Congress, including those

on the intelligence committees, have been so cleared and have

been briefed on the specifics of a program run by the Central

Intelligence Agency (``CIA''). Those Members know the answer

to the question of whether the specific techniques presented

to me at the hearing and in your letter are part of the CIA's

program. I do not.

I do know, however, that ``waterboarding'' cannot be used

by the United States military because its use by the military

would be a clear violation of the Detainee Treatment Act

(``DTA''). That is because ``water-

boarding'' and certain other coercive interrogation

techniques are expressly prohibited by the Army Field Manual

on Intelligence Interrogation, and Congress specifically

legislated in the DTA that no person in the custody or

control of the Department of Defense (``DOD'') or held in a

DOD facility may be subject to any interrogation techniques

not authorized and listed in the Manual.

In the absence of legislation expressly banning certain

interrogation techniques in all circumstances, one must

consider whether a particular technique complies with

relevant legal standards. Below, I provide a summary of the

type of analysis that I would undertake, were I presented as

Attorney General with the question of whether coercive

interrogation techniques, including ``waterboarding'' as

described in your letter, would constitute torture, cruel,

inhuman or degrading treatment, or a violation of Common

Article 3 of the Geneva Conventions.

The statutory elements of torture are set forth in 18

U.S.C. Sec. 2340. By the terms of the statute, whether a

particular technique is torture would turn principally on

whether it is specifically intended to cause (a) severe

physical pain or suffering, or (b) prolonged mental harm

resulting from certain specified threats or acts. If, after

being briefed, I determine that a particular technique

satisfies the elements of section 2340, I would conclude that

the technique violated the law.

I note that the Department of Justice published its

interpretation of 18 U.S.C. Sec. 2340 in a December 30, 2004

memorandum to then-Deputy Attorney General James B.

Comey, which superseded the memorandum of August 1, 2002

that I testified was a ``mistake.'' I understand that the

December 30, 2004 memorandum remains the Department's

prevailing interpretation of section 2340. Although the

December 30, 2004 memorandum to Mr. Comey does not discuss

any specific techniques, it does state that ``[w]hile we

have identified various disagreements with the August 2002

Memorandum, we have reviewed this Office's prior opinions

addressing issues involving treatment of detainees and do

not believe that any of their conclusions would be

different under the standards set forth in this

memorandum.''

Even if a particular technique did not constitute torture

under 18 U.S.C. Sec. 2340, I would have to consider also

whether it nevertheless would be prohibited as ``cruel,

inhuman or degrading treatment'' as set forth in the DTA and

the Military Commissions Act (``MCA'')--enacted after the

Department of Justice's December 30, 2004 memorandum to Mr.

Comey--which extended the Convention Against Torture's

prohibition on ``cruel, inhuman or degrading treatment'' to

individuals in United States custody regardless of location

or nationality. Congress specified in those statutes, as the

Senate had in consenting to the ratification of the

Convention Against Torture, that the Fifth, Eighth, and

Fourteenth Amendments to the U.S. Constitution would control

our interpretation of the phrase ``cruel, inhuman or

degrading treatment.''

The Fifth Amendment is likely most relevant to an inquiry

under the DTA and MCA into the lawfulness of an interrogation

technique used against alien enemy combatants held abroad,

and the Supreme Court has established the well-known ``shocks

the conscience'' to determine whether particular government

conduct is consistent with the Fifth Amendment's due process

guarantees. See County of Sacramento v. Lewis, 523 U.S. 833,

850 (1998); Rochin v. California, 342 U.S. 165, 174 (1952). A

legal opinion on whether any interrogation technique shocks

the conscience such that it constitutes cruel, inhuman or

degrading treatment requires an understanding of the relevant

facts and circumstances of the technique's past or proposed

use. This is the test mandated by the Supreme Court itself in

County of Sacramento v. Lewis in which it wrote that ``our

concern with preserving the constitutional proportions of

substantive due process demands an exact analysis of

circumstances before any abuse of power is condemned as

conscience shocking.'' 523 U.S. 833, 850 (1998) (emphasis

added). As the Supreme Court has explained, a court first

considers whether the conduct is ``arbitrary in the

constitutional sense,'' a test that asks whether the conduct

is proportionate to the governmental interests involved. Id.

at 847. In addition, the court must conduct an objective

inquiry into whether the conduct at issue is ``egregious'' or

``outrageous'' in light of ``traditional executive behavior

and contemporary practices.'' Id. at 847 n.8. This inquiry

requires a review of executive practice so as to determine

what the United States has traditionally considered to be out

of bounds, and it makes clear that there are some acts that

would be prohibited regardless of the surrounding

circumstances.

I would have to ensure also that any technique complies

with our Nation's obligations under the Geneva Conventions,

including those acts, such as murder, mutilation, rape, and

cruel or inhuman treatment, that Congress has forbidden as

grave breaches of Common Article 3 under the War Crimes Act.

With respect to any coercive interrogation technique, the

prohibition on ``cruel or inhuman treatment'' would be of

particular relevance. That statute, similar in structure

to 18 U.S.C. Sec. 2340, prohibits acts intended (a) to

cause serious physical pain or suffering, or (b) serious

and non-transitory mental harm resulting from certain

specific threats or acts. Also, I would have to consider

whether there would be a violation of the additional

prohibitions imposed by Executive Order 13440, which

includes a prohibition of willful and outrageous personal

abuse inflicted for the purpose of humiliating and

degrading the detainee.

As I testified, any discussion of coercive interrogation

techniques necessarily involves a discussion of and a choice

among bad alternatives. I was and remain loath to discuss and

opine on any of those alternatives at this stage for the

following three principal reasons: First, to repeat, I have

not been made aware of the details of any interrogation

program to the extent that any such program may be

classified, and thus do not know what techniques may be

involved in any such program that some may find analogous or

comparable to the coercive techniques presented to me at the

hearing and in your letter. Second, I would not want any

uninformed statement of mine made during a confirmation

process to present our own professional interrogators in the

field, who must perform their duty under the most stressful

conditions, or those charged with reviewing their conduct,

with a perceived threat that any conduct of theirs, past or

present, that was based on authorizations supported by the

Department of Justice could place them in personal legal

jeopardy. Third, for the reasons that I believe our

intelligence community has explained in detail, I would not

want any statement of mine to provide our enemies with a

window into the limits or contours of any interrogation

program we may have in place and thereby assist them in

training to resist the techniques we actually may use.

I emphasize in closing this answer that nothing set forth

above, or in my testimony, should be read as an approval of

the interrogation techniques presented to me at the hearing

or in your letter, or any comparable technique. Some of you

told me at the hearing or in private meetings that you hoped

and expected that, if confirmed, I would exercise my

independent judgment when providing advice to the President,

regardless of whether that advice was what the President

wanted to hear. I told you that it would be irresponsible for

me to do anything less. It would be no less irresponsible for

me to seek confirmation by providing an uninformed legal

opinion based on hypothetical facts and circumstances.

As I testified, if confirmed I will review any coercive

interrogation techniques currently used by the United States

Government and the legal analysis authorizing their use to

assess whether such techniques comply with the law. If, after

such a review, I determine that any technique is unlawful, I

will not hesitate to so advise the President and will rescind

or correct any legal opinion of the Department of Justice

that supports use of the technique. I view this as entirely

consistent with my commitment to provide independent judgment

on all issues. That is my commitment and pledge to the

President, to the Congress, and to the American people. Each

and all should expect no less from their Attorney General.

Sincerely,

Michael B. Mukasey.

Mr. President, today I wish to speak on a topic that is of growing importance to many throughout our Nation, especially in my home State of Utah. That subject is family history.

As many of my colleagues know, I have always been a strong believer in the importance of researching personal family history and learning more about our roots and heritage. For some, it is a hobby; for others, it is a passion to collect, preserve, and share genealogies, personal histories, and memorabilia that document the life and times of families around the world.

Studies show that a large majority of Americans have an interest and are actively involved in tracing their family's history. Indeed, millions of individuals throughout the United States and the world continue to utilize our Nation's libraries and archives to search the records that detail the history of our Nation, our States, our communities, and our citizens. In recent years, the Internet has also become an invaluable tool for those seeking to learn more about where they came from and what legacies they have inherited.

I have been pleased to learn that several agencies throughout the Federal Government have established programs which I believe will greatly assist our citizens in their desire to research their family history. The National Archives and the Departments of Defense, Veterans Affairs, the Interior, Commerce, and Justice have all undertaken efforts to make digital copies of American records accessible through the Internet. Once completed, these programs will ensure that countless historical documents, including military, census, court, land, justice, and probate records as well as photographs, newspapers and other sources of historical information will be preserved for generations to come.

As you might expect, Mr. President, scanning billions of documents is a daunting, as well as expensive, task. Realizing this, Federal agencies have created numerous public-private partnerships with various companies throughout the country, including some from my home State of Utah. Many of these companies do so out of an interest in helping the public gain access to important documents and are not wholly motivated by profits or gain. The expertise provided to the government by many Utahns have made it easier for agencies to scan, index, and preserve various records for posterity. Private organizations have also worked with government archivists to devise disaster plans in order to protect vital records from being destroyed in event of catastrophe.

The importance of protecting and preserving the history of our country cannot be overstated. Recent events, such as Hurricane Rita and the fire in the Washington, DC Library, have demonstrated the need to be proactive in preserving the records of our Nation's past.

Mr. President, I want to commend those, both in the government and the private sector, who have worked to preserve our Nation's heritage for future generations. As one who has long been interested in family history, I am extremely grateful for their efforts.

Madam President, I rise today to commemorate one of Utah's fallen sons, SFC Rocky H. Herrera of Salt Lake City, UT. Sergeant Herrera was a member of the 585th Pipeline Company, 864th Engineer Combat Battalion. On August 28, 2007, he lost his life through injuries received from the detonation of an improvised explosive device.

Sergeant Herrera's last act was a measure full of the love and devotion he had for his fellow soldiers. Sergeant Herrera's battalion was building a bridge when a suicide bomber drove a vehicle carrying an explosive device headed toward them. I have been reliably informed that just prior to the explosion Sergeant Herrera placed his body between the vehicle and his men to protect the lives of his beloved soldiers.

In addition to this act of bravery, Sergeant Herrera has always dedicated his life to the preservation of freedom. In 1986, Sergeant Herrera joined the Army Reserve and served as a crane operator. A decade later he proudly joined the full time force.

In addition to the two tours he served in Iraq, he was also deployed to Bosnia, South Korea, and Honduras. In each assignment he excelled and was accordingly promoted to such vital assignments as a squad leader and a drill instructor.

Recently, Sergeant Herrera's life was blessed by the birth of his granddaughter Kylie. The sergeant has left behind his wife Traci, as well as two daughters and two sons. One of Sergeant Herrera's sons, Matt, remembers his dad always spent as much time with the family as he could.

I will pray for Sergeant Herrera's family and remember their sacrifice of their husband, father, and grandfather.

Specialist Jason N. Marchand

Mr. President, I also rise today to pay tribute to one of Utah's fallen soldiers. SPC Jason N. Marchand was a member of the 2nd Cavalry Regiment and at the time of his death was deployed as part of a 2-week field tour north of Baghdad.

Specialist Marchand's told his family that he joined the Army to protect his family and friends. Before his deployment to Iraq, Specialist Marchand spent the previous year and a half in Germany, which his mother said he loved.

Specialist Marchand was born on April 8, 1981, in Salt Lake City, UT, to his parents Debbie Parsons and William Marchand, M.D. Specialist Marchand had a special relationship with his family. His mother stated they were open enough to share anything with one another.

Specialist Marchand leaves behind a wife and a 6-year-old daughter, Savannah. At the funeral of Specialist Marchand, Savannah said that she wanted to release some balloons for her father. She wanted them to fly up to heaven to be with him there.

Specialist Marchand is a fine example of an honorable U.S. soldier. I am grateful for brave individuals like Specialist Marchand who give their life to create a brighter future for their family, friends, and Nation.

(At the request of Mr. Reid, the following statement was ordered to be printed in the Record.)

sergeant jason lantieri

Mr. President, I rise today to introduce S. 2213, the Cyber-Crime Act of 2007. I am joined in this effort by my colleague and good friend Senator Biden. This bipartisan legislation makes important, appropriate and necessary changes to federal law relating to computer fraud.

Continuous innovation in technology provides remarkable benefits to individuals throughout the world. In the United States, the integration of computer networks has allowed for increased efficiency of American businesses and provided greater access to

services and information for individuals. The ability of individuals and businesses to store vast amounts of data on computer networks has led to innumerable advantages including increased productivity and financial savings.

However, these same networks have proven to be prime targets for criminals seeking to utilize malicious computer code for illicit gain. Criminals are using viruses to exploit technological weaknesses in computer networks. These collections of compromised computers are called ``botnets'', and serve as zombie networks which can be remotely controlled by an attacker and used for numerous crimes, including identity theft and attacks on critical computer systems. Botnets can consist of hundreds of thousands of computers, and most victims are unaware their computer equipment has been compromised. An underground market has developed for these botnets, as criminals are renting these compromised networks to carry out different types of attacks. Botnets have the ability to grow exponentially and the potential damage from these networks grows accordingly.

Botnets pose a tremendous threat to our national infrastructure, economy, and security. Portions of the federal law relating to computer crime, written in a pre-Internet era, are inadequate and leave several unaddressed loopholes in our criminal code. For example, under current federal law a creator of a botnet can only be charged if the financial loss to one or more persons during one year passes a certain dollar threshold. It can be very difficult to put a price tag on the losses experienced by computer users, as it is not easy to calculate how much money an individual's time is worth in terms diverted from work or in trying to fix a malicious bot. In addition, it is possible for a criminal to create large botnets that can be utilized for future denial of service attacks and other violations, and still not violate this section of law.

In order to address this, the legislation we offer today modifies the Federal criminal code by criminalizing willful damage to 10 or more computers in any one year period. This change will allow the prosecution of criminals who covertly install malicious bots on protected computers with the purposes of making a botnet.

Also, S. 2213, will make other necessary changes to the Federal code, including expanding the definition of cyber extortion, and permit law enforcement seizure of computer equipment and other property used to perpetrate computer crimes. As well, the bill includes a directive to the U.S. Sentencing Commission to consider many highly relevant factors in its review of appropriate sentences for cyber crime.

All of the changes contemplated by this legislation, if aggressively enforced by law enforcement, will have a positive impact on our security. In this information age, it will not take long for potential criminals to hear about the new tools available to law enforcement personnel and many will be deterred from perpetrating illegal activity over the Internet.

As criminals continue to adapt their tactics to exploit technological changes and loopholes in the law, it is imperative that Congress pass legislation that allows Federal law enforcement to maintain vigorous and tireless efforts in the investigation of cyber crime activity. I am confidant that this legislation, once enacted, will provide for the tools needed to pursue those who choose to inflict such harm to our society.

Mr. President, I rise today to introduce S. 2213, the Cyber-Crime Act of 2007. I am joined in this effort by my colleague and good friend Senator Biden. This bipartisan legislation makes important, appropriate and necessary changes to federal law relating to computer fraud.

Continuous innovation in technology provides remarkable benefits to individuals throughout the world. In the United States, the integration of computer networks has allowed for increased efficiency of American businesses and provided greater access to

services and information for individuals. The ability of individuals and businesses to store vast amounts of data on computer networks has led to innumerable advantages including increased productivity and financial savings.

However, these same networks have proven to be prime targets for criminals seeking to utilize malicious computer code for illicit gain. Criminals are using viruses to exploit technological weaknesses in computer networks. These collections of compromised computers are called ``botnets'', and serve as zombie networks which can be remotely controlled by an attacker and used for numerous crimes, including identity theft and attacks on critical computer systems. Botnets can consist of hundreds of thousands of computers, and most victims are unaware their computer equipment has been compromised. An underground market has developed for these botnets, as criminals are renting these compromised networks to carry out different types of attacks. Botnets have the ability to grow exponentially and the potential damage from these networks grows accordingly.

Botnets pose a tremendous threat to our national infrastructure, economy, and security. Portions of the federal law relating to computer crime, written in a pre-Internet era, are inadequate and leave several unaddressed loopholes in our criminal code. For example, under current federal law a creator of a botnet can only be charged if the financial loss to one or more persons during one year passes a certain dollar threshold. It can be very difficult to put a price tag on the losses experienced by computer users, as it is not easy to calculate how much money an individual's time is worth in terms diverted from work or in trying to fix a malicious bot. In addition, it is possible for a criminal to create large botnets that can be utilized for future denial of service attacks and other violations, and still not violate this section of law.

In order to address this, the legislation we offer today modifies the Federal criminal code by criminalizing willful damage to 10 or more computers in any one year period. This change will allow the prosecution of criminals who covertly install malicious bots on protected computers with the purposes of making a botnet.

Also, S. 2213, will make other necessary changes to the Federal code, including expanding the definition of cyber extortion, and permit law enforcement seizure of computer equipment and other property used to perpetrate computer crimes. As well, the bill includes a directive to the U.S. Sentencing Commission to consider many highly relevant factors in its review of appropriate sentences for cyber crime.

All of the changes contemplated by this legislation, if aggressively enforced by law enforcement, will have a positive impact on our security. In this information age, it will not take long for potential criminals to hear about the new tools available to law enforcement personnel and many will be deterred from perpetrating illegal activity over the Internet.

As criminals continue to adapt their tactics to exploit technological changes and loopholes in the law, it is imperative that Congress pass legislation that allows Federal law enforcement to maintain vigorous and tireless efforts in the investigation of cyber crime activity. I am confidant that this legislation, once enacted, will provide for the tools needed to pursue those who choose to inflict such harm to our society.

Mr. President, I rise today to join with my friend and colleague from Montana, Senator Baucus, to introduce the Research Credit Improvement Act of 2007. We are joined by a bipartisan group of our Finance Committee colleagues: Senators Cantwell, Crapo, Kerry, Smith, Lincoln, and Snowe. As its title suggests, the purpose of this legislation is to extend permanently and to improve the research credit, which is set to expire in just a short time, at the end of 2007.

Our Nation has benefited greatly in recent years from strong economic growth. I believe it is vital for all Americans to realize that this economic growth did not just happen by accident. Rather, it is based on several factors, and one of the more important of these is innovation.

Innovation certainly does not just happen either. It is the result of several specific ingredients. Chief among those ingredients is the amount of research and development occurring in the economy. Where does R&D come from? It comes from individuals, companies, and governments who are willing to invest time and money.

Research and development is very expensive for companies to undertake. By its very nature, research activities seldom result in success immediately. There are many dead ends and much frustration on the way to the discovery of a product that can lead to profits.

Moreover, many times a firm's efforts to find innovative solutions to life's problems result in good discoveries for mankind, but little or no immediate or even intermediate rewards for the company undertaking the research. For this reason, most economists agree that even private research and development activities can create a common good, and one that should be partially subsidized by the public.

The original research credit was enacted over 25 years ago to encourage an increase in R&D activity and to help subsidize the common good that often is derived from research and innovation.

Just as today's economic health is a byproduct of the innovation that came from yesterday's investment in R&D, our future economic health will depend on the amount of innovation we harvest from our investment in research activities today, tomorrow, and into the future.

Years ago, our country had the clear edge on the rest of the industrialized world when it came to having the most nurturing environment to foster research and development. We had more than our share of the scientists, researchers, and other skilled workers to engage in R&D. We had plenty of capital. We had world-class facilities. And we had the biggest market for products right here in the U.S. All the ingredients for innovation were right here, and few other countries could match our research environment. Thus, there was little thought of going anywhere else to perform research.

Sadly, this is no longer the case. Many of our trading partners now possess equal, and sometimes, superior environments to promote research to those we have here in the U.S. More importantly, many of these trading partners now offer strong tax and other incentives designed to lure research to those nations and away from our shores.

Without a strong and effective research incentive of our own, I fear that the United States is at risk of losing its leadership position in innovation. The consequences of this could be very serious for our future economic growth and job creation, as well as for long-term prosperity and national security.

Unfortunately, as I mentioned earlier, our research credit is set to expire in just a few weeks, at the end of December. Once again, American businesses are finding themselves in the all-too familiar position of wondering if the Congress is going to extend the research credit, and if so, when and for how long.

This perennial guessing game that we force our research-intensive firms to play every year or two is getting old. Moreover, it makes the research credit far less effective than it would otherwise be if it were a constant. While it is true that there is some level of confidence among the users of the research credit that this incentive will be extended, everyone knows that the chances of the credit's renewal are not certain, especially in today's volatile legislative climate.

Therefore, the legislation we are introducing today once again provides for the credit to be made permanent. 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.

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. 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.

My home State of Utah is a good example of how important research and innovation is to state economies, and to our future prosperity. 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.

According to a recent article in one of Utah's major newspapers, the Deseret Morning News, the number of Utah high tech and life sciences companies grew at the astonishing rate of more than 10 percent--from 3,900 to 4,300--over the period of September 2005 to September 2006. These industries in Utah employ more than 62,000 workers, with average pay that is 66 percent higher than the statewide average nonagricultural wage. About 3,000 of these jobs are new ones added in the past year.

These are the kinds of jobs and the kind of job growth that Utah, and all of the United States, needs for this new century. The jobs and companies in the high tech and life sciences sectors in Utah and around America are diverse. But they have several things in common. They are clean, they are high-paying, and they require an educated workforce. The vast majority of these companies export products, helping to offset our trade imbalance. Most importantly, however, is the fact that all of these jobs depend on innovation as their lifeblood. R&D is in the very DNA of these companies.

One more thing all these highly desirable high tech jobs have in common is that America is at risk of losing them if we are not careful to maintain an environment that nurtures innovation and the other vital ingredients that gave rise to these jobs in the first place. To my way of thinking, keeping a strong and viable research credit is a key part of this environment.

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 continue to grow our economy we must maintain and enhance our position as the world leader in technological advances. The worst thing we could do is to let it slip. 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.

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. There are several reasons for this, but a major one is that the original, or traditional, credit is calculated using a base period from the mid-1980s. This reference period is becoming more distant and thus less relevant to the business operations of more companies each year. For example, many companies have had major changes in their business models over the past two decades. Yet, the traditional credit still requires a calculation that references revenue from this set of years from two decades ago.

This has been a growing problem for a number of years. To address it, Congress last year included an alternative to the traditional credit that instead of referencing the old base period, is based on the taxpayer's most recent three years of research activity. This credit, known as the simplified alternative credit, has provided a meaningful tax incentive for firms with significant and growing amounts of research expenditures that were not getting much, if any, benefit from the traditional credit.

Based on many discussions with companies that use the research credit, it appears that the alternative simplified credit is now being used by more companies than is the traditional credit. This is true even though the alternative simplified credit is set at 12 percent, while the traditional credit is set at 20 percent.

Therefore, Senator Baucus and I have decided to introduce a change in the research credit that would phase out the traditional credit, even as we increase the benefits of the alternative simplified credit. Specifically, our bill would continue the traditional credit for two more years, and then would eliminate this method of computing the research credit, beginning in 2010. At the same time, however, the bill would increase the alternative simplified credit from the 12 percent current rate to 16 percent in 2008, 18 percent in 2009, and 20 percent for 2010 and thereafter.

We believe this gradual transformation from the increasingly obsolete traditional credit to a single more relevant and strong alternative simplified credit should create a smooth and generous transition, both for traditional credit companies and for firms that find the new alternative simplified credit to be more beneficial.

I urge my colleagues on both sides of the aisle to join us in this effort. We have had widespread bipartisan support for extending the research credit here in the Senate. In fact, the Senate in 2001 passed a permanent research credit, but its permanence unfortunately was downgraded to another extension in conference with the House bill.

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 created, and lost opportunities as research activities move to other countries with more attractive incentives. Again, we should never forget that our Nation's future economic health is dependent on the innovations of today and tomorrow.

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 fail to extend this credit before it expires on December 31. We need to make the credit permanent so we can increase the growth rate of our economy. And, we need to improve and simplify the credit so that it is more effective.

Enacting this legislation would mean more and better jobs for American workers. Innovation 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.

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

Mr. President, I rise today to join with my friend and colleague from Montana, Senator Baucus, to introduce the Research Credit Improvement Act of 2007. We are joined by a bipartisan group of our Finance Committee colleagues: Senators Cantwell, Crapo, Kerry, Smith, Lincoln, and Snowe. As its title suggests, the purpose of this legislation is to extend permanently and to improve the research credit, which is set to expire in just a short time, at the end of 2007.

Our Nation has benefited greatly in recent years from strong economic growth. I believe it is vital for all Americans to realize that this economic growth did not just happen by accident. Rather, it is based on several factors, and one of the more important of these is innovation.

Innovation certainly does not just happen either. It is the result of several specific ingredients. Chief among those ingredients is the amount of research and development occurring in the economy. Where does R&D come from? It comes from individuals, companies, and governments who are willing to invest time and money.

Research and development is very expensive for companies to undertake. By its very nature, research activities seldom result in success immediately. There are many dead ends and much frustration on the way to the discovery of a product that can lead to profits.

Moreover, many times a firm's efforts to find innovative solutions to life's problems result in good discoveries for mankind, but little or no immediate or even intermediate rewards for the company undertaking the research. For this reason, most economists agree that even private research and development activities can create a common good, and one that should be partially subsidized by the public.

The original research credit was enacted over 25 years ago to encourage an increase in R&D activity and to help subsidize the common good that often is derived from research and innovation.

Just as today's economic health is a byproduct of the innovation that came from yesterday's investment in R&D, our future economic health will depend on the amount of innovation we harvest from our investment in research activities today, tomorrow, and into the future.

Years ago, our country had the clear edge on the rest of the industrialized world when it came to having the most nurturing environment to foster research and development. We had more than our share of the scientists, researchers, and other skilled workers to engage in R&D. We had plenty of capital. We had world-class facilities. And we had the biggest market for products right here in the U.S. All the ingredients for innovation were right here, and few other countries could match our research environment. Thus, there was little thought of going anywhere else to perform research.

Sadly, this is no longer the case. Many of our trading partners now possess equal, and sometimes, superior environments to promote research to those we have here in the U.S. More importantly, many of these trading partners now offer strong tax and other incentives designed to lure research to those nations and away from our shores.

Without a strong and effective research incentive of our own, I fear that the United States is at risk of losing its leadership position in innovation. The consequences of this could be very serious for our future economic growth and job creation, as well as for long-term prosperity and national security.

Unfortunately, as I mentioned earlier, our research credit is set to expire in just a few weeks, at the end of December. Once again, American businesses are finding themselves in the all-too familiar position of wondering if the Congress is going to extend the research credit, and if so, when and for how long.

This perennial guessing game that we force our research-intensive firms to play every year or two is getting old. Moreover, it makes the research credit far less effective than it would otherwise be if it were a constant. While it is true that there is some level of confidence among the users of the research credit that this incentive will be extended, everyone knows that the chances of the credit's renewal are not certain, especially in today's volatile legislative climate.

Therefore, the legislation we are introducing today once again provides for the credit to be made permanent. 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.

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. 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.

My home State of Utah is a good example of how important research and innovation is to state economies, and to our future prosperity. 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.

According to a recent article in one of Utah's major newspapers, the Deseret Morning News, the number of Utah high tech and life sciences companies grew at the astonishing rate of more than 10 percent--from 3,900 to 4,300--over the period of September 2005 to September 2006. These industries in Utah employ more than 62,000 workers, with average pay that is 66 percent higher than the statewide average nonagricultural wage. About 3,000 of these jobs are new ones added in the past year.

These are the kinds of jobs and the kind of job growth that Utah, and all of the United States, needs for this new century. The jobs and companies in the high tech and life sciences sectors in Utah and around America are diverse. But they have several things in common. They are clean, they are high-paying, and they require an educated workforce. The vast majority of these companies export products, helping to offset our trade imbalance. Most importantly, however, is the fact that all of these jobs depend on innovation as their lifeblood. R&D is in the very DNA of these companies.

One more thing all these highly desirable high tech jobs have in common is that America is at risk of losing them if we are not careful to maintain an environment that nurtures innovation and the other vital ingredients that gave rise to these jobs in the first place. To my way of thinking, keeping a strong and viable research credit is a key part of this environment.

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 continue to grow our economy we must maintain and enhance our position as the world leader in technological advances. The worst thing we could do is to let it slip. 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.

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. There are several reasons for this, but a major one is that the original, or traditional, credit is calculated using a base period from the mid-1980s. This reference period is becoming more distant and thus less relevant to the business operations of more companies each year. For example, many companies have had major changes in their business models over the past two decades. Yet, the traditional credit still requires a calculation that references revenue from this set of years from two decades ago.

This has been a growing problem for a number of years. To address it, Congress last year included an alternative to the traditional credit that instead of referencing the old base period, is based on the taxpayer's most recent three years of research activity. This credit, known as the simplified alternative credit, has provided a meaningful tax incentive for firms with significant and growing amounts of research expenditures that were not getting much, if any, benefit from the traditional credit.

Based on many discussions with companies that use the research credit, it appears that the alternative simplified credit is now being used by more companies than is the traditional credit. This is true even though the alternative simplified credit is set at 12 percent, while the traditional credit is set at 20 percent.

Therefore, Senator Baucus and I have decided to introduce a change in the research credit that would phase out the traditional credit, even as we increase the benefits of the alternative simplified credit. Specifically, our bill would continue the traditional credit for two more years, and then would eliminate this method of computing the research credit, beginning in 2010. At the same time, however, the bill would increase the alternative simplified credit from the 12 percent current rate to 16 percent in 2008, 18 percent in 2009, and 20 percent for 2010 and thereafter.

We believe this gradual transformation from the increasingly obsolete traditional credit to a single more relevant and strong alternative simplified credit should create a smooth and generous transition, both for traditional credit companies and for firms that find the new alternative simplified credit to be more beneficial.

I urge my colleagues on both sides of the aisle to join us in this effort. We have had widespread bipartisan support for extending the research credit here in the Senate. In fact, the Senate in 2001 passed a permanent research credit, but its permanence unfortunately was downgraded to another extension in conference with the House bill.

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 created, and lost opportunities as research activities move to other countries with more attractive incentives. Again, we should never forget that our Nation's future economic health is dependent on the innovations of today and tomorrow.

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 fail to extend this credit before it expires on December 31. We need to make the credit permanent so we can increase the growth rate of our economy. And, we need to improve and simplify the credit so that it is more effective.

Enacting this legislation would mean more and better jobs for American workers. Innovation 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.

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

Mr. President, it is fitting that the Senate has passed S. Res. 350 which honors the scientific work and accomplishments of Mario R. Capecchi, who, along with Sir Martin J. Evans and Oliver Smithies, received the Nobel Prize for Physiology or Medicine for their contributions to the development of gene targeting technology.

What an honor to see these great men receive this distinguished award.

As with previous Nobel winners, one of this year's recipients has waded through much difficulty in his life to go on and accomplish such an amazing feat--Dr. Mario Capecchi. I would like to take a moment to review for my colleagues some of Dr. Capecchi's background and successes.

Dr. Mario Capecchi, who has worked at the University of Utah School of Medicine for nearly 35 years, has, through both his life and work, demonstrated that hard work and determination can and will lead to good results, even in the face of overwhelming adversity.

Mario was born in Verona, Italy, in 1937. His father was an Italian soldier who, soon after Dr. Capecchi's birth, was reported missing in action while manning an anti-aircraft gun in Libya. At the age of 3, his American mother was sent to the Dachau concentration camp as punishment for her association with an anti-Fascist organization. Prior to her arrest, she sold all her belongings and gave the proceeds to a peasant family to provide housing for her son. However, 1 year later, the funds were exhausted and, at the age of 4, Dr. Capecchi was left to fend for himself on the streets of northern Italy.

After 4 years of living in orphanages and moving from town to town with different groups of homeless children, he was located by his mother who, upon her release from Dachau, had engaged in a year-long search to find her son. She found him in a hospital bed in the town of Reggio Emilia, sick with a fever and suffering from malnutrition.

In 1946, his uncle, Edward Ramberg, a prominent American physicist, arranged for Dr. Cappecchi and his mother to come to the United States. At that time, he and his mother relocated from Italy to a Quaker commune in Pennsylvania, where he would begin his education, graduating from a Quaker boarding school in 1956.

Dr. Capecchi received bachelor's degrees in both chemistry and physics from Antioch College in Ohio in 1961. He then went on to earn his Ph.D. in biophysics from Harvard University in 1967. In 1969, he became an assistant professor in the Department of Biochemistry at the Harvard School of Medicine, and was promoted to associate professor in 1971. Two years later, he joined the faculty at the University of Utah, where he began the work that would eventually earn him a Nobel Prize.

Dr. Capecchi, along with Drs. Evans and Smithies, received the Nobel Prize for their discoveries of methods for introducing specific gene modifications in mice by the use of embryonic stem cells. In the late 1980s, after years of research and experimentation on mouse-derived stem cells, these doctors were able to develop the first knockout mice, genetically engineered mice that have had one or more of their genes isolated and made inoperable. Knockout mice have allowed scientists to learn more about genes that have been sequenced but have unknown functions. Through the techniques developed by these three doctors, researchers are able to inactivate specific mouse genes and study the mice for any resulting differences. From this process, they are able to infer the probable functions of the individual genes.

This gene targeting technology has led to a vast expansion of our understanding of genetics. Indeed, it has impacted virtually every area of biomedicine. The successful isolation of genes has allowed researchers to determine their roles in embryonic development, adult physiology, aging and disease. In addition, the use of knockout mice has led to the production of more than 500 different mouse models of human disorders, including cardiovascular disease, neuron-degenerative disorders, cancer and diabetes.

Drs. Capecchi, Evans, and Smithies have dedicated their lives and work to bettering mankind. Dr. Capecchi has been a key advisor to me for many years and has been a great help to me and this nation with his medical and scientific work and knowledge. I have the highest praise, not only for his work and intellect, but for his dedication and perseverance.

I am joined by Senators Bennett, Dole, and Burr in introducing S. Res. 350 recognizing the work and achievements of these new Nobel Laureates and congratulating them for the honor they have received and I want each of them to know how proud I am of them and their great accomplishments. I also want the entire country to know, that this is just the beginning. The work of Drs. Capecchi, Evans, and Smithies has continued to lay the groundwork and establish a strong foundation we will need to continue developing stem cell research and someday, sooner rather than later, find therapies that will heal some of the greatest afflictions suffered by millions around the world. This is the great promise of the work of these great men and I am proud to honor them.

Mr. President, I rise today to join with Senator John Kerry in introducing the Arts Require Timely Service, ARTS, Act. The ARTS Act would reduce the current processing times for ``O'' and ``P'' arts-related visa petitions filed by, or on behalf of, nonprofit arts- related organizations to a maximum of 45 days.

Unfortunately, delays by the U.S. Citizenship and Immigration Services are making it increasingly difficult for international artists to appear in the U.S. Nonprofit arts organizations confront long waits and uncertainty in gaining approval for visa petitions for foreign artists. Most nonprofit arts cannot afford the Premium Processing Service, guaranteeing processing within 15 days upon payment of an additional $1,000 fee per petition. This is burdensome for many nonprofit arts organizations leaving them to await the unpredictability of the regular visa process.

Performances and other cultural events are date, time and location- specific. The nature of scheduling, booking, and confirming highly sought-after guest soloists and performing groups requires that the timing of the visa process be efficient and reliable. There is a continuing risk that foreign guest artists will be unable to enter the U.S. in time for their engagements, causing burdens on nonprofit arts organizations, international artists, and the local artists who were scheduled to perform alongside the international guest.

In my home State of Utah, the Utah Symphony & Opera has witnessed first-hand how delays and unpredictability in artist visa processing have denied Utahns the opportunity to experience international artistry. To make matters worse, cancellations create high economic risks for these nonprofit arts institutions as they must sell tickets in advance, creating a financial obligation to their audiences.

Congress has already indicated strong, bipartisan support for the ARTS Act. In fact, the provision enjoys support from key House and Senate Judiciary Committee members and it was included in the 2006 Senate comprehensive immigration reform bill. I agree with Homeland Security Secretary Michael Chertoff when he said, ``Our heritage and our national character inspire us to create a more welcoming society for those who lawfully come to our shores to work, learn, and visit.'' Indeed, this noncontroversial improvement to the artist visa process will strengthen our ties with other countries, enrich our Nation's culture, and provide a wonderful opportunity to learn from foreign artists.

I encourage my colleagues to support the ARTS Act.

Mr. President, I rise today to join with Senator John Kerry in introducing the Arts Require Timely Service, ARTS, Act. The ARTS Act would reduce the current processing times for ``O'' and ``P'' arts-related visa petitions filed by, or on behalf of, nonprofit arts- related organizations to a maximum of 45 days.

Unfortunately, delays by the U.S. Citizenship and Immigration Services are making it increasingly difficult for international artists to appear in the U.S. Nonprofit arts organizations confront long waits and uncertainty in gaining approval for visa petitions for foreign artists. Most nonprofit arts cannot afford the Premium Processing Service, guaranteeing processing within 15 days upon payment of an additional $1,000 fee per petition. This is burdensome for many nonprofit arts organizations leaving them to await the unpredictability of the regular visa process.

Performances and other cultural events are date, time and location- specific. The nature of scheduling, booking, and confirming highly sought-after guest soloists and performing groups requires that the timing of the visa process be efficient and reliable. There is a continuing risk that foreign guest artists will be unable to enter the U.S. in time for their engagements, causing burdens on nonprofit arts organizations, international artists, and the local artists who were scheduled to perform alongside the international guest.

In my home State of Utah, the Utah Symphony & Opera has witnessed first-hand how delays and unpredictability in artist visa processing have denied Utahns the opportunity to experience international artistry. To make matters worse, cancellations create high economic risks for these nonprofit arts institutions as they must sell tickets in advance, creating a financial obligation to their audiences.

Congress has already indicated strong, bipartisan support for the ARTS Act. In fact, the provision enjoys support from key House and Senate Judiciary Committee members and it was included in the 2006 Senate comprehensive immigration reform bill. I agree with Homeland Security Secretary Michael Chertoff when he said, ``Our heritage and our national character inspire us to create a more welcoming society for those who lawfully come to our shores to work, learn, and visit.'' Indeed, this noncontroversial improvement to the artist visa process will strengthen our ties with other countries, enrich our Nation's culture, and provide a wonderful opportunity to learn from foreign artists.

I encourage my colleagues to support the ARTS Act.

Mr. President, I rise in support of the Leahy-Hatch amendment which will increase funding for the Boys and Girls Club of America, BGCA. The Boys and Girls Club of America consists of more than 4,000 neighborhood facilities that provide services for more than 4.8 million young Americans each year. Many of the developmental programs that are offered increase and emphasize the education, leadership, and character of participating children. The amendment offered today will narrow the gap between the authorized and appropriated funds for the Boys and Girls Clubs of America.

It is easy to see how important the Boys and Girls Clubs are to shaping the lives of at-risk youth. By creating an environment where America's children can learn and grow, Boys and Girls Clubs helps produce better students, better citizens, and stronger families. Boys and Girls Clubs are a vital part of communities across the Nation, and by continuing to help fund this organization, the more than 4 million youths served by BGCA will continue to have a place where they can find friendship, mentorship, and support.

Congressional support for BGCA has resulted in support for 13 new club start-ups in Utah. Successes like this are being repeated in every other State across the country. At-risk children in public housing and public schools, on military bases and on Native American lands have come to know the Boys and Girls Clubs of America as a place where they can be themselves and escape the streets.

The tremendous success stories of the BGCA program are abundant. These successes can be increased with the passage of this amendment. I fully endorse the amendment, and urge my colleagues to support its passage.

Mr. President, as usual, I appreciate the comments of the distinguished Senator from Massachusetts, when we are on the same wavelength. On this one, we are. I have to say that the original CHIP bill that virtually everybody acclaims as an excellent piece of legislation that has helped millions of children from working poor families, the only children left out of the process, wouldn't have come to pass except for the support of the distinguished Senator from Massachusetts. We both took a lot of flak during those early months when we were trying to solve this problem of the working-poor children.

I had two Provo, UT, families come in to see me. Both parents in each family worked. Each family had six children. Neither family, with both incomes, had more than $20,000 a year in total gross income. They clearly could not afford child health insurance. CHIP was the only answer to their plight. They were the only people left out of the process. They worked. They did the best they could.

I remember when the distinguished Senator from Massachusetts and I sat down together. We are from two opposite poles in many respects, although he doesn't realize that he is a lot more conservative than he thinks. He thinks I may be a lot more liberal than I think. But when Kennedy and Hatch can get together, people around here say: Well, if they can get together, anybody can. People tend to get out of the way because they know it took a lot of effort for us to come together.

But the original CHIP bill could not have occurred but for my distinguished friend from Massachusetts and the work he did. Even though that hasn't been broadcast very much in the current debate, it is true. In the current debate, we wouldn't be as far along if it had not been for the efforts of the distinguished Senator from Massachusetts.

There are two sides to this. Yes, there is a legitimate side in opposition to having CHIP be $35 billion above the baseline of $25 billion. That argument is that we are growing this program too fast and we are putting too many people in it who were not originally supposed to be in it. The fact is, when we wrote the original CHIP bill, we provided for a system of waivers because we were afraid we didn't cover some things that should be covered. What really bothers me is that the people complaining about CHIP costing so much today in this administration, my administration, are the ones who gave 14--well, the tail end of the Clinton administration but primarily this administration--waivers to allow this program to go to many more people than we had originally intended. In fact, two States have more adults on the program than they do children. That has caused a lot of angst. A several States are way over the 200 percent of poverty--one state even covers families with incomes up to 350% of poverty.

Let's put it this way: The opponents seem to ignore the fact that this bill covers 92 percent of kids who are under 200 percent of poverty. Yes, there is 8 or 9 percent who may be above but the

vast majority of them have lived with this program. We found that even with the moneys that we had in the original CHIP bill, which happened to be $40 billion over the last 10 years--that it wasn't enough to put all of the kids who were eligible on the program.

One of the higher costs we found has been documented by CBO. We rely on CBO around here. CBO said that the high costs come from trying to locate the kids to get them in the program so they have a shot at being healthy, so that they are not liabilities for society as a whole when they get older.

This program is very important. We fought hard to keep the program within the $60 billion--$25 billion baseline and $35 billion above the baseline, for a total of $60 billion. At first, those in the House wanted $100 billion. Then they came down to $75 billion. Finally, to their credit, they acknowledged that we were not going to do any better than $35 billion over the baseline, and Senator Grassley and I had to stick with that, with the hope that the administration would recognize how hard we had worked, how important this program is, this program which they themselves would like to reauthorize, and how difficult it is to get the additional 6 million eligible kids on CHIP. To be honest with you, it proved to not be enough as far as federal funding was concerned. And, we lost out on a lot of kids who should have had coverage through this program.

Through this bill, what we are trying to do is cover the kids who should be on the program. They are basically kids of the working poor. We did add pregnant women because we thought that since this involves children and it is so important to have good prenatal care and postnatal care for the health and well-being of those children, that is a logical thing to do.

Really what bothers me about the arguments on the other side--there are legitimate arguments, there always are on both sides--is that we spend about $1.9 trillion on health care in our society today each year. About $1 trillion of it is in the private sector, and about $900 billion is in the public sector. We are asking for $60 billion out of $1.9 trillion to help the kids who are left out of the program. The CBO says even at that, we will not put enough money into this program.

Then we have the argument: This is leading to one-size-fits-all Government-mandated, socialized medicine health care. I think you could make that argument on anything we do in health care around here that involves Government. But on the other hand, I don't want to leave these kids high and dry, either. So it is very important that we get this straight and do what is right.

I have appreciated the remarks of the distinguished Senator from Massachusetts. Many on his side don't care to ever ask where is the money going to come from to pay for these things. On the other hand, in a $1.9 trillion budget, it seems to me $60 billion is not too much, especially since we are covering kids who should be covered who weren't covered in a program that virtually everybody says is important, virtually everybody says we ought to have, just not as much. And even with the $60 billion, it is my understanding, according to CBO, we will not really cover all of the kids we should, but we will cover most, which is a big improvement over the current program.

I join with the distinguished Senator from Massachusetts hoping that the administration will listen and maybe change its perception. There are good arguments on both sides. The better argument is to try to do what we can for these kids; that is, work on an overall comprehensive health care bill that will save money, have less Government intrusion, have more private sector development, give people more opportunities of choice, and give them the choice to bring costs down in the current system. People of good will on both sides could probably do that if we really set our minds, if we just don't make this one big political battle all the time. Unfortunately, it is a political battle over CHIP.

According to some in the administration, I am on the wrong side. I don't think so. I am on the right side. I believe this has to be done. Does that mean that I am not willing to modify and work and do what we can to come up with a comprehensive health care approach that emphasizes competition and opportunity, that will cover everybody? Of course not! I would like to get there. This is a bill which does not necessarily take us away from getting there, but I think some of these arguments which have been offered have been not very good and not very accurate.

Of course, and then I think we ought to get in this debate on hate crimes. I would want to yield to Senator Isakson, and then I will have my remarks a little later.

Mr. President, I thank my colleague. He is accurate on everything except one thing; that is, the 6 million children whom we were supposed to cover, we did on an annualized basis, but really only about 4.5 million were covered fully. I wanted to add that little bit because it is apparent this program has worked. It is apparent it has worked well under this administration as well as under the Clinton administration. It is apparent it has helped millions of kids who otherwise would not have been helped. It is apparent it has helped the children of the working poor. But it has not helped all of those who deserve that help. And, over the long run, if we help them today, it will save us money and problems in the future.

Frankly, this is an important debate. I acknowledge there are people who disagree. There were back then when we first created CHIP. But the fact is, this is a program which has worked. The administration has admitted it has worked. The Governors have admitted it has worked. Maybe it is mired in politics that I wish we were not mired in. My attitude is, let's think of the kids. If there is a way of improving it, I am certainly open to that, but we have come a long way, in a bipartisan way, to get where we are. That is not an easy accomplishment in a Congress that has been pretty partisan in many respects.

I do not think some have really recognized how difficult it was to get to where we are and how many concessions both sides have made, in particular the House. So I think this has been an important part, maybe, of the debate this morning.

But at this point, how much time would the distinguished Senator from Georgia want?

Mr. President, can I ask how much time the Senator would desire?

No objection.

Eight minutes, was it?

Mr. President, I yield 8 minutes to the Senator from Georgia.

Mr. President, how much time does each side have?

I thank the Chair. Mr. President, I yield 15 minutes to the distinguished Senator from Texas.

Mr. President, I will take a few seconds, and then I will yield to the distinguished Senator from South Carolina.

To be honest with you, I don't think anybody differs with about 90 percent of what the distinguished Senator from Massachusetts or the distinguished Senator from Oregon have said, but it needs to be pointed out that in every case they have cited, State law took care of it and took care of it stronger than this bill will take care of it.

Frankly, whether it is Matthew Shepard or whether it is Byrd or whether it is the other case the distinguished Senator from Oregon mentioned, there is no need to federalize these crimes because they are being taken care of.

I yield 5 minutes to the distinguished Senator from South Carolina.

Mr. President, I yield 4 minutes to the distinguished Senator from Alabama.

Mr. President, this has been an interesting exercise, as far as I am concerned, but I rise to oppose this hate crimes legislation. This is wrong--hate crimes legislation. Instead, we have the opportunity to support the prosecution of hate crimes in a meaningful and a legitimate way that is different from this.

I have said for years in this Chamber that violence motivated by bias against a particular group is abhorrent. Everybody in this body believes that. There is no issue here. We believe that. I believe such conduct must and should be made a crime and punished differently from other crimes. I know all of my colleagues share my conviction about hate crimes. But where should that conviction lead us? The conviction that hate crimes are abhorrent leads me to ask what Congress may properly do about it. That conviction cannot, however, justify supporting the wrong legislation.

The Senate has before it today two amendments which represent two different approaches to the problem of hate crimes. I believe the amendment offered by my good friend from Massachusetts, Senator Kennedy, is unwise, unnecessary, and unconstitutional. Some would argue the ends justify the means. They say, if you believe hate crimes are abhorrent, then you must vote for the Kennedy amendment. That certainly is not true, and I urge my colleagues to resist that sort of misguided pressure.

Our obligation is not only to pursue the right goals but to do it in the right way. The Kennedy amendment would federalize the prosecution of hate crimes. It would create a new Federal felony, punishable by up to 10 years in prison, for causing bodily injury to another because of that person's actual or perceived religion, national origin, gender, sexual orientation--gender identity?--or disability.

This amendment is unwise because of how it is drafted and how its supporters are trying to get it passed. The Senator from Massachusetts introduced S. 622 in the 106th Congress. He introduced S. 966 in the 108th Congress. He introduced S. 1105 in April. It would prohibit violence motivated by an additional new category of bias. The amendment before us today would do the same. That process of adding categories constituency by constituency and extending the reach of the Federal hate crimes law could continue indefinitely.

When my colleagues consider whether to support the current Kennedy amendment, even if they have supported previous versions, they should know that this amendment before us today is broader than any version of this legislation ever considered by this body. In its latest iteration, the Kennedy amendment would prohibit violence motivated by gender, sexual orientation, and gender identity. Now, there has been no public discussion about what these terms mean, how they may differ, and whether they can be applied in anything approaching a consistent and reasonable way.

But let me address another problem with including the latest new category--what the Kennedy amendment calls perceived gender identity. The term ``perceived'' applies to gender identity as it applies to the other categories, and it refers to the perpetrator's perception. In other words, the amendment prohibits violence based on

what the perpetrator perceives to be the victim's gender identity. But the term ``gender identity'' refers to the victim's perception. Get that? The term ``gender identity'' refers to the victim's perception.

The online resource Wikipedia defines gender identity as:

Whether one perceives oneself to be a man, a woman, or

describes oneself in some less conventional way.

Now, the contradiction is obvious. The Kennedy amendment would criminalize violence based on the perpetrator's perception of the victim's self-perception. Whether or not this is good sociology--and I don't believe it is--it is bad legislation.

The Kennedy amendment is also unwise in the way its supporters are trying to get it passed. Even though my good friend from Massachusetts introduced it as a separate bill, we are here today considering it as an amendment to the Defense authorization bill. Some justify that by saying it would also protect members of the military. This measure would protect those serving in the military as well as everyone it attempts to cover whether it is attached to this bill or any other bill on any other subject at any other time. So that is not a good argument.

Its proponents wanted to attach the Kennedy amendment to this legislative vehicle not because it is relevant to the Defense authorization bill but because we consider the Defense authorization bill around here to be what we call a must-pass bill. If the Kennedy amendment prohibited violence against individuals because of their status as members of the military, I suppose it might be more relevant to the Defense bill. But I note that the Kennedy amendment does no such thing.

The Kennedy amendment does not belong on the Defense authorization bill, especially when the President has already threatened to veto the amendment and may have to veto this bill because of this amendment, a bill that is absolutely necessary for the benefit of our soldiers.

Now, in addition to being unwise, the Kennedy amendment is unnecessary. State laws already provide for prosecuting the underlying violence prohibited by the Kennedy amendment. Laws against murder, rape, assault, and the like are State laws, and they should remain that way. Forty-six States also have hate crimes legislation on the books that either criminalize substantive offenses or enhance criminal penalties for existing offenses because of their motive or bias.

By the way, the murderers of James Byrd in Texas and Matthew Shepard in Wyoming, after whom this bill is named, were either sentenced to death or are in prison for the rest of their lives under State law, more than this bill would do. My point is, State laws have been taking care of these matters, and there is absolutely no evidence that the proponents of this bill have been able to show that States are not doing their job under their laws, which are better than this law.

While these are the most widely cited examples, the Byrd and Shepard cases, and the other case cited by my friend from Oregon to demonstrate the need for the Kennedy amendment, it would treat both of these hate crime murders more leniently than current State law does.

There is no evidence that State and local governments are incapable of prosecuting these crimes, or that they are failing to do so.

Fewer than 17 percent of all law enforcement agencies reported even a single hate crime in 2005.

Hate crimes account for less than one-tenth of 1 percent of crimes in America.

The majority of hate crimes involve such things as vandalism or verbal intimidation.

By requiring actual or threatened bodily injury, the Kennedy amendment focuses on an even smaller portion of hate crimes.

This means that States would be more, not less, able to address the hate crime problem themselves.

The States are, in fact, already doing so.

In addition to being unwise and unnecessary, the Kennedy amendment is unconstitutional.

Yesterday in this Chamber, my good friend from Massachusetts strenuously emphasized, clearly and unambiguously, that his amendment is not limited by existing Federal jurisdiction.

In fact, he deliberately wants to break this new Federal hate crime felony free from any such limitation.

In his words, the limitation of requiring Federal jurisdiction for such a Federal crime would be ``outdated, unwise, and unnecessary.''

He said the same thing in April when he introduced this measure as a separate bill.

But the requirement that Congress have authority to legislate on such an issue derives from the very Constitution that each of us has sworn to support and defend.

We must have affirmative authority, derived from the Constitution, to legislate.

By giving us only delegated powers, America's founders rejected the idea that the desirable ends justify the political means.

Federalizing crime is legitimate only when it is connected to a power properly exercised by the Federal Government.

Rejecting the requirement of Federal jurisdiction in the legislation before us is rejecting the limitations imposed upon us by the Constitution.

With all due respect to my good friend from Massachusetts, I do not believe the Constitution is outdated, unwise, or unnecessary.

In its findings, the Kennedy amendment cites the 13th amendment to the Constitution, which banned slavery and involuntary servitude, as a constitutional basis for this legislation.

Modern forms of slavery do exist, and I urge my colleagues to support efforts by the Departments of Justice, Labor, and State to uncover and eliminate such heinous practices as human trafficking and forced prostitution.

But that is not what the Kennedy amendment, or existing hate crimes laws for that matter, are about and they cannot hook their train to the 13th amendment engine.

Connecting 19th century slavery with 21st century perceived gender identity at least requires a long series of rhetorical dots, but it should require more than a storytelling imagination to produce sound legislation.

The Kennedy amendment's growing list of prohibited bias categories extends far beyond anything the Supreme Court has ever recognized as relating to the badges and incidence of slavery.

We do not have to speculate about other constitutional defects in the Kennedy amendment.

As I said yesterday in this chamber, the Supreme Court struck down a portion of the Violence Against Women Act--I was a prime sponsor with Senator Biden of that bill--because Congress's authority to regulate interstate commerce did not extend to turning State crimes into Federal lawsuits.

The Court emphasized the distinction between the truly national and truly local and concluded that Federal legislation must be directed at such things as the actual instrumentalities, channels, or goods involved in interstate commerce.

The Kennedy amendment tries to avoid the same fate by appearing to require an interstate commerce nexus for some of the hate crimes it would cover.

If its backers are serious about this requirement, as the Supreme Court surely is, this would further reduce the hate crimes the Kennedy amendment would actually reach.

Their rhetoric and the ever-expanding list of prohibited bias categories in successive versions of this legislation, however, make me wonder whether they genuinely want the Kennedy amendment to be so narrowly applied.

As I said in this chamber yesterday, my good friend from Massachusetts, in the straightforward and direct way we have all come to appreciate and respect, has said unequivocally that all hate crimes will face Federal prosecution.

This will lead to a massive federalization of hate crimes that traditionally have been, and that constitutionally should remain, left to the authority of the States.

There is no need to burden prosecutors and courts and do such damage to our constitutional framework of government.

Our conviction about hate crimes cannot, it must not, blind our conviction about the need for wise legislation and respecting the fundamental limits of our constitutional authority.

While the Kennedy amendment is unwise, unnecessary, and unconstitutional, the good news is that we can do

something legitimate and meaningful about hate crimes without back- handing the Constitution.

The amendment I have offered would strengthen enforcement of hate crimes laws right where that enforcement may legitimately and most effectively occur, at the State and local level.

My amendment would charge the Comptroller General, in consultation with the National Governors Association and State and local law enforcement, with studying whether State and local governments are properly and effectively addressing hate crimes.

This would give us a more objective understanding of the nature and scope of the hate crimes problem so that we can better determine whether there is any basis for a greater Federal role before we go off on this massive sweeping legislation the distinguished senator from Massachusetts is urging. My legislation would help identify whether any gaps exist in the ability and determination of States to prosecute hate crimes and provide Federal resources to help them do so.

The authority to prosecute hate crimes rests with the States, and if we truly want both to address hate crimes and stay within our proper constitutional role, we can help the States effectively carry out their responsibility.

I said it before, and I will say it again.

Crimes of violence, no matter their motivation, are abhorrent.

I recognize that some crimes of violence are directed not only against individual victims, but against the groups or communities with which those victims identify.

Concern about hate crimes, however, is only the beginning of the discussion and the political ends do not justify the legislative means.

I know that my good friend from Massachusetts is genuinely passionate about what he sees as an injustice.

His amendment, however, is the wrong way to address the problem.

The Kennedy amendment is unwise, unnecessary, and unconstitutional.

It is unwise in its drafting and in the way its supporters are trying to get it passed.

It is unnecessary because States have their own hate crimes laws and are demonstrably able to address the problem.

It is unconstitutional because Congress lacks authority to create such a freestanding criminal felony unrestricted by Federal jurisdiction.

I urge my colleagues, instead, to do the right thing and to do it the right way by supporting the amendment I have brought to the floor.

I find no fault with people who are sincere in trying to do things that sincerely are well motivated. But we should live within the confines of the Constitution. There is no nexus that would justify this type of overwhelming legislation, imposed upon everybody in this country, when the States are already doing the job.

We have two hate crimes amendments before us today. One is extremely broad, probably unconstitutional, and likely unnecessary. The President has threatened to veto it. The amendment would torpedo the Defense authorization bill. The other is a more modest approach. My amendment would assist State and local law enforcement as they do the hard work of providing equal justice for all their citizens. The Kennedy amendment is sweeping, but it cannot realistically get done on this bill. Mine is a modest, and I believe adequate, approach to this problem, and it would become law. To quote an unappreciated political philosopher:

You can't always get what you want. But if you try,

sometimes, you'll find you get what you need.

I urge my colleagues to vote against cloture on the Kennedy amendment and for cloture on my amendment and I think we will make better headway than we would if we agree to the Kennedy amendment.

I reserve the remainder of my time.

Mr. President, do I have any time remaining?

Mr. President, I agree with 80 percent of what the distinguished Senator has said during this debate. The fact is, the very name of this bill makes the very point I am making. It is the ``Matthew Shepard Act,'' a heinous crime committed against him where both people were prosecuted and sentenced to life; in the Byrd case, sentenced to death. We are taking care of these problems. There has been no showing by the other side that the State prosecutors are incapable of doing so. The fact is, we do not need a massive Federal piece of legislation that would require the Federal Government to get into areas that clearly are not in interstate commerce but are subject to State laws that are being enforced. That is a very important point. We should be very loath to go beyond that point.

I thank my very loquacious colleague who feels very deeply, but I feel deeply, too, about the issue, about these people, about what is happening, and what I am saying constitutionally.

Mr. President, with that fine concession, I yield back the remainder of my time.

Mr. President, I remember it so vividly.

I remember it as if it were yesterday.

But it was 10 years ago that Senator Kennedy and I stood outside this great building, we stood on the Capitol lawn under a great oak tree, and announced final passage of the Children's Health Insurance Program legislation.

History was made that day, and it has been made every day since.

A true, bipartisan partnership--forged on the strength of good intentions, motivated by a simple desire to help our country's most vulnerable citizens, and nurtured in a politics-free atmosphere--led to enactment of CHIP, arguably the most significant advancement in children's health in this modern era.

Ten years ago, Senator John Chafee and Senator Rockefeller, Senator Kennedy and I, began a partnership that led to the Children's Health Insurance Program. That legislation, enacted in under 5 months--to show you its potency--was founded on a very basic premise: that we needed to provide incentives to States to help them design plans to provide health insurance to the poorest of the poor families not eligible for Medicaid.

Senators Rockefeller and Chafee argued for a Medicaid expansion. Senator Kennedy and I argued for a State-directed block grant. The final law was an innovative, workable blend of the two.

Since that time, almost 6 million children have become insured under CHIP. They are leading healthier, more productive lives.

Their parents can sleep at night, resting easy that their children will be taken care of if they become ill.

That peace of mind, that giant step toward a healthier population, is the mark of a compassionate, caring Congress. It was a mark toward reassuring the American people that the Government hears their concerns loud and clear and stands ready to act.

Let us hear that same message today and let us provide our constituents with that same measure of reassurance as we consider this bipartisan agreement to extend CHIP for another 5 years.

This year, as Finance Committee Chairman Max Baucus, Ranking Republican Chuck Grassley, Subcommittee Chairman Jay Rockefeller, HELP Committee Chairman Kennedy, and I began our discussions of the Child Health Insurance Program Reauthorization Act--or CHIPRA--we agreed there were several key principles that must be embodied in any extension of the original act.

The bill we consider today is built on those principles.

First, we agreed that the proposal must be fully financed or else it would be irresponsible for us to legislate.

Next, it must retain the original character of CHIP--that is, it must be a flexible, State-directed program. Senator Kennedy talked about that this morning.

We worked to see the budget resolution provide $25 billion in its baseline to extend the current levels of coverage, and up to $50 billion more if it were fully financed.

Indeed, this bill is fully financed.

The costs above the budget baseline have been certified by Joint Tax to be covered by an increase in the tobacco excise tax.

We agreed that we wanted to continue coverage for those who are currently eligible, but also to conduct extensive outreach to enroll those who may be eligible but aren't enrolled.

Our bill provides health coverage to almost 4 million low-income, uninsured children through incentives to states to enroll these uninsured children in their programs.

We agreed that coverage of childless adults--a policy Senator Kennedy and I never intended nor envisioned when we wrote our original proposal--we agreed that policy needed to stop.

Under our bill, childless adults currently covered under CHIP will be phased out of the program and transitioned into Medicaid.

I cannot emphasize this enough. Today, 6 million children receive health care through the CHIP program--25,095 of these children are from Utah.

That would not have happened absent congressional action in 1997.

In addition, there are an added 6 million children in families with income under 200 percent of the Federal poverty level--or FPL--who are uninsured and eligible for either CHIP or Medicaid.

According to the Congressional Budget Office, the bipartisan, compromise bill covers close to 4 million of these children--3.7 million to be precise--a significant step by any measure. This is a crucial, crucial part of the bill, an achievement that, while expensive, really goes to the heart of what we are trying to achieve with the original CHIP, and now CHIPRA.

For several weeks now, we have heard a crescendo of opposition to our legislation from officials at the White House, and most recently, our President.

Needless to say, this is disheartening for me. It is difficult for me to be against a man I care for, my own personal President, on such an important bill. I have been and will continue to be one of the President's strongest supporters in the Congress. He is a good man. He means well, but he does have to listen to his staff--or at least does listen to his staff, and I believe he has listened to them in a way that throws barriers up to this bill.

I wish I had had an opportunity to persuade him on the merits of this bill before he issued a veto threat. I did send messages down there, talked to top people in the administration, but I wish I had had a greater opportunity.

Indeed, I am sympathetic to many of the concerns he raises.

When he says that we need to be careful about creating a one-size- fits-all health plan for our children, I believe he is right. When we wrote this program in 1997, we wrote it based on the foundation of giving States the flexibility to design their own CHIP programs. Each State is different--what is good for Utah may not be good for California or Massachusetts.

It is important for States, not the Federal Government, to determine which benefits should be covered. After

all, CHIP is a State block grant program, not a Federal entitlement. That is why we are debating its reauthorization today.

The President has also raised concerns about the Federal dollars that our bill spends on the CHIP program over the next 5 years.

I agree that $60 billion is a lot of money. But in comparison to what the House passed bill proposed earlier this year--they started at $100 billion and came down to $75 billion--it is much more reasonable.

And, as the Congressional Budget Office has told us, it is relatively more expensive to find and cover the low-income children who still do not have health coverage compared to those who are enrolled today.

That is why I was able to agree with the Senate number of $35 billion, in addition to the $25 billion already built in the budget baseline for CHIP--although, to be fair, it is higher than I would have liked. But this is a classic compromise and friends in the House wanted more. Some of them.

It is unfortunate that the President has chosen to be on what--to me--is clearly the wrong side of the issue.

Indeed, this is not the bill I would have written if I had full license to draft. That is true for the original SCHIP law as well.

But, it is hard to envision any major law being written by one person and enacted without change. That is not how good legislation is made.

Indeed, 10 years ago, Senator Kennedy and I spent many, many hours proposing, arguing, compromising, and refining, in drafting session after drafting session.

Some days it seemed we disagreed more than we agreed.

It was hard, hard work.

But it was a labor of love.

We had a full discussion. We explored all the issues together.

We found compromises where we needed to.

That is how good legislation is made. Sometimes even bad legislation, but this is good legislation.

It pains me that we did not have this full discourse with the administration on CHIPRA.

It pains me that some have been slow to recognize the realities of this new Congress.

Indeed, what some political pundits termed The Trifecta--a Republican House, Senate, and Presidency, is no more.

I thought I should point out this fact for those in this body who may not have noticed.

And so it is no secret, no surprise, that a Democrat-led Congress would seek a more expansive program.

Yet it is to the great credit of our Democratic leaders that they recognize our country's fiscal realities and that they held the line at the additional $35 billion figure.

To be sure, I would have been comfortable with a lower number, just as Speaker Pelosi and Chairman Rangel and Chairman Dingell and Chairman Baucus and Chairman Rockefeller advocated for a much higher number.

So, again, we have that spirit of compromise which was the hallmark of CHIP in 1997.

I must say it has also been difficult to conflict with my good friend from Utah, Health and Human Services Secretary Mike Leavitt.

He was an expert in health care policy when he was Governor of Utah, and he is even more of a leader on the national level now.

I know the concerns he expressed to me about the CHIP bill in 1997.

I recall our many conversations when he advocated for a greater Federal role in health coverage for needy children. And I also recall his admonitions that we could do better by the children and their parents if we were to provide the States with much-needed flexibility.

The final CHIP block grant reflected that flexibility I believe, and Mike Leavitt's good counsel helped us improve the law. I hear Secretary Leavitt's concerns when he says that he is concerned about paying for the reauthorization of this program through tobacco taxes. I am not comfortable with raising taxes either. However, when we first created the CHIP program in 1997, we believed that it was entirely fitting that the bill be funded through incentives to decrease the use of tobacco, a leading killer of Americans young and old. And, therefore, I am comfortable with raising tobacco taxes to pay for our CHIP program.

I understand his concerns about crowd-out and higher income children dropping their private health coverage in order to be covered through CHIP when CHIP was created to provide health care for low-income children.

And I agree with him 100 percent when he says that we are only fixing part of the problem by reauthorizing CHIP and not addressing what's wrong with the entire health care system.

He and I have visited on several occasions on these issues. I have benefited by that guidance, and I sincerely regret that ultimately we disagree on this bill. But I am willing to work with him to try to come up with an overall health care plan that will work.

I might add that I believe we have had an honest misunderstanding which has not only been raised by Secretary Leavitt but the President as well. They say that our legislation allows families with annual incomes of $83,000 to be covered under a State CHIP plan.

Let me be clear. Our legislation does not permit a State to cover these families unless the Secretary of Health and Human Services approves the State's application to cover individuals at that income level.

We do not change current law and put Congress in charge. We leave that decision in the hands of the Secretary.

We do not take away the Secretary's authority to make that decision.

I hope that point is clear.

At this point, it may be helpful for me to outline for my colleagues exactly what this bill does.

As I stated earlier, CHIPRA is a 5-year reauthorization which spends an additional $35 billion in Federal dollars on the CHIP program, in addition to the $25 billion in Federal dollars already built into the budget baseline.

So, in total, we are spending $60 billion in Federal dollars over the next 5 years on the CHIP program.

And I know that sounds very expensive, especially to my Republican colleagues. In contrast, the bill passed by the House in August would have spent an additional $50 billion on CHIP on top of the $25 billion in the budget baseline for a grand total of $75 billion.

As this chart indicates, we spend far more Federal money on Federal health programs then we are suggesting that we spend on the CHIP program over the next 5 years.

This chart compares projected spending in Medicare, Medicaid and the National Institutes of Health to the spending that we authorize for the CHIP program from fiscal year 2008 to fiscal year 2012.

For the Medicare Program, CBO projects that the Federal Government will spend $2.6 trillion, yes, trillion dollars over the next 5 years.

For the Medicaid Program, CBO projects that the Federal Government will spend $1.22 trillion over the next 5 years.

For the NIH, we project that the Federal Government will spend approximately $150 billion over the next 5 years.

In contrast, our bill authorizes $60 billion over the next 5 years. I think these numbers speak for themselves. We can spend billions, even trillions of dollars on programs for the elderly, disabled, very poor and for medical research but spending $60 billion to provide health care for the children of the working poor causes the President to issue a veto threat? Something here just doesn't add up, especially when you look at these numbers on this chart. The spending for the CHIP program hardly shows up on this chart compared to the other three programs.

Let me remind my colleagues that this legislation is built on compromise.

Is it perfect?

Far from it.

But does it cover more CHIP-eligible kids, our ultimate goal? Absolutely.

And that's why I am a strong advocate for this bill and urge my colleagues to support it.

This is a good compromise.

It is a $35 billion bill--not a $50 billion bill. The House ultimately agreed with the Senate on this issue. I do not blame them. They are very sincere in thinking you can just throw money at these things and you will do more good.

It does not include Medicare provisions. The House also dropped its insistence on this issue, even though

there was tremendous pressure to include Medicare provisions such as a fix for the sustainable growth rate formula flaw, which is the physician reimbursement rate, in 2008.

But let me be clear, all of us agree that these important Medicare issues must be addressed by the end of this year. Just not in this bill.

Before I continue, I would like to note that both the $35 billion limit and agreement not to include Medicare provisions were huge concessions by the House of Representatives.

Honestly, I never thought that the House leadership would agree to those terms; and, trust me, those were the two conditions that were nonnegotiable as far as I was concerned.

The moderation on the part of House leaders is a true indication that they are serious about getting a bipartisan CHIP reauthorization bill signed into law.

Key provisions of this legislation are the tools and resources it provides to enroll more of the CHIP-eligible children. As I previously stated, in addition to the 6 million children already covered by CHIP, this bipartisan compromise bill would provide coverage to almost 4 million more uninsured, low-income children.

The bill no longer allows new State waivers for adults to receive their health care through CHIP. Childless adults will be phased out of CHIP and will be covered through Medicaid.

States that currently cover parents may continue to do so; but after a transition period, States will no longer receive the enhanced CHIP match rate for covering parents.

The legislation rewards States for covering more low-income children by establishing a CHIP performance bonus payment for States that exceed their child enrollment targets.

We worked hard to make certain there will be no funding shortfalls with this legislation.

The bill provides States adequate money in their CHIP allotments so they will not experience funding shortfalls in their CHIP program.

As a safeguard, we created a Child enrollment contingency fund for States that experience a funding shortfall as a result of enrolling more low-income children.

Shortfalls have been a serious problem. They are something we want to avoid.

In addition, the proposal clarifies that States will only have 2 years to spend their CHIP allotments. Today, States have 3 years to spend their CHIP allotments.

It gives States a new option to provide coverage to pregnant women. Today, pregnant women are only covered in CHIP if the State has been granted a waiver to cover pregnant women or through the Administration's unborn child policy.

This is a proposal Senator Kennedy and I seriously considered including in 1997. We ultimately concluded that the cost of childbirth hospitalization was so expensive, then, about $4,000 a birth, that the greater public good could be achieved if we focused those resources on providing more insurance policies to needy children.

It was not a policy we undertook with great comfort. Indeed, Senator Kennedy argued strongly for coverage of pregnant women. But ultimately, we chose to advocate for the policy that covered the most children.

Today, we are both satisfied that the bill embodies the correct policy, if I may speak for the Senator from Massachusetts on this point.

CHIPRA provides beneficiaries and their families with coverage choices. If the State provides premium assistance through its CHIP program, CHIP beneficiaries may choose to be covered through the State CHIP program or receive premium assistance to receive health care through a private health plan. And States like Utah that already have premium assistance programs for their CHIP beneficiaries would have their programs grandfathered in, in other words, their programs would continue to exist.

It also provides CHIP beneficiaries with dental benefits, states will have a choice of four dental benchmark plans to provide to their CHIP beneficiaries, the dental benefits included in the House-passed bill; a benefit package equivalent to the federal employee health plan dental benefit that covers the most children; a benefit package equivalent to the State employee dental plan that covers the most children; or a benefit package equivalent to the most popular commercial dental plan that covers the most children.

As my colleagues are aware, I have a long record of advocating for better dental care for children. It alleviates so many health problems in the future.

In fact, in 2000, I introduced the Early Childhood Oral Health Improvement Act, which created grant programs to improve the oral health of children under 6 years of age. This bill was included in the Children's Health Act which was signed into law on October 17, 2000.

So, I know how important dental health is for children.

At the same time, it is fair to say that I have been concerned about mandating that States provide dental coverage for two basic reasons.

First, the inherent nature of CHIP, and a primary reason it could be enacted in a Republican-led Congress, is that it was a State block grant.

Mandates move us away from that important framework.

Second, the dental coverage that some advocated be included in this bill is more generous than most private-sector policies. Thus, including such coverage would be a giant incentive for crowd-out, that is, dropping private coverage in order to seek a more generous public coverage.

Ten years ago we called it substitution. Today, we call it crowd out. But it is the same thing.

I will not sugar coat it. It is a problem. It is a concern. And, we should take every step we can to keep it from occurring.

I think the dental policy we adopted was a good compromise, and I appreciate my colleagues agreeing to my suggestion for this coverage.

Our legislation also limits the Federal matching rate that States will receive for covering individuals with family incomes over 300 percent of FPL in their CHIP plans.

It clarifies the Administration's policy on crowd-out and provides States with guidance on how to ensure that their low-income children are covered through the CHIP plan before expanding coverage to higher income children.

Another key element of this bill is that it provides States with funds for outreach and enrollment.

It gives States a time-limited option to speed up enrollment in CHIP and Medicaid by using eligibility information from designated express lane agencies.

The bill gives States the option of verifying citizenship for both Medicaid and CHIP by submitting names and Social Security numbers to the Commissioner of Social Security.

It creates a new quality initiative through the Secretary of Health and Human Services, in consultation with the States, to develop evidence-based pediatric quality measures in order to evaluate the quality of care for children.

I introduced legislation to develop pediatric quality measures with Senators Bayh and Lincoln and much of our bill is incorporated in this bipartisan compromise legislation.

The proposal includes mental health parity in the state CHIP programs so that if a State offers mental health coverage in its CHIP plan, it must be on par with limits for medical and surgical services.

Senator Gordon Smith has done a stellar job bringing awareness about the need for mental health benefits for children and this provision is modeled after legislation that he introduced with Senator John Kerry of Massachusetts.

At this point, I would also like to refute some of the inaccurate statements that I have heard the last few days regarding our bill.

First, some have alleged that our bill allows the Federal Government to continue covering childless adults and parents through CHIP.

Our bill puts the emphasis back on low-income, uninsured children. Simply put, our bill puts an immediate stop to States being granted future waivers to cover nonpregnant adults. In fact, the provisions included in the Senate-passed CHIP bill were included in the compromise, bipartisan CHIP bill.

At the beginning of fiscal year 2009, States will receive lower Federal matching rates for childless adults and

in fiscal year 2010, childless adults will not be covered under CHIP, they will be transitioned into Medicaid.

At the beginning of fiscal year 2010, only States with significant outreach efforts for low-income uninsured children will receive enhanced match rates for parents; others will receive the lower Medicaid match rate FMAP for adults.

Starting in fiscal year 2011, all States will receive a lower Federal match rate for parents. Those States covering more lower income kids or with significant outreach efforts will receive a Federal matching rate for parents covered under CHIP which is a midpoint between the Federal CHIP matching rate and the lower Medicaid matching rate. Other States will receive the lower Medicaid Federal matching rate, known as FMAP, for CHIP parents. Simply put, beginning in fiscal year 2011, States will no longer receive the higher CHIP matching rate for covering parents.

Second, some criticize our bill and say it allows higher income children to be covered under the CHIP program.

Today, States may receive an enhanced Federal matching rate for their CHIP program through waivers for all income levels. Our bill discourages States from covering higher income individuals in the CHIP program.

After enactment of our bill, States with new waivers approved to cover those with family incomes over 300 percent of FPL would only receive the lower FMAP payment for these higher income individuals.

In addition, States that cover individuals with incomes over 300 percent of FPL in their CHIP plans will have to submit a State plan to the HHS Secretary to show how it is addressing crowd-out for higher income children covered under CHIP.

The State plan must be approved by the HHS Secretary before October 1, 2010; otherwise, the State will no longer receive Federal matching dollars for covering those over 300 percent of FPL in their CHIP plans.

Third, some say our bill makes CHIP an entitlement program and almost doubles the Federal dollars spent on CHIP over the last 10 years.

CHIP is not an entitlement program, it is a capped, block grant program, where States are given flexibility to cover their low-income, uninsured children.

I admit that it works so well, nobody wants to abolish it, including the President and most everyone in this body. As to its cost, as I noted earlier, the 6 million children who are already covered by CHIP were easier to find that the current 6 million, low-income, uninsured children under 200 percent of FPL.

CBO has explained it is much more expensive to find these uncovered children. That is why our bill gives States bonus payments for enrolling them. I hope their prediction does not prove true. If it doesn't, we will save money in the program. But if their prediction does prove true, there is still no excuse for enrolling these kids.

I also believe it is important to note that, according to the Centers for Medicare and Medicaid Services, in 2005, we spent a total $1.98 trillion on our Nation's health care system.

Private expenditures were $1.08 trillion and Federal spending was $900 billion.

Total Medicare spending was $342 billion in 2005 and Medicaid was $177 billion in Federal dollars.

Our bill today funds CHIP at $60 billion over five years--a fraction of the cost to provide care for low-income, uninsured children. Covering these children is worth every cent.

Another common criticism is the myth that our bill allows States to cover children from families with annual incomes of $83,000.

I have addressed this before, but it bears repeating.

Our bill neither prevents, nor requires, States' coverage of families at higher income levels. Only the Secretary of Health and Human Services decides whether a State may cover families with incomes up to $83,000 per year under their State CHIP program, not Congress.

Many have suggested, in error, that our bill allows illegal immigrants to be covered under CHIP.

In fact, during the House debate, I heard some state incorrectly that our bill provides benefits to illegal immigrants and opens the door for CHIP and Medicaid benefits for illegal immigrants by substantially weakening a requirement that persons applying for such services show proof of citizenship.

Nothing could be further from the truth.

In fact, our legislation has specific language stating that no illegal immigrants will be covered under CHIP.

For those who still don't believe me, it can be found under section 605, entitled No Federal Funding for Illegal Aliens.

Let me just read what it says: ``Nothing in this Act allows Federal payment for individuals who are not legal residents.''

Finally, much has been said about the Centers for Medicare and Medicaid Services' recent guidance on crowd out.

I will include for the Record a letter dated August 17, 2007, to the State Medicaid Directors from Dennis Smith, the director of the Center for Medicaid and State Operations for CMS.

The purpose of this letter was to give the State Medicaid Directors guidance on how CMS will review state plan amendments or waivers to raise income eligibility limits under the CHIP program in the future.

In this letter, CMS made it perfectly clear that the agency was very concerned about crowd-out and wanted States to target low-income, uninsured children under 200 percent of poverty before covering higher income children under CHIP.

So in order for States to cover higher income children, CMS made it clear that States must cover 95 percent of their children under 200 percent of poverty before expanding coverage to higher income children.

While I agree with the thrust of what the administration intended to achieve, I am not certain what Mr. Smith asks the States to do can be achieved.

States have told us it is virtually impossible for them to determine how many of those low-income children are currently covered.

Currently, good, solid data on the uninsured simply do not exist. So it is almost impossible to find good, solid numbers on the uninsured. On top of that, currently, States do not have to report income data to

I yield the floor.

Mr. President, I rise today to speak to an amendment that would increase the maximum Federal age limit at which a member of the military, who has been honorably discharged, may become a Federal law enforcement officer.

Military servicemembers make extraordinary sacrifices on our Nation's behalf. They are the defenders of our freedoms, our liberties, and our security. We owe each of them a great debt, and any appropriate compensation we can offer is a step toward repaying that national obligation.

Many of our brave soldiers joined the world's finest military when they were 18 years of age. Large numbers of them become career soldiers, serving 20 years or more before retiring.

However, current U.S. law states that applicants to Federal law enforcement positions must be between 23 and 37 years old. A servicemember who joins the military at the age of 18 and serves honorably for 20 years falls outside this federally mandated age range. I am sure my Senate colleagues would agree that members of the military, with their training and experience, can be highly suited for positions in Federal law enforcement, and if otherwise qualified should not be prohibited from further serving their country by an arbitrary, maximum age limit.

My amendment would increase the maximum age for Federal law enforcement recruitment to 47 years old for military personnel who receive an honorable discharge. This means that many more honorably discharged military members will be able to seek employment with Federal law enforcement agencies. This amendment is an important tool in both recruiting and retaining fine servicemembers. It is my hope that more would be willing to remain in the military, knowing that after they complete 20 years in uniform, they will still have the opportunity to serve our country as Federal law enforcement officers.

I have heard from several servicemembers who are considering an early departure from the military so that they can become Federal law enforcement officers. It should be remembered that many of these soldiers already have the necessary security clearances for these positions. Furthermore, I believe Federal law enforcement training costs would be largely reduced because of the military training of these individuals. The American people need qualified, competent law enforcement officers, and what greater pool from which to draw than experienced and professional military retirees? I am anxious to see this arbitrary retirement limit changed for military personnel and I encourage my colleagues to support this important amendment.