Floor Statements

Mr. President, There are few things as critical to our Nation, and to American citizenship, as voting. Like the rights guaranteed by the first amendment, the right to vote is fundamental because it secures the effective exercise of all other rights. As people are able to register, vote, and elect candidates of their choice, their interests and rights get attention. The very legitimacy of our democratic Government is dependent on the access all Americans have to the electoral process.

The Voting Rights Act of 1965 transformed the landscape of political inclusion. As amended, the act contains important provisions for language assistance. Section 203, added as part of the second reauthorization of the Voting Rights in 1975, broadened this landscape by allowing millions more American citizens to participate fully in our democracy. Section 203, which requires bilingual voting assistance for certain language minority groups, was enacted to remove obstacles to voting posed by illiteracy and lack of bilingual language assistance resulting in large measure from unequal educational opportunities available to minorities. These provisions helped overcome discriminatory barriers which limited access to the political process for language minority groups and resulted in low turnout and registration. Along with section 4(f)(4), section 203 has led to extraordinary gains in representation and participation made by Asian Americans and Hispanic Americans.

Hispanic-American populations have been one of the primary minority language groups to benefit from the protections of the bilingual provisions of the Voting Rights Act. For example, effective implementation of the bilingual provisions in San Diego County, CA, helped increase voter registration by more than 20 percent. And voter turnout among Hispanic Americans in New Mexico rose 26 percent between 2000 and 2004 after television and radio spots were aired in districts with Spanish-educated listeners about voter registration and absentee ballots. Yet more needs to be done. Historically, Hispanic Americans have low voter turnout and less than 1 percent of all elected offices in the United States are held by Hispanic Americans.

I was troubled during the immigration debate that the rhetoric of some Members of the Senate appeared to be anti-Hispanic in supporting the adoption of an English language amendment. Senator Salazar and I wrote to the President following up on this provision. We asked whether the President will continue to implement the language outreach policies of President Clinton's Executive Order No. 13166. A prompt and straightforward affirmative answer would have gone a long way. Sadly, we have received no response from this White House. I have, however, raised the matter when the opportunity presented itself with the Secretary of Commerce and the Attorney General and both have assured me that the Bush administration will continue to adhere to the outreach efforts of the Clinton Executive order.

I understand why those efforts to amend the immigration bill to make English the official or national language provoked a reaction and seemed mean-spirited to so many. It elicited the extraordinary May 19 letter from the League of United Latin American Citizens, the Mexican American Legal Defense and Educational Fund, the National Association of Latino Elected Officials Educational Fund, the National Council of La Raza and the National Puerto Rican Coalition and from a larger coalition of interested parties from 96 national and local organizations.

Until that vote, in our previous 230 years we had not found it necessary or wise to adopt English as our official or national language. I believe it was in the Commonwealth of Pennsylvania that the State legislature shortly after the Revolutionary War authorized official publication of Pennsylvania's laws in German as well as English to serve the German-speaking population of that State. We have been a confident Nation unafraid to hear expressions in a variety of languages and willing to reach out to all within our borders. That tradition is reflected in section 203 of the Voting Rights Act and in President Clinton's Executive Order No. 13166. It is an honorable and just tradition.

We demean our history and our welcoming tradition when we disparage languages other than English and those who speak them. I have spoken about our including Latin phrases on our official seal and the many States that include mottos and phrases in Latin, French and Spanish on their State flags. We need not fear other languages. We would do better to do more to encourage and assist those who wish to be citizens to learn English, but we should recognize English, as Senator Salazar's amendment suggested, as our common and unifying language.

I hope that the President will join with us to protect language minority voters. As a presidential candidate, then-Governor Bush told a New Hampshire audience in September 1999, ``English-only would mean to people `me, not you.' As the Washington Times noted recently:

Mr. Bush speaks some Spanish and occasionally peppers

speeches and conversations with words and phrases from the

language. Speaking to a group of adults taking civics lessons

yesterday at the Catholic Charities-operated Juan Diego

Center, he lapsed into Spanish. Asked whether Mr. Bush

planned to drop Spanish from his stump speeches, a White

House spokeswoman said she does not expect that to happen.

The White House, government agencies and a number of Senators include Spanish language outreach on their official government Web sites. I am glad that they do. Ironically, some who pushed most strongly for some variant of English-only treatment in the immigration bill have bent our rules to address the Senate in Spanish.

We have been engaged in a contentious debate about immigrants who are not yet citizens, which is unfortunate. I wish we could join together to pass fair and comprehensive immigration reform. But the issue related to section 203 and section 4(f)4 of the Voting Rights Act affects American citizens. These provisions provide assistance to Native Americans and indigenous peoples, who speak languages which preceded the first English speakers on this continent. These are citizens who are trying to vote but many of them are struggling with the English language due to disparities in education and the incremental process of learning. It is imperative that all citizens be able to exercise their rights as citizens, particularly a right as fundamental as the

right to vote. Renewing the language provisions of the Voting Rights Act that are expiring and continue to be needed, will help make that a reality.

At this time I would like to summarize some of the evidence received by the Senate Judiciary Committee demonstrating the continuing need for sections 203 and 4(f)4.

We received extensive testimony about past and continuing educational disparities in jurisdictions covered by section 203 and section 4(f)4. According to multiple witnesses, many Alaska Natives, Native Americans, Asian Americans and Hispanic Americans suffer from inadequate educational opportunities to learn English. Unfortunately, our Judiciary Committee record demonstrates that the high illiteracy rates experienced by language minorities result from the failure of State and local officials to afford equal educational opportunities.

Several witnesses testified that these educational disparities are the major form of discrimination against language minorities. John Trasvina, president of MALDEF, testified, ``while they may speak conversational English well, these U.S. citizens may not be fully proficient because they were intentionally denied the academic instruction necessary to vote effectively in English-only elections that employ complicated language and terminology.'' The problem of unequal educational opportunities existed before the Voting Rights Act was passed in 1965 and continues today. Language minority children who were educated in the 1970s, 1980s and 1990s and given unequal education opportunities are the adults that today need the assistance of sections 203 and 4(f)(4). Children who are in schools today where they receive unequal education will need the assistance of these provisions to fully participate in the political process as adults.

Over the course of nine hearings, we heard and received testimony that not only are all states with the most limited English proficient students covered by section 203, but all the school districts with most limited English proficient students are also covered by section 203. These children will first begin to vote over the next 25 years while this proposed reauthorization of the Voting Rights Act is in effect, and they will not have had equal access to education and the opportunity to learn English.

In Alaska, which has the single largest indigenous population in the United States, an attorney for Native American Rights Fund testified about the dramatic educational disparity between Native people and non- Natives. Only 75 percent of all Alaska Natives completed high school compared to 90 percent of non-Natives. And still Alaska persists in holding all-English elections--in violation of section 203--which has impacted Alaska Natives' ability to vote with their turnout lagging behind statewide voter turnout by 17 percent.

According to the 2000 Census, the educational attainment of Hispanic Americans nationally is also lacking. Only 52.4 percent of all Hispanic Americans have a high school education or more, compared to 80.4 percent for all persons in the United States. Efforts to combat this educational disparity have resulted in dozens of lawsuits against states for failing to provide equal education to native and nonnative English speakers. We received testimony that successful school funding cases have been brought in half of all the section 203 covered States and are pending in many others. In Arizona in 2005, a Federal court cited the State of Arizona for contempt for failing over the course of the preceding 13 years to provide opportunities for Spanish-language students to learn English in the public schools. The court has been fining the State at least $500,000 a day until the problem is corrected and equal opportunities are provided to the 175,000 English language learner students estimated to be in Arizona's schools in 2006.

And I personally understand the challenges of learning English as your second language. As I have said before, my wife was born of immigrant parents and English became her second language. My mother was born of immigrant parents, with English as her second language. Fortunately, they learned it as young people. But for adults learning English, it can be much harder.

We received extensive testimony that classes for adult students to increase their English proficiency are too few and oversubscribed. Senator Kennedy told us that in his own section 203 covered jurisdiction of Boston, the waiting period for English as a second language, ESL, classes is 17,000 students long which translates into a wait of as much as 3 years. In New York City, the ESL need is estimated to be 1 million, but only 41,347 adults were able to enroll in 2005 because of limited availability. It is a sad fact that most adult ESL programs no longer keep waiting lists because of the extreme demand, but use lotteries in which at least 75 percent are turned away, and the waiting time can be several years.

Continuing acts of discrimination against language minorities, such as those contained in the committee record, chill minority voting participation denying these citizens equal access to the balloting process. We heard countless examples of the continuing discrimination that minority language citizens face when participating or attempting to participate in the political process. These experiences will no doubt stick with each voter for some time.

Civil Rights organizations testified about numerous instances of discrimination that were documented while monitoring elections in covered jurisdictions in New York. For example, in the 2001 elections at Public School 228, a polling site coordinator, trying to thwart bilingual interpreters from performing their duties, yelled ``You f--- ing Chinese, there's too many of you!'' In 2002, at Public School 82 and at the Botanical Garden, some of the comments made to Asian- American voters included poll workers calling South Asian voters ``terrorists'' and mocking the physical features of Asian eyes. While monitoring the 2003 elections, independent observers reported that in Public School 126 in Manhattan's Chinatown, poll inspectors ridiculed a voter's surname--Ho; in Public School 115 in Queens, disparaging remarks were directed at South Asian voters, with one coordinator continuously referring to herself as a ``U.S. citizen'' and that she, unlike them, was ``born here'' and that the other workers needed to ``keep an eye'' on all South Asian voters; at Flushing Bland Center in Queens, the site coordinator complained that Asian-American voters ``should learn to speak English.''

During the 2004 election, a Hispanic voter in San Antonio, TX, was told by an election judge that she was not on a voter registration list and could not cast a provisional ballot, despite the recently enacted Help America Vote Act which provides for provisional ballots in such situations. She and her family had been voting at the same polling station for over 20 years. The election judge refused to unlock the provisional ballot box until a Mexican American Legal Defense and Education Fund--MALDEF--attorney arrived and negotiated on behalf of the voter.

And the House of Representatives received equally disturbing testimony which was incorporated into our own Record. In 2003, the chairman of the Texas House Redistricting Committee stated that he did not intend to hold redistricting hearings in the Rio Grande Valley in South Texas, where many U.S. citizens are limited English proficient Spanish speakers, because only two members of the Redistricting Committee spoke Spanish. Chairman Crabb stated that the members of the committee who did not speak Spanish ``would have a very difficult time if we were out in an area other than Austin or other English speaking areas to be able to have committee hearings to be able to converse with the people that did not speak English.'' Many citizens living in areas of Texas with high concentrations of limited English proficient citizens would have been excluded from participating in local Redistricting Committee hearings had Hispanic advocates not interceded on their behalf. In another part of the country, due to a lack of sufficient bilingual ballots, Hispanic voters in Pima County, AZ, were forced to crowd around one translated poster of more than a dozen initiatives left in a poorly lit area during the 2004 elections.

Sadly, these examples are not isolated incidents of discrimination. Assistant Attorney General Wan Kim testified that the Department of Justice has brought more lawsuits to enforce

the language minority provisions of the Voting Rights Act in the previous 5 years than in all previous years combined. These facts and all the other testimony we received in Committee clearly demonstrate the ongoing need for section 203's protections and the need that we reauthorize these provisions of the Voting Rights Act.

Of course there are critics. There are critics who say that the language assistance provisions in the Voting Rights Act should be eliminated entirely because immigrants must learn English to pass the citizenship test and therefore should be able to vote in English. This argument is unsound for two reasons.

First, we received overwhelming testimony that the level of English proficiency required to pass a citizenship test does not approach the level of proficiency required to register to vote or to understand ballot measures. Naturalization requires a third or fourth grade knowledge of English. Sample test sentences on the Immigration and Naturalization Services Web site reveal that no sentence is more than 10 words long and most are seven or less, containing one or two syllable words. In addition, most candidates for citizenship are exempt from the English language requirements of the citizenship test because they are over the age of 50. Between 1986 and 2004, 9,055,732 people were naturalized of which 4,925,553 or 54 percent were over the age of 50.

Voting requires English proficiency at levels much higher than the citizenship test. A survey of voter registration materials reported on the Warren Institute on Race, Ethnicity and Diversity, admitted into our Record, found the English grade level of the materials just to register to vote was much higher than third or fourth grade knowledge. In Texas, a ``covered jurisdiction'' for section 203 purposes, the voter registration material required nearly a twelfth grade English comprehension for completion with an average of 21 words per sentence. The situation is similar in Arizona--ninth grade level with 15 words per sentence--California, college freshman level with 22 words per sentence, and New Mexico, twelfth grade level with 19 words per sentence. This survey only covers materials required to register to vote. We also heard testimony about the complexity of actually casting votes on ballot initiatives and directions to operate voting machines as examples of other English language barriers to language minority voters. Ballot initiatives are often long and complicated requiring high school level education or higher. Deborah Wright, Acting Assistant Registrar-Recorder and County Clerk for Los Angeles County, testified that written translations are provided in L.A. County because of the complex nature of the issues facing the voters in that state.

Complex ballots are not limited to California. We received evidence of numerous examples. Perhaps the one that struck me the most was a 2004 Fargo, ND, election ballot, where a single question concerning tax increases for infrastructure improvement was one sentence which contained 150 words written at the graduate school level.

Second, most language minorities protected by the Voting Rights Act are United States citizens by birth. The vast majority of language minorities are not immigrants. In fact, 3.4 million of the 4.5 million language minority students in the public schools are native-born U.S. citizens. Hispanic Americans are the single largest minority group covered by Sections 203 and 4(f)(4). According to 2000 Census data, 84.2 percent of all Hispanic American citizens in the United States were born here. Nearly half of the 11.9 million Asian Americans citizens in the United States were born here. Further, 98.6 percent of all Puerto Rican persons in the United States are native born and the language of Puerto Rican public schools is Spanish with English taught as a subject.

The committee received testimony that although there are costs associated with implementing the minority language assistance provisions, they are reasonable. Los Angeles, the largest and most diverse local election jurisdiction in the United States, provides assistance to voters in six languages other than English, and its compliance with section 203 requirements costs 10 percent or less of its annual election budget. And the Secretary of State for New Mexico testified before the House Judiciary Committee characterizing the costs of complying with section 203 as, ``a minimal cost to the State of New Mexico.''

One witness testified that she believed the costs of section 203 to be extremely burdensome. Linda Chavez, president of One Nation Indivisible, testified that Los Angeles County spent $3.3 million in 2002 to comply with section 203, which she thought was too much to ask the County to bear. However, as Deborah Wright's testimony on behalf of Los Angeles County made clear this number is a small percentage of the overall election budget, and is proportional to the 12.9 million limited English proficient voters in her jurisdiction. Ms. Chavez also alleged that ``[f]requently the cost of multilingual voter assistance is more than half of a jurisdiction's total election costs,'' citing a 1997 General Accounting Office report. However, a close look at that GAO report shows that only 3 out of the 34 jurisdictions surveyed spent over 50 percent of their total election budget on multilingual voter assistance. Contrary to Ms. Chavez's testimony, the report reveals that the costs of providing language assistance made up, on average, a little over 10 percent of total expenditures. Ensuring full access to American's right to vote certainly is worth this reasonable cost.

For jurisdictions that struggle with the costs of implementing sections 203 or 4(f)(4), the Department of Justice, DOJ, provides commendable assistance in managing the costs. Acting Assistant Attorney General Bradley Schlozman testified that ``the Civil Rights Division recognizes, of course, that States and municipalities do not have unlimited budgets, and we have thus designed our enforcement strategy to minimize unnecessary costs for local election officials.''

The DOJ urges covered jurisdictions to avoid costly and unhelpful expenditures such as publishing Spanish language notices in English language newspapers that are not read by those who rely on the Spanish language. Election officials are encouraged to identify the most effective and efficient channels of communication that are used by private enterprise, service providers, tribal governments, and the like to get information effectively to the language minority community at low cost.

The DOJ also encourages the use of fax and e-mail ``information trees,'' whereby bilingual election notices are sent at no cost to a wide array of businesses, unions, social and fraternal organizations, service providers, churches and other organizations with a request that these entities make announcements or otherwise disseminate the information to their membership's language minority voters. And the DOJ has incorporated ``best practices'' from around the country to help jurisdictions recruit sufficient numbers of bilingual poll workers. As a consequence of the testimony submitted on costs of implementation, we determined that costs are both reasonable and manageable.

There has been some discussion about allegations that in some jurisdictions no one uses the translated materials, but we also received hard research showing that limited English proficient citizens utilize the written and oral assistance offered in jurisdictions, but must be made aware it exists. According to a November 2000 exit survey of language minority voters in Los Angeles and Orange Counties in California, 54 percent of Asian and Pacific Islander voters and 46 percent of Hispanic voters reported that they would be more likely to vote if they received language assistance. These numbers are consistent with other exit surveys done in the same counties in March 2000 and November 1998.

Examples of ``low use'' of bilingual election materials are not evidence that bilingual materials are not needed. ``Low use'' more likely suggests that a jurisdiction is not conducting sufficient outreach to the communities that would most benefit. In a survey of 810 section 203 covered jurisdictions, nearly two-thirds of election officials admitted they do not engage in community outreach to covered language groups. How are people supposed to know the help is there, if there is no community outreach? We can, and we must do better.

I am nonetheless happy to report, that when sufficient outreach to language minorities is accomplished, materials are being used to assist in voting according to evidence received in Committee. In the 1990 general election, bilingual assistance was used by 25 percent of Hispanic voters in the State of Texas, and 18 percent of Hispanic voters in the State of California. In the 1988 general election, bilingual assistance was used by 20 percent of Hispanic voters in the State of New Mexico, 19 percent of Hispanic voters in the State of Texas, and 10 percent of Hispanic voters in the State of California.

Being from a small state, I know the importance and the power of community involvement, but perhaps the best evidence we heard that shows the power of community outreach was the experience of Chinese- American voters in King County, WA, which includes the city of Seattle. One witness who urged an opt-out provision in section 203 for low use cited King County's experience in 2000, the first year it became a covered jurisdiction for voters who speak Chinese. That year, according to the witness, only 24 Chinese ballots were used, demonstrating that ballots were not needed. But that is not the full story. The real story is that after that election, officials in King County worked with Chinese-American community organizations and increased the publicity about the availability of bilingual election materials. In 2005, the number of requested Chinese ballots increased by more than 5,800 percent. It shows the power of community outreach cannot be overstated.

Much has been made by some witnesses in committee, and even in the press, that any provision of bilingual election materials contribute to the balkanization of American society. Research offered in committee shows this allegation to be faulty. On the contrary, making bilingual election materials available has encouraged more language minorities to participate in all political aspects of American society. After the section 203 coverage was expanded to include a numeric trigger during the last reauthorization, the number of Asian Americans registered to vote increased dramatically. Between 1996 and 2004, Asian Americans had the highest increase of new voter registration--58.7 percent. And we received testimony that in districts where the Department of Justice has conducted enforcement ensuring bilingual election materials, participation not only in voting but in running for political office has increased. After an enforcement proceeding in Harris County, TX, the Vietnamese-American voter turnout doubled, and the first Vietnamese-American candidate in history, Hubert Vo, was elected to the Texas Legislature--defeating the incumbent chair of the Appropriations Committee by 16 votes out of over 40,000 cast.

These voting rights provisions work--they tell new citizens and citizens by birth who may not always feel they are afforded all of the opportunities they deserve that they are welcome to join our political process. They help new citizens and first time voters to overcome cultural differences which further contribute to disenfranchisement for limited English proficient citizens who are often unfamiliar with the American voting process and do not know about registration, referenda and voting machines. The charge of ``balkanization,'' as one witness put it is ``a loaded term of mythical proportions that has absolutely no basis in fact, and is used as a divisive measure.'' Based on the evidence we received, it is clear that the provisions of Sections 203 and 4(f)(4) have led to increased participation and representation. These provisions, that caused significant problems in the House of Representatives, have enabled language minorities to overcome what are tantamount to literacy tests at the polling place so that they can access their fundamental right to vote. Section 203 and section 4(f)4 of the Voting Rights Act must be reauthorized.

Mr. President, recently I was pleased to introduce with Senators Kohl, Grassley and Schumer, the Preserve Access to Affordable Generics Act of 2006, S. 3582. That bill was designed to improve the timely and effective introduction of generic pharmaceuticals into the marketplace.

It is no secret that prescription drug prices are rapidly increasing and are a source of considerable concern to many Americans, especially senior citizens and families. In a marketplace free of manipulation, generic drug prices can be as much as 80 percent lower than the comparable brand name version. Unfortunately, there are still some companies driven by greed that may be keeping low-cost, life-saving generic drugs off the marketplace, off pharmacy shelves, and out of the hands of consumers by carefully crafted anticompetitive agreements between drug manufacturers.

In 2001, and last Congress, I introduced a related bill, the Competition Act. That bill, which is now law, is small in terms of length but large in terms of impact. It ensured that law enforcement agencies could take quick and decisive action against companies seeking to cheat consumers by delaying availability of generic medicines. It gave the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs out of the market--a practice that not only hurts American families, particularly senior citizens, by denying them access to low- cost generic drugs, but also contributes to rising medical costs.

The Drug Competition Act, which was incorporated in the Medicare Modernization Act, was a bipartisan effort to protect consumers in need of patented medicines who were being forced to pay considerably higher costs because of collusive secret deals designed. It is regrettable that we must come to the floor again today and take additional action to prevent drug companies from continuing to find and exploit loopholes.

The bill I am introducing tonight with Senators Rockefeller and Schumer is very important. It will provide incentives for generic companies to make the investments needed to introduce low-cost generic medicines for all our citizens.

The bill assures all Americans that the original intent of the Hatch- Waxman law is carried out. That law was to provide incentives for generic companies to challenge the validity of patents on medicines and provide incentives for generic companies to manufacture low-cost medicines. That incentive was simple.

Under Hatch-Waxman law, the first generic company, called the first- filer, which successfully develops a generic version of a patented drug and meets certain other requirements, can get a 180-day exclusivity period to be the only generic company to have permission to make and sell that generic drug.

That was called an exclusivity period because that is what the Congress intended--that generic company would have the exclusive right for 180 days to make the generic version of the patented medicine.

The problem is that recently brand-name companies have been labeling their own patented drugs also as a generic version of itself, or licensing others to make it, and selling both the brand-name version and the so-called generic version. This undercuts the potential profits of the ``real'' generic company and denies them what the Hatch-Waxman law promised and for a long time delivered--an exclusivity period lasting up to 180 days.

When the brand-name company offers a competing ``fake'' generic version of the drug, that can cut the profits of the real generic manufacturer greatly--thus making it less likely that a real generic company will even want to make the product.

The Rockefeller bill prevents the brand-name company from doing that for the 180-day exclusivity period. I hope my colleagues will join me in supporting this effort.

Mr. President, recently I was pleased to introduce with Senators Kohl, Grassley and Schumer, the Preserve Access to Affordable Generics Act of 2006, S. 3582. That bill was designed to improve the timely and effective introduction of generic pharmaceuticals into the marketplace.

It is no secret that prescription drug prices are rapidly increasing and are a source of considerable concern to many Americans, especially senior citizens and families. In a marketplace free of manipulation, generic drug prices can be as much as 80 percent lower than the comparable brand name version. Unfortunately, there are still some companies driven by greed that may be keeping low-cost, life-saving generic drugs off the marketplace, off pharmacy shelves, and out of the hands of consumers by carefully crafted anticompetitive agreements between drug manufacturers.

In 2001, and last Congress, I introduced a related bill, the Competition Act. That bill, which is now law, is small in terms of length but large in terms of impact. It ensured that law enforcement agencies could take quick and decisive action against companies seeking to cheat consumers by delaying availability of generic medicines. It gave the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs out of the market--a practice that not only hurts American families, particularly senior citizens, by denying them access to low- cost generic drugs, but also contributes to rising medical costs.

The Drug Competition Act, which was incorporated in the Medicare Modernization Act, was a bipartisan effort to protect consumers in need of patented medicines who were being forced to pay considerably higher costs because of collusive secret deals designed. It is regrettable that we must come to the floor again today and take additional action to prevent drug companies from continuing to find and exploit loopholes.

The bill I am introducing tonight with Senators Rockefeller and Schumer is very important. It will provide incentives for generic companies to make the investments needed to introduce low-cost generic medicines for all our citizens.

The bill assures all Americans that the original intent of the Hatch- Waxman law is carried out. That law was to provide incentives for generic companies to challenge the validity of patents on medicines and provide incentives for generic companies to manufacture low-cost medicines. That incentive was simple.

Under Hatch-Waxman law, the first generic company, called the first- filer, which successfully develops a generic version of a patented drug and meets certain other requirements, can get a 180-day exclusivity period to be the only generic company to have permission to make and sell that generic drug.

That was called an exclusivity period because that is what the Congress intended--that generic company would have the exclusive right for 180 days to make the generic version of the patented medicine.

The problem is that recently brand-name companies have been labeling their own patented drugs also as a generic version of itself, or licensing others to make it, and selling both the brand-name version and the so-called generic version. This undercuts the potential profits of the ``real'' generic company and denies them what the Hatch-Waxman law promised and for a long time delivered--an exclusivity period lasting up to 180 days.

When the brand-name company offers a competing ``fake'' generic version of the drug, that can cut the profits of the real generic manufacturer greatly--thus making it less likely that a real generic company will even want to make the product.

The Rockefeller bill prevents the brand-name company from doing that for the 180-day exclusivity period. I hope my colleagues will join me in supporting this effort.

Mr. President, I am pleased that the Judiciary Committee unanimously approved the Copyright Royalty Judges Program Technical Corrections Act, H.R. 1036, a bi1l that makes several important, noncontroversial, technical corrections to the Copyright Royalty and Distribution Reform Act of 2004. In particular, I am grateful to Senators Specter and Hatch for their efforts in the important work we have done, on this bill and so many others, over the years to strengthen our Nation's intellectual property laws. When Senators from different parties can collaborate as productively as we have on these tough issues, the legislative process is working the way it should.

The Copyright Royalty and Distribution Reform Act of 2004, which Senator Hatch and I jointly authored, modernized and improved the process by which certain royalty rates, such as those for small webcasters, are determined. Passage of the act was an important step toward creating laws that adequately protect and compensate makers of creative works. The Technical Corrections Act, H.R. 1036, makes truly technical corrections that shore up those laws and further preserve the traditional role of important intellectual property protections.

In addition to these technical corrections, I, along with Chairman Specter and Senator Hatch, offered an amendment that makes one more correction. Several copyright holders had brought it to our attention that under current laws, copyright royalty judges do not have the ability to allocate portions of cable and satellite royalties before the end of royalty distribution proceedings. This has resulted in more than $1 billion in cable and satellite royalties being withheld from rightful recipients. Our amendment rectified the problem by providing copyright royalty judges with explicit statutory discretion for partial distribution of royalties and was included in the legislation that the Judiciary Committee approved last week.

Now that the bill is on the floor, I urge my colleagues to move it quickly, by unanimous consent.

Mr. President, I am pleased that the Senate will pass a bill providing needed corrections to the Violence Against Women Act, VAWA, and the Department of Justice authorization bill we passed last year.

Among the improvements made in the amendment, the changes ensure that the VAWA public housing provisions allow a landlord to bifurcate a lease to evict an abuser while allowing a cosigning lessee as well as an authorized resident to remain as tenants. The bill also makes technical improvements in the administration of STOP grants and the Campus Grant Program. The bill improves the administration of grants to tribal governments and ensures that the 10-percent designation of VAWA grants to Indian tribes applies throughout all sections of the law.

I commend the efforts of all those who worked hard to improve this important law, and I am glad to support the improvements in this amendment that will sustain this law as a vital tool in our efforts to put an end to domestic violence.

In the last 25 years I believe that we have only been successful twice in passing authorization bills for the Department of Justice. I was pleased to be involved in both of them, working with Chairman Sensenbrenner and the Republican leader on the Senate Judiciary Committee at the time. This bill improves the most recent authorization we considered and passed in a bipartisan manner.

Mr. President, I would like to take this opportunity to offer my perspectives on the issue currently being debated by the Senate, stem cell research. The debate over this issue in the Senate is long overdue. The promise this research holds for finding treatments or cures for diseases such as Alzheimer's, diabetes, Parkinson's, Lou Gehrig's disease and cancer is immeasurable.

It has been 5 years since the President announced his administration's restrictive policy on stem cell research, a policy that limited the number of stem cell lines available for use with Federal funding. All of these lines are contaminated by the use of mouse feeder cells and will likely never meet the standards required for human treatment. The United States leads the world in the medical expertise that can find cures and treatments for these scourges. But it has become abundantly clear that the President's restrictive policy is hindering scientific progress toward the discovery in the United States of possible cures and treatments for many fatal diseases that affect millions of Americans, and millions more around the world.

More than a year ago, our colleagues in the House passed legislation that would reverse the President's limiting policy. Since then, as we have all waited for the Senate to act, many more who suffer from catastrophic illness and could have been helped by research

of this kind have passed away. Many of us are grieving the loss of Dana Reeve, a vocal advocate for stem cell research, who lost her battle with cancer last March. She and her husband, Christopher Reeve, had become two of the public faces in the struggle for advancement of stem cell research.

The Senate will vote on three stem cell bills today. However, H.R. 810 is the only bill that will give real reason for hope to millions of Americans and their families. Take the case of a woman from my State of Vermont who was diagnosed with multiple sclerosis in 1999. Forced to give up her career as a musician because she could no longer use her hands to play the piano, she began working as a clerk in a gift store, only to have to give up that job because she had trouble handling money and sometimes broke the items in the store. Her plea to me--and really to all of us--is deeply moving. Listen to her appeal: ``If there is any chance stem cell research might help MS, it must be done. There is nothing else for MS patients to look forward to . . .''

I would like to address two of the arguments that opponents of this stem cell research offer against the passage of H.R. 810. They contend that there is no need for public funding of this research because private funds are available in some situations. While there are private dollars being used for embryonic stem cell research, public funds are needed to spur on this research, to lead this research effort to the cutting edge of progress, and to harness the work of our National Institutes of Health. Public funding is also needed to keep the United States competitive with other countries in this arena.

At the University of Vermont, for example, researchers are using bone marrow stem cells to repair damaged tissues in various organs. This work could be expanded with the infusion of Federal research dollars.

A second misdirected argument is that this embryonic stem cell research is not needed because alternatives to embryonic research hold more promise than the current method. Some argue that embryonic stem cell research is not needed because it has not yielded any results. However, none of the proposed alternatives has proven successful for deriving human stem cells, and there is no guarantee that any of them ever will. While it is true that embryonic stem cell research has not yet led to human therapies, it is important to remember that this field is only in its infancy. This is because President Bush's restrictions have prevented federally funded investigators from fully exploring the potential of this research.

The President has indicated his intent to veto H.R. 810 should the Senate pass this bill. I join my colleagues in urging him not to use the first veto of his administration to block funding for this research. H.R. 810 is a bill that has garnered support across the faith community and across political lines. I respect those who raise concerns grounded in what they believe are moral and ethical issues surrounding this issue. I would assure them that this bill contains provisions that will ensure donor consent for the use of the embryos for medical research. The bill also maintains that research on these stem cells will be conducted in an ethical manner.

Those who oppose stem cell research seemingly ignore the fact that embryos used for this research will be otherwise discarded. Women at fertility clinics are given an option of what to do with unused fertilized embryos. At the discretion of the donor, embryos can be preserved, donated for medical research, or discarded. In the United States, there are more than 400,000 frozen embryos which are stored for infertile couples, and many ultimately will be thrown away. The options of discarding these embryos or allowing them to be used for lifesaving research would seem to offer a clear choice to those on both sides of this debate.

I am proud to be a cosponsor of S. 471 and I urge the Senate to pass the Stem Cell Research Enhancement Act so we can begin realizing the promise of this research.

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

The motion to lay on the table was agreed to.

Mr. President, more than 2 months ago I joined the Chairmen of both the Senate and House Judiciary Committees, the ranking member of the House Judiciary Committee, the Democratic and Republican leaders of both the Senate and the House of Representatives, and Members of Congress from both parties to introduce a bill to reauthorize and reinvigorate the temporary provisions of the Voting Rights Act of 1965. The bicameral, bipartisan introduction of this bill reflects not only its historic importance as a guarantor of the right to vote for all Americans, but also the broad consensus that the expiring provisions must be extended this year without delay. Unfortunately, we in the Senate have been delayed in getting this bill to the Senate floor by repeated cancellations and postponements of committee hearings and markups. The bill was also delayed in the House of Representatives for a month by a small group of opponents. Fortunately, the House was able to pass this legislation last week with 390 Members voting in favor. Now it is time for the Senate to do its part and pass this bill.

At my request, the chairman of the Senate Judiciary Committee has agreed to hold a special executive business session of the committee so that after a month of delay we can report out the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006. I hope that this vital civil rights legislation will be ready for full Senate consideration without further delay and that we can proceed with deliberate speed to pass the House-passed bill so that it may become law before Congress takes its summer vacation.

The U.S. Constitution specifically provides that Congress has the power to remedy discrimination under both the fourteenth and the fifteenth amendments. Over the course of nine Judiciary Committee hearings we received testimony from a range of constitutional scholars, voting rights advocates, and Supreme Court practitioners. There was agreement among these witnesses that Congress is at the height of its powers when giving enforceable meaning to these amendments by enacting laws that address racial discrimination in connection with voting. The fourteenth and fifteenth amendments have not changed. As long as these amendments are in our Constitution, Congress has the authority to enforce them, especially on matters of racial discrimination in connection with the right to vote. These are matters of fundamental importance.

The Senate Judiciary Committee held several hearings this year on the continuing need for the provision of the Voting Rights Act that requires covered jurisdictions to ``pre-clear'' all voting changes before they go into effect. This provision has been a tremendous source of protection for the voting rights of those long discriminated against and also a great deterrent against discriminatory efforts cropping up anew. Some academic witnesses suggested in their committee testimony that section 5 should be a victim of its success. In my view, abandoning a successful deterrent just because it works defies logic and common sense. Why risk losing the gains we have made? When this Congress finds an effective and constitutional way to prevent violations of the fundamental right to vote, we should preserve it. Now is no time for backsliding.

Since section 5 of the Voting Rights Act was first enacted in 1965 and last reauthorized in 1982, the country has made tremendous progress in combating racial discrimination. Certain jurisdictions disregarded the fifteenth amendment for almost 100 years and had a history of pervasive discriminatory practices that resisted attempts at redress from the passage of the fifteenth amendment in 1870 to the passage of the Voting Rights Act in 1965. Section 5 is intended to be a remedy for violations of the fourteenth and fifteenth amendments, in place for as long as necessary to enforce those amendments and eliminate practices denying or abridging the rights of minorities to participate in the political process. In fact, due in large measure to the remedies provided in the VRA, many voters in jurisdictions covered for the purposes of section 5 have gained the effective exercise of their right to vote.

However, based on the record established in hearings before the Senate Judiciary Committee and the Subcommittee on Constitution, Civil Rights, and Property Rights, which builds on the extensive record established in the House of Representatives, there remains a compelling need for section 5. The Judiciary Committee received three categories of evidence supporting the continuation of this remedy. First, there is evidence that even with section 5 in place, covered jurisdictions have continued to engage in discriminatory tactics. Often, this recurring discrimination takes on more subtle forms than in 1965 or 1982, such as vote dilution, which relies on racially polarized voting to deny the effectiveness of the votes cast by members of a particular race. Second, there is evidence of the effectiveness of section 5 as a deterrent against bad practices in covered jurisdictions. Finally, there is evidence of the prophylactic effect of section 5, preserving the gains that have been achieved against the risk of backsliding.

Today, I would like to provide some of the evidence received in the Judiciary Committee about the persistence of discriminatory practices in covered jurisdictions that supports reauthorization of this crucial provision.

The robust record compiled in the Senate Judiciary Committee includes voluminous evidence of recurring discrimination in section 5 covered jurisdictions. Often, this recurring discrimination takes on more subtle forms than in 1965 or 1982, such as vote dilution and redistricting to deny the effectiveness of the votes cast by members of a particular race. Notably, many jurisdictions are repeat offenders, continuing a pattern of persistent resistance dating back to the enactment of the VRA. Debo P. Adegbile, Associate

Director of Litigation of the NAACP Legal Defense and Educational Fund, Inc., testified about some examples of the types of evidence in the record:

The Record before this Congress presents continued evidence of such violations, and highlights the necessity for continued review of voting changes to protect minority voters in covered jurisdictions. For example, since the VRA's 1982 renewal, violations of minority voting rights have taken the form of last minute election date or polling place changes, discrimination at the polls, and familiar dilutive tactics of ``cracking'' and ``packing'' minority voting districts.

Objections to voting changes interposed by DOJ are one category of evidence relevant to the persistence of discrimination in covered jurisdictions. Although several witnesses pointed to a recent reduction in VRA objections as a reason to oppose extension of section 5, in fact there have been more objections in covered jurisdictions since the last reauthorization in 1982--608--than there were before that reauthorization, including 80 statewide section 5 objections. However, these objections only reveal a chapter of a much longer story. Mr. Adegbile also testified:

Although many VRA opponents and commentators point to a recent reduction in DOJ objections as evidence of the decreasing need for Section 5--this analysis oversimplifies the many ways in which the law serves to protect minority voters. Excluded from the category of objection statistics are other categories of deterred and rejected voting changes. These include matters that were denied preclearance by the Washington D.C. District Court; matters that were settled while pending before that court; voting changes that were withdrawn, altered or abandoned after the DOJ made formal More Information Requests, MIRs; as well as any recognition that the very existence of preclearance deters discriminatory voting changes in the first place. Taken together, these categories provide a more holistic view of the sizeable impact, deterrent effect, and continued need for section 5's provisions. Moreover, without the section 5 preclearance provisions many jurisdictions that have experienced a long history of exclusionary practices in voting would have lacked the incentive to tailor their electoral changes in a non-discriminatory fashion. Even with section 5 in place, many covered jurisdictions made voting changes that disadvantaged minority voters without preclearing them with the DOJ.

This is the Testimony of Debo P. Adegbile, Associate Director of Litigation of the NAACP Legal Defense and Educational Fund, Inc., before the United States Senate Judiciary Subcommittee on the Constitution, June 21, 2006, citing generally Luis Ricardo Fraga & Maria Lizet Ocampo, More Information Requests and the Deterrent Effect of section 5 of the Voting Rights Act, June 7, 2006--unpublished essay, submitted to Senate Judiciary Committee on June 9, 2006.

The following are only a small set of examples from the robust record compiled in the Senate Judiciary Committee:

Vote Suppression

Through the use of illegal devices, State and local

officials in covered jurisdictions have suppressed the

ability of minority voters to effectively exercise their

right to vote.

In 2001, Kilmichael, Mississippi's white mayor and all

white five-member Board of Alderman abruptly cancelled an

election after census data revealed that African Americans

had become the majority in the town and an unprecedented

number of African-American candidates were running for

office. Even after DOJ objected, concluding that the

cancellation was an attempt to suppress the African-American

candidates, the mayor and board did not reschedule the

election. Only after DOJ forced Kilmichael to hold an

election in 2003 did it elect its first African-American

mayor, along with three African-American alderman. This is

from Caroline Fredrickson and Deborah J. Vagins, Promises to

Keep: The Impact of the Voting Rights Act, March 2006, at 12.

In March, 2004, in Prairie View, Texas, home to

historically black Prairie View A&M University, two students

decided to run for the local governing body. The white

criminal district attorney threatened that any student who

voted in the election would face felony prosecution for

``illegal voting'' and only withdrew his statements when the

NAACP filed suit. Shortly thereafter, the Commissioner's

Court voted to reduce the availability of early voting at the

polling place closest to the college from 17 hours over two

days, to 6 hours on one day. This would have severely limited

the students' political participation, as most planned to

take advantage of early voting since their spring break

coincided with the primary date. The county did not restore

the voting hours until the NAACP filed a section 5

enforcement suit. This is from Laughlin McDonald ``The Case

for Extending and Amending the Voting Rights Act,'' A Report

of the Voting Rights Project of the American Civil Liberties

Union at 65-66.

In a 2004 opinion invalidating South Dakota's redistricting

plan, a Federal district judge documented the State's long

history of discrimination, including persistent efforts to

suppress the Native American vote since 1999. The judge

documented illegal denials of the right to vote in certain

elections, barriers to voter registration, intimidation and

unsubstantiated charges of vote fraud, lack of access to

polling sites, non-compliance with the Voting Rights Act's

language assistance provision, and dilutive voting schemes.

The opinion also quoted legislators expressing prejudice

against Indians. For example, when debating an unsuccessful

bill to make it easier for Indians to register, one

legislator said, ``I'm not sure we want that kind of person

in the polling place.' '' This is from National Commission on

the Voting Rights Act, ``Protecting Minority Voters: The

Voting Rights Act at Work 1982-2005'' February 2006 at 44.

The Mayor of the Town of North Johns, AL intentionally

discriminated against African-American candidates for city

council when he frustrated the attempts of these candidates

to acquire the required forms for their candidacy and refused

to swear them in when they won their elections. The court

found that the mayor acted to undermine the candidacy of two

African-American men because their election would result in

the town council becoming majority black. This is from

Dillard v. North Johns, 717 F. Supp. 1471, M.D. Ala. 1989.

Discriminatory Redistricting

Due to racially polarized voting, the reality in many

jurisdictions is that the ability of minorities to have the

opportunity to elect their candidate of choice is often

dependent on the racial composition of a voting district.

Consequently, the seemingly neutral task of drawing district

lines can, in fact, be used strategically to abridge

minorities' right to vote using techniques called ``packing''

where a very large percentage of minorities are placed in a

single district and thereby denying them influence except in

that one jurisdiction, or the obverse ``unpacking,'' which

fragments minority communities into numerous jurisdictions,

denying them influence anywhere.

The impact of racially polarized voting is significant. In

the 2000 elections, only 8 percent of African Americans were

elected from majority white districts. This is from National

Commission on the Voting Rights Act, ``Protecting Minority

Voters: The Voting Rights Act at Work 1982-2005'' February

2006 at 38. As of 2000, neither Hispanics nor Native

Americans candidates had been elected to office from a

majority white district. Id. This is true throughout covered

jurisdictions. Every African-American representative

currently holding office in Congress from Louisiana, or in

the Louisiana State Legislature, has been elected from a

majority African-American district. This is from Debo P.

Adegbile, ``Voting Rights in Louisiana: 1982-2006,''

RenewTheVRA.org at 9. In Mississippi, the State with the

highest percentage African-American population, not a single

African-American candidate has won election to Congress or

the state legislature from a majority-white district, and no

African-American candidate has won a statewide office in the

20th Century. This is from Robert McDuff, ``Voting Rights in

Mississippi: 1982-2006,'' RenewTheVRA.org at 13.

After failing to redistrict for over two decades, following

the 1980 and 1990 census, the city of Seguin, Texas was 60

percent Hispanic, yet only 3 out of 9 city council members

were Hispanic. After a successful section 5 challenge by

Hispanic plaintiffs, the city redrew its discriminatory

districts in 1994 and again following the 2000 census, but

cut short the filing deadlines for the upcoming elections,

ensuring that the white incumbent would run unopposed.

Another section 5 suit was necessary to prevent this change,

called by some merely de minimis even though it determined

the election's outcome, from going into effect. This is

Testimony of John Trasvina, Interim President and General

Counsel, Mexican American Legal Defense and Educational Fund

MALDEF, before the United States Senate Judiciary Committee,

June 13, 2006, at 4.

At a 2001 section 2 hearing, while testifying in defense of

the St. Bernard Parish School Board's illegal plan to

eliminate its only African-American district, Louisiana State

Senator Lynn Dean, the highest ranking public official in St.

Bernard Parish, admitted that he uses a term considered by

many to be a derogatory, even offensive, word in referring to

African Americans, had done so recently, and does not

necessarily consider it a racial term. Dean had served on the

school board for 10 years. This is from Debo P. Adegbile,

``Voting Rights in Louisiana: 1982-2005,'' RenewTheVRA.org at

26.

In the post-1990 redistricting cycle, the Department of

Justice objected to Georgia's Senate redistricting bill twice

and to Georgia's House redistricting bill three times. The

newly adopted plans were then challenged by litigation in

which the state admitted to constitutional violations. After

losing the lawsuit, the state claimed to remedy the problem.

However, its newly adopted plans reduced the black

populations of numerous districts, thereby drawing DOJ

objections to both plans yet again in March 1996. This is

from Robert Kengle, ``Voting Rights in Louisiana: 1982-

2006,'' RenewTheVRA.org at 14.

The 2001 legislative redistricting plan in South Dakota,

which divided the State into thirty-five legislative

districts, altered the boundaries of District 27, which

included Shannon and Todd Counties, so that American Indians

comprised 90 percent of the district, while the district was

one of the most overpopulated in the State. Had American

Indians not been ``packed'' in District 27, they could have

comprised a majority in a house district in adjacent District

26. South Dakota refused to submit the plan for pre-

clearance, leading Alfred Bone Shirt and three other

residents from Districts 26 and 27 to sue the State in

December 2001. The plaintiffs claimed that South Dakota

failed to submit its plan for pre-clearance and also that the

plan unnecessarily packed Indian voters in violation of

section 2. A 3-judge court ordered the state to seek pre-

clearance and the Attorney General pre-cleared it, concluding

that the additional packing of Indians in District 27 did not

have a retrogressive effect. However, the district court,

sitting as a single-judge court, heard the plaintiffs'

section 2 claim and invalidated the State's 2001 legislative

plan as diluting American Indian voting strength, finding

that there was ``substantial evidence that South Dakota

officially excluded Indians from voting and holding office.''

This is from Bone Shirt v. Hazeltine, 200 F. Supp. 2d 1150,

1154 D.S.D. 2002.

In 2001, the Louisiana State Legislature sought judicial

pre-clearance of its statewide redistricting plan for the

Louisiana House of Representatives, which eliminated a

majority African-American district in Orleans Parish.

According to the legislators that drew that plan, the

district was eliminated because white voters in Orleans

Parish were entitled to ``proportional representation,''

despite significant population growth among African-Americans

in Orleans Parish over the course of the prior decade.

Although the legislators ultimately dropped their selective

``proportional representation'' argument, the court found

that the state ``blatantly violate[ed] important procedural

rules'' through its litigation tactics and condemned the

state for its ``radical mid-course revision in [its legal]

theory of the case.'' The evidence, obtained over plaintiffs'

resistance via a motion to compel, showed significant levels

of racially-polarized voting in virtually all electoral

contests, as well as retrogressive purpose and effect in the

adoption of the plan. The evidence also showed that the

Speaker Pro Tempore, who was a plaintiff in the action,

removed long-standing language from the State's redistricting

guidelines that acknowledged the State's obligations under

the VRA at the start of the line drawing cycle. The

litigation resulted in a settlement on the eve of trial that

restored the opportunity district in Orleans Parish. The 2001

Louisiana House redistricting plan followed the standard

practice in Louisiana as no initial redistricting plan for

the Louisiana House of Representatives has ever been pre-

cleared by DOJ since the inception of Voting Rights Act in

1965. This is Testimony of Richard Engstrom before the House

of Representatives, Committee on the Judiciary, Subcommittee

on the Constitution, October 25, 2005. This is also Debo

P. Adegbile, Voting Rights in Louisiana, 1982-2006, at 16.

After finding Point Coupee Parish, Louisiana's

redistricting plans retrogressive, the Department of Justice

objected 3 decades in a row: in 1983, 1992, and 2002. After

the first 2 census cycles, the parish attempted to pack

minority voters into a single district while fragmenting the

remaining African-Americans into majority-white districts. In

2002, without explanation, the parish eliminated one majority

African-American district, despite an increase in the

African-American population of the parish. Unfortunately, the

experience in Point Coupee Parish is typical in Louisiana:

``[b]etween 1982 and 2003, 10 other parishes were ``repeat

offenders,'' and 13 times the DOJ noted that local

authorities were merely resubmitting objected-to proposals

with cosmetic or no changes.'' This is Debo P. Adegbile,

``Voting Rights in Louisiana: 1982-2006,'' RenewTheVRA.org at

27.

In 1983, African-American legislators were excluded from

legislative sessions held to develop Louisiana's post-census

redistricting plan after negotiations stalled. The governor

had threatened to veto a proposed plan that would create one

African-American majority district and the Senate rejected

the governor's plan to create all white majority districts.

In the absence of minority legislators, a compromise--Act

20--was reached that sacrificed the majority-minority

district despite the fact that--after a marked increase in

the previous decade--the highly-concentrated African-American

population now made up 48.9 percent of the voting age

population in Orleans Parish. Act 20 was struck down by a

1982 section 2 case. The remedied district led to the

election of Louisiana's first African-American congressman

since reconstruction. This is also from Debo P. Adegbile,

``Voting Rights in Louisiana: 1982-2006,'' RenewTheVRA.org at

16.

In 1991 and 1992, the Morehouse Parish, Louisiana, Police

Jury drew district lines in an attempt to pack African-

American voters in the city of Bastrop multiple times in

defiance of DOJ objections. After a 1991 section 5 objection

to its attempt to draw the same districting plan several

times the Morehouse Parish Police Jury made cosmetic changes

and resubmitted the same plan. After DOJ lodged another

objection, the police jury resubmitted the same plan with

only cosmetic changes. Only after DOJ objected a third time

in 1992 did the police jury address the substance of the

first objection and draw district lines that did not result

in an over-concentration of African-American voters.

In 2006, election officials in Randolph County, Georgia,

moved the board of education district lines to include Henry

Cook, the African-American chair of the board of education,

from District Five of the county board of education, which is

majority black, to District Four, which is majority white. In

District Four, Cook would almost certainly be defeated given

the prevalence of racial bloc voting in the county, depriving

the African-American community of an incumbent elected

official who had their strong support in past elections.

Although Randolph County was covered by section 5, county

officials refused to submit the change for pre-clearance.

African-American residents of the county filed suit on April

17, 2006, to enjoin use of the change absent pre-clearance.

On June 5, 2006, the 3-judge court issued an order enjoining

further use of the voting change because of failure to comply

with section 5.

In 1991, Mississippi legislators rejected proposed House

and Senate redistricting plans that would have given African-

American voters greater opportunity to elect representatives

of their choice, referring to one such alternative on the

House floor as the ``black plan'' and privately as ``the n-

plan.'' DOJ objected, concluding that a racially

discriminatory purpose was at play. In the 1992 elections,

the cured redistricting plans boosted the percentage of

African-American representatives in the legislature to an all

time high: 27 percent of the House and 19 percent of the

Senate--up from 13 percent and 4 percent respectively in a

state where 33 percent of the voting age population is

African-American. This is Robert McDuff, ``Voting Rights in

Mississippi: 1982-2006,'' RenewTheVRA.org at 9-10.

In late 2001, Northampton County, VA proposed a change in

the method of electing the board of supervisors by collapsing

six districts into three larger districts. The DOJ objected,

finding that three of the six districts were majority-

minority districts in which African-American voters regularly

elected their candidates of choice. The new plan would have

diluted the minority-majorities and caused them to completely

disappear in 2 of the 3 new districts--clearly having

retrogressive effects. Two years later, the county provided a

new 6-district plan, which had the same retrogressive effects

of the 3-district plan. DOJ objected and provided a model

non-retrogressive, 6-district plan, which has yet to be

followed by the county. This from Anita S. Earls, Kara

Millonzi, Oni Seliski, and Torrey Dixon, ``Voting Rights in

Virginia, 1982-2006,'' RenewTheVRA.org at 27-28.

In 1989, in section 2 suit, a Federal district court

knocked down Chickasaw County, Mississippi, illegal plan to

have all majority-white supervisors' districts. Sent back to

the drawing board, the county then passed 3 different plans

over the next 6 years. Not one passed section 5 pre-

clearance. Finally, the Federal court drew its own plan for

the 1995 elections, providing for 2 majority-black districts

to reflect a population that was nearly 40 percent black.

Only then did the county adopt a plan that met no objection

by the Department of Justice. This is Robert McDuff, ``Voting

Rights in Mississippi: 1982-2006,'' RenewTheVRA.org at 6.

In 1992, DOJ objected to a Justice of the Peace and

Constable redistricting plan in Galveston County, Texas, that

fractured geographically compact African-American and

Hispanic voters and provided no opportunity districts among

the 8 districts in the plan, even though African Americans

and Hispanic comprised 31 percent of the county's population.

This is from Nina Perales, Luis Figueroa and Criselda G.

Rivas, ``Voting Rights in Texas, 1982-2006'',

RenewTheVRA.org, at 17-18.

In 1992, DOJ objected to the Terrell County Commissioners

Court redistricting plan. Although the Hispanic population in

the county had increased from 43 percent to 53 percent, the

proposed redistricting plan cracked the Hispanic population

by substantially decreasing the number of Hispanic voters in

one of the two Hispanic majority districts and packing

them into the other to create a district with an 83

percent Hispanic district. This is from Nina Perales, Luis

Figueroa and Criselda G. Rivas, ``Voting Rights in Texas,

1982-2006,'' RenewTheVRA.org, at 19.

In 2005, DOJ objected to the redistricting plan for the

Town of Delhi, LA, which eliminated an African-American

opportunity district, rejected an alternative plan which

would have been better for minority voters, and was adopted

with the intent to worsen the position of minority voters.

According to the 2000 Census, Delhi's population was majority

African-American, yet local officials attempted to reduce

minority voting strength in the town. DOJ denied pre-

clearance after determining that town officials sought to

worsen the position of minority voters by looking first to

the historical background of the city's decision, which

revealed that the plan was adopted despite steadily

increasing growth in the town's African-American population.

In its April 25, 2005, objection letter, DOJ stated,

``[w]ithout

question, Black voters are worse off under the proposed

plan,'' which was adopted despite the counsel of the Town's

demographer, who noted the retrogressive effect of the plan.

This is from a Letter from R. Alexander Acosta, Assistant

Attorney General, Civil Rights Division, U.S. Department of

Justice, to Mr. David Creed, Executive Director, North Delta

Regional Planning and Development District, April 25, 2005.

In 1992, the Department of Justice objected to Florida's

redistricting plan for the State Senate, observing that

``[w]ith regard to the Hillsborough County area, the State

has chosen to draw its senatorial districts such that there

are no districts in which minority persons constitute a

majority of the voting age population. To accomplish this

result, the State chose to divide the politically cohesive

minority populations in the Tampa and St. Petersburg areas.''

This is from JoNel Newman, ``Voting Rights in Florida, 1982-

2006'', RenewTheVRA.org, at 9.

The Department of Justice interposed an objection to the

2002 redistricting plan for the Florida House of

Representatives, stating that the plan reduced ``the ability

of Collier County Hispanic voters to elect their candidate of

choice [and] the drop in Hispanic population in the proposed

district would make it impossible for these Hispanic voters

to continue to do so.'' As a result of the Department's

Section 5 objection to the 2002 reapportionment plan,

Hispanic majority-minority district was preserved in Collier

County. This is JoNel Newman, ``Voting Rights in Florida,

1982-2006,'' RenewTheVRA.org, at 10.

In 2002, the Department of Justice objected to Arizona's

state legislative redistricting plan because it fractured

Hispanic voters and reduced Hispanic voting age population in

5 districts below their 1994 benchmarks, despite the growth

of the State's Hispanic population and the ability to draw

three compact majority-Hispanic districts. The State court

responded by accepting an interim plan recommended by a

Special Master that restored one district to its benchmark

level and created 2 new Hispanic-majority districts in

metropolitan Phoenix to replace some of the other four

majority Hispanic-majority districts that had been

eliminated.

In 1991, Hispanic plaintiffs and Monterrey County,

California, which was 33.6 percent Hispanic, reached a

settlement plan which, unlike Monterrey's initial plan, did

not dilute the vote of the county's Hispanic population.

However, after voters struck down the county's redistricting

plan in a required referendum petition, the county issued a

new plan to which the Justice Department objected under

section 5, stating that the County's plan ``. . . appears

deliberately to sacrifice Federal redistricting requirements,

including a fair recognition of Hispanic voting strength, in

order to advance the political interests of the non-minority

residents of northern Monterey County.'' Subsequently, the

district court adopted the plaintiffs' plan. As a result of

the implementation of the plaintiffs' plan, a Hispanic was

elected to the Board of Supervisors for the first time in

over 100 years. This is Gonzalez v. Monterey County 808

F.Supp. 727, 729 (N.D. Cal. 1992); Joaquin G. Avila,

California State Report on Voting Discrimination (forthcoming

May 25, 2006, manuscript at 9.

After the 1990 census, Merced County, CA, adopted a

redistricting plan that ignored the presence of its growing

Hispanic population which at the time constituted 32.6

percent. In doing so, the county disregarded its

demographer's recommendation to create a supervisor district

with a Hispanic majority and instead chose a plan that

fragmented the county's Hispanic population. The Justice

Department issued an objection rejecting the county's

redistricting plan because the plan fragmented the Hispanic

population. Following the objection, the county created a new

redistricting plan that both avoided the fragmentation of the

county's Hispanic population and created a supervisory

district with a Hispanic majority. The plan was later

approved and a Hispanic Supervisor elected. This is Joaquin

G. Avila, California State Report on Voting Discrimination,

forthcoming May 25, 2006, manuscript at 11.

Discriminatory Polling Place Changes

Another method used in covered jurisdictions to deny

minorities the right to vote has been to move or even

eliminate polling places, often without notice. Moving a

polling place can appear to have little impact or importance,

but the record demonstrates that these changes have been used

systematically to deny minorities their constitutional right

to vote by injecting intimidation and confusion into the

electoral process.

Some have cited polling place changes as ``de minimis''

changes for which there should be an exception to section 5

pre-clearance. However, making such an exeception could lead

to substantial violations of minority voting rights. As

Robert McDuff, a civil rights attorney in Mississippi who has

worked on preclearance testified, ``polling place changes can

be retrogressive and should not be dismissed as per se de

minimis. With section 5 preclearance requests the context is

critical and DOJ has an expertise in assessing the context.''

Robert McDuff, Answers to Written Questions from Senator

Coburn. The following examples demonstrate that far from

being ``de minimis,'' polling place changes can be one of the

most effective means of denying minorities the right to vote.

In 1992, the Attorney General objected to a proposal by the

Wrightsville, GA, to relocate the polling place from the

county courthouse to the American Legion Hall, an all-white

club with a history of refusing membership to black

applicants and a then-current practice of hosting

functions to which blacks were not welcome. This is

Laughlin McDonald ``The Case for Extending and Amending

the Voting Rights Act,'' A Report of the Voting Rights

Project of the American Civil Liberties Union at 333, 334.

In 1995, Jenkins Parish, LA, attempted to relocate a

polling place from a predominately black community easily

accessible to many voters by foot to a location outside the

city limits in a predominately white neighborhood which had

no sidewalks, curving roads, and a speed limit of 55 mph. The

Attorney General rejected the change, concluding, ``the

county's proffered reasons for the selection of this

particular polling site appear to be pretextual, as the

selection of this location appears to be designed, in part,

to thwart recent black political participation.'' This is

Deval L. Patrick, Assistant Attorney General, to William E.

Woodrum, Jenkins County Attorney, March 20, 1995.

In 1985, the Apache County Board of Supervisors proposed to

eliminate the last remaining polling place on Arizona's Fort

Apache Reservation, reduce the daily hours of operation for

those voting stations that remained open, and implement a

rotating polling place system that would make it even harder

for Navajo voters to reach the polls. Yet, absentee voting

opportunities were not provided to Indian voters. Pointing to

the clear discriminatory purpose and effect of the proposed

changes, the Department of Justice objected. This is James

Thomas Tucker and Rodolfo Espino, ``Voting Rights in Arizona

1982-2006,'' RenewtheVRA.org, 46, 2006.

In 1994, after receiving word that whites were

uncomfortable walking into an African-American neighborhood

to vote at the Sunset Community Center, the St. Landry

Parish, LA, Police Jury moved the polling place to the Sunset

Town Hall, the site of historical racial discrimination. The

police jury did not hold a public hearing, seek any further

input, or advertise the change in any way. If not for the

section 5 pre-clearance process, minority voters would not

have known of the change until Election Day. This is Debo P.

Adegbile, ``Voting Rights in Louisiana, 1982-2006,''

RenewtheVRA.org, at 31.

In 1999, after the Davills Precinct polling center burned

down and the County Board of Supervisors of Dinwiddie County,

Virginia, moved the polling place to the Cut Bank Hunt Club,

privately owned with a large African-American membership, one

hundred and five citizens submitted their signatures to have

the precinct moved to the Mansons United Methodist Church,

located three miles southeast of the Hunt Club. The

petition's stated purpose for moving the precinct was for a

``more central location.'' Before the board's meeting to

discuss moving the polling place, the Mansons United

Methodist Church withdrew its name as a possible location.

The board then placed an advertisement for a public hearing

on changing the polling place which stated that if any

``suitable centrally located location [could] be found prior

to July 15, 1999,'' they would consider moving it there. On

July 12, 1999, the Bott Memorial Presbyterian Church members

offered their facilities for polling. On August 4, 1999, the

board approved changing the polling place to Bott Memorial

Presbyterian Church. The church is located at the extreme

east end of the precinct, however, and 1990 Census data

showed that a significant portion of the black population

resides in the western end of the precinct.

DOJ objected to the change, finding that the polling place

was moved for discriminatory reasons. This is a Letter from

Bill Lann Lee, Acting Assistant Attorney General, Civil

Rights Division, U.S. DOJ., to Benjamin W. Emerson of Sands,

Anderson, Marks & Miller, October 27, 1999.

Methods of Elections

Officials have used their authority to set the methods of

elections as ways to abridge or even deny the ability of

minority citizens to vote and elect candidates of their

choice. The following are examples of the use of at-large

election systems, dual registration systems and other methods

since the last reauthorization of section 5.

In 1995, the State of Mississippi resurrected a form of the

dual registration system, which a Federal district court had

struck down less than a decade earlier as racially

discriminatory in intent and effect. Mississippi then refused

to submit its voting procedures for pre-clearance until

ordered to do so by the U.S. Supreme Court. Under the

unlawful system, voters who registered pursuant to the

National Voter Registration Act, NVRA, would only be eligible

to vote in federal elections, but not in State and local

elections. The majority of voters registered under the NVRA

were African-American. In addition, while one state

department provided its mostly-African-American public

assistance clientele with only the NVRA registration forms,

another department registered its mostly-white driver's

license applicants through the state forms, which enabled

them to vote in all elections. In its objection letter, DOJ

noted the state had merely breathed new life into the dual

registration system originally enacted by Mississippi in the

19th Century with an aim to eliminate the African-American

vote. This is Robert McDuff, ``Voting Rights in Mississippi:

1982-2006,'' RenewTheVRA.org at 16.

In 1992, Effingham County, Georgia proposed an at-large

election system despite anticipating that, due to racially

polarized voting, after the change, African-Americans would

no longer be able to elect the commissioner who would serve

as chairperson. This decision came on the heels of the

county's decision to eliminate the position of vice-

chairperson, long held by an African-American commissioner.

The county's justification for the change--that the proposed

system would avoid tie votes in the selection of a

chairperson--was tenuous at best because under the new

system, an even number of commissioners would invite tie

votes to a greater extent than the existing system. This is

Robert Kengle, ``Voting Rights in Georgia: 1982-2006,''

RenewTheVRA.org at 9-10.

Ten years after a successful lawsuit that forced the

adoption of single-member districts in the city of Freeport,

TX, minority candidates had gained two seats on the city

council. The City then sought to revert to at-large

elections, garnering an objection from the Department of

Justice. Similarly, the Haskill Consolidated Independent

School District sought to revert to at-large voting after

significant gains by minority populations.

After the Washington Parish, Louisiana, School Board

finally added a second majority-African American district in

1993, bringing the total to 2 out of 8, representing an

African American population of 32 percent, it immediately

created a new at-large seat to ensure that no white incumbent

would lose his or her seat and to reduce the impact of the

two African American members, to 2 out of 9. The

Department of Justice objected to this change. (See Letter

from James P. Turner, Assistant Attorney General, Civil

Rights Division, U.S. DOJ, to Sherri Marcus Morris,

Assistant Attorney General, State of Louisiana, and Jerald

N. Jones, City of Shreveport, September 11, 1995, cited in

Debo Adegbile, Voting Rights in Louisiana: 1982-2006,

February 2006, at 21.)

A Federal district court found that the at-large method of

electing the nine member Charleston County Council in South

Carolina violated section 2 of the Voting Rights Act. In

particular, the court found evidence of white bloc voting and

concluded that in 10 general elections involving African-

American candidates, ``white and minority voters were

polarized 100 percent of the time.'' The court also noted

that there was a history of discrimination that hindered the

present ability of minority voters to participate in the

political process; significant socio-economic disparities

along racial lines; a negligible history of African-American

electoral success; and significant evidence of intimidation

and harassment of African-American voters at the polls.

Following the court's decision, which was affirmed on appeal,

a single-member district plan was put in place with four

majority African-American districts that eventually led to

the election of four African Americans to the County Council.

This is Laughlin McDonald ``The Case for Extending and

Amending the Voting Rights Act,'' A Report of the Voting

Rights Project of the American Civil Liberties Union at 591-

592.

In 2005, a three-judge Federal court enjoined the city of

McComb, MS, from enforcing a State court order it had

obtained that removed an African-American member of that

city's board of selectmen from his seat by changing the

requirements for holding that office, holding that the order

clearly altered the pre-existing practice. The court ordered

the selectman restored to his office and enjoined the city

from enforcing the change unless preclearance was obtained.

This is Robert McDuff, ``Voting Rights in Mississippi: 1982-

2006,'' RenewTheVRA.org at 8.

In 1991 the Concordia Parish Police Jury in Louisiana

announced that it would reduce its size from 9 seats to 7,

with the intended consequence of eliminating one African-

American district, claiming the reduction was necessary as a

cost-saving measure. However, DOJ noted in its objection that

the parish had seen no need to save money by eliminating

districts until an influx of African-American residents

transformed the district in question from a majority-white

district into a majority African-American district. This is

Debo P. Adegbile, ``Voting Rights in Louisiana: 1982-2006,''

RenewTheVRA.org at 24.

Annexations

The following are examples from the record where

jurisdictions changed their boundaries in order to diminish

the voting power of minorities by selectively changing the

racial composition of a district. Numerous jurisdictions have

annexed neighboring white suburbs in order to preserve white

majorities or electoral power.

In 1990, the city of Monroe, LA attempted to annex white

suburban wards to its city court jurisdiction. In its

objection, DOJ noted that the wards in question had been

eligible for annexation since 1970, but that there had been

no interest in annexing them until just after the first-ever

African-American candidate ran for Monroe city court. This is

Debo P. Adegbile, ``Voting Rights in Louisiana: 1982-2006,''

RenewTheVRA.org at 24.

Pleasant Grove, Alabama was an all-white city with a long

history of discrimination, located in an otherwise racially

mixed part of Alabama. The city sought pre-clearance for two

annexations, one for an area of white residents who wanted to

attend the all-white Pleasant Grove school district instead

of the desegregated Jefferson County school district, the

other for a parcel of land that was uninhabited at the time

but where the city planned to build upper income housing that

would likely be inhabited by whites only. At the same time,

the city refused to annex to two predominantly black areas.

The United States Supreme Court upheld the District Court's

denial of pre-clearance. This is from City of Pleasant Grove

v. United States, 479 U.S. 462, 1987.

In 2003, the Department of Justice interposed an objection

to a proposed annexation in the Town of North, SC, because

the town had ``been racially selective in its response to

both formal and informal annexation requests.'' DOJ found

that ``white petitioners have no difficulty in annexing their

property to the town'' while ``town officials provide little,

if any, information or assistance to black petitioners and

often fail to respond to their requests, whether formal or

informal, with the result that the annexation efforts of

black persons fail.'' Though the town argued that no formal

attempts had been made by African-Americans to be annexed

into the town, DOJ's investigation revealed that at least one

petition had been signed by a significant number of African-

American residents who sought annexation. The fact that the

town ignored or was non-responsive to the requests of

African-Americans, while accommodating the requests of

whites, led DOJ to determine that race was ``an overriding

factor in how the town responds to annexation requests.''

This is a Letter from R. Alexander Acosta, Assistant Attorney

General, Civil Rights Division, U.S. Department of Justice,

to H. Bruce Buckheister, Mayor, North, SC, September 16,

2003.

Mr. President, I strongly oppose the amendment offered by Senator Menendez to drastically cut the base allocation of Homeland Security grants for all States.

I heard the statement of the distinguished Senator from Maine, Senator Collins. I associate myself with her words. She has stated it far more eloquently than I as to why this amendment should be defeated.

The Senator from New Jersey has the right concerns about the administration's underfunding of first responder assistance programs. His concerns are absolutely right. I happen to agree with him on those. But he has chosen the wrong target to try to fix that problem.

Senator Menendez and his cosponsors are understandably outraged over how threat-based Homeland Security grants were recently distributed. If it were not so serious a situation, the recent explanation by Homeland Security officials and how they distributed these funds would be laughable. We are not debating the competence of Homeland Security. If we were, we would hear all the statements of Homeland Security that if there is a sudden terrorist attack, they are ready; had there been a sudden terrorist attack with no notice at all on New Orleans last year, they are ready to do everything possible to help the people. Of course, when they had a week's notice before Hurricane Katrina, they still have not responded. It is not their competence we are debating.

Yesterday, the Senate once again attempted to correct the Bush-Cheney administration's woefully inadequate request for Homeland Security. Unfortunately, the amendment of the Senator from New York, Senator Clinton, to restore $750 million for first responders' assistance, was defeated. I had voted for that. I am sure the Senator from New Jersey did.

Now we come to this amendment that purports to correct the blunders of the Homeland Security threat assessments by slashing the base amounts to every single State in the country. Unfortunately, as the Senator from Maine has rightly pointed out, this amendment does pit State over State in how to divide inadequate overall funding for Homeland Security.

That is not the way to correct the incompetence of the Department of Homeland Security's determination of how to allocate grants based on risk. It is the right issue; it is the wrong solution.

When the Senate last year considered a similar amendment proposing this misplaced change in support for first responders, the Senate soundly rejected it with 65 of our colleagues voting against it. The terrorist attacks of September 11 added to the responsibilities and risk of first responders nationwide.

I wrote the all-State minimum formula as part of the USA PATRIOT Act of 2001 to guarantee each State receives less than 1 percent--actually 0.75 percent of the national allotment to help meet the national domestic security needs. Every State, rural or urban, small or large, has basic domestic security needs and deserves to receive Federal funds to meet these needs and the new Homeland Security responsibilities the Federal Government demands. Large urban areas and high-risk areas have even greater needs, and they should be addressed. Both should be addressed.

I don't mean to be parochial, but my little State of Vermont, the second smallest State in the Union, is a State that borders another country. We are a State with a nuclear reactor. We have been called upon by the Federal Government to help out on border security, to help out because we are in a direct line from Canada down to two very large urban areas--Boston and New York. We are constantly getting requests to help. Our little State of 660,000 people, loyal Americans all, wants to help every way we can, but we are saying if we are asked to help out a whole lot of other States, at least let us have some basic help. Whether it is going to require us to put in new radio systems, telecommunications systems, or anything else, to protect not just us but to help protect other urban areas, let us do it.

I would remind everybody, when we had the tragedy of 9/11, for weeks after that happened, the air support over New York City, the armed response, the F-16s flying over New York City were flying out of Burlington, VT. Vermont provided people from our military, from our law enforcement, from everywhere else. We did not ask to be reimbursed, even though it cost us a lot. We responded within an hour. And it was the Green Mountain Boys who flew over New York City, providing that security at a time when nobody knew if there was going to be another attack. They did it around the clock. They did it with people canceling vacations.

We had one mechanic driving down the interstate with his family on their way to their vacation. He was a mechanic for the Air National Guard. He heard on the radio about the attack, and at the first place he could do a U-turn on the interstate, he did. He headed back. He told his wife and kids: Drop me off here; they are going to need me. I will call you when I get my first break.

And 3 days later, when he had an hour's break, he called and said: Send me some clean clothes. Don't take me home. Go back to your vacation. Send me some clean clothes. He kept on working.

Now, every State would have done the same. We respond. But if you pit States against each other, that ignores the real problem. The real problem is the administration has failed to make first responders a high enough priority. Congress, instead, should be looking to increase the overall Federal commitment to the Nation's first responders. We have plenty of money to spend on Iraq's first responders. Let's spend some of that money on the first responders of the United States.

The smaller States, especially, would never be able to fulfill those essential duties on top of their daily responsibilities without Federal support. My colleagues should be warned that if the minimum drops any further--and you compound that by the substantial drops in overall first responder funding--then small- and medium-sized States will not be able to meet those Federal mandates for terrorism prevention, preparedness, and response. Again, if we can send money to Iraqi first responders, let's find the money for American first responders.

After the terrorist attacks of September 11, we worked together in the Senate--Republicans and Democrats alike, from large States and small States, and we have done it with the other body--to meet the needs of all State and local first responders from rural and urban areas. Our fire, police, and rescue teams in each State in the Nation deserve support in achieving the new homeland security responsibilities the Federal Government demands.

The taxpayers in my State never questioned the fact that we would help in the disasters of Katrina or the disasters of 9/11. All States were in this together. But representatives of urban areas have been arguing that Federal money to fight terrorism is being sent to areas that do not need it, that it is being ``wasted'' in small towns. They have called the formula highly politicized and insisted on the redirection of funds to urban areas that they believe face heightened threat or terrorist attacks.

What critics of the all-State minimum seem to forget, though, is that since 9/11, the American people have asked all State--all State--and local first responders to defend us as never before on the frontlines in the war against terrorism--a war that will not end in my lifetime or the lifetimes of the other Members of this body.

Vermont's emergency responders have the same responsibilities as those in any other State to provide enhanced protection, preparedness, and response against terrorists. We have to ensure that adequate support and resources are provided for our police, our fire, and our EMS services in every State, if we expect them to continue protecting us from terrorists or responding to terrorist attacks, as well as carrying out their routine responsibilities.

I understand the concerns of my friend from New Jersey. He is an extraordinarily able Senator, as he was

an extraordinarily able Member of the other body. I have enjoyed our friendship, and I have enjoyed the fact that we have worked together many times. But I would say to him and others, do not foster divisions between States because that is going to ignore the real problem. The real problem is that the President has failed to make first responders a high enough priority. We should be looking to increase the funds to our Nation's first responders, not pit State against State.

We have seen cuts in State and local first responder formula grants in the Homeland Security Department by 59 percent--from $2.3 billion in 2003 to $941 million in 2006. That is $941 million for all first responders in America for the whole year. That is about what we have spent this week alone in Iraq. This week already we have spent about $941 million. That is what we are going to say we are going to spend for the whole year in the United States to protect us and to give our first responders the money they need. Now, those cuts--those huge cuts--are going to affect every State, whether it is a small State or a large State.

We are looking at another year of subpar funding for our State and local first responders. For 2007, the President proposes a 52-percent overall cut, or $1.3 billion, in funding for State and local law enforcement agencies alone. That, incidentally, is about what we spend in 1 week in Iraq.

The Senate Homeland Security spending bill we now consider cuts both the Law Enforcement Terrorism Prevention Program and the State Homeland Security Grant Program by $50 million each over the current year. Grants for high-threat, high-density urban areas--such as the ones the Senator from New Jersey is rightly concerned about; these are what the larger cities and metropolitan areas have been wrangling over in recent weeks--they face a $20 million cut over last year and a $140 million cut from 2 years ago.

These programs play a critical role for all States and communities for the purposes of training, procuring equipment, planning, and conducting exercises. Clearly, the domestic preparedness funds available are insufficient to protect our people and prepare for and respond to future domestic terrorist attacks anywhere on American soil.

I am not saying we should not help the Iraqi people. I am saying, let's give at least the same kind of priority to the American people. It would be comforting if we could at least tell Americans their Government was doing everything possible and practical to keep them safe. We cannot truthfully tell them that. There is much left undone in securing our Nation. That is why we are not abandoning the small- and medium-sized States that suffer under this amendment. This came up last year. The Senate roundly rejected it last year. I hope it will again this year.

Mr. President, I yield the floor.

Mr. President, the underlying issue today on this amendment is that the administration has slashed Homeland Security funding. It has mismanaged the grants it has awarded. We would not be in the situation of pitting State against State if the President adequately funded Homeland Security. Grants are being cut from $2.3 billion in 2003 to under $1 billion this year--$1 billion for the whole

year, this Homeland Security grant. We spend over a billion dollars a week in Iraq. If we can spend money for homeland security in Iraq, we ought to be able to spend a tiny fraction of that here.

I commend Senator Collins for her leadership on this issue.

I yield the floor.

If the Senator will yield, I must say what a thrill it is to work on the staff of Senator Boxer and to be able to help her.

I wonder, Senator, if it is OK to go to work for Senator Jeffords?

Mr. President, I want to make the Senate aware of a report I recently became aware of by the Advocacy Forum, a respected organization which documents human rights violations in Nepal by both government security forces and the Maoists.

The Forum's latest report, released this week, describes the widespread use of torture on persons in custody. The overwhelming majority of documented cases are attributed to the Nepalese police, military and armed police. There are also cases attributed to the Maoists.

The descriptions of the use of torture in this report are difficult to read. It is appalling that such barbaric acts of cruelty occur in the 21st century. Unfortunately, we know that this is not unique to Nepal. Torture is routine in dozens of countries.

Nepal today is at a crossroads. Since popular demonstrations forced King Gyanendra to back away from his foolhardy power grab last February 1, there has been progress towards strengthening Nepal's fledgling democratic institutions and beginning a dialog to resolve the conflict. The future is unpredictable, however, and we continue to receive disturbing reports of extortion and abductions by the Maoists, and of resistance by the Nepalese military to much needed reform.

Addressing these issues, and ending the use of torture and other human rights violations, will require new laws to protect the rights of detainees in accordance with international norms, reform of the judiciary so it is fully independent and has the resources to effectively carry out its responsibilities, reform of the military and police so they are placed fully under civilian authority and subject to the rule of law, and prosecutions of those responsible for violations. The international community can and should help support Nepal in taking these difficult, essential steps.

All Senators should be aware of the cases documented by the Advocacy Forum, and I ask unanimous consent that a summary of the report be printed in the Record.

Mr. President, today we consider a nominee for the new position of Assistant Attorney General for the National Security Division. All too often, in the Bush-Cheney administration, national security has been cited as a justification for overriding the rule of law and for imposing unprecedented secrecy. With the acquiescence of the Republican-controlled Congress, this administration may be the most unresponsive in history and the most unaccountable.

Ken Wainstein is President Bush's selection to be the first Assistant Attorney General for National Security, a new position created by Congress. I will not oppose this nomination in the hope that Mr. Wainstein will work with us and be responsive to the Senate.

I have concerns about this administration's unilateral approach to national security issues. Four years ago, the Office of Legal Counsel at the Justice Department issued a secret legal opinion concluding that the President of the United States had the power to override domestic and international laws outlawing torture. The memo sought to redefine torture and asserted that the President enjoys ``complete authority over the conduct of war'' and asserted that application of the criminal law passed by Congress prohibiting torture ``in a manner that interferes with the President's direction of such core war matters as the detention and interrogation of enemy combatants would be unconstitutional.'' It seemed to assert that the President could immunize people from prosecution for violations of U.S. criminal laws that prohibit torture. This Justice Department memo was withdrawn only after it became public because it could not withstand public scrutiny.

We have learned through the media of warrantless wiretapping and data-mining conducted by this administration. This, despite the Foreign Surveillance Intelligence Act and its express provisions and the actions on the Senate in voting to curtail the data-mining programs by Admiral Poindexter at the Defense Department. We have yet to be provided with a convincing legal justification for these programs. We have yet to be able to investigate or hold the administration accountable. Instead, every effort at oversight and accountability have been obstructed or curtailed by the administration. The administration refuses to follow the law and submit matters to the FISA court and claims state secrets to force court challenges to be dismissed. The administration tells the Senate when, what and how it may investigate. The Department of Justice's own, internal Office of Professional Responsibility's probe of whether or not lawyers at the Department violated ethical rules in justifying these activities was shut down by the Attorney General and the White House.

As this administration continues to expand its power, the Department of Justice should be advising the President to obey the law and respect the Congress and the courts, not just helping to rationalize actions and forestall oversight.

In theory, this new position might help Department of Justice attorneys to act responsibly on national security issues, rather than just to do the White House's bidding. It should put national security issues into the hands of experts, not political cronies. In fact, the WMD Commission recommended in March of last year that the different components of the Department's dealing with national security, terrorism, counterintelligence, and foreign intelligence surveillance be combined to eliminate deficiencies and inefficiencies in the Department's national security efforts. Congress acted to create the post. This new Assistant Attorney General position can only serve a useful role if the person who occupies it is willing to think independently. This administration has consistently prized loyalty over independence and expertise.

Mr. Wainstein has some experience as a prosecutor, but he has also been a loyal official of this administration for some time now. I hope that he will be able to look at the crucial national security issues to be handled by this new office with a critical eye and a view toward respecting law and the Congress. If he does, he will be a breath of fresh air in the Bush-Cheney administration.

Recently, Judiciary Committee Chairman Specter and I received a letter from the Fraternal Order of Police. The FOP ``endorsed'' Mr. Wainstein ``in order to facilitate his departure from the U.S. Attorney's Office.'' They criticized him for being ``unwilling to perform'' the function of investigating and prosecuting an alleged attack on a police officer. That is not what I would term high praise for his judgment. I ask that a copy of the letter be printed in the Record

Mr. President, both are beautiful States. Maine is the largest land area, the largest State in New England. Most people are surprised to know that Vermont is the second largest. We beat out New Hampshire by about 90 square miles--larger than Massachusetts, larger than Connecticut, larger than Rhode Island. Smallest in population, but we take a back seat to no one in our independence.

I am glad to see my friend, the Presiding Officer, the distinguished Senator, and distinguished former Governor.

I commend the senior Senator from Connecticut for his outstanding statement last night and the senior Senator from Illinois, our Assistant Democratic leader, for his cogent observations on this matter. The statement this morning by the Senator from Vermont, a veteran, a man of principle and courage, made me proud to serve with him in representing the people of our great State. I thank the Senator from Wisconsin, the ranking Democrat on the Constitution Subcommittee for his statement, and the Senator from Delaware, another veteran, for his well-chosen words, as well.

This morning we awoke to read the latest example of this administration's incompetence. Because of bureaucratic bungling, widows of those who have served this Nation and sacrificed for all of us have been denied the survivors' benefits to which they should be entitled. A leader of the Gold Star Wives of America, a group of 10,000 military widows, was quoted as saying:

It is shameful that the government and Congress do not

deliver the survivor benefits equally to all our widows with

the same compassion and precision the military presents the

folded flag at the grave.

Edie Smith is right and we should be ashamed.

This news follows other recent public reports that posttraumatic stress disorders among our veterans are on the rise. Instead of seeking to turn the flag into a partisan political weapon and the Constitution into a billboard for political slogans, for partisan gain, we should be working to fulfill the pressing needs of our veterans and their families. I wish the Senate would use its time to discuss and solve the real problems that real Americans are facing right now, instead of trying to stir public passions for political ends.

The Republican leadership so rushed this amendment to the floor that there was not a single Senate hearing on it in this Congress. It was marked up in a side room off the Senate Chamber rather than in the regular public hearing room for the Judiciary Committee with very little debate, and it was reported without a committee report. This is the second time in a month that this Senate is rushing to debate a constitutional amendment without following the procedures that ensure thoughtfulness in such an important debate on a proposal to change our fundamental charter and, in this instance, cut back on the Bill of Rights for the first time in our history.

It was noted today in one of the newspapers that the U.S. Senate--the conscience of the country--is expected to spend 4 days debating this amendment--1 for each incident of flag burning that purportedly occurred this year in a Nation of 300 million people. I respectfully suggest that in the less than 10 weeks left to us in session this year, the Senate's resources would be better spent working to improve veterans' health care services, survivors' benefits and protecting veterans' and Americans' privacy. We have just witnessed the largest theft of private information from the Government ever, the loss of information on more than 26.5 million American veterans, including more than 2 million who are in active service, nearly 80 percent of our active-duty force and a large percentage of our National Guard and the Reserve. Why? Because this administration was so incompetent they did not think to lock the door.

This same administration says we need a constitutional amendment to ban flag burning in order to protect our veterans. We are not going to do anything to protect their credit records; we are not going to do anything to protect their privacy. We will leave the door open on that. But we have to watch out for the flag.

Let me quote what a spokeswoman for the American Legion said recently:

Our armed forces personnel have enough on their plates with

fighting the global war on terror, let alone having to worry

about identity theft while deployed overseas. A spokesman for

the VFW said: This confirms the VFW's worst fear from day

one--that the loss of data encompasses every single person

who did wear the uniform and does wear the uniform today.

What does the Bush-Cheney administration say? If you are over there fighting in Ramallah and your identity has been stolen, don't worry. We have an 800-number you can call and maybe buy some insurance or something to protect your credit. Well, call once you are not getting shot at.

Because of the Bush-Cheney administration's recklessness, our veterans and our active-duty servicemembers are now worried whether their personal information is being sold on the black market or available to foreign intelligence services or terrorists. That adds up to a heckuva bad job for America's veterans and our men and women in uniform.

Compounding the incompetence was the misguided impulse of the administration to keep everything secret for as long as they could. Three weeks after the theft, it was finally disclosed. Three weeks after that, the administration finally announced that it would do what it should have done from day 1 by making credit reporting available to those affected. And the administration is still fighting paying for its mistakes. It is resisting the efforts by Senators Byrd and Murray to provide the money needed to pay for credit monitoring and proposing to take the money from veterans health care or other programs. That is wrong.

Such incompetence at the Bush-Cheney Department of Veterans Affairs is worse than anything I have seen in the six Presidential administrations I have served with. At some point, this administration better stop appointing and hiring cronies, and at some point it might really take responsibility. Then we could have some real accountability for their incompetence. The American people suffer, the veterans are at risk, but those in responsibility get medals and promotions and the Republican Congress never gets to the bottom of what happened to make sure it will not happen again.

Rather than work on our privacy and identity theft legislation, rather than proceed on a bill protecting veterans, such as Senator Akaka's or Senator Kerry's, we are being directed to another divisive debate on a proposed constitutional amendment. The White House calls the tune, and this Republican-led Congress is quick to dance to it. This is a White House that does not even list ``veterans'' as an issue on its Web site.

The Nation's veterans--who have been willing to make the ultimate sacrifice for their country--deserve better. In his second inaugural, while the Nation was fighting the Civil War, President Lincoln concluded with words that became the motto of the Veterans Administration and remains on metal plaques around the Vermont Avenue doors of the VA office here in Washington:

To care for him who shall have borne the battle and for his

widow, and his orphan.

In this fundamental mission, this administration has lost its way.

What the Bush administration's budget says is that honoring veterans is not a priority, especially when it comes to medical care. The President's budget requests consistently fall short of the levels needed to provide necessary services and care. Secretary Nicholson had to admit a billion dollar shortfall last year after first issuing inaccurate and unfounded denials of his mismanagement. Secretary Principi before him had testified that the Veterans Department asked the White

House for an additional $1.2 billion but that it was denied.

Veterans groups and families know that even these budget requests are inadequate--nearly $3 billion less than what veterans groups like the American Legion, the Veterans of Foreign Wars, and the Paralyzed Veterans of America recommend in the Independent Budget. These organizations know what it will take to meet veterans' health care needs.

And when Democratic Senators, such as Senators Murray, Akaka, or Nelson, offer amendments to fund veterans programs, Republicans refuse to support those amendments to bring funding up to the levels recommended by the independent budget and just plain common sense.

We heard in March 2004 from the chairman of the Citizens Flag Alliance, Major General Patrick Brady, that ``we have never fully met the needs of our veterans.'' This echoed General Brady's frank admission following our April 1999 hearing that ``the most pressing issues facing our veterans'' were not flag burnings but rather ``broken promises, especially health care.'' Sadly, it appears that playing politics with veterans' emotions rather than sustaining their health care is nothing new.

During the past 5 years, Congress has had to add billions of dollars more to the President's budget request just to fill gaps in basic services. If we had done as the President asked year after year, veterans' medical care would be in even worse shape. Unfortunately, this year the Congress is not off to an encouraging start. The most recent supplemental spending bill excluded almost $400 million in additional spending for the veterans' health care. Again, the administration said it did not need the additional funding--but our veterans need it.

The Bush-Cheney administration's budget for veterans does not account for the increase in demand for VA services during the Iraq war. With nearly 20 percent of those returning from Iraq reporting mental health problems and 35 percent of Iraq war veterans needing health care services, we are cutting the money. Consider the cost of inflation and the increased costs for medicine and services and you can understand why the American Legion projects that more than $1 billion is needed in further funding just to meet annual payroll and medical inflation costs.

Most disturbing is the move to make veterans contribute a larger share to provide their own health care. The Bush-Cheney administration continues efforts to impose onerous fees and copayments on our Nation's veterans. This parallels the demands on families to buy armor, helmets, and other supplies for their family members serving overseas in our Armed Forces. It is the first time since the Revolution that we have sent our forces out there having to buy their own equipment when they went to war.

The Bush administration plans to increase by almost $800 million this year the fees and collections from third parties for veterans' health care. They plan on imposing an annual enrollment fee and doubling prescription drug copayments for certain veterans. Veterans are being forced to subsidize their government health care. So much for the words on the veterans building in Washington.

I could go on and on describing the claims backlog, the longer waits, and the cuts in service. To add insult to injury, the GAO reported recently that hundreds of battle-wounded soldiers are being pursued for collection of military debts incurred through no fault of their own, due to long-recognized problems with military computer systems. The bottom line is that the administration's rhetoric toward veterans simply does not match its real priorities.

We seem headed back to the time after World War I when veterans had to come to Washington and live in tent cities to demand that the Government honor the words of President Lincoln and care for them and those others had left behind.

Instead of debating polarizing issues that we have talked about in election years, we should be acting to provide real resources for our men and women who served this country with honor and sacrifice.

I will ask to have printed in the Record a collection of recent newspaper articles on veterans needs.

I have stated my position on this flag-burning amendment before. I have stated before that Vermont, the 14th State to join the Union, joined the same year that the Bill of Rights was ratified, then joined by the 15th State. And that became the flag that we had for many years in this country, with 15 stars and 15 stripes. But we Vermonters want to make sure that our rights are being protected.

We amend the Constitution according to the Constitution when there is an urgent need to do so. We have never amended the Bill of Rights-- never, ever. Since World War II, since the Civil War, no matter what the threat, we have never amended the Bill of Rights. Now we are being asked for the first time to amend the first amendment.

We are told there is an urgent need. My God, what is the urgent need? Especially since 9/11, more Americans fly the flag probably than any time in my lifetime. I fly the flag outside of my home in Vermont whenever I am there. I flew it for my son when he joined the Marines. I flew it when he finished his time in the Marines.

My flag is protected. If anyone were to steal it, destroy it, desecrate it, they could be prosecuted.

I fly my flag because I want to, and I protect it because I want to. I do not need a law to tell me to do so.

Mr. President, I ask unanimous consent that the aforementioned articles be printed in the Record.

Mr. President, I thank the distinguished Senator.

As we close this debate and move on to a vote on this proposal, I commend to all Senators the words of the senior Senator from Hawaii, a war hero and veteran, a patriot, an American of the first order. He was long denied the Congressional Medal of Honor that he earned long ago and paid for dearly. He knows why he fought and sacrificed. No one on this floor has fought harder for this country, for its flag, for our freedoms or for our veterans and their families. He has shown characteristic leadership and courage in his statement today against doing damage to our Constitution through this proposed amendment. I am honored to stand with him in this fight to preserve our Bill of Rights. I commend the other veterans, as well, Senators Lautenberg and Kerry. I thank the Senators from West Virginia and Massachusetts for their statements and the Senator from New York.

The action by the Republican leadership on this amendment reminds me of the action they forced in connection with the Terri Schiavo case. Then the President hurried back from a vacation with great fanfare to sign a bill rushed through the Republican-led Congress to intrude into a family and personal tragedy. The politicians overreached and the American people saw through it. Here, too, this election-year exercise will be seen for what it is.

This is the second constitutional amendment that the Senate has considered this month in the Republican runup to the November election. Of course, among the amendments the Republican majority has chosen not to consider is the one promised by the 2000 Republican Party Platform, to require a balanced budget. Even Republican partisans must be embarrassed at the deficits that the Bush-Cheney administration and the Republican Congress have generated as they turned an historic budget surplus into an historic deficit.

This proposed amendment regarding flag desecration is another in a series of amendments Republicans have pressed that would result in restricting the rights of the American people. It is one of more than 65 constitutional amendments introduced so far in this Congress alone, and more than 11,000 since the First Congress convened in 1789. Can you imagine what the Constitution would look like if even a small fraction of these amendments had been adopted? The Constitution that we now revere as fundamental law, that provides us with unity and stability in times of trouble, would be like the old French Constitution--filed under ``p'' for ``periodicals.'' We honor our Senate oath when we ``support and defend'' the Constitution. That is what I will be doing by voting today to uphold the Constitution and by voting against amending it.

I am encouraged by the Senate's bipartisan rejection of action on

Mr. President. I am pleased to introduce, with Senators Kohl, Grassley, and Schumer, the Preserve Access to Affordable Generics Act of 2006, S. 3582. It is no secret that prescription drug prices are rapidly increasing and are a source of considerable concern to many Americans, especially senior citizens and families. In a marketplace free of manipulation, generic drug prices can be as much as 80 percent lower than the comparable brand-name version. Unfortunately, there are still some companies that may be keeping low-cost, life-saving generic drugs off the marketplace, off pharmacy shelves, and out of the hands of consumers by carefully crafted anticompetitive agreements between drug manufacturers. This bipartisan bill will improve the timely and effective introduction of generic pharmaceuticals into the marketplace.

In 2001, and last Congress, I introduced a related bill, the Drug Competition Act. That bill, which is now law, is small in terms of length but large in terms of impact. It ensured that law enforcement agencies could take quick and decisive action against companies seeking to cheat consumers by delaying availability of generic medicines. It gave the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs out of the market--a practice that not only hurts American families, particularly senior citizens, by denying them access to low- cost generic drugs but also contributes to rising medical costs.

The Drug Competition Act, which was incorporated in the Medicare Modernization Act, was a bipartisan effort to protect consumers in need of patented medicines who were being forced to pay considerably higher costs because of collusive secret deals. It is regrettable that we must come to the floor again today and take additional action to prevent drug companies from continuing to find and exploit loopholes.

I had faith that we were on the right track. However, two appellate court decisions from 2005 overturned the FTC's longstanding role of ``policing'' these activities and making case-by-case determinations on the appropriateness of proposed settlements, especially those that involved ``reverse'' payments. That refers to payments from a brand- name company to a generic company as opposed to payments from a generic company to the brand-name company for a license to make a particular patented drug.

The FTC rightfully sought U.S. Supreme Court review of the Schering- Plough v. FTC Eleventh Circuit decision. Unfortunately, the Supreme Court refused to hear that case, leaving in doubt the continuing role of the FTC in policing settlements between brand-name drug companies and potential generic competitors. Moreover, in an unprecedented move, the U.S. Solicitor General opposed the request by the FTC for the Supreme Court to hear this case. The inaction of the courts and the choice of the administration to side with large drug companies over seniors and families has provoked us to take action and introduce this important bill.

This matter arises at the intersection of patent law and antitrust law. The drug companies naturally deny that their agreements violate the antitrust laws, presenting them as private preliminary settlements between companies engaged in patent disputes. The problem is that the whole point of the Drug Competition Act is to have an independent body, the FTC, review these deals and to advise the companies if terms or conditions in the deal need to be changed to comply with existing antitrust laws.

Agreements to delay the production and sale of generic medicines in exchange for cash from the brand-name companies need to be carefully reviewed by the FTC under standards that give the FTC authority to act where necessary to enforce antitrust laws. Companies holding patents on medicines should not be permitted to

pay millions of dollars to potential generic competitors for the purpose of delaying the research, development, and sale of competing generic versions of medications when those generic companies believe they have the legal right to sell such products.

I remain hopeful that during the process of working on this bill, a way can be found to give the FTC some discretion, on a case-by case basis, to continue to evaluate these deals. Under this approach, only the deals that are consistent with the intent of that law will be allowed to stand. There will be some deals that involve the payment of money which, on balance, could be good for the companies involved and for consumers. The original intent of the Drug Competition Act was to provide the FTC and DOJ with an opportunity to provide the companies with useful and timely information so the drug companies could conform their deals to the law through confidential advice from the law enforcement agencies. I want that process to be continued.

Senators Grassley, Kohl, Schumer, and I are not the only ones who share the goal of ensuring effective and timely access to generic pharmaceuticals that can lower the cost of prescription drugs for seniors, for families, and for all Americans. I sincerely thank my colleagues on both sides of the aisle who are working together on that goal. We have devoted considerable attention to this matter in recent years, and I look forward to passing this important bill.

In closing, I praise the FTC for spending so much time and energy on protecting competition in the pharmaceutical sector. This represents a massive workload for the FTC on top of all its other important responsibilities to protect consumers and the American enterprise system.

Years ago, the FTC dealt with latter-day robber barons destroying smaller companies; now the FTC has to try to restrain corporate drug giants from robbing the elderly when these seniors buy prescription medicines. I also appreciate the work of the FTC on the authorized generics issue and look forward to the report they are preparing for the Congress on that matter.

Mr. President. I am pleased to introduce, with Senators Kohl, Grassley, and Schumer, the Preserve Access to Affordable Generics Act of 2006, S. 3582. It is no secret that prescription drug prices are rapidly increasing and are a source of considerable concern to many Americans, especially senior citizens and families. In a marketplace free of manipulation, generic drug prices can be as much as 80 percent lower than the comparable brand-name version. Unfortunately, there are still some companies that may be keeping low-cost, life-saving generic drugs off the marketplace, off pharmacy shelves, and out of the hands of consumers by carefully crafted anticompetitive agreements between drug manufacturers. This bipartisan bill will improve the timely and effective introduction of generic pharmaceuticals into the marketplace.

In 2001, and last Congress, I introduced a related bill, the Drug Competition Act. That bill, which is now law, is small in terms of length but large in terms of impact. It ensured that law enforcement agencies could take quick and decisive action against companies seeking to cheat consumers by delaying availability of generic medicines. It gave the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs out of the market--a practice that not only hurts American families, particularly senior citizens, by denying them access to low- cost generic drugs but also contributes to rising medical costs.

The Drug Competition Act, which was incorporated in the Medicare Modernization Act, was a bipartisan effort to protect consumers in need of patented medicines who were being forced to pay considerably higher costs because of collusive secret deals. It is regrettable that we must come to the floor again today and take additional action to prevent drug companies from continuing to find and exploit loopholes.

I had faith that we were on the right track. However, two appellate court decisions from 2005 overturned the FTC's longstanding role of ``policing'' these activities and making case-by-case determinations on the appropriateness of proposed settlements, especially those that involved ``reverse'' payments. That refers to payments from a brand- name company to a generic company as opposed to payments from a generic company to the brand-name company for a license to make a particular patented drug.

The FTC rightfully sought U.S. Supreme Court review of the Schering- Plough v. FTC Eleventh Circuit decision. Unfortunately, the Supreme Court refused to hear that case, leaving in doubt the continuing role of the FTC in policing settlements between brand-name drug companies and potential generic competitors. Moreover, in an unprecedented move, the U.S. Solicitor General opposed the request by the FTC for the Supreme Court to hear this case. The inaction of the courts and the choice of the administration to side with large drug companies over seniors and families has provoked us to take action and introduce this important bill.

This matter arises at the intersection of patent law and antitrust law. The drug companies naturally deny that their agreements violate the antitrust laws, presenting them as private preliminary settlements between companies engaged in patent disputes. The problem is that the whole point of the Drug Competition Act is to have an independent body, the FTC, review these deals and to advise the companies if terms or conditions in the deal need to be changed to comply with existing antitrust laws.

Agreements to delay the production and sale of generic medicines in exchange for cash from the brand-name companies need to be carefully reviewed by the FTC under standards that give the FTC authority to act where necessary to enforce antitrust laws. Companies holding patents on medicines should not be permitted to

pay millions of dollars to potential generic competitors for the purpose of delaying the research, development, and sale of competing generic versions of medications when those generic companies believe they have the legal right to sell such products.

I remain hopeful that during the process of working on this bill, a way can be found to give the FTC some discretion, on a case-by case basis, to continue to evaluate these deals. Under this approach, only the deals that are consistent with the intent of that law will be allowed to stand. There will be some deals that involve the payment of money which, on balance, could be good for the companies involved and for consumers. The original intent of the Drug Competition Act was to provide the FTC and DOJ with an opportunity to provide the companies with useful and timely information so the drug companies could conform their deals to the law through confidential advice from the law enforcement agencies. I want that process to be continued.

Senators Grassley, Kohl, Schumer, and I are not the only ones who share the goal of ensuring effective and timely access to generic pharmaceuticals that can lower the cost of prescription drugs for seniors, for families, and for all Americans. I sincerely thank my colleagues on both sides of the aisle who are working together on that goal. We have devoted considerable attention to this matter in recent years, and I look forward to passing this important bill.

In closing, I praise the FTC for spending so much time and energy on protecting competition in the pharmaceutical sector. This represents a massive workload for the FTC on top of all its other important responsibilities to protect consumers and the American enterprise system.

Years ago, the FTC dealt with latter-day robber barons destroying smaller companies; now the FTC has to try to restrain corporate drug giants from robbing the elderly when these seniors buy prescription medicines. I also appreciate the work of the FTC on the authorized generics issue and look forward to the report they are preparing for the Congress on that matter.

Mr. President, it is my understanding we are now on the constitutional amendment.

I thank the Chair.

Mr. President, in 1791, the year that the Bill of Rights became part of our Constitution, the State of Vermont joined the Union, and then the State of Kentucky followed. Then Congress saw fit to change the design of the American flag to include 15 stars and 15 stripes, one for each State. In fact, it was this flag, the one recognizing the addition of Vermont and Kentucky to the United States, that flew over Fort McHenry in 1814 and that inspired Francis Scott Key to write the ``Star-Spangled Banner.''

Fifty years after that famous battle that inspired our National Anthem in Baltimore's harbor, President Abraham Lincoln visited that city as our country confronted its greatest test. It was a time in which this Nation faced grave peril from a civil war whose outcome could not yet be determined. Many flags flew over various parts of the United States, and our existence as a nation was in doubt. President Lincoln used the occasion to reflect on a basic feature of American democracy. President Lincoln observed:

The world has never had a good definition of the word

liberty. The American people just now are much in need of

one. We all declare for liberty, but using the same word we

do not mean the same thing.

I would hope that all of us in this Chamber champion liberty. If any of us were asked, we would say: Of course we do. But when I hear some talk about the desire to restrict our fundamental freedoms by cutting back on our first amendment rights for the first time in our history, you see why people wonder. The danger of this amendment is that it would strike at the values the flag represents and the rights that have made this Nation a vibrant democratic republic in which we have enjoyed freedom of religion, freedom of the press, freedom of expression, and freedom to think as individuals.

Along with Vermonters, I find the American flag inspirational in all its incarnations, whether it is the current flag with 50 stars that was carried in formation at Parris Island when my youngest son Mark became a proud member of the U.S. Marine Corps; whether it is the American flag with 48 stars under which Vermonters joined in fighting World War II, including members of my family; the flag commemorating Vermont's becoming a State; the Bennington flag that commemorated our Declaration of Independence; or the revolutionary flag with 13 stars in a circle said to be designed by George Washington and sewn by Betsy Ross.

Ultimately, the debate over this amendment turns on the scope we think proper to give to speech which deeply offends us. For two-thirds of the Senate to vote to amend the Bill of Rights to amend the U.S. Constitution because, as the Constitution requires, that we deem it ``necessary'' in 2006, strikes me as extraordinary. The Senate oath of office, which the people of Vermont have authorized me to take six times, requires that we ``support and defend the Constitution.'' And I believe that doing so means opposing this effort to cut back on Vermonters' constitutional rights and freedoms.

Regrettably, the Senate leadership is returning again and again to using constitutional amendments as election year rallying cries to excite the passion of voters. That is wrong. The Constitution is too important to be used for partisan political purposes--and so, in my view, is our American flag.

With the rights of Americans being threatened in so many ways today by this administration, this is most especially not the time for the Senate to vote to limit Americans' fundamental rights or to strike at the heart of the First Amendment.

The chairman has referred to Justice Oliver Wendell Holmes. It was Justice Holmes who wrote that the most imperative principle of our Constitution was it protects not just freedom for the thought and expression we agree with, but ``freedom for the thought that we hate.'' He also wrote that ``we should be eternally vigilant against attempts to check the expression of opinions that we loathe.''

We all know that the First Amendment never requires people to defend it when it is upholding popular speech. It needs defense when the speech is unpopular.

What is so distinctive about America is that our Government does not endorse religious or political orthodoxy. The price of our freedom of expression is our willingness to protect the expression of those with whom we disagree. America does not impose a state-designed dogma on its free people the way totalitarian regimes do. We value our freedom and we protect the freedom of others.

Justice Robert Jackson made this point with unsurpassed eloquence in a Supreme Court decision made during World War II. He did this in West Virginia State Board of Education v. Barnette. His decision for the Supreme Court upheld our fundamental tradition of tolerance, holding that State school boards may not compel teachers and students to salute the flag.

Remember, Justice Jackson was writing during World War II--during wartime. He wrote:

[F]reedom to differ is not limited to things that do not

matter much. That would be a mere shadow of freedom. The test

of its substance is the right to differ as to things that

touch the heart of the existing order. If there is any fixed

star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox

in politics, nationalism, religion or other matters of

opinion or force citizens to confess by word or act their

faith therein.

That was a powerful statement by Justice Jackson, at a time when certainly the attention of this country was focused on a real war effort, the effort of World War II. But he knew what unifies our country is the voluntary sharing of ideals and commitments. Americans are free, free to offend but also free to respond to crude insults with responsible action--the way many of us remember and applaud--when that crowd at Dodger Stadium responded by spontaneously singing ``God Bless America'' when a couple of miscreants attempted to burn the American flag in the outfield 30 years ago, shortly after the end of the Vietnam war.

When I am home in Vermont, our family home, I fly the flag--not because the law tells me to but because, as an American, I want to. I fly the flag out of pride. I remember my parents, still alive, when they used to look with pride to see that flag flying and they knew their son was home from Washington. It is the same sense of pride I felt when I saw my son march in uniform under that flag, our flag, our American flag. It is the same sense of pride I feel when I see that flag flying over this Capitol Building when I come to work each day, and I stop and look at it sometimes when the Senate leaves at 2 or 3 o'clock in the morning. I look at the dome and I see that flag illuminated and flying there.

One of my colleagues, former Senator Bob Kerrey, a man of great bravery, who received the Congressional Medal of Honor for his bravery in battle, said in a recent opinion piece in the Washington Post, ``Real patriotism cannot be coerced.'' It has to be a voluntary, unselfish, brave act to sacrifice for others.

I ask unanimous consent that a copy of his op-ed be printed in the Record.

The French philosopher Voltaire once remarked that liberty is a guest who plants both of his elbows on the table. I think what Voltaire meant by that is that liberty is sometimes even an unmannerly, vulgar guest, yet liberty requires we tolerate rudeness even when admittedly it is hard to do so. That is what allows us, in turn, the individual freedoms that we cherish for ourselves.

Despicable, outrageous gestures like flag burning are hard to tolerate, but we do so because political expression is so central as to what makes America great and what protects the rights of each of us to speak, or to worship as we choose, and to petition our Government for redress. The flag is a symbol of the greatness that the American ideals of freedom and liberty have helped foster in this blessed land. The Constitution ultimately goes beyond symbols. The Constitution is the real bedrock of our rights.

In a letter to me expressing his opposition to the constitutional amendment, my friend General Colin Powell said it very well. Let me quote Colin Powell in this regard. He said:

We are rightfully outraged when anyone attacks or

desecrates our flag. Few Americans do such things and when

they do they are subject to the rightful condemnation of

their fellow citizens. They may be destroying a piece of

cloth, but they do no damage to our system of freedom which

tolerates such desecration. . . .

I understand how strongly so many of my fellow veterans and

citizens feel about the flag. . . . I feel the same sense of

outrage. But I step back from amending the Constitution to

relieve that outrage. The First Amendment exists to insure

that freedom of speech and expression applies not just to

that with which we agree or disagree, but also that which we

find outrageous.

I would not amend that great shield of democracy to hammer

a few miscreants. The flag will still be flying proudly, long

after they have slunk away.

What powerful, powerful words from General Powell. I ask unanimous consent a copy of his letter be printed in the Record.

Another American who honorably served our country, Gary May, Chairman of Veterans Defending the Bill of Rights, wrote in a letter:

This country is unique and special because the minority,

the unpopular, the dissident also have a voice. The freedom

of expression, even when it hurts the most, is the truest

test of our dedication to the principles that our flag

represents.

I ask unanimous consent a copy of his letter be printed in the Record.

I have been to countries, as have many of us, countries with dictators--countries like China and Cuba, the former Soviet Union. They require a law to protect their flags and their symbols. I have taken great pleasure in those countries to point out that America does not need the kind of laws they do. America protects our symbols. The American people honor our national flag out of respect, not out of fear that they may break a law. I point out to them what real freedom is, and it includes the freedom to dissent and to differ, even in ways that I would find obnoxious and offensive.

As the son of a printer, I was brought up to know how important the First Amendment is to maintaining our democracy. It allows us to practice any religion we want, or no religion if we want. It allows us to think as we choose and to express ourselves freely, even though others may disagree.

We do not have a state-imposed orthodoxy in this great and good country. Instead, we have freedom and diversity--diversity in religion, diversity in thought, diversity in speech, diversity that is guaranteed and protected by our Constitution, our Bill of Rights, and particularly the First Amendment. When you guarantee and protect diversity, then you guarantee and protect democracy. When you guarantee and protect diversity, by definition you are going to have a democracy. No real democracy exists without diversity. But when you exclude and stamp out diversity and freedom of thought and expression, you act to stamp out democracy.

We have seen this in history. In the former Soviet Union or other totalitarian governments of history, when they wanted to destroy democracy they started, sometimes in little ways at first, but ultimately to stamp out diversity in dissent.

American democracy has succeeded because we have fought to live with that unruly guest with his elbows on our table of which Voltaire spoke, and to tolerate speech and expressive conduct that probably virtually all of us here would find disrespectful and crude.

We protect dissent, not because we oppose liberty but because we love liberty.

Wendell Phillips, a great New England abolitionist, wrote:

The community which dares not to protect its humblest and

most hated member in the free utterance of his opinion, no

matter how false and hateful, is only a gang of slaves.

Probably no person disagreed more vehemently with Wendell Phillips on the burning issues of their day than Senator John C. Calhoun of South Carolina. Yet Senator Calhoun came to much the same conclusion in a speech he gave on the Senate floor, our Senate floor, in 1848, more than 150 years ago. Senator Calhoun said:

We have passed through so many difficulties and dangers

without the loss of liberty that we have begun to think that

we hold it by divine right from heaven itself. But it is

harder to preserve than it is to obtain liberty. After years

of prosperity the tenure by which it is held is too often

forgotten; and I fear, Senators, that such is the case with

us.

This is what Senator Calhoun said 150 years ago.

I am immensely proud to be given the privilege to be one of the two Senators who have the opportunity to represent the State of Vermont. Vermont has a proud tradition defending liberty and encouraging open debate. We are the State of the town meeting. If you want to experience open debate, I urge you to attend a Vermont town meeting. Everybody gets heard. Everybody gets heard about every disagreement, every differing view. A Vermont town meeting is as democratic as you can get. There is debate. There is expression. There is disagreement and agreement. There is freedom and democracy being lived.

In fact, Vermont for many years engaged in such a great and open debate on this very issue of how best to approach protection of our flag. For years the Vermont General Assembly remained the only State legislature not to have passed a resolution in favor of a constitutional amendment. In January 2002 the Vermont Legislature passed a resolution, but it was written, interestingly, in a manner that shows Vermont's respect for the Constitution. It concludes that the Congress should take steps to ``ensure that proper respect and treatment . . . always be afforded to the flag,'' but in ways consistent with the principles that the flag represents, foremost among these being, ``the protection of individual freedoms enumerated in the First Amendment to the United States Constitution, including free speech.''

Our Legislature stopped short of taking the easy way out and simply parroting a politically popular demand to amend the Constitution. Rather, Vermont remained true to its proud tradition of encouraging open debate and called on Congress to ``explore all avenues available'' to protect the flag from desecration. Vermont's actions are consistent with our strong tradition of independence and commitment to the Bill of Rights. Indeed, Vermont's own Constitution is based on our commitment to freedom and our belief it is best protected by open debate.

At one time, when we were afraid we might not have that chance for open debate, Vermont declared itself an independent republic. In fact, Vermont did not and would not become a State until 1791. That was the year the Bill of Rights was ratified. Following that tradition, this Vermonter is not going to vote to cut back on the First Amendment of the Bill of Rights for the first time since its adoption.

Vermont sent Matthew Lyon to Congress. He, incidentally, cast the decisive vote, Vermont's vote, for the election of Thomas Jefferson. That election was thrown into the House of Representatives. Had Matthew Lyon voted otherwise, Thomas Jefferson would not have become President. Matthew Lyon was the same House Member who was a target of a shameful prosecution under the Sedition Act in 1789. Why? For comments he made in a private letter. And the power of the U.S. Government, under that horrible act, came down on Matthew Lyon. He was locked up for daring to be so critical in a letter.

Vermonters showed what they thought of the Sedition Act and what they thought of trying to stifle free speech. While Matthew Lyon was in jail, Vermonters reelected him and sent him back to Congress. Along with our own lone Congressman, Congressman Sanders, I am working on that commitment to having a post office named for Matthew Lyon in Vermont.

Vermont has stood up for the rights of free speech before and since. Vermont served the Nation during the dark days of McCarthyism. In one of the most remarkable and praise-worthy actions of any Senator from any

State, Vermont Senator Ralph Flanders stood up for democracy in opposition to the repressive tactics of Senator Joseph McCarthy. When so many others, both Republicans and Democrats, ran for cover, Senator Ralph Flanders of Vermont, a Republican, a conservative, a businessman, came to the Senate floor and said: Enough is enough. He asked for the censure of Senator McCarthy and allowed people once more in this country to speak freely.

Vermont has a great tradition we cherish. It is one I intend to uphold. I honor the Vermont tradition that includes Senator Flanders when I oppose cutting back the First Amendment and the Bill of Rights.

I know there is an impulse, a natural impulse, to restrict speech with which we disapprove. But America is strong because we do not fear freedom; we do not restrict freedom of speech. We should have confidence our institutions are stronger than a bunch of hooligans and that their ideas are better than those of cranks and crackpots.

We know the vast majority of the people in this great country are patriotic, especially thinking of September 11 the way the American people have demonstrated patriotism, as rarely in our history. I can never remember a time in our history when I have seen more people fly more flags, and proudly.

The crisis confronting America is not flag burning. Americans honor flags as a symbol of our country. Americans also know we face real challenges. The confidence of the American people and this Government and institutions is quite low. But even though confidence in the institutions of our Government may be low, Americans love their country. They respect the flag. It is the misuse of their Government for partisanship, the corruption of the Government and its processes, it is a lack of credibility and competence that they see in their Government that concerns Americans in the face of real threats and real problems.

Mark Twain said: Honor your country, question your Government. That is what is happening today.

I see respect for our flag in the actions and attitudes of the citizens of America. I see it in the dedication of Don Villemaire and his friends of Essex Junction, VT, who stood and proudly waved American flags every single night after the horrible tragedy of September 11, 2001, until the search for remains officially ended. That was a vigil every single night in Essex Junction, VT--longer than 8 months. That is showing respect.

I see in Montpelier, my birthplace, in their annual Independence Day parade, where flags are waved in support of our country and our soldiers. I see it in the memorial of American flags planted along the paths of funeral processions of Vermonters killed serving their country in Iraq and Afghanistan. Vermonters' respect for the flag is born from respect for this country and the values it protects. Our patriotism is felt, it is willful. It is not forced on us.

Instead of telling the American people, the people beyond the 100 who have the privilege of serving here, what they can and cannot do, maybe we should talk about what we 100 do and how we do it. We honor America when we in the Senate do our jobs, when and if we work on the matters that can improve the lives of ordinary Americans. Let the 100 Members of the Senate work to raise the minimum wage, lower gas prices, provide better health care and health insurance for more Americans. Let the 100 Senators act to fund the promise of stem cell research that could end the suffering of so many Americans.

The proposed amendment to the Constitution would do harm to the First Amendment protections that bind us all against oppression, especially the oppression of momentary majority thought. The amendment violates the precept laid down more than 200 years ago that ``he that would make his own liberty secure must guard even his enemy from oppression.''

It undercuts the principle that a free society is a society where it is safe to say and do the unpopular. Let us not give away our liberties in order to impose orthodoxy so others cannot offend.

Let me be clear, I am deeply offended when anyone defiles the American flag. I expect one thing that unites all 100 Senators is that every one of us is deeply offended when the flag is defiled. Two years ago, a flag incident occurred in Vermont outside St. Augustine's Church in Montpelier. Someone wrapped a statue of the Virgin Mary in the American flag and set it on fire. This is a church in which I have been baptized. When this act was first reported, I called it an act intended to outrage, an attack on the religious community, and a gross show of disrespect for the flag. We also know acts like these can and should be prosecuted under Vermont's law, as I suspect they should be under all of the laws of any of the 50 States. Laws prohibit such damage to property.

If someone seeks to do harm to the flag I proudly fly in my home when I am there, they, too, would be prosecuted under Vermont law. In fact, having been a prosecutor in Vermont, knowing what I know of Vermont juries, they would be convicted, but I can replace a flag of mine that was destroyed, and would. I can buy another flag. But if we act to diminish the Bill of Rights that protect our rights and freedoms of a quarter billion Americans and of generations to come, we cannot replace that. We cannot go to the store and buy a new Bill of Rights once it is diminished.

Ours is a powerful Constitution, all the more inspiring because of what it allows and because we protect each other's liberty. Let us be good stewards. Let us preserve and protect for our children and our children's children a Constitution with the freedoms we were bequeathed by the founding patriots and by the sacrifice of generation after generation of Americans.

I urge Senators to think about this vote. Do not diminish that pillar on which our democracy and our freedoms depend. Do not cut back on the First Amendment of our Bill of Rights for the first time in American history.

I yield the floor.