Floor Statements

Mr. President, I am pleased to join Senator Specter in the introduction of two bills, S. 437 and S. 440, that will correct inconsistencies and provide fairness to lawyers and their clients under the Federal Tax Code.

Currently, attorneys who take on contingency fee cases, and advance their clients funds for court costs, witnesses, or other expenses, cannot deduct these expenses as ordinary business expenses at the time they are made. Instead, attorneys who advance these costs may not take a deduction until the case for which they are advanced is resolved. In most cases this is a timeframe of several years. This results in an attorney carrying the burden of these costs from year to year until the case is resolved. For many small law firms or solo practitioners, this is a significant burden.

Where attorneys are advancing costs to clients so that those clients may pursue their rights in court, they deserve to be treated as any other small business owner. This disparate treatment is inequitable and correcting it will make legal representation more easily provided by attorneys and more available to clients.

The other bill we introduce today helps clients who have been awarded funds through a contingency fee arrangement. Under current tax law, punitive damages awards and awards to a plaintiff resulting from certain claims are subject to Federal taxation for the entire amount of the award, even if the plaintiff then uses a portion to satisfy a contingency fee agreement. The result is that the portion of an award to a plaintiff in a contingency fee arrangement that then goes to an attorney is taxed twice--once through the plaintiff and again through the attorney.

This legislation will allow a plaintiff who has recovered an award to take an above the line deduction for the portion of his or her award that will be transmitted to the attorney who provided the representation. This is a commonsense solution and where an individual has suffered an injury and will rely on his or her award it is sound policy to reduce this unnecessary and duplicative tax burden.

Neither of these bills gives any special treatment to attorneys or their clients. Rather, in combination, they will help attorneys provide more representation to clients who by virtue of their financial or other circumstances must enter a contingency fee arrangement, and will allow a greater amount of funds recovered to be put to use by the individual for whose benefit they were awarded.

I thank Senator Specter for introducing this legislation and I hope all Senators will join us in supporting these sensible corrections to our Tax Code.

Mr. President, I am pleased to join Senator Specter in the introduction of two bills, S. 437 and S. 440, that will correct inconsistencies and provide fairness to lawyers and their clients under the Federal Tax Code.

Currently, attorneys who take on contingency fee cases, and advance their clients funds for court costs, witnesses, or other expenses, cannot deduct these expenses as ordinary business expenses at the time they are made. Instead, attorneys who advance these costs may not take a deduction until the case for which they are advanced is resolved. In most cases this is a timeframe of several years. This results in an attorney carrying the burden of these costs from year to year until the case is resolved. For many small law firms or solo practitioners, this is a significant burden.

Where attorneys are advancing costs to clients so that those clients may pursue their rights in court, they deserve to be treated as any other small business owner. This disparate treatment is inequitable and correcting it will make legal representation more easily provided by attorneys and more available to clients.

The other bill we introduce today helps clients who have been awarded funds through a contingency fee arrangement. Under current tax law, punitive damages awards and awards to a plaintiff resulting from certain claims are subject to Federal taxation for the entire amount of the award, even if the plaintiff then uses a portion to satisfy a contingency fee agreement. The result is that the portion of an award to a plaintiff in a contingency fee arrangement that then goes to an attorney is taxed twice--once through the plaintiff and again through the attorney.

This legislation will allow a plaintiff who has recovered an award to take an above the line deduction for the portion of his or her award that will be transmitted to the attorney who provided the representation. This is a commonsense solution and where an individual has suffered an injury and will rely on his or her award it is sound policy to reduce this unnecessary and duplicative tax burden.

Neither of these bills gives any special treatment to attorneys or their clients. Rather, in combination, they will help attorneys provide more representation to clients who by virtue of their financial or other circumstances must enter a contingency fee arrangement, and will allow a greater amount of funds recovered to be put to use by the individual for whose benefit they were awarded.

I thank Senator Specter for introducing this legislation and I hope all Senators will join us in supporting these sensible corrections to our Tax Code.

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

Mr. President, I wish to state my strong support of the economic recovery plan because the American people and their communities need it to create jobs, to stabilize the economy, and to protect those who have been most hurt by the current global economic and financial crises.

Many Americans, especially my fellow Vermonters who have watched this process, look at the resistance the economic recovery plan has met from many on the other side of the aisle, and they are somewhat dispirited. They remember how readily Congress rubberstamped hundreds of billions of dollars the previous administration earmarked for Iraq. Now they see how difficult it has been to get bipartisan approval for investments here at home that are desperately needed to jump start an economy that is in the midst of the worst economic crisis since the Great Depression.

I call on fellow Senators--who were willing and eager to vote for billions of dollars to rebuild the infrastructure of Iraq, who were willing to vote for billions of dollars to create jobs in Iraq, who were willing to vote for billions of dollars to help law enforcement in Iraq--to focus on the needs we have here at home. Let's spend some of that money in America to repair our infrastructure, to create jobs in America, and to help law enforcement in America.

No one disputes the clear fact that we are confronting the most severe economic problem we have had in generations. The U.S. economy has been in recession since December 2007. America's GDP declined 3.8 percent in the fourth quarter of 2008, the steepest drop since 1982. The United States lost 2.6 million jobs last year, the most since 1945. Last week we learned the U.S. economy shed almost 600,000 jobs in January, putting the unemployment rate at 7.6 percent.

In Vermont, not only has the amount of credit available to small businesses shrunk significantly, but our unemployment rate jumped to 6.4 percent in December. That is the highest it has been in 15 years. Vermont is not alone in this struggle. Workers, businesses, State and local governments all across the country face mounting debt, slumping orders, and sagging budgets.

To respond to this extraordinary crisis, I agree with President Obama and the vast majority of Americans that we have to act quickly and responsibly to pass an economic recovery and job creation plan as bold as the challenges we face. Americans want jobs. They want to work. They want to support their families. We have to help create those jobs. If we act now to strengthen our economy and invest in America's future, we can create good-paying jobs, we can cut taxes for working families, and we can make responsible investments in our future.

Our first priority should be to put America back to work. This economic recovery plan will help create or save over three million jobs, including an entire generation of green jobs that will make public and private investments in renewable energy and make America more energy efficient.

Investing in our country's infrastructure and education will do more than create jobs today--it can put us on a long-term path toward prosperity. Rebuilding our roads and bridges, expanding broadband access to rural communities; making our energy grid smart

and more efficient; creating state-of-the-art classrooms and labs and libraries; and investing in job training that Americans will need to succeed in the 21st century global economy will give us tangible assets we can use for years to come to foster additional economic growth.

As chairman of the Senate Judiciary Committee, I would like to highlight that the funding for State and local law enforcement in this recovery package will not only help to address vital crime prevention needs, but it will have an immediate and positive impact on the economy, as police chiefs and experts from across the country told the Judiciary Committee in its first hearing this year. Hiring new police officers will stimulate the economy and lead to safer communities and neighborhoods.

Nobody thinks this bill is perfect. We could write 100 different perfect bills based on our own analysis. But America is hurting, and Americans urgently need our help. I believe this economic recovery package will make a timely and constructive difference across the country by creating and saving jobs, making needed infrastructure investments, reducing the tax burden on struggling families, and relieving the strain on State budget deficits.

Vermonters are watching and waiting. Working families across the country are watching and waiting. Time is running out. I will vote aye.

I yield the floor.

Mr. President, I am proud to reintroduce the Uniting American Families Act. This legislation will allow U.S. citizens and legal permanent residents to petition for their foreign same-sex partners to come to the United States under our family immigration system. I thank Senators Whitehouse, Kerry, Schumer, Feingold, Wyden, Cardin, Menendez, Murray, Brown, Akaka, and Lautenberg for their support of this legislation. I hope that the Senate will act to demonstrate our Nation's commitment to equality under the law by passing this measure.

I am also grateful that Congressman Nadler is introducing this same measure in the House of Representatives. Congressman Nadler has been a steady champion of this legislation, and I commend his efforts.

When the marker for the Senate's comprehensive immigration legislation was introduced at the beginning of this Congress, I said that among the changes needed in our immigration laws is equality for gay and lesbian Americans. The burdens and benefits of the laws created by the elected officials who represent all Americans should be shared equally, and without discrimination. With an historic election behind us, and the promise of a more just, peaceful, and prosperous world ahead of us, let us begin to break down the barriers that still remain for so many American citizens.

Under current law, committed same-sex foreign partners of American citizens are unable to use the family immigration system, which accounts for a majority of the green cards and immigrant visas granted annually by the United States. As a result, gay Americans who are in this situation must either live apart from their partners, or leave the country if they want to live with them legally and permanently. According to the most recent census, there are approximately 35,000 bi- national, same-sex couples living in the United States. It is all but certain that many of these couples will eventually be forced to make a choice with which no American should be faced--to choose between the country they love and the person they love.

Some have expressed concern that providing this equality in our immigration law will lead to more immigration fraud. At best these concerns are misguided, and at worst they are a pretext for discrimination. This bill retains strong protections against fraud already in immigration law. To qualify as a permanent partner, petitioners must prove that they are at least 18-years-old and are in a committed, financially interdependent relationship with another adult in which both parties intend a lifelong commitment. They must also prove that they are not married to, or in a permanent partnership with, anyone other than that person, and are unable to contract with that person in a marriage cognizable under the Immigration and Nationality Act. Proof could include sworn affidavits from friends and family and documentation of financial interdependence. Penalties for fraud would be the same as penalties for marriage fraud--up to five years in prison and $250,000 in fines for the U.S. citizen partner, and deportation for the foreign partner. Discrimination based upon sexual orientation should play no role in guarding against those who seek to abuse our immigration laws.

Like many people across the country, there are Vermonters whose partners are foreign nationals and who feel abandoned by our laws in this area: Vermonters like Gordon Stewart who has come to talk to me about the unfairness of our current laws, or a committed, loving couple of 24 years in Brattleboro, VT, who travel back and forth between Vermont and England, and who wish nothing more than to be able to be together in the United States. This bill would allow them, and other gay and lesbian Americans throughout our Nation who have felt that our immigration laws are discriminatory, to be a fuller part of our society. The promotion of family unity has long been part of Federal immigration policy, and we should honor that principle by providing all Americans the opportunity to be with their loved ones.

The idea that immigration benefits should be extended to same-sex couples is not a novel one. Many nations have come to recognize that their respective immigration laws should respect family unity, regardless of a person's sexual orientation. Indeed, 16 of our closest allies--Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom--recognize same-sex couples for immigration purposes.

I would ask all Senators to take heed of what my friend, Congressman John Lewis has said about discrimination against gay and lesbian Americans, when he wrote in 2003: ``Rather than divide and discriminate, let us come together and create one nation. We are all one people. We all live in the American house. We are all the American family. Let us recognize that the gay people living in our house share the same hopes, troubles, and dreams. It's time we treated them as equals, as family.'' Congressman Lewis is right. I hope all Senators will join me in supporting equality for all Americans and their loved ones.

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

Mr. President, I am proud to reintroduce the Uniting American Families Act. This legislation will allow U.S. citizens and legal permanent residents to petition for their foreign same-sex partners to come to the United States under our family immigration system. I thank Senators Whitehouse, Kerry, Schumer, Feingold, Wyden, Cardin, Menendez, Murray, Brown, Akaka, and Lautenberg for their support of this legislation. I hope that the Senate will act to demonstrate our Nation's commitment to equality under the law by passing this measure.

I am also grateful that Congressman Nadler is introducing this same measure in the House of Representatives. Congressman Nadler has been a steady champion of this legislation, and I commend his efforts.

When the marker for the Senate's comprehensive immigration legislation was introduced at the beginning of this Congress, I said that among the changes needed in our immigration laws is equality for gay and lesbian Americans. The burdens and benefits of the laws created by the elected officials who represent all Americans should be shared equally, and without discrimination. With an historic election behind us, and the promise of a more just, peaceful, and prosperous world ahead of us, let us begin to break down the barriers that still remain for so many American citizens.

Under current law, committed same-sex foreign partners of American citizens are unable to use the family immigration system, which accounts for a majority of the green cards and immigrant visas granted annually by the United States. As a result, gay Americans who are in this situation must either live apart from their partners, or leave the country if they want to live with them legally and permanently. According to the most recent census, there are approximately 35,000 bi- national, same-sex couples living in the United States. It is all but certain that many of these couples will eventually be forced to make a choice with which no American should be faced--to choose between the country they love and the person they love.

Some have expressed concern that providing this equality in our immigration law will lead to more immigration fraud. At best these concerns are misguided, and at worst they are a pretext for discrimination. This bill retains strong protections against fraud already in immigration law. To qualify as a permanent partner, petitioners must prove that they are at least 18-years-old and are in a committed, financially interdependent relationship with another adult in which both parties intend a lifelong commitment. They must also prove that they are not married to, or in a permanent partnership with, anyone other than that person, and are unable to contract with that person in a marriage cognizable under the Immigration and Nationality Act. Proof could include sworn affidavits from friends and family and documentation of financial interdependence. Penalties for fraud would be the same as penalties for marriage fraud--up to five years in prison and $250,000 in fines for the U.S. citizen partner, and deportation for the foreign partner. Discrimination based upon sexual orientation should play no role in guarding against those who seek to abuse our immigration laws.

Like many people across the country, there are Vermonters whose partners are foreign nationals and who feel abandoned by our laws in this area: Vermonters like Gordon Stewart who has come to talk to me about the unfairness of our current laws, or a committed, loving couple of 24 years in Brattleboro, VT, who travel back and forth between Vermont and England, and who wish nothing more than to be able to be together in the United States. This bill would allow them, and other gay and lesbian Americans throughout our Nation who have felt that our immigration laws are discriminatory, to be a fuller part of our society. The promotion of family unity has long been part of Federal immigration policy, and we should honor that principle by providing all Americans the opportunity to be with their loved ones.

The idea that immigration benefits should be extended to same-sex couples is not a novel one. Many nations have come to recognize that their respective immigration laws should respect family unity, regardless of a person's sexual orientation. Indeed, 16 of our closest allies--Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom--recognize same-sex couples for immigration purposes.

I would ask all Senators to take heed of what my friend, Congressman John Lewis has said about discrimination against gay and lesbian Americans, when he wrote in 2003: ``Rather than divide and discriminate, let us come together and create one nation. We are all one people. We all live in the American house. We are all the American family. Let us recognize that the gay people living in our house share the same hopes, troubles, and dreams. It's time we treated them as equals, as family.'' Congressman Lewis is right. I hope all Senators will join me in supporting equality for all Americans and their loved ones.

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

Mr. President, I rise to join Senator Mikulski, the chairwoman of the Commerce, Justice, and Science, CJS, Appropriations Subcommittee, and Senator Klobuchar in a colloquy about the importance of the Community Orienting Policing Services, COPS, grant program. I would first like to thank my friend from Maryland for her tireless work and leadership on this bill. I know Senator Klobuchar and I and many others are very thankful that the Appropriations Committee included funding for the COPS Universal Hiring Program in this bill.

It is important now more than ever that we support our State and local law enforcement agencies that are on the front lines in combating crime. With unemployment on the rise and tax revenues plummeting, the conditions are ripe for crime rates to climb again. States and municipalities are being forced to slash their budgets, including critical funding for police, who will need to cut their already depleted ranks even further without help. As crime escalates, there will be fewer officers and resources to protect our families and communities, unless we act now.

Providing timely funding for the COPS Hiring Program will not only help to address vital crime prevention needs but will also have an immediate and positive impact on the economy by allowing State and local police forces to quickly fill vacancies and hire new officers and staff. In police hiring, nearly 100 percent of the money goes directly to job creation. These are good, middle-class jobs for middle-class people, and they can be filled immediately. These are often jobs for people who live in the hardest hit communities and will spend their money close to home.

Eliminating the 25-percent nonfederal match requirement, as the House bill does, will ensure that funds get to State and local law enforcement fast, meaning that law enforcement officers can be hired fast, without putting a new burden on states and localities that are already strapped during this time of financial distress. The match requirement could cause strained States and localities to decline COPS funding they would otherwise take, meaning fewer jobs would be created.

In its first hearing of the new Congress, the Senate Judiciary Committee received testimony from police chiefs and former Justice Department officials who explained that helping our local police during this economic downturn is needed now more than ever to keep America safe and keep our economy moving. Waiving the nonfederal match requirement in the economic recovery and reinvestment package will further ensure that police forces will be able to quickly refill their ranks and get more cops on the beat.

I thank Chairwoman Mikulski and Senator Klobuchar. I am hopeful that as the economic recovery and reinvestment plan moves forward that we may work together to see if this important issue can be addressed in conference.

victims' compensation and assistance grants

Mr. President, I wish to join Senator Mikulski, the chairwoman of the Commerce, Justice, and Science, CJS, Appropriations Subcommittee, in a colloquy about the importance of including additional funding to States for victims' compensation and assistance in the American Recovery and Reinvestment Act of 2009. I would first like to thank my friend from Maryland, who has worked so hard for the success of this bill. I commend her for fighting to include and maintain vital funding to support some of the most vulnerable Americans today, who need our help.

During the past year, victim service professionals have seen a clear increase in victimization and victim need. The National Crime Victim Helpline has experienced a 25-percent increase in calls,

as job losses and economic stress translate into increased violence in the home and in our communities. The shortage of affordable housing and rising unemployment are causing victims to require longer stays in emergency shelters. The increasing unemployment rate also means victims are less likely to have insurance to cover their crime-related expenses. In addition to significant State and county budget cuts, corporate and individual donations are decreasing. Across the board, victim service providers are strapped for funding.

As the Senate considers extraordinary legislation to address the current economic crisis, I believe it is imperative for the record to reflect the intent behind the provisions included in this legislation. To ensure that there is no doubt about what we intended, I ask my friend from Maryland whether it is her understanding that the funding included for State victims' compensation and assistance programs would be in addition to any funding states receive from their annual Victims of Crime Act, VOCA, Grants in the 2009 and 2010 appropriations bills?

I thank the Senator. It is not the Senate's intent to deduct the funding for victims compensation included in the economic recovery package from the grant money they would receive from regular VOCA formula grants. Through this bill, we intend to provide extra funding for compensation programs, to pay more costs for victims' recovery.

I thank the chairwoman of the CJS Appropriations Subcommittee, Senator Mikulski, for engaging in this colloquy. And I thank her for working with me to include victim services in the economic recovery legislation, which will help ensure that those already victimized by crime are not also victims of our economic crisis.

Mr. President, today marks the 60th wedding anniversary of Richard and Virginia Howrigan. I am happy to have the opportunity to congratulate my good friends who have given so much to the State of Vermont.

The Howrigans are one of the best-known families in Franklin County; their family name has been synonymous with successful and conscientious dairy farming for decades. Marcelle and I value our friendship with them.

Over the course of the past 60 years, Robert and Virginia have worked and grown together. They are wonderful parents, hard workers, and have always remained true to their faith.

Mr. President, I ask unanimous consent to have an excerpt from a February 8, 2009, Burlington Free Press article honoring the Howrigans printed in the Record.

Mr. President, I am pleased to join with my friend from California, Senator Feinstein, in introducing the Cluster Munitions Civilian Protection Act of 2009. This is a slightly revised version of a bill of the same name which we introduced in 2007.

Since December 3, 2008, when the Convention on Cluster Munitions opened for signature in Dublin, 96 countries have signed the treaty including Great Britain, Germany, Canada, Norway, Australia and other allies of the United States.

The treaty is the culmination of a year of negotiations, launched by Norway, among 107 governments that came together to prohibit the use of cluster munitions that cause unacceptable harm to civilians.

The Bush administration did not participate in the negotiations, which I believe was a mistake. As the Nation with the world's most powerful military we should not be on the sidelines while others are trying to protect the

lives and limbs of civilians who comprise the vast majority of war casualties today.

The Pentagon continues to insist that cluster munitions have military utility, and that the U.S. should retain the ability to use millions of cluster munitions in its arsenal which have estimated failure rates of 5 to 20 percent.

Of course, any weapon, whether cluster munitions, landmines, or even poison gas, has some military utility. But anyone who has seen the indiscriminate devastation cluster munitions cause over a wide area understands the unacceptable threat they can pose to civilians. These are not the laser guided weapons the Pentagon showed destroying their targets during the invasion of Baghdad.

There is the insidious problem of cluster munitions that fail to explode as designed and remain as active duds, like landmines, until they are triggered by whoever comes into contact with them. Often it is an unsuspecting child, or a farmer. We saw that recently in Lebanon, and in Laos people are still being killed and maimed by U.S. cluster munitions left from the Vietnam War.

Current law prohibits U.S. sales, exports and transfers of cluster munitions that have a failure rate exceeding 1 percent. That law also requires any sale, export or transfer agreement to include a requirement that the cluster munitions will be used only against military targets and not in areas where civilians are known to be present.

Last year, the Pentagon announced that it would meet the failure rate requirement for U.S. use of cluster munitions in 2018. While a step forward, I do not believe we can justify continuing to use weapons that so often fail, so often kill and injure civilians, and which many of our allies have renounced. That is not the kind of leadership the world needs and expects from the United States.

Senator Feinstein's and my bill would apply similar restrictions to the use of cluster munitions beginning immediately on the date of enactment. However, the bill does permit the President to waive the 1 percent requirement if he certifies that it is vital to protect the security of the United States. I urge the Pentagon to work with us by supporting this reasonable step.

I want to express my appreciation to all nations that have signed the treaty, and urge the Obama administration to review its policy on cluster munitions with a view toward putting the U.S. on a path to join the treaty as soon as possible. In the meantime, our legislation would go a long way toward putting the United States on that path.

There are some who dismissed the Cluster Munitions Convention as a pointless exercise, since it does not yet have the support of the United States and other major powers such as Russia, China, Pakistan, India, and Israel. These are some of the same critics of the Ottawa treaty banning antipersonnel landmines, which the U.S. and the other countries I named have also refused to sign. But that treaty has dramatically reduced the number of landmines produced, used, sold and stockpiled, and the number of mine victims has fallen sharply. Any government that contemplates using landmines today does so knowing that it will be condemned by the international community. I suspect it is only a matter of time before the same is true for cluster munitions.

It is important to note that the U.S. today has the technological ability to produce cluster munitions that would not be prohibited by the treaty. What is lacking is the political will to expend the necessary resources. There is no other excuse for continuing to use cluster munitions that cause unacceptable harm to civilians. I am committed to working in the Defense Appropriations Subcommittee to help secure the resources needed to make this new technology available.

I want to commend Senator Feinstein who has shown real passion and persistence in raising this issue and seeking every opportunity to protect civilians from these indiscriminate weapons.

Mr. President, today, I am introducing the bipartisan State Secrets Protection Act. I am pleased that Senator Kennedy, who had so much to do with developing this proposal last Congress is an original cosponsor of the bill along with Senators Specter, Feingold, Whitehouse and McCaskill. After a lengthy debate, this bill was reported by the Judiciary Committee last April.

The State secrets privilege is a common law doctrine that the Government can claim in court to prevent evidence that could harm national security from being publicly revealed. During the Bush administration, the State secrets privilege was used to avoid judicial review and skirt accountability by ending cases without consideration of the merits. It was used to stymie litigation at its very inception in cases alleging egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of Americans.

The 2006 case of Khaled El-Masri, who was kidnapped and transported against his will to Afghanistan, where he was detained and tortured as part of the Bush administration's extraordinary rendition program, is one such example. He sued the government alleging unlawful detention and treatment. A district court judge dismissed the entire lawsuit after the Government invoked the State secrets privilege, solely on the basis of an ex parte declaration from the Director of the Central Intelligence Agency, and despite the fact that the Government had admitted that the rendition program exists. Mr. El-Masri has no other remedy. Our justice system is off limits to him, and no judge ever reviewed any of the actual evidence.

The State secrets privilege serves important goals where properly invoked. But there are serious consequences for litigants and for the American public when the privilege is used to terminate litigation alleging serious Government misconduct. For the aggrieved parties, it means that the courthouse doors are closed forever regardless of the severity of their injury. They will never have their day in court. For the American public, it means less accountability, because there will be no judicial scrutiny of improper actions of the executive, and no check or balance.

The State Secrets Protection Act will help guide the courts to balance the Government's interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government's ability to assert the privilege in appropriate cases. Rather, the bill would allow judges to look at the actual evidence the Government submits so that they, neutral judges, rather than self-interested executive branch officials, would render the ultimate decision whether the State secrets privilege should apply. This is consistent with the procedure for other privileges recognized in our courts.

We held a Committee hearing on this issue last year, and the appropriate use of this privilege remains an area of concern for me and for the cosponsors of this bill. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation. I hope all Senators will join us in supporting this bill.

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

Mr. President, I am pleased to join with my friend from California, Senator Feinstein, in introducing the Cluster Munitions Civilian Protection Act of 2009. This is a slightly revised version of a bill of the same name which we introduced in 2007.

Since December 3, 2008, when the Convention on Cluster Munitions opened for signature in Dublin, 96 countries have signed the treaty including Great Britain, Germany, Canada, Norway, Australia and other allies of the United States.

The treaty is the culmination of a year of negotiations, launched by Norway, among 107 governments that came together to prohibit the use of cluster munitions that cause unacceptable harm to civilians.

The Bush administration did not participate in the negotiations, which I believe was a mistake. As the Nation with the world's most powerful military we should not be on the sidelines while others are trying to protect the

lives and limbs of civilians who comprise the vast majority of war casualties today.

The Pentagon continues to insist that cluster munitions have military utility, and that the U.S. should retain the ability to use millions of cluster munitions in its arsenal which have estimated failure rates of 5 to 20 percent.

Of course, any weapon, whether cluster munitions, landmines, or even poison gas, has some military utility. But anyone who has seen the indiscriminate devastation cluster munitions cause over a wide area understands the unacceptable threat they can pose to civilians. These are not the laser guided weapons the Pentagon showed destroying their targets during the invasion of Baghdad.

There is the insidious problem of cluster munitions that fail to explode as designed and remain as active duds, like landmines, until they are triggered by whoever comes into contact with them. Often it is an unsuspecting child, or a farmer. We saw that recently in Lebanon, and in Laos people are still being killed and maimed by U.S. cluster munitions left from the Vietnam War.

Current law prohibits U.S. sales, exports and transfers of cluster munitions that have a failure rate exceeding 1 percent. That law also requires any sale, export or transfer agreement to include a requirement that the cluster munitions will be used only against military targets and not in areas where civilians are known to be present.

Last year, the Pentagon announced that it would meet the failure rate requirement for U.S. use of cluster munitions in 2018. While a step forward, I do not believe we can justify continuing to use weapons that so often fail, so often kill and injure civilians, and which many of our allies have renounced. That is not the kind of leadership the world needs and expects from the United States.

Senator Feinstein's and my bill would apply similar restrictions to the use of cluster munitions beginning immediately on the date of enactment. However, the bill does permit the President to waive the 1 percent requirement if he certifies that it is vital to protect the security of the United States. I urge the Pentagon to work with us by supporting this reasonable step.

I want to express my appreciation to all nations that have signed the treaty, and urge the Obama administration to review its policy on cluster munitions with a view toward putting the U.S. on a path to join the treaty as soon as possible. In the meantime, our legislation would go a long way toward putting the United States on that path.

There are some who dismissed the Cluster Munitions Convention as a pointless exercise, since it does not yet have the support of the United States and other major powers such as Russia, China, Pakistan, India, and Israel. These are some of the same critics of the Ottawa treaty banning antipersonnel landmines, which the U.S. and the other countries I named have also refused to sign. But that treaty has dramatically reduced the number of landmines produced, used, sold and stockpiled, and the number of mine victims has fallen sharply. Any government that contemplates using landmines today does so knowing that it will be condemned by the international community. I suspect it is only a matter of time before the same is true for cluster munitions.

It is important to note that the U.S. today has the technological ability to produce cluster munitions that would not be prohibited by the treaty. What is lacking is the political will to expend the necessary resources. There is no other excuse for continuing to use cluster munitions that cause unacceptable harm to civilians. I am committed to working in the Defense Appropriations Subcommittee to help secure the resources needed to make this new technology available.

I want to commend Senator Feinstein who has shown real passion and persistence in raising this issue and seeking every opportunity to protect civilians from these indiscriminate weapons.

Mr. President, today, I am introducing the bipartisan State Secrets Protection Act. I am pleased that Senator Kennedy, who had so much to do with developing this proposal last Congress is an original cosponsor of the bill along with Senators Specter, Feingold, Whitehouse and McCaskill. After a lengthy debate, this bill was reported by the Judiciary Committee last April.

The State secrets privilege is a common law doctrine that the Government can claim in court to prevent evidence that could harm national security from being publicly revealed. During the Bush administration, the State secrets privilege was used to avoid judicial review and skirt accountability by ending cases without consideration of the merits. It was used to stymie litigation at its very inception in cases alleging egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of Americans.

The 2006 case of Khaled El-Masri, who was kidnapped and transported against his will to Afghanistan, where he was detained and tortured as part of the Bush administration's extraordinary rendition program, is one such example. He sued the government alleging unlawful detention and treatment. A district court judge dismissed the entire lawsuit after the Government invoked the State secrets privilege, solely on the basis of an ex parte declaration from the Director of the Central Intelligence Agency, and despite the fact that the Government had admitted that the rendition program exists. Mr. El-Masri has no other remedy. Our justice system is off limits to him, and no judge ever reviewed any of the actual evidence.

The State secrets privilege serves important goals where properly invoked. But there are serious consequences for litigants and for the American public when the privilege is used to terminate litigation alleging serious Government misconduct. For the aggrieved parties, it means that the courthouse doors are closed forever regardless of the severity of their injury. They will never have their day in court. For the American public, it means less accountability, because there will be no judicial scrutiny of improper actions of the executive, and no check or balance.

The State Secrets Protection Act will help guide the courts to balance the Government's interests in secrecy with accountability and the rights of citizens to seek judicial redress. The bill does not restrict the Government's ability to assert the privilege in appropriate cases. Rather, the bill would allow judges to look at the actual evidence the Government submits so that they, neutral judges, rather than self-interested executive branch officials, would render the ultimate decision whether the State secrets privilege should apply. This is consistent with the procedure for other privileges recognized in our courts.

We held a Committee hearing on this issue last year, and the appropriate use of this privilege remains an area of concern for me and for the cosponsors of this bill. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation. I hope all Senators will join us in supporting this bill.

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

Madam President, for the past week, the Senate has been debating an economic recovery plan introduced by Senators Inouye and Baucus. I support this plan because the American people and their communities need it to create jobs, help stabilize the economy, and protect those who have been most hurt by the current global economic and financial crises.

We are confronting the most severe economic problems this country has experienced in generations. The U.S. economy has been in recession since December 2007. America's GDP declined 3.8 percent in the fourth quarter of 2008, the steepest drop since 1982. The United States lost 2.6 million jobs last year, the most since 1945. And last week we learned that the U.S. economy shed 598,000 jobs in January, putting the unemployment rate at 7.6 percent.

In my home State of Vermont, not only has the amount of credit available to small businesses shrunk significantly, but our unemployment rate jumped to 6.4 percent in December--the highest measurement in more than 15 years. With many more firms announcing layoffs in January and so far in February, the economic numbers are shaping up as even bleaker news for America's working families, and also for America's now out-of-work families.

Of course, Vermont is not alone in this struggle. Workers, businesses, and State and local governments all across the country face mounting debt, slumping orders, and sagging budgets.

To respond to this extraordinary crisis, I agree with President Obama and a vast majority of Americans that we must act quickly and responsibly to pass an economic recovery and job creation plan as bold as the challenges we face. By acting now to strengthen our economy and invest in America's future, we can create good-paying jobs, cut taxes for working families, and make responsible investments in our future.

Our No. 1 priority should be to put America back to work. This economic recovery plan we are debating today will help create or save million of jobs, including an entire generation of green jobs that will make public and private investments in renewable energy and make America more energy efficient.

Investing in our country's infrastructure and education will do more than create jobs today--it also will put the country back on a long- term path toward prosperity. Rebuilding our roads and bridges; expanding broadband access to rural communities; making our energy grid smart and more efficient; constructing state-of-the-art classrooms, labs and libraries; and investing in job training that Americans will need to succeed in the 21st century economy will give us tangible assets that we can use for years to come to foster additional economic growth.

But it has been interesting over the past week to listen to the impassioned speeches of some members of the minority party in relation to this economic recovery bill. Despite all of the pain being felt in America today, it is as if their tax-cutting policies, in effect for the past 8 years, were a resounding success and built a strong economy, rather than left the American people with a trillion-dollar deficit and the highest unemployment rates in recent history. It is as if they have somehow convinced themselves that we should go right on supporting the Bush administration's policies that the voters soundly rejected last November.

For instance, I have heard criticism about the increased Federal funding for State and local law enforcement in this bill. Some have called this a ``pet project'' which will do little to stimulate the economy. Nothing could be further from the truth. Tough economic times create conditions that can too easily lead to a spike in crime. Just 2 weeks ago, USA Today reported a study by the Police Executive Research Forum finding that nearly half of the 233 police agencies surveyed had seen significant increases in crime since the economic crisis began. Maintaining effective State and local law enforcement during a time of budget cutting

at the State and local levels is key to our efforts to combat the scourge of drugs and crime.

The funding the Senate has included in the recovery package for State and local law enforcement will not only help to address vital crime prevention needs, but will also have an immediate and positive impact on the economy, as police chiefs and experts from across the country told the Senate Judiciary Committee in our first hearing of the year, which I chaired last month. Hiring new police officers will stimulate the economy as fast as, or faster than, other spending. For construction jobs, only 30 to 40 percent of the funds go to salaries, but in police hiring, nearly 100 percent of the money goes to creating jobs.

We also need to remember that crime and drugs are not just big city issues. I held Judiciary Committee hearings in Rutland and St. Albans, VT, last year to seek solutions to the growing problem of drug crime in rural areas. Rural areas, which lack the crime prevention and law enforcement resources often available in larger communities, have in many cases been hit particularly hard by the economic crisis. The Senate bill's inclusion of such assistance is important and should remain.

I am also pleased that the Senate has chosen to include in its recovery package funding for programs protecting women who are victims of violence through the Violence Against Women Act, as well as for victims of crime--addressing those who are most vulnerable to the likely increases in crime in a down economy. Law enforcement officials and victims' advocates have made clear to the Judiciary Committee that in the current economic crisis there are more victims than ever in need of more help than before, but funding sources for victim services are scarce. Those already victimized by crime should not also be victims of our struggling economy.

I have also long held the view that American innovation can and should play a vital role in revitalizing our economy and in improving our Nation's health care system. I commend the lead sponsors of the economic recovery legislation for making sure that this bill includes an investment in health information technology that takes meaningful steps to protect the privacy of American consumers. The privacy protections for electronic health records in the economic recovery package are essential to a successful national health IT system. Among other things, these privacy safeguards give each individual the right to access his or her own electronic health records and the right to timely notice of data breaches involving their health information, and the safeguards place critical restrictions on the sale of sensitive health data.

Also crucial are funds for fraud enforcement, which is necessary for protecting the integrity and efficiency not only of the financial system, but also of the spending in this bill--the very concern that critics of the bill keep harping on. The economic crisis has revealed an epidemic of fraud related to the mortgage fraud crisis and the resulting corporate collapses. The FBI and other Federal agencies will soon be overwhelmed with new cases. In the past year, the FBI has received more than 60,000 Suspicious Activity Reports from banks, a number which has doubled in 3 years, but currently there are fewer than 200 agents assigned to investigate these criminal allegations. The significant funding included in the Senate recovery and reinvestment bill would help the FBI hold accountable those responsible for contributing to our economic crisis.

Nobody thinks this bill is perfect. Like most bills, there are things in it that I like and other things that I disagree with. We are part of a global economic recession involving forces that extend far beyond our borders, and nobody thinks this bill will eliminate unemployment completely or solve all our fiscal problems. It took years to get us into this mess, and it will take years to get us out. There is no quick fix--not this bill, not any bill.

But America is hurting, and Americans urgently need our help. They want action and solutions. I strongly support this economic recovery package because I believe it would provide a direct infusion of emergency aid to create new jobs, help save existing jobs, make significant infrastructure investments, provide relief for massive State budget deficits, and relieve the tax burden on struggling families. We have had a long, tough debate here in the Senate, but America deserves nothing less than our best effort.

Madam President, I commend the Senate Appropriations Committee for including $7 billion in the Reinvestment and Recovery Act for the Department of Commerce to improve broadband access in our country. This new program should bring broadband to unserved and underserved areas in Vermont and other rural parts of our country. That access is crucial to the vitality of rural communities which are in danger of being left off the technology highway.

During deliberation of the reinvestment and recovery bill over the past week, I offered amendment No. 332 to set aside $100 million within the available $7 billion to provide loan guarantees for broadband construction. The program established in the underlying bill currently will fund only grants. These grants will be an important pillar of any financing for a national build out of broadband. However, loan guarantees are another important financing option to construct broadband networks. That is why I am offering this amendment to set aside less than 2 percent of the $9 billion for grants to establish a loan guarantee program.

Creating a loan guarantee program alongside the grant program has the benefit of leveraging billions of additional dollars in broadband investment. The $100 million that my amendment would have set aside would have leveraged up to $2 billion in additional broadband initiatives. And perhaps more importantly, a loan guarantee program would have the potential of advancing broadband projects that were prepared to move forward with bonds only to be halted due to the economic downturn and crisis in the credit markets.

In Vermont, I have been closely following the East Central Fiber, ECF, project. A group of 22 towns in the upper Connecticut and White River valleys of our State have formed a joint venture to bring fiber- optic broadband communications services to their region. The area is currently underserved or un-served with the type of modern communications infrastructure which is so critical to their long term economic survival. The East Central Fiber group was prepared to build their fiber to the home project through municipal financing until the credit markets collapsed during the economic downturn. A federal loan guarantee program could be the difference in financing this $100 million initiative.

It makes sense to establish a loan guarantee program for broadband in conjunction with the new grant program this bill funds. The small percentage of funds my amendment would have set aside has the potential to leverage billions more in broadband investments for rural communities.

This amendment was cleared by the relevant committees. Unfortunately Senators who oppose the reinvestment and recovery bill will raise objections to adopting any amendments by unanimous consent. Thus my amendment No. 332, as modified, along with several other amendments were denied being included in the final legislation that will pass the Senate today.

I will continue to work with my colleagues to establish at Broadband Loan Guarantee program at the Department of Commerce. Such guarantees are an important part of any national strategy to bring broadband, including fiber to every home, to rural communities.

Mr. President, today we reintroduce the Artist-Museum Partnership Act, and once again, I am pleased to be joined in this effort by my good friend Senator Bennett from Utah.

This bipartisan legislation would enable our country to keep cherished art works in the United States and to preserve them in our public institutions. At the same time, this legislation will erase an inequity in our tax code that currently serves as a disincentive for artists to donate their works to museums and libraries. We have introduced this same bill in each of the past five Congresses, and I am hopeful that this will be our year. In the past, our bill has been included in the Senate-passed version of the 2001 tax reconciliation bill, the Senate-passed version of the 2003 Charity Aid, Recovery, and Empowerment Act, and the Senate-passed version of the 2005 tax reconciliation bill. I would like to thank Senators Bayh, Boxer, Brown, Cochran, Dodd, Durbin, Johnson, Kennedy, Sanders, Schumer, and Whitehouse for cosponsoring this non-partisan bill.

Our bill is sensible and straightforward. It would allow artists, writers, and composers to take a tax deduction equal to the fair market value of the works they donate to museums and libraries. This is something that collectors who make similar donations are already able to do. Under current law, artists who donate self-created works are only able to deduct the cost of supplies such as canvas, pen, paper and ink, which does not even come close to their true value. This is unfair to artists, and it hurts museums and libraries large and small that are dedicated to preserving works for posterity. If we as a nation want to ensure that works of art created by living artists are available to the public in the future for study and for pleasure this is something that artists should be allowed to do.

In my State of Vermont, we are incredibly proud of the great works produced by hundreds of local artists who choose to live and work in the Green Mountain State. Displaying their creations in museums and libraries helps develop a sense of pride among Vermonters, and strengthens a bond with Vermont, its landscape, its beauty, and its cultural heritage. Anyone who has contemplated a painting in a museum or examined an original manuscript or composition, and has gained a greater understanding of both the artist and the subject as a result, knows the tremendous value of these works. I would like to see more of them, not fewer, preserved in Vermont and across the country.

Prior to 1969, artists and collectors alike were able to take a deduction equivalent to the fair market value of a work, but Congress changed the law with respect to artists in the Tax Reform Act of 1969. Since then, fewer and fewer artists have donated their works to museums and cultural institutions. For example, prior to the enactment of the 1969 law, Igor Stravinsky planned to donate his papers to the Music Division of the Library of Congress. But after the law passed, his papers were sold instead to a private foundation in Switzerland. We can no longer afford this massive loss to our cultural heritage. Losses to the public like this are an unintended consequence of the 1969 tax bill that should be corrected.

Congress changed the law for artists more than 30 years ago in response to the perception that some taxpayers were taking advantage of the law by inflating the market value of self-created works. Since that time, however, the government has cut down significantly on the abuse of fair market value determinations.

Under our legislation, artists who donate their own paintings, manuscripts, compositions, or scholarly compositions would be subject to the same new rules that all taxpayer/collectors who donate such works must now follow. This includes providing relevant information as to the value of the gift, providing appraisals by qualified appraisers, and, in some cases, subjecting them to review by the Internal Revenue Service's Art Advisory Panel.

In addition, donated works must be accepted by museums and libraries, which often have strict criteria in place for works they intend to display. The institution must certify that it intends to put the work to a use that is related to the institution's tax exempt status. For example, a painting contributed to an educational institution must be used by that organization for educational purposes and could not be sold by the institution for profit. Similarly, a work could not be donated to a hospital or other charitable institution that did not intend to use the work in a manner related to the function constituting the recipient's exemption under Section 501 of the tax code. Finally, the fair market value of the work could only be deducted from the portion of the artist's income that has come from the sale of similar works or related activities.

This bill would also correct another disparity in the tax treatment of self-created works--how the same work is treated before and after an artist's death. While living artists may only deduct the material costs of donations, donations of those same works after death are deductible from estate taxes at the fair market value of the work. In addition, when an artist dies, works that are part of his or her estate are taxed on the fair market value.

I want to thank my colleagues again for cosponsoring this bipartisan legislation. The time has come for us to correct an unintended consequence of the 1969 law and encourage rather than discourage the donations of art works by their creators. This bill will make a crucial difference in an artist's decision to donate his or her work, rather than sell it to a private party where it may become lost to the public forever.

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

Mr. President, today we reintroduce the Artist-Museum Partnership Act, and once again, I am pleased to be joined in this effort by my good friend Senator Bennett from Utah.

This bipartisan legislation would enable our country to keep cherished art works in the United States and to preserve them in our public institutions. At the same time, this legislation will erase an inequity in our tax code that currently serves as a disincentive for artists to donate their works to museums and libraries. We have introduced this same bill in each of the past five Congresses, and I am hopeful that this will be our year. In the past, our bill has been included in the Senate-passed version of the 2001 tax reconciliation bill, the Senate-passed version of the 2003 Charity Aid, Recovery, and Empowerment Act, and the Senate-passed version of the 2005 tax reconciliation bill. I would like to thank Senators Bayh, Boxer, Brown, Cochran, Dodd, Durbin, Johnson, Kennedy, Sanders, Schumer, and Whitehouse for cosponsoring this non-partisan bill.

Our bill is sensible and straightforward. It would allow artists, writers, and composers to take a tax deduction equal to the fair market value of the works they donate to museums and libraries. This is something that collectors who make similar donations are already able to do. Under current law, artists who donate self-created works are only able to deduct the cost of supplies such as canvas, pen, paper and ink, which does not even come close to their true value. This is unfair to artists, and it hurts museums and libraries large and small that are dedicated to preserving works for posterity. If we as a nation want to ensure that works of art created by living artists are available to the public in the future for study and for pleasure this is something that artists should be allowed to do.

In my State of Vermont, we are incredibly proud of the great works produced by hundreds of local artists who choose to live and work in the Green Mountain State. Displaying their creations in museums and libraries helps develop a sense of pride among Vermonters, and strengthens a bond with Vermont, its landscape, its beauty, and its cultural heritage. Anyone who has contemplated a painting in a museum or examined an original manuscript or composition, and has gained a greater understanding of both the artist and the subject as a result, knows the tremendous value of these works. I would like to see more of them, not fewer, preserved in Vermont and across the country.

Prior to 1969, artists and collectors alike were able to take a deduction equivalent to the fair market value of a work, but Congress changed the law with respect to artists in the Tax Reform Act of 1969. Since then, fewer and fewer artists have donated their works to museums and cultural institutions. For example, prior to the enactment of the 1969 law, Igor Stravinsky planned to donate his papers to the Music Division of the Library of Congress. But after the law passed, his papers were sold instead to a private foundation in Switzerland. We can no longer afford this massive loss to our cultural heritage. Losses to the public like this are an unintended consequence of the 1969 tax bill that should be corrected.

Congress changed the law for artists more than 30 years ago in response to the perception that some taxpayers were taking advantage of the law by inflating the market value of self-created works. Since that time, however, the government has cut down significantly on the abuse of fair market value determinations.

Under our legislation, artists who donate their own paintings, manuscripts, compositions, or scholarly compositions would be subject to the same new rules that all taxpayer/collectors who donate such works must now follow. This includes providing relevant information as to the value of the gift, providing appraisals by qualified appraisers, and, in some cases, subjecting them to review by the Internal Revenue Service's Art Advisory Panel.

In addition, donated works must be accepted by museums and libraries, which often have strict criteria in place for works they intend to display. The institution must certify that it intends to put the work to a use that is related to the institution's tax exempt status. For example, a painting contributed to an educational institution must be used by that organization for educational purposes and could not be sold by the institution for profit. Similarly, a work could not be donated to a hospital or other charitable institution that did not intend to use the work in a manner related to the function constituting the recipient's exemption under Section 501 of the tax code. Finally, the fair market value of the work could only be deducted from the portion of the artist's income that has come from the sale of similar works or related activities.

This bill would also correct another disparity in the tax treatment of self-created works--how the same work is treated before and after an artist's death. While living artists may only deduct the material costs of donations, donations of those same works after death are deductible from estate taxes at the fair market value of the work. In addition, when an artist dies, works that are part of his or her estate are taxed on the fair market value.

I want to thank my colleagues again for cosponsoring this bipartisan legislation. The time has come for us to correct an unintended consequence of the 1969 law and encourage rather than discourage the donations of art works by their creators. This bill will make a crucial difference in an artist's decision to donate his or her work, rather than sell it to a private party where it may become lost to the public forever.

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

Mr. President, reserving the right to object, and I shall not, I wonder if the distinguished senior Senator from Montana could give me some idea regarding the broadband amendment which I had pending, when it would be coming up.

Mr. President, as I said, I shall not object, but I note I have been trying for several days, since the time I submitted that amendment, to bring it up. It will require a slight modification, agreed to by both the Republican and Democratic side. I just want to have some idea when it might come. I have no objection to the unanimous consent request.